[2021] FWC 617

FAIR WORK COMMISSION

DECISION

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

Shop, Distributive and Allied Employees Association
v
Woolworths (South Australia) Pty Ltd and Woolworths Group Ltd
(C2020/7363)

Heidi Corinth
v
Woolworths Group Ltd T/A Woolworths
(C2020/7408)

WOOLWORTHS SUPERMARKETS AGREEMENT 2018

[AE501243]

Retail industry
COMMISSIONER HAMPTON	ADELAIDE, 22 FEBRUARY 2021

Disputes about matters arising under the enterprise agreement and the NES – Broken Hill allowance – whether payable on paid annual and personal leave and public holidays not worked – terms and context considered – dispute determined with liberty to apply on other aspects of paid leave.

1. The disputes and their context

[1] This decision concerns two applications that have been brought under s.739 of the Fair Work Act 2009 (the Act) by the Shop, Distributive and Allied Employees Association (SDA) and Ms Heidi Corinth respectively, concerning the Woolworths Supermarkets Agreement 2018 1 (Agreement); being an enterprise agreement approved by the Commission on 7 January 2019.2

[2] Woolworths Group Limited 3 and Woolworths (South Australia) Pty Ltd (collectively Woolworths) are employers of relevant Broken Hill based employees and are respondents in one of the applications. Woolworths Group Limited is the respondent party in the other application;4 however, nothing of note presently turns upon this distinction. The Agreement is a national instrument, but relevantly applies to Woolworths and Ms Corinth, and covers the SDA. The Retail and Fast Food Workers Union Incorporated (RAFFWU) is the representative of Ms Corinth. The SDA has applied on behalf of relevant members employed under the Agreement.

[3] The disputes before the Commission concern the proper interpretation and application of certain provisions of the Agreement. In particular, the “Broken Hill allowance” contained in the Allowance Table in clause 5.2 of the Agreement, and its application in the context of the entirety of that instrument. As would be commonly understood, Broken Hill is located in the County of Yancowinna in New South Wales.

[4] Woolworths employs in the order of 128 retail employees under the Agreement in Broken Hill, comprising full-time, part-time and casual employees. The Broken Hill allowance is presently not being paid by Woolworths on paid annual leave, paid personal leave (including carer’s leave), or other forms of paid leave, or on public holidays not worked. The Applicants each contend that it should be paid in addition to the other payments due on these occasions, and in connection with paid leave more generally.

[5] The two applications have been heard in conjunction with one another.

[6] The SDA and Woolworths were represented by legal counsel and Ms Corinth by Mr Cullinan, Secretary of the RAFFWU. Each relied upon the Dispute Resolution Procedure (DRP) in clause 22 of the Agreement as providing the basis for doing so. The full terms of the DRP are set out later in this Decision and for present purposes it is sufficient to note that clause 22.2(f) provides that where a matter is referred to the Commission, the “parties are entitled to be represented, including by legal representatives, in any proceedings under this clause.”

[7] All parties relied upon clause 22.2(f) of the DRP as establishing a direct right to be represented in proceedings dealing with disputes under the Agreement.

[8] In the normal course, each of the parties would require permission to be represented in a hearing of this kind under s.596 of the Act, which provides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2 3 or 2 6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

[9] The SDA is a registered organisation but was seeking representation by an external lawyer. The RAFFWU is not a registered organisation and Mr Cullinan is, in effect, a Paid Agent in the present context. Woolworths was seeking to be represented by an external lawyer (including Counsel).

[10] During the course of the hearing I indicated that to the extent required I considered that the disputes had sufficient complexity such that having the parties represented in the manner proposed would enable the matters to be dealt with more efficiently; and further, that any discretion that arose should be exercised to grant permission. This was consistent with s.596(2) of the Act, and in particular the prerequisite set out in ss.(2)(a), and the relevant authorities. 5 I also indicated that I may consider further the import of clause 22.2(f) of the Agreement.

[11] The matter before the Commission under s.739 of the Act is of a private nature between the parties to the dispute. It arises from a dispute resolution procedure in clause 22 of the Agreement. It is the exercise of a jurisdiction conferred on the Commission by the instrument itself:

“Thus it is well established that “arbitration” by FWC pursuant to a term in an enterprise agreement is a private arbitration, based upon the consent of the parties, and not upon the coercive authority of the Australian state.” 6

[12] In that light, the better approach to the issue of representation in this case is that clause 22.2(f) of the Agreement operates to provide a direct right of representation as contended by the parties. Clause 22 of the Agreement expressly contemplates representation of the parties, including by legal representatives, and the matters are one of private arbitration under those terms. Further, s.739(3) 7 of the Act supports that approach in this case; albeit that this might require the DRP to be applied as limiting the import of s.596 of the Act as it would appear that the hearing of the disputes is “a matter” before the Commission within the meaning of that provision. I observe that even if my preferred view is not correct, the private character of these proceedings is relevant when assessing issues of efficiency, complexity and fairness contemplated by s.596(2) and any discretion that arises.

[13] Given my satisfaction with the prerequisites of s.596 of the Act in any event, it is not necessary that I reach a final conclusion on this aspect.

2. Issues to be determined by the Commission

[14] The SDA submits that the issue to be determined by the Commission is:

“Whether the Broken Hill allowance as set out in the Allowance Table at clause 5.2 of the Agreement is required to be paid during all periods of paid leave.”

[15] Ms Corinth contends that the issue to be determined in her matter is as follows:

“Is the Broken Hill allowance required to be paid when a team member in the County of Yancowinna is on paid leave or absent on a public holiday they would otherwise work?”

[16] The cases advanced by each of the parties were generally directed to the additional circumstances contemplated by the issue set out by Ms Corinth, and subject to the three caveats outlined below, I have generally adopted that question for present purposes.

[17] The submissions of the parties with respect to leave were almost entirely focused upon paid annual and personal leave, including carer’s leave. There are other forms of paid leave in the Agreement and whilst some use similar language to the annual and personal leave provisions, there are differences in context and language. As a result, I have dealt with the question based upon the paid leave that was the subject of the submissions made in this matter and I will return to the other forms of paid leave as part of my conclusions.

[18] Given the connection to circumstances where the employees are already being paid inherent in that question, the public holiday issue to be considered here is relevant only to full and part-time employees who would otherwise have an entitlement to be paid for public holidays not worked. There is no dispute between the parties that the Broken Hill allowance is payable on hours worked, including in relation to public holidays, for all employees where work is performed. As a result, in my conclusions I have adapted the second part of the question to refer to the circumstances where an employee is otherwise (already) entitled to be paid for the public holiday not worked.

[19] Long service leave is principally governed 8 by the relevant NSW legislation,9 and is not encompassed within the present disputes.

3. The jurisdiction of the Commission

[20] There was no dispute between the SDA and Woolworths that the relevant DRP had been complied with in relation to that matter and that the Commission was empowered to determine the dispute. There was also no dispute between Ms Corinth and Woolworths that the same DRP had been followed in relation to that matter and that the Commission was also so empowered.

[21] However, Ms Corinth contended that:

• The SDA matter has not ensured compliance with the dispute resolution term (of the Agreement).

• If the dispute term has not been complied with in C2020/7363, that matter cannot be the subject of arbitration. RAFFWU has raised concern with SDA that its application is not competent because:

a. The “Applicant” is not the employer, a team member or team members as is required by the term;

b. The non-employer party to the dispute is not identified;

c. There is no information about the appointment of the SDA as the party’s representative – the SDA F10 merely refers to the “team member” “raising” the matter; and

d. The party to the dispute did not comply with the dispute term in that, assuming the SDA was appointed as their representative, a conversation with Ms Baxendale (Woolworths’ representative) in and of itself is not the required strict compliance with stages c and d of the dispute term. 10

[22] In oral and further written submissions Ms Corinth maintained her objections to the SDA application despite the material subsequently provided by the SDA setting out the sequence of events leading to its application. In addition, Ms Corinth referred to an apparent delay in the process until such point that the RAFFWU had raised its dispute with Woolworths and confirmed the view that the application had to be brought in the name of an employee party to the Agreement.

[23] The SDA contended in response that Ms Corinth had no standing to contest the jurisdiction in the SDA’s matter, which is a separate dispute, but in any event stated that it had followed the correct dispute resolution procedure and provided a detailed timeline of the steps taken by the SDA and its members in compliance with the dispute resolution procedure. 11 The SDA also contended that it was applying on behalf of employees who had raised the dispute about the non-payment of the allowance, was named as the applicant only as a matter of administrative convenience, and could name all of the employees if required.

[24] Woolworths confirmed its view that the SDA matter was properly before the Commission for arbitration and contended that Ms Corinth did not have standing to question the jurisdictional footing for the SDA application.

[25] Although Ms Corinth may not have standing to make submissions about the SDA matter, jurisdiction is an issue of legal fact and the Commission must be satisfied that it exists.

[26] The dispute resolution procedure of the Agreement provides as follows:

“22. Resolving disputes

22.1. Parties to discuss

a. A dispute between a team member (or team members) and Woolworths, including a dispute in relation to

i. a matter arising under the Agreement; or

ii. the NES;

should be discussed in first instance at the workplace level between the team member (or members) and their relevant supervisors or management.

b. At any stage, Woolworths and a team member or team members may appoint another person to accompany and/or represent them for the purposes of this clause, including a trade union listed in clause 1.3.

c. If the dispute remains unresolved, the dispute may be referred to Woolworths People Advisory for it to be escalated to an appropriate representative of Woolworths to assist in resolving the dispute, which may be a more senior member of management or a representative from the Woolworths Culture & People team.

d. If, following escalation under clause 22.1.c, the dispute remains unresolved then the matter may be referred to a senior representative of Woolworths (such as the relevant Employee Relations Manager, Head of Workplace Relations or General Manager) for further discussions.

22.2. Referral to FWC

a. If the dispute still remains unresolved, then either party may refer the dispute to the FWC for resolution.

b. The FWC may deal with a dispute in two stages:

i. the FWC will first attempt to resolve the dispute through conciliation;

ii. where the matter cannot be resolved by conciliation, at the request of one or both parties, the FWC may arbitrate the dispute.

c. In any proceedings before the FWC pursuant to this clause, the FWC may take any or all of the following actions in order to resolve the dispute:

(i) Convene conciliation conferences of the parties or their representatives at which the FWC is present;

(ii) Require the parties or their representatives to confer among themselves at conferences at which the FWC is not present;

(iii) Request but not compel a person to attend and/or give evidence at proceedings;

(iv) Request but not compel a person to produce documents;

(v) Where either party requests, make recommendations about particular aspects of a matter about which they are unable to reach agreement.

d. Any determination by the FWC following an arbitration must be in writing and must give reasons for the determination.

e. In the exercise of its functions under this clause, the FWC must not issue interim orders, 'status quo' orders or interim determinations.

f. The parties are entitled to be represented, including by legal representatives, in any proceedings under this clause.

g. If the FWC arbitrates a dispute, any determination made by the FWC is a decision for the purposes of Division 3 of Part 5.1 of the Fair Work Act and can be appealed.

22.3. Continuation of work

While the dispute resolution procedure is engaged, work will continue as normal and as before the dispute arose in accordance with this Agreement unless a team member has a reasonable concern about an imminent risk to their health and safety. Subject to applicable work health and safety legislation, a team member must not unreasonably fail to comply with a direction by Woolworths to perform work, whether at the same or another workplace, that is safe and appropriate for the team member to perform.”

[27] I am satisfied that the SDA application is properly before the Commission and that the procedure set out in clause 22 has been followed to provide the necessary jurisdiction to the Commission to determine the matter. The material before the Commission reveals that the issue was raised by an employee (a team Member) confirmed to Woolworths at that time and subsequently, and that the SDA acting as a representative of that employee (and others) advanced the dispute through the procedure where it remained unresolved. This included raising the matter with Ms Baxendale, General Manager, Workplace and Employee Relations, consistent with step (d) of clause 22.1. The fact there was a delay of some months at one point in that process is not relevant for present purposes.

[28] Further, the SDA, acting as a representative of relevant employees (and accepted by Woolworths to be acting in that capacity) has made this application; that is, referred the dispute to the Commission for resolution. Clause 22.1 of the Agreement permits a team member(s) to appoint another person to represent them under the DRP, including by a registered organisation 12 named in clause 1.3, which includes the SDA. I accept the material provided by the SDA as support for its proposition that it was acting as a representative of its relevant members, which is also not contested by Woolworths. As a result, I do not consider that clause 22 should in these circumstances be applied in such a manner that an organisation, formally covered by the Agreement and expressly empowered to represent the employees concerned, cannot advance the matter and make the application on behalf of the identifiable relevant employee parties in the manner that has occurred here.

[29] Accordingly, I am satisfied that both matters are properly before the Commission for determination in accordance with the DRP and the terms of the Act.

4. The relevant terms of the Agreement

[30] Without detracting from the terms of the Agreement more generally, the following provisions have a direct bearing upon the issues in dispute.

“1.5. Relationship with Modern Award and National Employment Standards

a. Consistent with the Fair Work Act, while this Agreement applies to a team member, the relevant modern award does not apply at the same time.

b. The NES are a set of 10 legislated minimum employment standards. The entitlements and benefits provided in this Agreement are inclusive of, and not in addition to, any benefit or entitlement under the NES and Fair Work Act. This Agreement will be read and interpreted in conjunction with the NES. Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit to the team member, the NES provision will apply to the extent of the inconsistency.”

… …

“5.1. Payment of allowances and reimbursements

a. Allowances and reimbursements are extra payments made to eligible team members for specific purposes. Allowances and reimbursements will be paid at the same time as wages are paid, unless otherwise specified.

b. The allowance rates and reimbursement rates below are effective from the first full pay period after this Agreement takes effect. The amounts payable must never be less than the equivalent allowances and reimbursements in the General Retail Industry Award.

c. To receive payment of a reimbursement, a team member must provide Woolworths with evidence of the relevant expenditure and state the amount being claimed as a reimbursement. Where required under Woolworths policies and procedures, team members will use the relevant expense claims system for submitting reimbursement claims.

d. The allowances and reimbursements that apply under this Agreement are provided in the tables below.”

[31] The Broken Hill allowance is set out in the Allowance table of clause 5.2 in the following terms:

“5.2. Allowance Table

Broken Hill allowance A team member in the County of Yancowinna in New South Wales (Broken Hill) will in addition to all other payments be paid an hourly allowance for the exigencies of working in Broken Hill of $0.94.

[32] For context, I observe that the allowance table in clause 5.2 also contains various other allowances that are payable by reference to various conditions, time periods and payment obligations as follows:

Allowance	Application
Special clothing allowance	Where a team member is required to wear or use protective gear, this will be provided, maintained, repaired, laundered and replaced (when required) by Woolworths. Woolworths will train team members in the appropriate use of protective gear. Examples of protective gear are: • Gum boots for work in wet areas • White coats for meat team members, also available to seafood team members on request Hats and sunscreen lotion for outdoor work • Insulated gloves and insulated parka for cold and freezer areas Where Woolworths requires a team member to wear special clothing such as a uniform, dress or other clothing then Woolworths will reimburse the cost of purchasing such clothing and the cost of replacement items when replacement is due to wear and tear. This will not apply where the special clothing has been supplied or paid for by Woolworths. Woolworths will never require a team member to wear any clothing which is revealing or offensive. Where Woolworths requires a team member to launder any special uniform, dress or clothing, the team member will be paid the following applicable allowance: (a) For a full-time team member, $6.25 per week. (b) For a part-time or casual team member, $1.25 per shift.
Cold work allowance	Fridge Allowance: Woolworths team members who are principally employed on any day to enter cold chambers and/or to stock and refill refrigerated storages such as dairy cases or freezer cabinets will be paid a cold work allowance of $0.29 per hour, while so employed. Freezer Allowance: Woolworths team members who are required to work in a cold chamber where the temperature is below 0°C will also be paid (in addition to the Fridge Allowance above) a Freezer Allowance of $0.44 per hour (a total of $0.73 per hour), while so employed. “Required to work in a cold chamber” means completing designated tasks such as cleaning, de-frosting or rearranging stock within a back-of-house freezer room.
First aid allowance	Where a team member holds an appropriate first aid qualification and is appointed by Woolworths to perform first aid duty they will be paid an allowance of $10.89 each week.
Transport allowance	Where Woolworths asks a team member to use their own motor vehicle in the performance of their duties, the team member will be paid an allowance of $0.79 per kilometre.
Recall allowance	Unless otherwise agreed, where a team member is called back to work for any reason before or after completing their normal rostered shift or on a day that they did not work (for example, for some unforeseen emergency, including needing to reset an alarm), the team member will be paid at the appropriate rate for all hours worked with a minimum of 3 hours on each occasion The time worked will be calculated from the time the team member leaves home until the time they return home, taking a direct route. Team members may be required to provide evidence of the time taken.
Higher duties allowance	Team members engaged for more than 2 hours during 1 day or shift on duties carrying a higher rate than their ordinary classification are to be paid the higher rate for such day or shift. If engaged for 2 hours or less during 1 day or shift on duties carrying a higher rate than their ordinary classification, the team member is to be paid the higher rate for the time they worked on those duties only.
Liquor licence allowance	A team member who is required by law or by Woolworths to hold a liquor licence will be paid an extra $25.96 per week

[33] The provisions of the Agreement dealing most directly with the payment for annual leave, personal leave and public holidays are set out below:

“13.1. Annual leave entitlements

a. Except as otherwise provided for in this Agreement, annual leave is provided for in the NES. Annual leave accrues progressively during each year as follows:

Full-time team members

4 weeks of paid annual leave for each year of continuous service.

Part-time team members

4 weeks of annual leave for each year of continuous service calculated on a pro-rata basis based on their ordinary hours of work.

For example, a part-time team member who works 20 hours per week for 1 year will accumulate 80 hours of annual leave that year – the equivalent of 4 weeks work for that team member.

Casual team members

Not entitled to annual leave. Casual team members receive a 25% casual loading in lieu of paid leave entitlements.

b. Where a public holiday in the place where the team member works falls on a day of paid annual leave, that day or part day is treated as a public holiday (day or part day off with pay based on the team member’s base rate of pay) and will not be deducted from their annual leave entitlement

… …

13.4. Payment of annual leave and annual leave loading

a. A team member will receive payment for annual leave in their normal pay cycle during the leave period.

b. During a period of annual leave taken by a team member, the team member (other than a team member who is a shiftworker under this Agreement) will receive annual leave loading calculated at 17.5% of their base rate of pay, or the relevant weeknight and weekend penalty rates - whichever is greater but not both.

c. During a period of annual leave taken by a team member who is a shift worker under this Agreement, the team member will receive leave loading calculated at 17.5% of their base rate of pay or their shift loading - whichever is greater but not both.

… …

14.1. Personal leave entitlement

a. Full-time and part-time team members are entitled to take personal leave when they are unable to attend work on a day that they are rostered to work, due to a personal illness or injury.

b. A full-time team member is entitled to 10 days paid personal leave per year in accordance with the NES plus 1 additional paid day, 11 days per year in total. Part-time team members are entitled to 11 days paid personal leave calculated on a pro-rated basis in accordance with their ordinary hours of work. Casual team members are not entitled to paid personal leave.

c. Personal leave accrues progressively. Unused personal leave accumulates from year to year, but is not paid out on termination of employment for any reason.

d. When paid personal leave is taken, team members will be paid their base rate of pay for the hours normally rostered to work. Penalty rates are not applied.

e. A team member is not entitled to paid personal leave for any period in respect of which they are entitled to workers’ compensation.

… …

19. Public holidays

19.1. Working or not working on public holidays

a. In this Agreement, public holiday has the same meaning as in the NES.

b. Working on a public holiday is voluntary. A team member cannot be required to work but may volunteer to work on any public holiday as provided for in this clause.

c. Team members who would normally be rostered to work may volunteer to work on a public holiday (or part of it) and will be paid the relevant penalty rate for any time so worked. Woolworths may decline any request to volunteer if there is no operational need for the team member to work on a public holiday. All team members are entitled to be absent from work on a day or part-day that is a public holiday in the place where the team member works, and cannot be required to work if they do not volunteer to work.

d. Woolworths may or may not open for trade on public holidays. If Woolworths is trading on a public holiday, Woolworths may communicate to team members that it is seeking volunteers. Woolworths is not obliged to roster all team members who volunteer on a public holiday, and will roster team members based on operational needs.

e. If a public holiday or a part public holiday is substituted to another day or part day by a law of a State or Territory the substituted day or part day is a public holiday and the original day or part day is not a public holiday.

f. Depending on whether a team member works on a public holiday or not, the following entitlements will apply:

If the team member WORKS on the public holiday:	If the team member is ABSENT on the public holiday:
Full-time or part-time team member whose standard roster WOULD include the public holiday as a working day:	Hours worked are paid at public holiday penalty rates OR team member can request TOIL or an equivalent day of annual leave instead	Day off is paid at ordinary base rate of pay for the rostered working day as per the team member’s standard roster (without penalty rates or loadings)
Full-time or part-time team member whose standard roster would NOT include the public holiday as a working day:	Hours worked are paid at public holiday penalty rates OR team member can request TOIL or an equivalent day of annual leave instead	Unpaid
Casual team member (does not have a standard roster)	Hours worked are paid at public holiday penalty rates	Unpaid

[34] As outlined earlier, there are other forms of paid leave in the Agreement. This includes Compassionate Leave (clause 15), Parental Leave (clause 16), 13 Family and Domestic Violence Leave (clause 17), Blood Donor Leave (clause 18.1), Jury Service (clause 18.2), Defence Force Leave (clause 18.3), Emergency Service Leave (clause 18.4) and Natural Disaster Leave (clause 18.5). Some, but not all, of these provisions also refer to base rates and some are also referenced back to the relevant NES entitlements. These aspects and the nuisances involved were not addressed by the parties beyond the broad brush of the submissions.

[35] The Agreement also provides a dictionary of terms in Appendix K and amongst the terms defined therein, the following have been referred to by the parties and are potentially relevant in this matter:

“… …

NES means the National Employment Standards, contained in the Fair Work Act.

Ordinary Time Earnings has the meaning set out by the Australian Taxation Office’s ruling (SGR2009/2, 1 July 2009) on Ordinary Time Earnings.

Ordinary Weekly Earnings means a part-time or full-time team member’s ordinary earnings for a week of ordinary hours worked as part of their typical standard roster, consisting of their base rate of pay plus any penalty rates or loadings they would normally receive for working those ordinary hours (not including any flex up worked, overtime or allowances paid). In other words, a team member’s normal “take home pay” for a regular week’s work.”

5. The position of the Applicants on the substantive dispute

5.1 Shop, Distributive and Allied Employees Association

[36] The SDA contends that the proper construction of the Agreement is that the Broken Hill allowance is payable on all paid leave. The principal basis for the position is that the starting point in interpreting the dispute clause is the wording of the clause itself. It further contends that the clause details the criteria that must be met for it to apply. The criterion is that the team member must be “a team member in the County of Yancowinna in New South Wales (Broken Hill).” Once this criterion is met, the clause applies.

[37] Secondly, the second part of the clause details the entitlement that applies once the criterion is met, the entitlement being “in addition to all other payments … an hourly allowance for the exigencies of working in Broken Hill of $0.94”. In that regard, the SDA contends that the phrase “in addition to all other payments” should be ascribed its ordinary meaning; being that phrase “all other payments” is any payment under the Agreement other than the Broken Hill allowance. This could include an employee’s ordinary wage, a casual loading, or a penalty rate. Payment of a leave entitlement is clearly also encapsulated by the phrase “all other payments”.

[38] Further, when a permanent employee accesses a period of personal leave or annual leave, they are entitled to paid personal leave or paid annual leave from his or her accrued entitlement. The phrase “in addition to” means that the allowance is payable as well as those other payments.

[39] According to the SDA, this is the clear and ordinary meaning of the provision when read in context.

[40] Further and in the alternative, the SDA also relies upon the industrial context, including the history of the allowance, to support its approach. It contends that the allowance was described by the Court as being “an extra amount payable for the “exigencies” of working in Broken Hill” 14 and as being “a disability allowance for a particular location… and is, accordingly, a term which may, prima facie at least, be included in a modern award.”15 In that regard, it contends that for workers in Broken Hill, the “exigencies” of living in Broken Hill continue during periods of paid leave and in fact may even be more acute, should the employee wish to travel for recreation or family reasons during their annual leave, as it may take longer to travel and be more costly.

[41] In addition, the SDA refers to the inclusion of a Broken Hill allowance in the General Retail Industry Award 2010 (the GRI Award). It contends that:

• During the Award Modernisation process, the figure of 4.28% was calculated by reference to the existing entitlements under the relevant Broken Hill award, the Broken Hill Commerce and Industry Agreement Consent Award 2001 NAPSA (the Broken Hill NAPSA).

• The proposed pay rate for a full-time shop assistant in Broken Hill transitioning from the Broken Hill NAPSA was $612.40 per week.

• Under the Broken Hill NAPSA, employees in Broken Hill were entitled to an additional week of annual leave plus annual leave loading and a weekly allowance of $12.40 per week.

• This was converted to a weekly amount in the GRI Award by dividing the value of the additional week of annual leave ($719.57) by 52 weeks ($13.84) and adding it to the weekly allowance ($12.40 + $13.84 = $26.24) to determine the weekly value of the two entitlements. This weekly amount was then converted to a percentage of the weekly rate ($26.24 / $612.40 = 4.28%).

• The calculations were premised on dividing the value of the previous entitlements by 52 weeks.

[42] Finally, the SDA relies upon the calculation of the Broken Hill allowance in the Agreement and contends that:

• The allowance is specified an hourly allowance for the exigencies of working in Broken Hill of $0.94.

• During the 2018 Agreement negotiations it was proposed that the Broken Hill allowance be expressed in dollar terms rather than as a percentage (as in the Award).

• The amount of $0.94 per hour was calculated on the basis that it was 4.28% of the standard rate (Level 4) under the GRI Award at the time, which was $22.04.

[43] In reply and oral submissions, the SDA contended that:

• It is not appropriate to read down the Agreement provisions in light of the NES.

• The references to “base rates” in the Agreement does not mean that employees are not entitled to payments in addition to the base rate of pay. The respondent acknowledges that employees are entitled to annual leave loading or relevant weeknight and weekend penalties where applicable. It follows that there is no logical reason why the same should not apply to the payment of the Broken Hill allowance where applicable.

• It accepts that the Broken Hill allowance is not payable pursuant to the leave clauses; it is payable pursuant to the allowance clause.

• Although no hourly Broken Hill allowance was set out in the 2012 Agreement applicable to Woolworths, employees working in Broken Hill had additional entitlements under that instrument. These entitlements were subsequently converted to an hourly allowance in the Woolworths Supermarkets Agreement 2018.

• The SDA does not contend that the allowance is an all-purpose allowance, rather it is allowance payable in addition to an employee’s other entitlements.

• The fact that the Broken Hill allowance is specified as an hourly payment means that for each hour that an employee is (otherwise) entitled to be paid, the allowance should also be paid “in addition” as specified in the provision itself.

• The Respondent’s interpretation is at odds with a plain reading of the words and should not be applied. In particular, the provision does not limit payments to hours worked and could easily have done so if this was intended.

• The recognition of the exigencies contemplated in the provision was relevant to the location of the store and not to working in the store itself. As a result, any reference to notion of working in the location in decisions should not be applied narrowly.

5.2 Ms Corinth

[44] Ms Corinth contends that the Broken Hill allowance is payable on paid leave or where an employee is absent on a public holiday they would otherwise work. That position was based upon the following propositions:

• The ordinary and well-understood words of the Agreement are to be accorded their ordinary or usual meaning. That is, a team member will, “as well as” “the whole number” of “that which is paid”, be paid the hourly allowance for “the needs, demands and requirements of particularly” working in Broken Hill.

• Relying upon the consideration of the Court 16 of a comparable clause in a modern award, the term of the Agreement is a disability allowance. It stands on its own feet and expressly requires the employer to pay the allowance to specific workers in addition to all other payments. The payment must be made at the same time as other wages are paid.

[45] Ms Corinth contends that the relevant provision is not ambiguous and that the Commission should apply its ordinary and natural meaning.

[46] Ms Corinth also contends that the determination of the question will enable the parties to identify if any order or further action is appropriate.

[47] In reply submissions, Ms Corinth contended that:

• The respondent attempts to elevate the word “working” beyond its ordinary and plain meaning when read in the context of the clause. The allowance is paid for the exigencies of working in Broken Hill. That is, the needs, demands or requirements which arise because of working in Broken Hill.

• It is the entire package of circumstances which occasion being a worker at the Broken Hill supermarket – all the demands, needs and requirements - that create the occasion of the allowance. These are the exigencies of working in Broken Hill.

• That the allowance is paid hourly simply accords with the growing practice of industrial parties to move from all matters being defined through the prism of a full-time working week. The allowance described as hourly allows simple application to part-time and casual employees. No material is adduced from the 2013 case referred to by the respondent to suggest otherwise. In any event, wages are paid hourly whether they be for hours worked, hours on leave or hours entitled to not be at work due to a public holiday.

• It was not contended by the applicant that the Broken Hill allowance is an ‘all purpose allowance’. The allowance term makes plain it is paid in addition to all other payments.

• The Broken Hill allowance term stands on its own, generating its specific obligation on the employer.

• A disability allowance is often paid while not at work. The relevant authority referred by the applicant, and copied by the respondent, identifies the “Kerley” 17 decision where the disability was the standing-by available for the resumption of duty. In this case, the disability is the exigencies of working in Broken Hill which on no interpretation could be associated with particular needs, demands or requirements of the physical workplace.

• The practice of the respondent to not pay the allowance in the past 2 years should not be given any weight.

• The varied Modern Award accords with the construction of the applicant.

• The construction urged by the respondent disadvantages carers, parents and other workers who are likely to access personal leave on greater occasion than other workers. The construction urged by the respondent disadvantages workers who choose to not work public holidays – including days of particular cultural or religious importance. The respondent discriminates against casual employees by not affording paid leave to them on occasions not contemplated by the casual loading – such as blood donor leave, family and domestic violence leave, defence services leave and other occasions.

6. The position of Woolworths

[48] Woolworths contends that the Broken Hill allowance is payable on hours worked and is not payable on paid annual leave, paid personal/carer’s leave, nor in respect of public holidays not worked. It submits that this approach is supported by the text of the clause, the Agreement as a whole, the legislative history and the history of the clause. The basis for that position is as follows:

• To properly determine the disputes, the Commission should consider all of the provisions of the Agreement, including those dealing with the payments required on leave and public holidays, in the context of the NES, and not just the wording of the Broken Hill allowance contained in the table in clause 5.2.

• Clause 1.5 of the Agreement addresses the relationship between the Agreement and the NES and says that the “Agreement will be read and interpreted in conjunction with the NES”.

• As relevant to this dispute, the NES operates by reference to the base rate of pay. The expression “base rate of pay” is defined in s.16 of the Act to mean “the rate of pay payable to the employee for his or her ordinary hours” but not including any of “incentive-based payments and bonuses”, “loadings”, “monetary allowances”, “overtime or penalty rates” and “any other separately identifiable amounts”.

• This expression can be contrasted to that of “full rate of pay”, which is defined in s.18 of the Act to expressly include each of the 5 matters excluded in s.16, ie monetary allowances and any other separately identifiable amounts are included in the full rate of pay. The definition of "full rate of pay" is relevant for other purposes under the Act, such as the calculation of payment in lieu of notice of termination.

• The wording used in each of clauses 13, 14 and 19 of the Agreement as referred to above does not expressly or impliedly refer to the inclusion of an allowance such as the Broken Hill allowance in the calculation of annual leave (including annual leave loading), personal/carer’s leave and payment for public holidays. The annual leave provision expressly refers to the NES. In the case of annual leave loading, the provision is specific as to the alternative bases of calculation, ie penalty rates or shift loadings (if greater than 17.5% of the employee’s base rate of pay). The clauses otherwise consistently use the expression “base rate of pay”.

• The expression “base rate of pay” is also used in numerous other provisions of the Agreement: see, for example, clause 4.1 Base Rates of Pay. The Agreement also contains a definition of “Ordinary Weekly Earnings” in Appendix K: Dictionary. That definition excludes allowances.

• The Broken Hill allowance contained in the table at clause 5.2 of the Agreement reflects the wording contained in the equivalent clause of the GRI Award at the time the Agreement was made subject to two differences. The words “An employee” (in the award) were changed to “A team member” (in the Agreement), and the words “4.28% of the standard rate” (in the award) were changed to “$0.94 per hour" (in the Agreement).

[49] In relation to the GRI Award, Woolworths contends that:

• Clause 19 of the GRI Award 2020 (previously clause 20 of the GRI Award 2010) provides for numerous allowances, including a Broken Hill allowance. The history of the award modernisation process shows that in July 2009, the SDA proposed that the Commission should make an award known as the "Broken Hill Special Conditions Award 2010" to apply to all employees working in Broken Hill. The SDA sought an award clause that expressly provided an allowance of $12.90 per week, including for any period of annual leave. (emphasis added). This was rejected by the AIRC.

• In the Award Modernisation process, a Full Bench of the Commission decided to include the Broken Hill allowance as a form of district allowance in the GRI Award.

• In the Modern Awards Review 2012, Boulton J on 23 August 2013, varied the Broken Hill allowance clause in the GRI Award by include an express reference to the allowance being paid “hourly”.

• For completeness it is noted that in 2019, a Full Bench of the Commission rejected applications by the SDA and another union for the provision of district allowances in the GRI Award and 4 other awards:

• The GRI Award refers to annual leave, personal/carer’s leave and public holiday entitlements as being provided for in the NES. The GRI Award does not require the Broken Hill allowance to be paid in respect of periods of annual leave (including annual leave loading) or personal/carer’s leave, or for public holidays.

[50] Woolworths further contends that the GRI Award refers to annual leave, personal/carer’s leave and public holiday entitlements as being provided for in the NES. The GRI Award does not require the Broken Hill allowance to be paid in respect of periods of annual leave (including annual leave loading) or personal/carer’s leave, or for public holidays.

[51] Woolworths also contends that previous enterprise agreements that covered Woolworths and its employees at Broken Hill did not contain a Broken Hill allowance provision.

[52] In relation to the proper construction of the Agreement, Woolworths contends that its position is supported by the ordinary meaning of the words used in clause 5.2, including:

• It is an “hourly allowance for the exigencies of working in Broken Hill”, distinct to the exigencies of living in, relocating (temporarily or permanently) to, or travelling to, Broken Hill. An allowance for “working” can also be distinguished from an allowance payable when an employee is not working, including when on leave;

• The allowance is paid “hourly” and is thus referable to hours of work. In 2013, the Commission inserted the word “hourly” to resolve ambiguity as to the basis upon which the allowance is payable;

• The words “in addition to all other payments” refers to the allowance being in addition to the other payments under the Agreement, such as base rates of pay (see clause 4.1), penalties, loadings and other allowances. The words “in addition” also clarify the allowance is not in the nature of an “all purpose” allowance that has the effect of increasing an employee’s hourly rate for other purposes; and

• The inclusion of the word “in” at the start and end of the sentence counts against the application of the allowance to the taking of leave in circumstances when an employee may not be in Broken Hill when the leave is taken, eg annual leave, or even on a public holiday.

[53] Further, it contends that the wording of clause 5.2 contains no express indication that the allowance will apply to paid leave or public holidays. It is simply an “hourly” allowance, ie paid on the hours worked. An earlier award modernisation application by the SDA to include an express requirement for the allowance to be paid for any period of annual leave was rejected by a Full Bench of the Commission.

[54] Woolworths also relies upon what it describes as the purpose of the allowance. The history of the allowance shows that it was derived from the equivalent provision in the GRI Award. The award provision has received the detailed consideration of the Full Federal Court as to the purpose of the provision. The allowance is properly characterised as a “disability allowance”, which a dictionary defines as “an amount of money paid for working under certain unpleasant conditions”. It is an allowance for disabilities associated with working in Broken Hill. The relevant findings of the Court are applicable to the Commission’s determination of the present disputes.

[55] In addition, Woolworths contends that the wording of clause 5.2 is to be construed in the context of other relevant provisions of the Agreement and the NES, as follows:

• Clause 5.1(a) refers to allowances being “extra payments” for “specific purposes”;

• The entitlement to payment for each of annual leave (including leave loading), personal/carer’s leave and public holidays derives from other provisions of the Agreement, namely clauses 13, 14 and 19. These provisions are clear as to the basis of the rate for payment, either by reference to the NES, or the use of the expression “base rate of pay”. The language used in these provisions does not encompass the inclusion of an allowance such as the Broken Hill allowance. Clause 5.2 ought not be construed so as to have the effect of modifying the clear language used in clauses 13, 14 and 19; and

• Clause 1.5(b) provides that the Agreement will be read and interpreted in conjunction with the NES. The NES relevantly defines “base rate of pay” to exclude “monetary allowances” and “any other separately identifiable amounts”.

[56] As such, Woolworths submits that the above construction is consistent with the application of the allowance under the GRI Award. This is significant given the historical derivation of the clause 5.2 wording. Also, clause 5.1(b) requires that the allowances prescribed in clause 5.2, including the Broken Hill allowance, must never be less than the equivalent allowance in the GRI Award. The allowance is in fact now higher under the award than under the Agreement, however Woolworths pays employees the award rate.

[57] Further, arising out of the award modernisation plain language process, the equivalent GRI Award clause has now been varied by the Commission, with the intent of not changing entitlements. The simplified wording is consistent with the construction urged by Woolworths in this matter.

[58] Finally, Woolworths contends that the construction urged by the Applicants would have the effect of disadvantaging casual employees compared to full-time and part-time employees. Both groups of employees are entitled to the allowance in respect of working hours, however casuals do not receive paid leave.

[59] In oral submissions Woolworths joined with the SDA in accepting the fact that the allowance was specified as an hourly payment was significant. However, it contended that this was a reference to hours worked, consistent with the purpose of the provision and the decision of the Full Federal Court concerning the equivalent modern award entitlement.

7. Consideration

7.1 The required approach to the construction of the Agreement

[60] A number of Full Benches of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent comprehensive statement of the principles by the Commission was set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited¹⁸ (AMWU v Berri) in the following terms:

“[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.”

[61] This is a non-exhaustive statement of the principles to be adopted¹⁹ and I have applied this approach in determining this dispute.

[62] In Geo A Bond & Co Ltd (In Liq) v McKenzie,²⁰ (Geo A Bond) Street J said:

“...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.”

[63] In Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005 Lacy SDP observed that:

“It is a widely accepted principle of statutory interpretation that the rules of construction are rules of common sense. Where the choice is between an interpretation that will result in inconvenience, injustice or absurdity and another which avoids such a result, then the latter ought to be adopted.”21

[64] The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd²² in the following terms:

“No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.

The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.

That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. A number of illustrations will be found in Nurses (South Australia) Award (Interpretation) Case (ubi supra). But an ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. (Cf. Pickard v. John Heine and Son Limited [1924] HCA 38; (1924) 35 CLR 1 at 9, per Isaacs A.C.J.) That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. "Sometimes", McHugh J. said in Saraswati v. R [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation "can be discerned only by reference to the history of the legislation and the state of the law when it was enacted". Awards must be in the same position.”²³

[65] The nature of the present task has also been emphasised by the Full Bench in DP World Brisbane Pty Ltd v The Maritime Union of Australia²⁴ in the following terms:

“[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:

‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’”

[66] It is well established that terms are not easily implied into enterprise agreements.²⁵ This is reinforced by the approach adopted in AMWU v Berri, and the implications of s.739(5) of the Act that prevents the Commission from making a determination that is inconsistent with the terms of the approved enterprise agreement and the scheme of the legislation that permits variations only in certain defined circumstances. Implied terms must satisfy a number of prerequisites.²⁶

[67] More recently, the Full Court of the Federal Court in WorkPac Pty Ltd v Skene²⁷ (WorkPac) also provided the following convenient summary of the required approach:

“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”28 (citations omitted)

[68] The above observations are consistent with the approach taken in AMWU v Berri. In the end, my present task is to ascertain the objective intention of the Agreement based upon the language and terms of the instrument, when read as a whole, and considered having regard to its context and purpose. Context includes legislative framework and the history of the provision. References to common intention of the parties are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement.

[69] For completeness, I observe that the Commission is not empowered to grant some form of declaratory relief.²⁹ Rather, the Commission is determining the proper application of the Agreement in order to determine the dispute between the parties about that instrument under the terms of the agreed dispute resolution procedure.³⁰

7.2 Context and history of the provision/payment

7.2.1 The history of the Broken Hill “allowance” more generally

[70] In the industrial and award history of New South Wales, the County of Yancowinna (i.e. Broken Hill, together with the neighbouring town of Silverton and their surrounds) was for many years subject to different award provisions and industrial conditions than applied in the rest of New South Wales. Awards of the former New South Wales Industrial Commission usually excluded the County of Yancowinna from their coverage and operations altogether, leaving local arrangements to be negotiated directly with employers under the auspices of the Barrier Industrial Council. The County of Yancowinna is separated from the rest of New South Wales in time also, observing Australian Central Time (Standard or Daylight) rather than Australian Eastern Time. 31

[71] In the period before and during the transition of the broader private corporate sector into what became the national system under the current Act, the Broken Hill Commerce and Industry Agreement Consent Award 2001 NAPSA (the Broken Hill NAPSA) contained many of the special award arrangements applying in Broken Hill.

[72] Under the Broken Hill NAPSA as applying to some parties within Broken Hill in the lead up to the making of the GRI Award, employees in Broken Hill were entitled to an additional week of annual leave plus annual leave loading. The base rate of pay applicable to retail employees was also higher than the equivalent rate in the GRI Award by $12.40 per week.

[73] The SDA contends 32 that:

“44. This was converted to a weekly amount in the GRIA by dividing the value of the additional week of annual leave ($719.57) by 52 weeks ($13.84) and adding it to the weekly allowance ($12.40 + $13.84 = $26.24) to determine the weekly value of the two entitlements. This weekly amount was then converted to a percentage of the weekly rate ($26.24 / $612.40 = 4.28%).”

[74] Although the specification of the allowance as 4.28% of the standard rate in the GRI Award may have been calculated as contended by the SDA, there is no evidence before me that this basis was advanced to the Commission at the time or adopted by it as the basis when varying the GRI Award. As a result, I place no weight upon any associated assertion as to the intention of the Commission in that regard.

7.2.2 The history of the Broken Hill allowance in the Agreement and its predecessors

[75] The Agreement was made on 22 October 2018, approved on 7 January 2019 and commenced operation on 14 January 2019. The Broken Hill allowance contained in the table at clause 5.2 of the Agreement reflects the wording contained in the equivalent clause of the GRI Award at the time the Agreement was made, subject to two differences. The words “An employee” (in the award) were changed to “A team member” (in the Agreement), and the words “4.28% of the standard rate” (in the award) were changed to “$0.94 per hour" (in the Agreement).

[76] Previous enterprise agreements that covered Woolworths and its employees at Broken Hill did not contain a Broken Hill allowance provision. However, those instruments contained an additional “week” of annual leave. 33

[77] Part of the context for ascertaining the meaning of the Agreement is that it is a national instrument and applies to multiple workplaces and locations, including to the employees working in Broken Hill. This must be taken into account when assessing the import of the terms of the Broken Hill allowance in clause 5.2 and within the Agreement more generally. This includes that this fact provides some important context for understanding the import of references to employees “in the county of Yancowinna” and “working in Broken Hill” in the provision itself, and I will return to this aspect as part of the further consideration of this matter.

[78] Further, clause 5.1 makes it clear that the Broken Hill allowance, and other allowances in clause 5 more generally, “are extra payments made to eligible employees for specific purposes.”

7.2.3 The context set by the Act

[79] The Act provides absolute minimum standards for the payment of annual leave, personal leave (and other forms of paid leave) and public holidays not worked as part of the NES. This applies to all employees including those under enterprise agreements. 34

[80] In each case, the NES requires 35 payment to be at the employee’s base rate of pay. The expression “base rate of pay” is defined in s.16 of the Act to mean:

“the rate of pay payable to the employee for his or her ordinary hours” but not including any of “incentive-based payments and bonuses”, “loadings”, “monetary allowances”, “overtime or penalty rates” and “any other separately identifiable amounts.” 36

[81] It is clear that the Broken Hill allowance does not form part of the base rate of pay for the purposes of the NES (or the Agreement).

[82] Sections 55 and 56 of the Act provide as follows:

“55 Interaction between the National Employment Standards and a modern award or enterprise agreement

National Employment Standards must not be excluded

(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.

Terms expressly permitted by Part 2 2 or regulations may be included

(2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:

(a) by a provision of Part 2 2 (which deals with the National Employment Standards); or

(b) by regulations made for the purposes of section 127.

Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.

(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).

Note: See also the note to section 63 (which deals with the effect of averaging arrangements).

Ancillary and supplementary terms may be included

(4) A modern award or enterprise agreement may also include the following kinds of terms:

(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;

(b) terms that supplement the National Employment Standards;

but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.

Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:

(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or

(b) that specify when payment under section 90 for paid annual leave must be made.

Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:

(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or

(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99).

Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.

Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards

(5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).

Effect of terms that give an employee the same entitlement as under the National Employment Standards

(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:

(a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and

(b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.

Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.

Terms permitted by subsection (4) or (5) do not contravene subsection (1)

(7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).

Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).

56 Terms of a modern award or enterprise agreement contravening section 55 have no effect

A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.”

[83] The Agreement refers to the NES in clause 1.5 (b) in the following terms:

“The NES are a set of 10 legislated minimum employment standards. The entitlements and benefits provided in this Agreement are inclusive of, and not in addition to, any benefit or entitlement under the NES and Fair Work Act. This Agreement will be read and interpreted in conjunction with the NES. Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit to the team member, the NES provision will apply to the extent of the inconsistency.”

[84] Clause 1.5 appears to be the parties’ attempt to replicate the effect of the above provisions, and in any event, the Act would apply in that manner.

[85] As a result, relevant to this dispute, the Agreement terms may incorporate the effect of the NES and supplement those standards but may not provide an inferior condition to that set out in the NES. The fact that the NES provides that the payment for the relevant leave and public holidays must, as a minimum, be at the base rates, sets some of the context but does not directly deal with the intention of the Agreement given the capacity for the Agreement to provide superior terms.

7.2.3 The Broken Hill allowance in the GRI Award

[86] The GRI Award is part of the relevant context for ascertaining the proper meaning of the Agreement. It represented the safety net against which the Agreement was negotiated and approved, the wording of the Broken Hill allowance is the same in each instrument, with the two exceptions outlined earlier, and the Agreement provides that the rate for the allowance in the Award continues to apply as an absolute minimum (clause 5.1(b)).

[87] The history of the allowance provision in the GRI Award is helpfully set out in a table provided by Woolworths as part of its written submissions, which is reproduced below 37:

Operative Date	FWC Order	Clause	Wording of clause
29 January 2010 (GRI Award 2010)	PR992724 at [6] Order arising out of Decision of Full Bench dated 29 January 2010 [2010] FWAFB 305 at [28]	Clause 20.13(c)	(c) Broken Hill An employee in the County of Yancowinna in New South Wales (Broken Hill) shall in addition to all other payments be paid an allowance for the exigencies of working in Broken Hill of 4.28% of the standard rate.
23 August 2013	PR540640 at [7] Order arising out of Decision of Boulton J dated 23 August 2013 [2013] FWC 6056 at [23]- [24]	Clause 20.13(c) Note: insertion of word “hourly”	(c) Broken Hill An employee in the County of Yancowinna in New South Wales (Broken Hill) will in addition to all other payments be paid an hourly allowance for the exigencies of working in Broken Hill of 4.28% of the standard rate. (emphasis added)
7 May 2015	PR561201 at [3] Note: clause maintained arising out of Decision of Full Bench dated 11 February 2015 [2015] FWCFB 644 at [57]-[64]	Clause 20.13 Note: renumbering by deletion of paragraph numbers	Broken Hill An employee in the County of Yancowinna in New South Wales (Broken Hill) will in addition to all other payments be paid an hourly allowance for the exigencies of working in Broken Hill of 4.28% of the standard rate.
1 October 2020 (GRI Award 2020)	PR722492	Clause 19.13 Note: plain language process, conversion of % to money sum and clause renumbering	Broken Hill The employer must pay an employee at a workplace within the County of Yancowinna in New South Wales (Broken Hill) an allowance of $0.97 per hour.

[88] During the award modernisation process leading to the finalisation of the GRI Award, the SDA proposed that the Commission should make an award known as the "Broken Hill Special Conditions Award 2010" to apply to all employees working in Broken Hill. The SDA sought an award clause in the following terms:

“An employee performing work in the County of Yancowinna will be paid an allowance of $12.90 per week, including for any period of annual leave.” 38

[89] A Full Bench of the Australian Industrial Relations Commission (AIRC) declined 39 to make a separate award of the kind proposed by the SDA but indicated that it might be possible to deal with the Broken Hill provisions in the same way as with district allowances for the Northern Territory and Western Australia as follows:

“[85] During the pre-drafting consultations the Shop, Distributive and Allied Employees Association (SDA) proposed that the Commission should make an award known as the Broken Hill Special Conditions Award 2010. The SDA pointed to two awards of the Industrial Relations Commission of New South Wales which apply to the Broken Hill area. The principal award is the Broken Hill Commerce and Industry Agreement Consent Award 2001. The award contains a number of special conditions negotiated principally by the Barrier Industrial Council and the Broken Hill Chamber of Commerce and Industry. The SDA proposed that the special conditions should either be included in every modern award to apply in Broken Hill or, preferably, be included in a special modern award to apply as an adjunct to all modern awards for Broken Hill only. The three main special conditions are an additional week of annual leave, an allowance known as the Broken Hill allowance and a casual loading of 50% paid to employees in the manufacturing construction sector.

[108] The nature and purpose of the allowance sheds further light upon the resolution of the present dispute. The AIRC conceptually treated the Broken Hill allowance in the GRI Award as being akin to a district or locality allowance. That is, based upon the region in which the work is performed, rather than the specific work location. Given the nature of major retail shops operated by Woolworths, this is apposite in the context of the Agreement.

[109] As to the conceptual treatment by the AIRC of the Broken Hill allowance as being akin to a district allowance I sought further submissions on this aspect, after the hearing of this matter, in the following terms:

“Without limiting the scope of such submissions, the parties might address:

1. Does the inclusion of the Broken Hill allowance in the General Retail Industry Award 2010 on the basis of the reference by the Commission to district allowances inform the purpose of the Enterprise Agreement provision (clause 5,2), and if so, to what end?

2. Historically, how have district allowances been treated for the purpose of annual and personal leave and public holidays not worked?

3. Are there any decisions of Courts or Tribunals that shed any light on this aspect, and if so, what do they reveal?” 49

[110] In terms of the third question I noted 50 two decisions as follows:

• United Voice v Serco Group Pty Ltd [2018] FCCA 2190 (UV v Serco); and

• Commonwealth of Australia as represented by the Department of Home Affairs [2019] FWCFB 143 (DHA)

[111] Ms Corinth contended that:

• While each term must be considered, it is undeniable that that the term of the Agreement provides for an allowance to be paid for the disability of working in a particular location.

• There is no evidence of the treatment of district allowances in the retail industry.

• Each decision raised by the Commission supports the applicant’s case. In UV v Serco, the Federal Circuit Court of Australia effectively confirmed that a district allowance was payable during periods of annual leave. In DHA, the decision of Full Bench of the Commission accords with the general tenet put forward by the applicant that the presumption must be that district allowances are paid on periods of leave.

• There appears to be no precedent cases specifically dealing with the terms of the enterprise agreement at Woolworths. Historical approaches to the payment of such allowances are unlikely to be particularly helpful if they have not been judicially or otherwise determined.

• Clearly a disability “rate” is a different thing to the general findings of the Federal Court that remote, regional or district allowances are a form of disability allowance.

[112] The SDA contended that:

• The district allowance in the GRI Award is not unique. District allowance clauses have been included in various awards and agreements for over 100 years. The Broken Hill allowance in the Award is merely the local Broken Hill iteration of a district allowance.

• The Commission is also permitted to consider the history of district allowances generally, although, as noted, each case will turn on its own circumstances.

• The entitlement to district allowances in the stated awards and agreements 51 obviously turns on the wording of the specific clause as agreed between the parties, or determined by the relevant commission, however they are provided as clear examples of district allowances being paid during periods of annual leave.

• The stated examples show that it is not unusual for district allowances to be paid during periods of annual leave. In fact, the default position is that the district allowance should be paid during a period of annual or other paid leave unless there is an agreement between the parties to the contrary.

• In the 4 yearly review of modern awards – transitional provisions Decision dated 11 February 2015, the Full Bench of the Commission distinguished between district allowances in Western Australia and the Broken Hill allowance not on the basis that the Broken Hill allowance was not a district allowance, but that it was a district allowance expressed “in different terms” and ultimately determined to maintain the Broken Hill allowance.

• The Annual Leave Cases 1971 52 does not assist the Commission as it relates to the calculation of the rate of annual leave pay, rather than the application of clause 5.2 of the Agreement. For the sake of completeness, it is submitted that the Broken Hill allowance clearly falls under the category of “Climatic, Regional etc Allowances”, not “Disability Rates such as confined spaces and dirty work.”

[113] Woolworths contended that:

• The “district” allowance language used in the 2010 Award Modernisation Decision does not inform the true purpose of the Broken Hill allowance in the Agreement. Woolworths relies upon the 2015 Full Bench decision of the Commission and the later 2015 judgment of the Full Court of the Federal Court of Australia. The Broken Hill allowance is properly considered to be a disability allowance for a particular location.

• The two authorities identified by the Commission do not assist the determination of the present dispute. In DHA a Full Bench was exercising merits arbitration powers to decide the terms of a workplace determination and is distinct to the determination of a dispute about the extent of existing entitlements. In UV v Serco the Federal Circuit Court of Australia determined a civil penalty prosecution for the non-payment of a remote district allowance as part of annual leave upon a redundancy related termination of employment. The case was decided based on an agreed statement of facts and principally turned on the proper construction of the allowance provision in the relevant enterprise agreement. Further, other instruments have been applied differently; for instance, the Retail, Wholesale and Distributive Employees (NT) Award 2000 made by the AIRC, and one of the predecessor instruments to the GRI Award, expressly provides: 53

“No district allowance shall be payable during periods of annual leave or other leave but shall be payable on the public holidays outlined in clause 33 - Sundays and public holidays of this award.”

• A Full Bench of the Australian Conciliation and Arbitration Commission in The Annual Leave Cases 1971 54 made an announcement on 7 June 1972 about various annual leave matters.55 This included lists of items which the bench thought should in the general run of cases (i.e. awards) be included, or excluded, in payment for annual leave. The lists were subject to provisos, including that: “Individual situations may require in particular awards the exclusion or modification of them or the addition of other items.” Items for inclusion included “Industry Allowances” and “Climatic, Regional etc. Allowances”. Items for exclusion included “Disability Rates such as confined spaces and dirty work.” However, this case is of limited assistance to the Commission in determining the present dispute given the statutory framework has significantly changed since the decision, including the use of the expression “base rate of pay” in the Act.

• Subject to the same caveat, a Full Bench of the Australian Conciliation and Arbitration Commission in District Allowance Clauses – Northern Territory Awards Decision dated 10 April 1984 56 rejected applications to increase the district allowances, including rejecting a claim to extend the payment of the district allowances during periods of annual leave.57 The effect of the decision was that the district allowances were frozen. Further, Commissioner Lear of the AIRC in The Federated Miscellaneous Workers Union of Australia applications for variation Decision dated 18 July 1991,58 rejected employer claims for absorption of district allowances in four awards into minimum rates adjustment. The decision records the applicant union’s submissions as follows:

“… the District Allowance was a work-related allowance (albeit frozen), that the allowance was not an all-purpose allowance (in that it did not attract payment of overtime, shift allowances or penalty rates) nor was it paid during periods of sick leave or annual leave. As such, it was an allowance applying only for periods worked and was not part of wage or salary.” 59

[114] There is no clear pattern of whether district or similar allowances have historically been paid on personal or annual leave. The cases considered by the parties turn largely on their own circumstances and the terms of the instruments concerned. The Annual Leave Case 1971 would suggest that district allowances and payments of that nature may be included for such leave and there are some agreements and awards that have reflected that approach historically. However, in 1984 the Commission rejected that notion in relation to the Northern Territory allowance and this appears to have been the case for that allowance up to and following its incorporation for an interim period in the GRI Award. In that regard it is important to recognise that the AIRC determined that the allowance itself lacked merit rather than deciding that an allowance of that kind should not apply to leave as a matter of principle. 60 The Annual Leave Case 1971 also conjectured that work-related disability rates, as opposed to locality payments or allowances, would not generally be included in annual leave. This is conceptually useful but must be seen in the different relevant statutory contexts and reveals that some further consideration of the actual nature of the Broken Hill allowance set out within the Agreement is appropriate.

[115] In determining to maintain the Broken Hill allowance and not the other “district allowances” in the relevant modern awards, the Full Bench of the Commission did not determine that that Broken Hill allowance was not akin to a district or locality allowance. It distinguished between the regional basis of that allowance and the State/Territory nature of the other allowances, and the relative complexity of the provisions. 61

[116] As set out in full earlier, the Full Federal Court variously considered the Broken Hill allowance provision in the GRI Award as being a disability allowance for work in a particular location 62 and a payment additional to ordinary wages for the purpose of meeting some particular requirement connected with the service rendered by the employee or as compensation for unusual conditions of that service.63 This tends to reinforce that the disabilities concerned are those associated with the region rather than the workplace. The emphasis upon the allowance being provided in connection with the “work” in a particular location may be superficially supportive of an understanding that the allowance itself is intended to be directly linked to hours worked as contended by Woolworths. However, the decision must be understood with an eye upon the nature of the issue and statutory context for that matter, which has been set out in more detail earlier in this decision. In particular, the relevant issues included whether the Broken Hill allowance fell with the scope of s.139(1)(g)(iii) of the Act; being an allowance for “disabilities associated with the performance of particular tasks or work in particular conditions or locations”. Accordingly, I consider that whilst this does inform the purpose of the provision and its link to working in a location, being in this case a region, the Court was not considering the precise basis of the actual payment including whether it was intended to be linked to hours actually worked or to operate more broadly. That aspect did not arise.

[117] As a result, I consider that the Broken Hill allowance within the Agreement should be properly considered to be a disability allowance connected to the region (locality) in which the work is performed. It is not however a disability allowance or rate connected by definition to the actual performance of work within the Broken Hill Woolworths store. This purpose is more consistent with the notion that clause 5.2 should not be read down to be limited only to when work is being performed. Further, given that the Agreement applies to various locations and operates in multiple States and Territories, reference to employees working in Broken Hill should be approached with the understanding that the term is also confirming to whom the provision applies.

[118] For reasons previously stated, the reference within the Agreement to the NES and to base rates being applicable to payments for annual and personal leave and for public holidays not worked is part of the context but is not of itself determinative of the intention of the Agreement when read as a whole. The terms of clause 5.2 strongly suggest a different and broad intention. Further, this clause applies only to a select group of employees as part of a (national) agreement and it would not be expected that the leave and public holidays provisions would themselves deal with the import of the Broken Hill allowance given the nature and scope of that entitlement.

[119] The exclusion of “penalty rates” in clause 14.1(d) relating to personal and carer’s leave however applied would not appear to address itself to the Broken Hill allowance. That allowance is clearly not a penalty rate 64 and the Agreement sets out the penalty rates at clause 6. Given the nature of the provision and the apparent broad intention of clause 5.2, I do not consider that the Broken Hill allowance provision should be read down on this basis.

[120] The note in the public holiday provision in clause 19.1(f) has a broader compass in that it states “penalty rates and loadings” are not included with respect to payments for public holidays not worked. For reasons set out above, the refence to penalty rates is also not relevant here. The issue then becomes, what is the intended purpose of stating that “loadings” are not included in the payments due on such days?

[121] The term “loadings” or “loading” is not defined in the Agreement but it is used to refer to the additional payment due for casuals (various clauses) and to the annual leave loading (clause 13.4, amongst others). This usage would not appear to be directly relevant to public holidays not worked. At clause 13.4(c), the Agreement refers to (shift) team members being paid the annual leave loading or their “shift loading”, whichever is the greater. However, this is stated in the context of establishing what might be generally described as the annual leave loadings and the additional payments paid to shift workers are described in clause 11 for the most part as being “rates”; although there is one reference to the bakers provisions establishing shiftwork “allowances” (clause 11.3(c)). Further, and perhaps more relevantly, the definition of Ordinary Weekly Earnings set out in Appendix K differentiates between “penalty rates” and “loadings” on the one hand, and “allowances” on the other. In this regard, the approach of the Federal Court in Workpac set out earlier is particularly apt and it is appropriate to accept that the framers of the document “were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.” 65

[122] It seems to me that the provision dealing with the non-inclusion of penalty rates and “loadings” in the public holiday (not worked) provision is intended to be a statement to reflect the operation of the NES and not one intended to limit the operation of clause 5.2. That is, the provision provides for the minimum entitlement to payment on such days but does not rule out other provisions of the Agreement establishing a more beneficial payment that supplements the (NES) entitlement. This is the fundamental basis upon which the NES operates, and the stated intention of Agreement was to, in effect, be consistent with the NES with the capacity to provide additional benefits. In any event, this statement in clause 19.1(f) does not in my view expressly or impliedly deal with the Broken Hill allowance in clause 5.2, which applies to a discrete group of employees. Consistent with the terms of clause 5.1, clause 5.2 provides “extra payments (to be) made to eligible employees for specific purposes.”

[123] I have earlier referred to some of the other forms of paid leave set out in the Agreement. Given my approach, the findings I have made may be relevant to these provisions, at least to those which refer to or rely upon the NES, and reference base rates in the same manner as the leave provisions considered, as the foundation for the provision. However, not all forms of paid leave in the Agreement are expressed in those terms and although this is properly part of the original disputes, I would need to hear further from the parties before determining whether I consider the Broken Hill allowance should be paid on the various other forms of paid leave beyond annual and personal (including carer’s) leave.

[124] As to the issues raised by some of the parties in submissions regarding casual employees, I observe that under the Agreement, causal employees do not receive paid leave or payment for public holidays not worked. The fact that the approach of the two Applicants means that casual employees would not receive the additional benefit of payments on those days is a consideration but not decisive. Casual employees are entitled to the Broken Hill allowance when they are being paid and there are some different entitlements more generally for weekly hired and casual employees respectively.

[125] Having regard to all of the above, I consider that the ordinary and natural meaning of clause 5.2 when considered in the context of the Agreement as a whole is clear and should be applied. That is, the Broken Hill allowance provided by clause 5.2 of the Agreement is payable to employees working in Broken Hill as an hourly allowance in addition to all other payments in recognition of the exigencies of working in the location of (Broken Hill). This applies to paid annual and personal/carer’s leave provided by the Agreement and circumstances where a payment for a public holiday not worked is otherwise being made.

8. Conclusions

[126] The issue in dispute in these matters can be summarised as follows:

“Is the Broken Hill allowance required to be paid when a team member in the County of Yancowinna is on paid annual leave and personal leave, including carer’s leave, or absent on a (paid) public holiday they would otherwise work?”

[127] For reasons outlined in this decision, the determination of the Commission is YES.

[128] I grant liberty for any party to seek a determination in respect of other forms of paid leave under the Agreement.

[129] RAFFWU also sought the opportunity to consider whether further or other “Orders” were appropriate. The grant of liberty for the parties to apply would also extend to this aspect. I would however observe that any further role for the Commission regarding these matters in that respect would need to be consistent with its particular statutory charter as summarised earlier in this Decision and not involve any notion of enforcing the terms of the instrument. 66

COMMISSIONER

Appearances:

D Blairs, of Wearing Blairs on behalf of the Shop, Distributive and Allied Employees Association (SDA).

J Cullinan of the Retail and Fast Food Workers Union Incorporated (RAFFWU) on behalf of Ms Corinth.

D Lloyd (of counsel) on behalf of Woolworths (South Australia) Pty Ltd and Woolworths Group Ltd.

Hearing details:

2020
December 21
By Video Hearing.

Final written submissions:

1 and 5 February 2021.

Printed by authority of the Commonwealth Government Printer

1 AE501243.

2 [2019] FWCA 7.

3 Leave was granted to amend the SDA’s application to include Woolworths Group Limited as an additional respondent.

4 Woolworths Group Limited is the employer of Ms Corinth.

5 See the summary provided in Grabovsky v United Protestant Association of NSW T/A UPA[2018] FWCFB 4362.

6 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305 at [35] cited by Bromberg J with approval in Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 at [64].

7 Section 739(3) of the Act provides that in dealing with a dispute, the FWC must not exercise any powers limited by the term.

8 Clause 18.6 of the Agreement. See also sections 27(2)(g) and 113 of the Act.

9 Long Service Leave Act 1955 (NSW).

10 Outline of submissions of Ms Corinth dated 6 November 2020.

11 Attached to the SDA’s reply submissions.

12 Referred to as a Trade Union and defined in Appendix K of the Agreement to include the SDA.

13 Any paid entitlements to Parental Leave are not directly dealt with in the Agreement.

14 Australian Chamber of Commerce and Industry v Australian Council of Trade Unions [2015] FCAFC 131 (14 September 2015).

15 Ibid at [30].

16 Australian Chamber of Commerce and Industry v Australian Council of Trade Unions [2015] FCAFC 131.

17 Chief Commissioner of Police v Kerley [2008] FCAFC 41.

18 [2017] FWCFB 3005.

19 See also Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union [2017] FWCFB 1621 at [21].

20 [1929] AR (NSW) 498 at 503; See also City of Wanneroo v Holmes (1989) 30 IR 362 (at 378-379) and Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2].

21 Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005, [2008] AIRC 1074, at para 17; See also National Union of Workers v Plexicor Australia [2008] AIRC 1134.

22 (1993) 40 FCR 511, 517-8.

23 This decision must be applied having regard to the fact that the instrument in that matter was an award of the Commission rather than an enterprise agreement made between the employer and a majority of the employees at the time of approval. See also AWU v Pasminco Australia Ltd and ors (2003) 131 IR 1 for the caution required in this regard.

24 [2013] FWCFB 8557.

25 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Skilled Engineering Ltd [2003] FCA 260, [18].

26 BP (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283 cited by the High Court in Byrne & Frew v Australian Airlines Ltd [1995] HCA 24 at paragraphs 12 -13.

27 [2018] FCAFC 131.

28 Ibid at [197].

29 AB v Tabcorp Holdings Limited[2015] FWCFB 523 at [11].

30 See Construction Forestry Mining and Energy Union v The Australian Industrial Relations Commission and Another [2001] HCA 16; (2001) 203 CLR 645, Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019 and Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82.

31 See Australian Chamber of Commerce and Industry v Australian Council of Trade Unions [2015] FCAFC 131, (2015) 234 FCR 70, (2015) 253 IR 227 at [19].

32 Initial written submissions of the SDA.

33 See Woolworths (SA, NT and Broken Hill) Certified Agreement, AG829798 PR940191, at clause 52.1.2 as an example.

34 Sections 55 and 56 of the Act.

35 Section 90(1) for annual leave, s.99 for personal leave and s.116 for public holidays.

36 This is to be contrasted with the expression “full rate of pay” which is defined in s.18(1) of the Act to include loadings, monetary allowances and any other separately identifiable amounts.

37 Outline of Submissions of Woolworths, 27 November 2020.

38 Submission to the Award Modernisation Full Bench in relation to The Broken Hill Special Conditions Award 2010 by Shop, Distributive & Allied Employees’ Association, July 2009, SDA Draft Award attached to submission at cl 11.1.

39 Award Modernisation Statement [2009] AIRCFB 865.

40 Award Modernisation Decision [2010] FWAFB 305.

41 See [2008] AIRCFB 1000 at [81] and [82].

42 Modern Awards Review 2012—General Retail Industry Award 2010 [2013] FWC 6056.

43 4 yearly review of modern awards - transitional provisions [2015] FWCFB 644 at [57] to [64].

44 [2015] FCAFC 131, (2015) 234 FCR 70, (2015) 253 IR 227.

45 4 yearly review of modern awards - transitional provisions [2015] FWCFB 644 - largely based upon the consequences of s.154 of the Act. See also Four yearly review of modern awards--District Allowances [2019] FWCFB 8102 concerning an unsuccessful application to insert new district allowances into various modern awards.

46 4 yearly review of modern awards – General Retail Industry Award Determination, PR722492.

47 Cluse 13.4 of the Agreement.

48 Clause 1.5 of the Agreement.

49 By email to the representatives of the parties dated 25 January 2021.

50 With the caveat that each case will have turned on its own circumstances and the particular wording of the instruments concerned.

51 Set out in the written submissions of the SDA, dated 1 February 2021.

52 (1972) 144 CAR 528.

53 Clause 21.6.

54 (1972) 144 CAR 528.

55 Ibid at [544] to [545].

56 Mis 112/84 SD Print F4832, reported in (1984) 293 CAR 84.

57 Ibid at 111(a).

58 Dec 677/91 S Print J8572, reported (1991) 7 CAR 301.

59 Ibid at 302.

60 District Allowance Clauses – Northern Territory Awards Mis 112/84 SD Print F4832, reported in (1984) 293 CAR 84 at 111.

61 4 yearly review of modern awards – transitional provisions Decision [2015] FWCFB 644 at [54] to [63].

62 ACCI v ACTU at {25] and [28].

63 ACCI v ACTU at [26].

64 See the discussion of the nature and purpose of such rates in 4 yearly review of modern awards – Penalty Rates [2017] FWCFB 1001 at [143]–[150].

65 Workpac at [197].

66 See the cautionary remarks in Victoria University v NTEIU[2015] FWCFB 2892 at [27].

Shop, Distributive and Allied Employees Association v Woolworths (South Australia) Pty Ltd and Woolworths Group Ltd

[2021] FWC 617

22 FEBRUARY 2021

DECISION