National Tertiary Education Industry Union v University of Adelaide T/A University of Adelaide

[2020] FWC 4259

[2020] FWC 4259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Tertiary Education Industry Union
v
University of Adelaide T/A University of Adelaide
(C2020/4407)

COMMISSIONER PLATT ADELAIDE, 19 AUGUST 2020

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Dispute about matters arising under the 2017 Agreement – Application for Special Paid Parental Leave – interpretation of clause – Special Paid Parental Leave at Respondent’s discretion – application dismissed.

[1] On 6 June 2020, the National Tertiary Education Industry Union (NTEU) lodged a Form F10 Application (the Application), under s.739 of the Fair Work Act 2009 (Cth) (the Act), concerning a dispute with the University of Adelaide over the terms of the University of Adelaide Enterprise Agreement 2017-2021 (the 2017 Agreement). 1

[2] The dispute concerns the rejection of two requests for Special Paid Parental Leave pursuant to Clause 4.5.2.4 of the Agreement made by Mr Tom Woods-Kerriush on 14 January 2020 and 6 April 2020.

[3] There is a dispute about the interpretation of Clause 4.5.2.4, whether the University has an unfettered discretion to determine applications and if the discretion is fettered, whether the University’s decision was of such a nature that the Commission should interfere. There is also a dispute about the interaction between the Agreement provision and the University Leave Entitlement Procedure.

[4] The Application was the subject of conciliation conference and discussions between the parties. Unfortunately, the dispute was not resolved. The parties agreed that despite my involvement in conciliation, they did not object to me arbitrating the matter. There was no contention that I lacked the jurisdiction to arbitrate the dispute in accordance with Clause 8.5 of the Agreement.

[5] The matter was heard on 28 July 2020. Ms Buchecker represented the NTEU. Mr Short of counsel represented the University of Adelaide. Permission was granted in accordance with s.596(a) and (c) of the Act, despite opposition from the NTEU.

[6] The following facts were agreed:

a. Clause 4.5.2.4 provides an entitlement of up to 26 weeks paid parental leave for employees who are not eligible for maternity or adoption leave but are demonstrably the primary caregiver of a child less than one year of age.

b. Mr Woods has established a case sufficient to satisfy the requirement at Clause 4.5.2.4 that he will be the primary carer of a child less than one year of age during the period applicable to his Special Paid Parental Leave application.

c. Approval is at the discretion of the University.

The Agreement

[7] The University of Adelaide Enterprise Agreement 2014-2017 Agreement (the 2014 Agreement) provisions relevant to this matter are reproduced below:

4.5.8 Special Paid Parental Leave

An eligible staff member may apply to their Head of School (or functional equivalent) for special paid parental leave.

a) Eligibility

i. To be eligible to apply for special paid parental leave a staff member must be the primary caregiver of a child of one (1) year of age or less in circumstances that do not entitle the staff member to paid maternity leave or paid adoption leave as set out above; and have been employed by the University for a continuous period of not less than one (1) year prior to becoming the primary caregiver of the child.

ii. Employment will be considered continuous for the purposes of eligibility for special paid parental leave where breaks in service do not exceed eight (8) weeks.

b) Entitlement

i. The entitlement to special paid parental leave will be the same as the entitlement to paid adoption leave, that is, 26 weeks paid leave.

ii. Special paid parental leave may not commence prior to the date the staff member becomes the primary caregiver of the child, unless the Head of School (or functional equivalent) agrees to an earlier date.

c) Application

A staff member's application must state their case in order for the Head of School (or functional equivalent) to fully understand the circumstances which give rise to the staff member being the primary carer of a child of one (1) year of age or less.”

[8] The 2017 Agreement replaced the 2014 Agreement. The 2017 Agreement provisions relevant to this matter are reproduced below:

“4.5.8 TYPES OF UNPAID PARENTAL LEAVE

A staff member eligible to apply for unpaid parental leave may apply for the relevant type of leave specified in the table below, subject to the specific eligibility rules and requirements specified in the table for the type of unpaid parental leave.

Clause	Type of leave	Entitlement	Eligibility and Requirements
4.5.8.1	Unpaid Parental Leave	Up to 52 weeks unpaid leave, which may be extended once by up to 52 weeks. Note 1: Approval for an extension is at the discretion of the University. Note 2: If paid parental leave is also taken, the total aggregate of paid and unpaid leave must not exceed 104 weeks.	Eligibility Available to a staff member if the leave is associated with: •  the birth of a child of the staff member or the staff member’s spouse or de facto partner; or •  the placement of a child with the staff member for adoption; and the staff member has or will have primary responsibility for the care of the child. Requirements The staff member must provide at least 10 weeks written notice of their intention to take unpaid parental leave, including the intended start and end dates. Requests for an extension must be made to the staff member's supervisor at least four (4) weeks before the end of the initial unpaid leave period. The staff member must provide evidence of their eligibility if requested. Any extension must commence immediately following the end of the initial period of unpaid parental leave. Unpaid parental leave may be taken concurrently with paid parental leave.
4.5.8.2	Unpaid Pre-Adoption Leave	Up to two (2) days unpaid leave as agreed with the staff member’s supervisor.	Eligibility Available to staff members where no other leave is available at the time. May be used for the purposes of attending interviews or examinations required in order to obtain approval for adoption of the child. Requirements The staff member must provide evidence of their eligibility to take the leave if requested by their supervisor. Notice of intention to take the leave must be provided as soon as practicable.
4.5.8.3	Unpaid Special Maternity Leave	The extent of this entitlement is determined on a case-by-case basis.	Available to a female staff member if she is unfit for work during the period of leave because: •  of a pregnancy-related illness; or •  a pregnancy ends within 28 weeks of the expected date of birth of the child otherwise than by the birth of the child.

[9] The relevant section of the Leave Entitlement Procedure is reproduced below:

“2.2.5. Special Paid Parental Leave – clause 4.5.2.4

Approval of SPPL is at the discretion of the University.

Staff may be eligible for Special paid Parental leave (SPPL) where a staff member:

2.2.5.1 is employed on a continuing or fixed term contract; and

2.2.5.2 has no entitlement to paid maternity or adoption leave under the Enterprise Agreement; and

2.2.5.3 becomes the primary carer of a child of less than one (1) year of age; and

2.2.5.4 can demonstrate a special case for payment of leave.

A staff member who has been employed at the University for less than 12 months on a continuing or fixed term contract may be legible to access SPPL on a pro-rata basis in accordance with the Pro-Rata Paid Parental Leave Procedure.

To apply for Special Paid Parental Leave eligible staff must:

2.2.5.5 Complete the application form including a detailed submission describing the exceptional circumstances that support a special case for payment of parental leave; and

2.2.5.6 Provide all relevant medical and/or third party and/or other evidence as necessary to support the special case for approving SPPL and to satisfy the University that they are the primary carer of the child at the time of the proposed leave.

2.2.5.7 Submit the application to their Head of School or Branch Head for their consideration.

The Head of School or Branch Head will:

2.2.5.8 Consider the application for SPPL in a timely manner;

2.2.5.9 take into account the eligibility requirements and the special case submitted by the staff member and consider whether the specific circumstances of the application warrant granting paid parental leave;

2.2.5.10 Seek assistance from their HR Advisor where necessary;

2.2.5.11 Complete the application form, and if the application is supported, make a case to the Executive Dean, stating why they support the application for SPPL

2.2.5.12 not consider applications which do not provide sufficient detail or evidence of the circumstances of that give rise to the request for paid leave.

2.2.5.13 Forward the completed application, to the Executive Dean for consideration.

The Executive Dean will:

2.2.5.14 Consider the application for SPPL;

2.2.5.15 Take into consideration the eligibility requirements and the special case of the staff member and decide whether the specific circumstance of the application warrant granting paid parental leave and whether the faculty can fund the SPPL;

2.2.5.16 Complete the application form, and if they support the application, and the faculty can fund the SPPL, recommend the application to the Executive Director, Human Resources for approval;

The Executive Director Human Resources will:

2.2.5.17 Consider the application and recommendation of the Executive Dean; and will

2.2.5.18 Either approve or decline the application

2.2.5.19 Notify the Executive Dean and Head of School of their decision

The decision of the Executive Director, Human Resources if final.

Notification of Outcome

2.2.5.20 The Head of School will notify the staff member of the outcome of their SPPL application.

2.2.5.21 If the application is unsuccessful, the Head of School should provide the staff member with advice on any available alternatives for them to access paid or unpaid leave entitlements.”

Evidence

[10] The NTEU provided statements and documents from:

•  Ms Cheryl Baldwin (NTEU SA Division Industrial Organiser) 2

•  Mr Tom Woods-Kerruish (the employee applicant) 3

[11] Ms Baldwin’s evidence went to the background of the Agreement provisions concerning Parental Leave and documents provided as part of the approval process for the 2017 Agreement. Ms Baldwin’s evidence was not challenged.

[12] Mr Woods-Kerruish is employed as the Student Recruitment Manager. His evidence went to the personal circumstances that he found himself and the case he presented to the University in support of his application for paid special parental leave during a period that he would be the primary caregiver for his newborn baby. He also gave evidence as to the requirements of his role in the current circumstances, which is relevant if the Commission determines to intervene in the University’s decision.

[13] The circumstances that were relied upon were detailed in a letter dated 14 January 2020 (the first application). 4 Mr Woods-Kerruish contended he was eligible to apply for paid Parental Leave in accordance with Clause 4.5.1 of the 2017 Agreement. This was not in dispute.

[14] Mr Woods-Kerruish also contended that:

•  he was not otherwise eligible for paid maternity leave or paid adoption leave;

•  from 24 August 2020 he would be the primary carer of the child (who at that stage had not yet been born); and

•  his partner (and birth mother) would not be able to be the primary carer of the child because she was the Director of a relatively new Company and that the viability and ongoing operational requirements of the Company required her direct input and physical presence. She was the key person within the business and none of the other persons associated with the business could fulfil the role requirements. She was further required to be available upon demand.

[15] Whilst the duration of the leave was not specifically mentioned in the first application, I note that Clause 4.5.8(b) of the Agreement provides for 26 weeks paid leave.

[16] This application was declined by Mr Charles Jackson on behalf of the University, by email dated 20 January 2020 5 as it was the University’s judgement that ‘your circumstances are not ‘special’ and your particular circumstances are faced by many couples and is not unusual’.

[17] Mr Woods-Kerruish gave evidence of a meeting with Mr Jackson on 20 January 2020 where he was told that the feedback received by Mr Jackson from Central Human Resources for the rejection was that approval would ‘open the floodgates’ and set a precedent for other male primary caregivers as the provision was intended for circumstances such as the death of a birth parent. Mr Jackson was not called to give evidence.

[18] Mr Woods-Kerruish was invited to make a further application and did so on 6 April 2020. 6

[19] The second application was consistent with the first but added more information about the impact of the COVID-19 Pandemic on Mr Woods-Kerruish’s partner’s business, reiterated her key role, and that the existence of non-disclosure agreements prevent the inclusion of specific details. The application contended that his partner would not be in a position to be the primary carer from 12 July 2020 and that the child would not be able to go into childcare at that time.

[20] The second application was rejected on 17 April 2020 whilst Mr Woods-Kerruish was on leave and advised that:

“… there are no new or compelling or exceptional circumstances that have been submitted for consideration and therefore the application has been unsuccessful.”

[21] The email proposed a range of options that could be considered.

[22] Mr Woods-Kerriush’s statement provided additional information as to the basis for his application. This information is relevant in the event the Commission chooses to intervene in the decision making of the University. The cross-examination was unremarkable other than the fact that Mr Woods-Kerriush appeared to have overstated some of his position in respect of some of the arguments put to the University in his applications. Some of the arguments put (for example that the child could not go into childcare) were choices made rather than a statement of fact.

[23] The University of Adelaide provided statements and documents from:

•  Ms Jane Welch (Director HR Advisory and Workplace Relations) 7

•  Ms Rebecca Hanna (Acting Head of Marketing and Recruitment for the Faculty of Professions) 8

[24] Ms Welch gave evidence about the negotiation of the 2017 Agreement. In respect of the disputed clause, Ms Welch contended that whilst the clause was ‘tidied up’, there was no intent to change its meaning. 9 On this topic there appears to be common intent between the parties to the negotiation.

[25] Ms Welch provided an account of the process in respect of Mr Woods-Kerruish’s application, which is not in dispute. It was accepted that Mr Woods-Kerruish was eligible to a grant of leave, but contended that the University had a discretion, which it chose not to exercise, to grant the application.

[26] Ms Welch provided a number of examples where the University had previously exercised its discretion to grant Special Paid Parental Leave. The most common grant was in favour of male applicants where the birth mother was unable to provide care for medical reasons, a grant to a female applicant to provide emergency respite foster care, a female applicant in a surrogacy situation and finally a male applicant who sought to bond with his daughter whilst his wife went back to work. This final application was not supported by Human Resources Department but at the time the Faculty was able to make its own decision and ignored the advice provided.

[27] Ms Welch’s evidence was largely unchallenged in cross-examination.

[28] Ms Hanna’s evidence went to the challenges currently facing the Recruitment area as a result of the COVID-19 Pandemic and its impact on student enrolments. Ms Hanna also gave evidence of her view of Mr Woods-Kerriush’s work performance. During cross-examination it was revealed that whilst Ms Hanna and Mr Woods-Kerruish were peers, there was an issue about attribution of work and that Ms Hanna considered Mr Woods-Kerruish to have taken credit for some of her work. In light of this, I have taken a cautious approach to Ms Hanna’s evidence concerning work performance issues which are only relevant if the Commission determines to intervene in the University’s decision.

Submissions

[29] The NTEU and the University of Adelaide provided written submissions, supplemented by oral submissions at the hearing. The key issues are summarised below.

[30] In its written submissions, the NTEU contended that the approval of Special Paid Parental Leave was at the discretion of the University. 10 It appeared that the NTEU departed from this position during the hearing.

[31] The NTEU contended that the Special Paid Parental Leave provision contained no requirements other than the need to meet the eligibility requirements 11 and that the term does not impose any additional requirements.

[32] The NTEU contended that the University Leave Entitlement Procedure was unable to diminish the entitlement to leave provided by the Agreement.

[33] The exercise of the University’s discretion was arbitrary and was inconsistent with the purpose of the provision. The NTEU referred me to the judgements of:

•  Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005

•  Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889

•  Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357

•  FAI Insurances Ltd v Winneke [1982] 151 CLR 342

[34] The NTEU contended that Mr Woods-Kerruish’s applications should have been granted.

[35] The University does not dispute that Mr Woods-Kerruish met the eligibility requirements set out in Clause 4.5.1.1 and 4.5.2.4 of the Agreement.

[36] The University submits that the discretion conferred by Clause 4.5.2.4 is unfettered, unconstrained and referred me to the decision in Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Theiss Pty Ltd, 12 and Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd13 and submitted that the Commission could not interfere with such a discretion.

[37] Insofar as the University was required not to exercise its discretion arbitrarily, capriciously or unreasonably, it contends it did not offend this requirement.

[38] The University rejected the NTEU’s contention that once the eligibility requirements are met, the grant of leave is required, as to do so would mean the words ‘Approval is at the discretion of the University’ would have no work to do.

[39] The University contended that the 2014 Agreement implied a discretionary approach to the award of Special Paid Parental Leave at Clause 4.5.8(c) where it required a case to be stated to allow the Head of School to fully understand the circumstances. The 2017 Agreement and the relevant portions of the University’s Leave Entitlement Procedure 14 are mainly procedural.

[40] With respect to the references to ‘exceptional circumstances’ and ‘special case’ contained in Section 2.2.5 of the Procedures, the University contends that these provisions act as a restraint on the operation of the discretion rather than imposing additional obligations above the Agreement.

[41] The University contended that the 2017 Agreement approach was not inconsistent with the effect of the 2014 Agreement, other than that the 2017 Agreement expressly stated the discretionary nature of the decision.

[42] Finally, the University contended that it was not an appropriate case for the Commission to intervene and substitute its decision.

[43] The first issue to deal with in this matter is the meaning of Clause 4.5.2.4 of the Agreement.

Principles of Interpretation

[44] The question of the proper construction of an industrial instrument such as an award or enterprise agreement “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...”. 15 In Transport Workers’ Union of Australia v Linfox Australia Pty Ltd16 Tracey J summarised the principles relevant to the proper construction of industrial instruments as follows:

“[30] In dealing with the construction of awards in Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182 at 184 (Kucks) Madgwick J observed that:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.”

[31] This passage was quoted with approval by two members of the High Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005)222 CLR 241 at 271 ... per Kirby J, at 282–3 per Callinan J. Shortly afterwards these principles were restated by French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 ... at [57]:

“[57] It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities — City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378–9 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned — see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503–4 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”

[32] In Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 Northrop J expressly agreed with what had been said by Madgwick J in Kucksand held that Madgwick J’s observations had even stronger application to certified agreements than they did to awards.

[33] These principles have application to the construction of the Agreement which is presently in dispute.

[34] Guidance as to the construction of industrial instruments may also be obtained by reference to principles which courts apply to the construction of commercial contracts. Commercial contracts should, as Kirby J held in Pan Foods Company Importers & Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd [2000] HCA 20; (2000) 170 ALR 579 ... ‘be construed practically, so as to give effect to their presumed commercial purposes and so as not to defeat the achievement of such purposes by an excessively narrow and artificially restricted construction’. An interpretation which accords with business common sense will be preferred to one which does not: see Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429 at 437.

[35] In determining whether a commercial document imposes contractual obligations regard is had to the intention of the parties: would a reasonable person conclude that the person making the alleged binding promise intend to be contractually bound by that promise. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 ... at [40] the High Court summarised the position as follows:

“[40] ... It is not the subjective beliefs or understanding of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe ... That, normally requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.” (citations omitted)

[45] These principles were also discussed and summarised in Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd 17 and in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited.18

[46] The Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 19 set out the following principles:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

Consideration

[47] It is accepted by the parties that the 2017 Agreement was not intended to change the meaning of the disputed clause.

[48] I accept the position advanced by the University that the 2014 Agreement implied a discretion that needed to be exercised to grant the Special Paid Parental Leave. The 2017 Agreement identified that discretion expressly. This position is consistent with the common intent of the parties not to change the meaning of that portion of the Agreement. It does not appear inconsistent with the material that was referred to which was provided to the parties during the approval process for the 2017 Agreement.

[49] I am unable to accept the NTEU’s position that once the eligibility requirements are met the grant of leave is automatic. Such a position is inconsistent with the need to ‘state a case’ or the express provision that approval is at the discretion of the University.

[50] I find that Clause 4.5.2.4 provides the University with an unfettered discretion in the determination of a grant of special leave, however, that discretion is at this point in time constrained by the Leave Entitlement Procedure.

[51] Whilst it would have been preferable for the University to give more detailed reasons for its decisions in January and April 2020, it does not appear to me that it exercised its discretion arbitrarily, capriciously or unreasonably.

[52] As a result of my finding as to the interpretation of the disputed provision, it is not within my power, or in the alternative appropriate, for me to interfere with the discretionary decision made by the University of Adelaide in respect of Mr Woods-Kerruish’s Special Paid Parental Leave application.

[53] The s.739 Application is accordingly dismissed.

COMMISSIONER

Appearances:

A.Buchecker of the National Tertiary Education Industry Union for the Applicant

A Short of counsel on behalf of the Respondent.

Hearing details:

2020.
Adelaide:
July 28.

Printed by authority of the Commonwealth Government Printer

<PR721798>

 1   AE427476

 2   Exhibit A1

 3   Exhibit A2

 4   Exhibit A2, TW1

 5   Exhibit A2, TW2

 6   Exhibit A2, TW5

 7   Exhibit R2

 8   Exhibit R4

 9   Exhibit R2 paragraph 11

 10   See Applicant’s submissions paragraph 7, 20(c) and 33

 11   Applicant’s submission paragraph 26

 12 (2011) 22 IR 327

 13   [2014] FWC 2962

 14   Exhibit A2, TW4

 15   Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, 246

 16 (2014) 318 ALR 54

 17   [2014] FWCFB 7447

 18   [2017] FWCFB 3005

 19   [2017] FWCFB 3005