Stuart Mclennan v MAS Australasia Pty Ltd

[2020] FWC 151

[2020] FWC 151

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stuart Mclennan
v
MAS Australasia Pty Ltd
(U2019/10204)

DEPUTY PRESIDENT BEAUMONT PERTH, 31 JANUARY 2020

Application for an unfair dismissal remedy, minimum employment period, R&R, roster cycle.

[1] Mr Mclennan lodged an application for an unfair dismissal remedy having been dismissed by MAS Australasia Pty Ltd (Ausgroup). Ausgroup objected to the application on the basis that Mr Mclennan had not satisfied the minimum employment period of six months.

[2] Having commenced work on 14 February 2019 and thereafter dismissed on 9 September 2019, Mr Mclennan considered he had satisfied the minimum employment period of six months. It was uncontroversial that Ausgroup was not a small business employer.

[3] Under his employment contract, Mr Mclennan was employed on a fly in fly out (FIFO) roster, which comprised of two weeks of ‘rostered on’ time and two weeks of unpaid rest and recreation (R&R). Ausgroup argued that Mr Mclennan had not satisfied the minimum employment period because the periods of R&R were excluded from his period of employment.

[4] This decision deals with the jurisdictional objection that the minimum employment period had not been completed and therefore Mr Mclennan was not protected from unfair dismissal. Ausgroup did not press an argument that the casual basis of Mr Mclennan’s employment gave rise to a further ground for its jurisdictional objection. As it was, the evidence presented showed that Mr Mclennan had worked on a regular and systematic basis for the relevant period. Given the nature of the objection, the parties agreed that the application would be determined on the papers without the need for a hearing.

Background

[5] Ausgroup employed Mr Mclennan on a casual basis to carry out scaffolding work on the Gorgon Turnaround Project (Project) located on Barrow Island in Western Australia.

[6] During his employment on the Project, Mr Mclennan had approximately 7.5 periods of R&R amounting to 104 days (or approximately 3.42 months). 1

The enterprise agreement

[7] The MAS Australasia Pty Ltd Employee Agreement 2016 2 (Agreement) applied to Mr Mclennan and employees of the company engaged to perform all work in Australia whether onshore or offshore.3

[8] The Agreement provided four employment categories - full-time, part-time, casual, or fixed-term. The category of ‘casual employee’ is relevant to his matter and was defined as follows:

(c) Casual employee means an employee who is engaged and paid as such. A Casual Employee will be paid a 25% casual loading on the Employee’s applicable base hourly rate prescribed for their classification. The casual loading is paid in lieu of any entitlement to redundancy pay, paid public holidays, paid annual leave, paid personal leave or other forms of leave or other full-time type of entitlements. 4

[9] Concerning the ordinary hours of work, the Agreement set out the following:

7.1 The ordinary hours of work will be an average of 38 per week (averaged over 12 months) to be worked Monday to Friday, between the hours of 6:00 am and 6:00 pm, except in the case of night shift workers. Provided that the spread of hours may be altered by agreement with an individual Employee or with the majority of employees in the plant, section, or sections concerned….

[10] However, the Agreement accommodated specialised project work, acknowledging in clause 5.1 that the Agreement could not envisage or adequately cover all the varying circumstances that may be encountered throughout Australia with respect to work. Clauses 5.2 to 5.4 continued:

5.2 Where an employee is engaged on specialised project work, as defined by the Company, particularly construction or maintenance work:

a) the rate of pay set out in clause 6.5 and Table 2 will apply to the Employee; and
b) the Company and the Employee may agree to alter any other clause of this Agreement, provided that the Employee’s conditions are more beneficial overall than if the clauses(s) had not been altered.

5.3 Whilst on specialised project work, Employees may be entitled to a period of unpaid rest and recreation leave (R&R) after the completion of a rostered cycle of continuous service on site.

5.4 Prior to commencing specialised project work the Company will advise relevant employees of the rates of pay and any applicable conditions that will apply for that work.

[11] Clause 9 of the Agreement set out the provisions concerning annual leave. Clause 9.1 provided that full-time employees were entitled to 4 weeks annual leave for each completed year of service in accordance with the National Employment Standards. Annual leave was said to accrue pro-rata on a weekly basis but did not accrue during any period of unpaid or unauthorised leave. 5 It was the case that an employee was required to request the annual leave when wishing to take it, and it appeared that such leave could not be taken unless approval was provided.6 That approval was subject to the operational requirements of the workplace.7 Where an employee was a continuous shift worker the entitlement to annual leave was an extra week for each completed year of service.8 The Agreement defined a ‘continuous shift worker’ as an employee who:

a) is employed in a location in which shifts/rosters have been operating for more than 14 days in a continuous 24 hours a day for 7 days a week roster; and
b) the employee has been regularly rostered to work those rotating shifts/rosters for more than 14 days; and
c) the employee regularly works on Sundays and public holidays and has been receiving night shift payments, as set out in clause 8 for more than 2 weeks.

[12] The entitlement to personal / carer’s leave was set out in clause 10 of the Agreement and unsurprisingly it provided for 10 days of personal/carer’s leave for each completed year of service. Under the Agreement such leave accrued pro-rata on a weekly basis, provided that it did not accrue during any periods of unpaid leave or unpaid absences. 9 To be able to take personal/carer’s leave the employee was obliged to notify the employer of the absence and provide documentary evidence substantiating the reason for the absence.10

Employment contract

[13] Mr Mclennan was employed under a casual employment contract dated 12 February 2019. Under clause 8, the contract detailed the hours of work and work cycle. It stated:

8.1 As a casual employee, your hours of work are variable and dependent on Site requirements.

8.2 Your initial hours of work, and your work cycle is set out in Appendix A.

8.3 You will be required to work a roster which is established by the Company to meet the overall production and manning requirements of the site. The rostered hours for the Site may include:

● a requirement to be rostered to work on either day work or night shift;
● a requirement to be rostered to work on a Saturday, Sunday or a Public Holiday.

8.4 The commencement and finishing times for each day or night shift will be “on the job”. The Company will provide you with transport from a designated point to the job at the beginning of each rostered day or night and return on completion of your day or night shift.

8.5 The Company may require you to change your roster arrangement by agreement with you or by giving you 1 day’s notice of the change.

8.6 By accepting this offer of employment, you confirm your agreement to work the required roster as directed by the Company.

[14] Appendix A to the employment contract set out the primary locations of the work, which included the ‘Northwest region, Western Australia’ and the ‘Chevron-operated Gorgon Project, Barrow Island, located approximately 60km off the Northwest coast of Western Australia’. Other work locations included the ‘Perth Office and Chevron offices’. Concerning the roster cycle and working hours, Appendix A provided:

Primary roster cycles and hours per day:

● 2 weeks on / 2 weeks off, 12 hours per day
● 3 weeks on / 3 weeks off, 12 hours per day (maximum of 13 days worked in a row)
● 13 days on / 1 day off, 12 hours per day (Shutdown Roster)
● 6 days on / 1 day off, 12 hours per day (Shutdown Roster)

Roster cycle and hours per day on commencement: 2 weeks on / 2 weeks off, 12 hours per day

[15] A summary of payments (in addition to the flat hourly rate of pay, where applicable) was provided noting that there was a ‘Fares Allowance: $150.00 per roster cycle’. Clause 9.2 of the employment contract clarified that the fares allowance was to compensate for all costs associated with travelling between the employee’s point of hire and usual place of residence.

[16] Under clause 19 of the employment contract, Mr Mclennan was entitled to a severance payment in certain circumstances. The severance payment accrued based on each week of service completed on the Project (7 days, Monday to Sunday), but did not accrue in circumstances where Mr Mclennan was absent without authorisation, or where he did not attend the site and carry out work as required by Ausgroup.

What are the relevant legislative provisions and how do we interpret them?

[17] A person is protected from unfair dismissal if they have completed the minimum employment period. 11 As noted, the meaning of ‘minimum employment period’ for the purpose of this application is six months.12

[18] Section 383 of the Act sets out the meaning of the minimum employment period as follows:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:

(i)  the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or

(b) if the employer is a small business employer - one year ending at that time.

[19] Section 384 of the Act is concerned with how an employee’s period of employment is calculated for the purpose of determining if the employee has satisfied the minimum employment period. The relevant part reads:

(1) [Meaning of period of employment]

An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee. (emphasis added)

[20] The starting point is that a period of employment is also referred to as a period of continuous service.

[21] Section 22 defines the terms ‘service’ and ‘continuous service’, the relevant subsections follow:

General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) [Exceptions to meaning of service]

The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) [Excluded period does not break continuous service]

An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service…

[22] A period of continuous service can be made up of a series of periods of service. 13 An employee may have a series of contiguous periods of service with an employer that may count towards a single period of employment (period of continuous service) with that employer.14

Consideration

[23] Ausgroup contended that the R&R fell within the exception in s 22(2)(b) and therefore any period of Mr Mclennan’s service which was characterised as an ‘unpaid authorised absence’, such as the R&R, was excluded from the calculation of ‘continuous service’ for the purpose of s 383 of the Act. This in turn meant that Mr Mclennan had not satisfied the minimum employment period because he had only served approximately 3.42 months.

[24] Mr Mclennan argued that he had worked the minimum employment period because all of his work flights were booked in advance and therefore after each R&R he was expected to return to work – which he said led to the impression he was employed by Ausgroup not only on his 14 days on but also on his 14 days off. Essentially, Mr Mclennan argued that the periods of R&R were neither periods of ‘unpaid leave’ or ‘unpaid authorised absences’ as referred to in s 22(2)(b) of the Act.

[25] In the decision of Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 15 (Kentz), the Full Bench considered, among other matters, the characterisation the Commissioner at first instance had attributed to the term ‘rest and recreation’ (Kentz R&R) as referred to in the Kentz (Australia) Pty Ltd Icythys Onshore Construction Greenfields Agreement (Kentz Agreement).16 The dispute arose under s 739 of the Act and centred on whether a period of R&R would form part of the notice period for the termination of employment. In arriving at its decision, the Bench cautioned that the conclusion reached related to the specific terms and context of the Kentz Agreement and had no necessary application to the construction of other agreements.

[26] The Bench observed that at first instance the Kentz R&R had been characterised by reference to a generalised concept of leave and the context of work generally, rather than by reference to the specific context of R&R within the work and rostering arrangements under the Kentz Agreement. 17 Having considered the context of the Kentz Agreement and the broader relevant working arrangements, the Bench stated that the Kentz R&R was properly characterised as a block of authorised non-work time which formed an integral part of the work cycle in which work was undertaken (and leisure time is taken).

[27] The Bench continued that equating the Kentz R&R with leave overlooked an important attribute that the various forms of leave had, which was not shared with R&R. Unlike the circumstances in respect of taking the Kentz R&R, an employee taking one of the various forms of leave was no longer participating in the work cycle. 18

[28] The Full Bench was content to characterise the Kentz R&R as a block of authorised non-work time which formed an integral part of the work cycles. 19 It concluded that the entitlement of the relevant employee, had their employment continued over the notice period, was to authorised unpaid non-work time in respect of the Kentz R&R period and working of, and payment for, any work-time within the cycle. Termination with immediate effect, subject to the payment made in lieu, was, stated the Full Bench, of the same effect – time off without payment in respect of the Kentz R&R periods and payment for the ‘hours the employee would have worked had the employment continued until the end of the minimum period of notice’.20

[29] In the Federal Circuit Court decision of Short v CBI Constructors Pty Ltd 21 (CBI Constructors) the applicant argued that the termination notice period could not run concurrently with R&R leave because otherwise the applicant would be deprived of his entitlement to leave.22 The respondent’s argument was that the period of R&R leave was part of the entire work cycle and therefore the applicant lost no entitlement by reason of the R&R leave period being included in the period of notice.23

[30] Smith J considered the relevant clauses of the CBI Contructors Pty Ltd – Gorgon Project – Barrow Island Enterprise Agreement 2015 (CBI Agreement), and in respect of those clauses observed:

[49]…the work cycle referred to in cl 21 is not meant to be a defined term, but rather deals with the allocation of hours worked to employees. Clause 21 deals with hours of work and is located in a part which otherwise deals with rostered days off, rest periods, meal breaks over time, shift work and local work provisions. In other words, it deals with organisation of employees within the time frame during which they are actually working.

[50] Clause 31.2, read in its context, provides for a roster of four weeks on, one week off. In essence, it compresses the period of work in to the 23 day period and the non-work period into the 10 days R&R leave. As was the case in Kentz, this arrangement is of significant practicality and utility given the fly-in fly-out arrangements in the geography of the Project.

[51] That is emphasised by the fact that the R&R leave must be taken (cl 31.3(c)) and must be taken off site (cl 31.3(d)). First, unlike annual leave, R&R leave cannot be postponed and paid out upon termination. Secondly, bearing in mind the requirement to work reasonable overtime (cl 24.1(a)), and the flexibility in the arrangement of the ordinary hours worked (cl 21), the requirement that R&R leave be taken off site can be seen to ensure that, in contrast to the 23 days on site, it is a non-work period.

[31] Having distinguished R&R leave from various other forms of leave, Smith J concluded that the passage from Kentz applied with equal force to the circumstances of the applicant in CBI Constructors:

[118] Characterised as the block of authorised non-work time which forms an integral part of the work cycles, the entitlement of the relevant employees, had their employment continued over the notice period, was to authorised unpaid non-work time in respect of the R&R period and working of and payment for any work-time within cycle… 24

[32] The conclusion reached was that the respondent in CBI Constructors was entitled to give notice of termination to the applicant concurrently with the period of R&R leave, and the payment which it made in lieu of the period of notice required to be given, was in the amount to which the applicant in that case was entitled.

[33] The principles for interpreting enterprise agreements are well known and I do not intend to repeat them at length. The Full Bench of the Commission in AMWU v Berri Pty Ltd 25(Berri), and the earlier decision in AMIEU v Golden Cockerel Pty Ltd,26set out such principles. Berri affirmed that the interpretation of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. Where there is a dispute over the interpretation of an enterprise agreement the resolution will turn on the language of the agreement, having regard to its context and purpose.27 Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.28 However, the task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome.29

[34] Turning to the Agreement first, the scope of the Agreement is broad in that it applies to work performed anywhere in Australia whether onshore or offshore. Further, the type or form of work is varied ranging from civil works, minor or major capital works, maintenance and shutdowns. Given the breadth of coverage and the type of work contemplated, it is unremarkable that clause 5 addresses specialised project work, and that clause 5.3 provides that employees undertaking this type of work may be entitled to a period of unpaid rest and recreation leave (R&R leave) after the completion of a rostered cycle of continuous service on site. Clause 6.5 identifies that when an employee is performing specialised project work a specified rate of pay is provided, different to that when working on the premises of the company or its ‘yards’.

[35] The wording of clause 5.3 characterises the period of ‘R&R leave’ as a form of unpaid leave. However, unlike other forms of paid or unpaid leave under the Agreement there is no obligation under the Agreement to request R&R leave or otherwise notify of the absence whilst on R&R leave – unlike annual leave or personal/carers leave (respectively). Further, with respect to the other forms of leave under the Agreement an accrual rate of leave is provided and an amount of leave– such as four weeks of annual leave or five if a continuous shift worker (albeit the clause 9 regarding annual leave does not apply to causal employees) is provided.

[36] It is expressly noted in clause 5.3 that the entitlement to R&R leave may arise after ‘completion of a rostered cycle of continuous service on site’. While there is reference to a ‘rostered cycle’ in the clause, the Agreement does not illuminate what constitutes a ‘rostered cycle’; the term is not defined. However, it appears that the plain text of the clause seeks to separate R&R leave from the rostered cycle, noting that the entitlement to R&R leave arises after the completion of ‘a rostered cycle’. Further the ‘rostered cycle’ is said to be a ‘rostered cycle of continuous service on site’. Yet, the clause makes no express mention whether R&R leave does, or does not, constitute continuous service (when offsite). There is likely an inference that the roster cycle does not include the R&R leave, and that continuous service is only served whilst on site because the Agreement speaks of R&R leave being available ‘after’ the completion of a rostered cycle of continuous service on site.

[37] The ‘hours of work’ clause, at clause 7, sheds no light on the working arrangements in respect of roster cycles, only outlining the ordinary hours of work (38 per week averaged over 12 months) and the span of when such hours can be worked. Overtime is covered in clauses 7.5-7.7, but again there is no reference to a roster cycle.

[38] Returning to the leave provisions, clause 9.7 does provide for an extra week of annual leave for continuous shift workers – for each completed year of service. As to what constitutes a year – well the Agreement does not define that. But the plain ordinary meaning of the text suggests that the authors of the Agreement intended the reference to a year of service to constitute a calendar year. The Agreement does not appear to contemplate the performance of mental gymnastics to deduce whether a shift worker, working a roster cycle as referred to in clause 5.3, has completed a year of service by calculating the days/time worked on site to thereafter formulate whether the employee has continuously served 365 days, 12 months or one year.

[39] While the Agreement has perhaps been cautiously worded to frame ‘R&R’ as a type of leave, when one considers other clauses within the Agreement, it simply does not ring true that R&R constitutes ‘leave’. As observed, those clauses covering leave entitlements include detail of the amount of leave, the accrual of leave, the notification or request ‘process’ for such leave, the evidence to support or substantiate the leave sought, the deduction of leave from leave totals, and whether the leave is cumulative. There are no comparable provisions when it comes to periods of R&R leave under the Agreement.

[40] The Agreement contains limited references to the word ‘absence’. Clause 10.2 informs the reader that personal/carer’s leave will accrue pro rata on a weekly basis, provided that it does not accrue during any periods of unpaid leave or unpaid ‘absences’. When outlining the documentary evidence required to support a request for personal leave, the Agreement refers to notifying the company of any illness or injury that will cause the employee to be ‘absent’ from work. 30 Further, the employee is required to notify as to the period or expected period, of the ‘absence’.31 The employee is obliged to provide Ausgroup with documentary evidence on the first day back to work after the period of ‘absence’.32 However, if the ‘absences’ are ‘less than 2 consecutive days’ then proof of the absences is not required unless Ausgroup says otherwise.33 For all other ‘absences’, namely in the case of an illness or injury of a member of the employee’s immediate family or household, or unexpected emergency, the employees is required to provide a medical certificate or statutory declaration (only a statutory declaration is required for an emergency).34

[41] Clause 16.9 of the Agreement sets out an ‘abandonment’ provision. The clause opens with ‘[I]f the employee is absent for more than three (3) consecutive working shift without contacting the Company, and has not explained their absence…’.

[42] It is evident that the word ‘absent’ denotes a state of being away, in this case being away from the workplace. 35 During a period of ‘R&R leave’ it is quite true that the employee in the circumstances of this case, is taken to be ‘away’ from the workplace. The wording of ‘unpaid rest and recreation leave’ in clause 5.3 of the Agreement suggests just that. However, when one considers the use of the word ‘absent’ or ‘absence’ in the context of the Agreement, it is strikingly clear that the word is not associated with a scheduled absence, such as that of R&R leave. Instead, the authors of the Agreement inserted the word into clauses where the absence was not one which was, for example, predicted, scheduled or planned by the employer, but rather was associated with personal leave or abandonment.

[43] Based on the above reasoning, I have arrived at the conclusion that the period of R&R leave, as referred to in the Agreement, is properly characterised as the block of authorised non-work time which forms an integral part of the work cycles. The preferred construction is one that is of course limited to the terms of the Agreement, and gives rise to the conclusion that R&R leave does not constitute a period of either ‘unpaid leave’ or and ‘unpaid authorised absence’, as those terms are referred to in s 22(2)(b) of the Act.

[44] However, the consideration of whether R&R leave falls within the scope of ‘any period of unpaid leave or unpaid authorised absence’ is not limited to the consideration of the terms of the Agreement. And, unlike the circumstances in Kentz and CBI Instructors, the Agreement is not the only pertinent document that reveals the Applicant’s terms and conditions of employment.

[45] The Applicant was provided with an employment contract of 12 February 2019, which set out a conditional offer of employment on the terms and conditions contained in the letter of offer and the contract of employment (employment contract). The employment contract observed that the principal conditions of the Applicant’s employment were set out in the Agreement, albeit whilst working on the Gorgon Turnaround 101-2019 project (considered to be Specialised Project Work under the Agreement), the Applicant would be paid additional entitlements to those set out in the Agreement and contract.

[46] The Agreement did not specify the working arrangements of the Applicant, however the employment contract in Appendix A set out ‘Roster cycle and hours per day on commencement: 2 weeks on / 2 weeks off, 12 hours per day’. Appendix A lists further primary roster cycles including: 2 weeks on / 3 weeks off, 12 hours per day (maximum of 13 days worked in a row); 13 days on / 1 day off, 12 hours per day (Shutdown Roster); and 6 days on / 1 day off, 12 hours per day (Shutdown Roster). The provision of such rosters makes commercial sense given the remote work location of the Chevron-operated Gorgon Project on Barrow Island, which the employment contract details is 60km off the northwest coast of Western Australia.

[47] When determining whether the minimum employment period has been satisfied, it would be manifestly wrong to only consider the terms of the applicable Agreement. In my view, the working arrangements of the Applicant, whether articulated in the form of an Agreement and/or employment contract, in addition to the actual work practices, are to be considered. The Agreement was silent as to the specific working arrangement of the Applicant. It was the employment contract that informed the Applicant of his hours of work and his roster cycle. There was nothing unequivocal in the terms of Appendix A, regarding the roster cycle. Most people in the industry, where fly in fly out arrangements are in place, would understand what was meant by the phrase - ‘[R]oster cycle and hours per day on commencement: 2 weeks on / 2 weeks off, 12 hours per day’.

[48] Travel arrangements were similarly outlined in the employment contract noting that an employee will generally travel ‘from site on your first rostered day of R&R and return to site on your first day of your rostered time on’. The salient point here is that the periods of R&R were distinctly scheduled. The Applicant knew when he would be on site and knew when he would be away from site (on R&R leave). His evidence was that his flights were pre-booked and the employment contract expressly provide for a Fares Allowance.

[49] I accept in this case the consideration is not limited to the terms of the Agreement, albeit they are stated as being the principal conditions of employment. The terms of the employment contract, as discussed above, in addition to the work arrangement as communicated to the Applicant, reinforce the conclusion reached that the periods of R&R did not fall within the exclusion at s 22(2)(b) of the Act. This therefore means that Mr Mclennan’s period of employment was in excess of six months and as such he had satisfied the minimum employment period.

Conclusion

[50] I am satisfied Mr Mclennan’s period of service whilst employed on a casual basis counts towards his period of employment with Ausgroup. He had worked on a regular and systematic basis for a period that extended past six months. I have not found that there were excluded periods which would reduce his period of service with Ausgroup such as a period of unauthorised absence or unpaid leave. Therefore, I have concluded that Mr Mclennan has completed the relevant minimum employment period.

[51] The jurisdictional objection that Mr Mclennan has not served the minimum employment period is therefore dismissed and the matter will now be remitted for further programming.

DEPUTY PRESIDENT

On the papers

Printed by authority of the Commonwealth Government Printer

<PR715856>

 1 Witness Statement of Colin Butler [10].

 2   AE420668; [2016] FWCA 5906.

 3   Clause 2.1 of the Agreement.

 4   Clause 4.2(c) of the Agreement.

 5   Clause 9.2 of the Agreement.

 6   Clause 9.3 of the Agreement.

 7   Ibid.

 8   Clause 9.7 of the Agreement.

 9   Clause 10 of the Agreement.

 10   Clause 10.10 of the Agreement.

 11   Fair Work Act 2009 (Cth), s 382(a).

 12   Ibid, s383(a).

 13   Wayne Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709.

 14   Ibid.

 15   [2016] FWCFB 2019.

 16   AE400022.

 17 Ibid [113].

 18 Ibid [114].

 19 Ibid [118].

 20 Ibid [118].

 21 [2017] FCCA 2442.

 22   Short v CBI Constructors Pty Ltd [2017] FCCA 2442 [3].

 23   Ibid.

 24 Ibid [59].

 25   [2017] FWCFB 3005.

 26   [2014] FWCFB 7447.

 27   [2014] FWCFB 7447.

 28   Berri point 1 [114]; Golden Cockerel point 8 [41].

 29   Berri point 2[114].

 30   Clause 10.10(a)(i) of the Agreement.

 31   Clause 10.10(a)(ii) of the Agreement.

 32   Clause 10.10 (b) and (c) of the Agreement.

 33   Clause 10.11 of the Agreement.

 34   Clause 10.11(a) and (b) of the Agreement.

 35   Macquarie Dictionary (Online ed, 30 January 2020), ‘absent’.