United Workers' Union v Toll Transport Pty Ltd T/A Toll Global Logistics
[2023] FWC 1308
•7 JUNE 2023
| [2023] FWC 1308 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Workers’ Union
v
Toll Transport Pty Ltd T/A Toll Global Logistics
(C2022/7494)
| COMMISSIONER BISSETT | MELBOURNE, 7 JUNE 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 14 November 2022 the United Workers’ Union (UWU) made an application to the Commission pursuant to s.739 of the Fair Work Act 2009 (FW Act) in accordance with the disputes resolution procedure of the Toll Logistics and United Workers Union (RCA Victoria) Enterprise Agreement 2021 (Agreement) for the Commission to deal with a dispute. Toll Transport Pty Ltd T/A Toll Logistics (Toll) is the employer covered by the Agreement.
The dispute notified is threefold. First, a dispute in relation to permanent employment and job security, second a dispute in relation to notice of and access to Accrued Days Off (ADOs) and third, a dispute in relation to the number of employees who may be absent over the restricted period in December/January each year. Each part of the dispute relates to matters at the Toll Altona site (also referred to as the Toll Nike Distribution Centre site).
Following a conciliation conference the UWU indicated that, without prejudice in relation to its rights to continue to pursue the remaining issues, it wished to have the dispute in relation to ADOs referred for arbitration in the first instance. In so doing it indicated it would continue discussions with Toll on the remaining matters but these, too, may be referred for arbitration but at a later date.
Directions were therefore issued for the hearing of the dispute in relation to ADOs.
The UWU filed submissions, submissions in reply and a witness statement of Mr Greg Morrell, a storeworker and UWU Delegate at the Altona site. Mr Morrell was not required for cross examination and his statement was accepted by the Commission.
Toll filed written submissions and a witness statement of Mr James Vidot, Site Manager of the Toll Altona site. Mr Vidot was not required for cross examination and his statement was accepted by the Commission.
The UWU submits, and Toll agrees, that the question for the Commission to answer in respect to this aspect of its application is:
In respect of the Toll Altona site, can the employer refuse an employee application for an ADO, in circumstances where the employee has met the notice requirements set out in clause 25.10 of Schedule A?
Prior to the hearing of the application I granted Toll permission to be represented by a lawyer pursuant to s.596(2)(a) of the FW Act.
JURISDICTION
In its application for the Commission to deal with a dispute the UWU said the following:
Notice of accrued days off
23.The Employer implements a work cycle that enables employees to accrue one day off per month.
24.There is no regimented system or roster for the taking of ADOs at the site.
25.Until August 2022, the practice for taking ADOs has been for employees to advise the employer by way of leave application form with at least 3 days notice for 1 or 2 ADOs, and 4 weeks notice for 3 or more ADOs.
26.This practice is consistent with cl 25.10.1 and cl 25.10.2. of Schedule A of the agreement.
27.Employees have discretion as to when they take ADOs, provided notice requirements are met.
28.Cl 25.11.1 provides: ‘An Employee is entitled to accrue four (4) ADOs and with the agreement of the Employer an Employee can accrue a total of five (5) ADO’s. An Employee may elect when they take these days so long as they provide notice as per clause 25.10.’
29.The dispute concerns a change in the practice at the site involving the rejection of ADO applications in circumstances where employees have met the minimum notice requirements.
30.The Respondent maintains that ADOs may be rejected for any operational reason at any time, and that employees may not take ADOs during the restricted leave period due to operational requirements.
On 8 November 2022, prior to the notification of the dispute to the Commission, Mr Ranjeet Prassad of the Respondent sent an email to Mr Morell in which he said:
This dispute is about the approval/rejection of ADO and annual leave…
Additionally, Toll maintains that it has the discretion to approve/deny ADO and Annual leave on operational grounds. Therefore the status quo has been maintained.
This email was in response to an earlier email from Mr Morrell on 7 November 2022 in which he said that employees were being denied leave and that the status quo should prevail.
The dispute could not be resolved by discussion at the workplace. The dispute in relation to access to ADOs was subject to a conciliation conference on 13 December 2022 where it could not be settled.
The dispute before Commission can be characterised as the right of employees under the Agreement to access ADOs when the notice requirements of clause 25 have been met in circumstances where management considers the approval of ADOs to be at its discretion. That there is no employee at the time of hearing, who has been denied access to ADOs does not alter the characterisation of the dispute. The email of Mr Prassad raised the issue of a general discretion of Toll with respect to the ability to take an ADO. The dispute relates to whether such a discretion exists within the Agreement and is not in relation to the actual exercise of such a claimed discretion. The dispute is, in this respect ‘susceptible to adjudication’.
I am satisfied that the question of notice of and access to ADOs by employees working at the Altona site is a matter arising under the Agreement.[1]
On the basis of the evidence of Mr Morrell and Mr Vidot I am satisfied that the UWU has met the requirements of the dispute resolution procedure such that the application is validly made.
I am therefore satisfied that I have jurisdiction to deal with the dispute.
THE AGREEMENT
The Agreement commenced operation on 11 May 2022 and has a nominal expiry date of 30 June 2024. It consists of two parts – Part A containing ‘Common Terms’ and Part B consisting of five schedules, each relevant to a specific Toll site. Schedule A is relevant to the Toll Altona site.
Clause 25 of Schedule A deals with hours of work. As is relevant to the dispute before me it states:
25.1. Ordinary hours of work – day workers
25.1.1. The ordinary hours of work, exclusive of meal times, shall be an average of 38 per week and shall be worked on one of the following bases:
· 38 hours within a work cycle not exceeding 7 consecutive days; or
· 76 hours within a work cycle not exceeding 14 consecutive days; or
· 114 hours within a work cycle not exceeding 21 consecutive days; or
· 152 hours within a work cycle not exceeding 28 consecutive days.
…
25.4. Implementation of 38-hour week
25.4.1. Except as otherwise provided in this clause 25, the method of implementation of the 38- hour week may be any one of the following:
· by Employees working less than eight ordinary hours each day; or
· by Employees working less than eight hours on one or more days each week; or
· by fixing one weekday on which all Employees will be off during a particular work cycle; or
· by rostering Employees off on various days of the week during a particular work cycle so that each Employee has one week day off during that cycle.
25.5. Method of implementation of 38-hour week at discretion of Employer
The method of implementation of the 38-hour week shall be at the discretion of the Employer who shall nominate which method of implementation prescribed in clause 25.4 shall apply. The Employer shall not subsequently alter the method of implementation without advising the Employees subject to the alteration at least seven days in advance of the date on which the altered method of implementation is to take effect.
…
25.10. Notice of accrued days off (ADO’s)
25.10.1. Except as provided as in clause 25.1, in cases where an Employee in accordance with clauses 25.3 and 25.4, is entitled to a day off during his/her work cycle, such Employee shall advise the employer at least three (3) days in advance when they seek to take one (1) or two (2) accrued days off.
25.10.2. Where an Employee makes a request to access three (3) or more accrued days off, they shall advise the employer four (4) weeks in advance of the week days they intend to take off.
25.11. Accumulation and Purchasing of accrued days off (ADO’s)
25.11.1. An Employee is entitled to accrue four (4) ADO’s and with the agreement of the Employer an Employee can accrue a total of five (5) ADO’s. An Employee may elect when they take these days so long as they provide notice as per clause 25.10.
25.11.2. In such circumstances, where an Employee has accrued more than their entitled number of ADO’s, the employer may direct them to utilise such additional days within a month.
25.11.3. An Employee may elect to have two (2) ADO’s per financial year, paid out at their ordinary rate of pay
25.11.4. Where an Employee has accrued their maximum entitlement, and the Employer has been unable to roster the employees for additional ADO’s as they have accrued, the Employee may also have those ADO’s in excess of four (4), paid out at the end of the financial year.
25.12. Accrued days off (ADO’s) - substitute days
25.12.1. The Employer with the agreement of the majority of the Employees in any establishment, may substitute the day an Employee is to take off in accordance with clauses 25.3 and 25.4, for another day in the case of breakdown in machinery, a failure or shortage of electric power, to meet the requirements of the business in the event of rush orders or some other emergency situation.
25.12.2. An Employee who is required by his/her Employer to work on his/her scheduled day off in circumstances other than those in clause 25.2. shall be paid overtime rates or be granted an alternative day off. Such choice shall be at the option of the Employee.
25.12.3. An individual Employee, with the agreement of his/her Employer, may substitute the day he/she is to take off for another day.
EVIDENCE AND SUBMISSIONS
Mr Morrell’s evidence is that during September and October 2022 he was approached by members who were being denied access to ADOs, even when they had given the correct notice as required by clause 25.10. He raised a formal dispute with management in relation to the issue and, between October and December 2022, met with management in an effort to resolve the dispute. He said that he found management’s approach to the matter frustrating as it appeared to be a change from how the site had dealt with ADOs over the previous 16 years he had been on site.
Mr Vidot’s evidence is that is that Toll takes a flexible approach to requests for ADOs and typically does not deny such requests unless a request has been made with less than 3 days’ notice (except during the restricted leave period where different provisions of the Agreement apply). He says that, historically, the practice at the Altona site has been to approve ADOs even when the notice requirements in clause 25 have not been met.
The UWU submits that, properly construed, clause 25.10 entitles an employee at the Altona site to determine the date of their ADOs with the only requirement being that they give the notice specified in clause 25.10 of the Agreement. That is, the only limitation on the taking of ADOs is the notice specified.
The UWU submits that clause 25.10 of the Agreement must be construed within context of the surrounding provisions. In this respect it submits that where discretion is given to Toll in clause 25 it is clearly spelt out. For example clauses 25.1-25.7 give sole discretion to Toll as to how it might implement a 38-hour week.
Not all of the means by which the 38-hour week may be implemented give rise to the entitlement to an ADO.[2] The UWU submits that where Toll has determined to implement the 38-hour week in such a way that ADOs are a feature of the work cycle, and where the ADO is not rostered, an employee accrues ADOs. The means by which that accrued ADO may be taken is then spelt out in clause 25.10-25.12 of the Agreement which deal with notice of ADOs, accumulation and purchasing of ADOs and substitute days.
The UWU submits that the plain language of clause 25.10.1 requires that an employee shall advise Toll three days in advance that they seek to take an ADO. The notice requirements are greater for 3 or more consecutive ADOs (clause 25.10.2).
Clause 25.11.1 then states that an employee may elect when they take the ADOs subject only to the notice required in clause 25.10 having been provided.
The UWU submits that the use of the word ‘elect’ in clause 25.11.1 denotes an entitlement of choice to the employee and, by extension, no discretion to Toll as to when an ADO might be taken with the exercise of the right of the employee only restricted by the notice period specified. Nothing in clause 25.11 suggests that Toll is required to ‘approve’ or may refuse the ADO taken at the election of the employee.
By contrast, the UWU refer to clause 31.5 of Schedule A of the Agreement which deals with applications for, and the taking of, annual leave. Clause 31.5.2 provides for leave to be taken in single days by mutual agreement of the employer and employee, an employee may elect with the consent of the employer to take annual leave in single days not exceeding five in a calendar year (clause 31.5.4) and the employer should not unreasonably withhold approval for annual leave on consecutive days subject to notice (clause 31.5.3). The language with respect to the taking of annual leave can clearly be distinguished from that utilised with respect to ADOs supporting the position that, while discretion exists with the employer for the approval of the taking of annual leave, the same discretion is not apparent in relation to the taking of ADOs.
The UWU submits that its submission is further strengthened by a consideration of clause 25.12.3 which allows an employee to change an ADO once notified, but only with the agreement of the employer.
The UWU submits that Toll has no discretion under the Agreement to refuse an ADO once the notice requirements have been met. The UWU is not asking the Commission, by its application, to interfere with some discretion that Toll has – rather, the question for determination is if that discretion exists in fact. In this respect the UWU distinguishes this matter from the principles set out in Australian Federated Union of Locomotive Employees v State Rail Authority of New South Wales[3] (XPT Trains) which dealt with interference in the exercise of managerial discretion. The UWU refers to the decision in Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited[4] where Vice President Lawler said:
[11] If an employer’s exercise of managerial prerogative is not prevented by statute, an award, a statutory agreement or the contract of employment, the basis for a tribunal such as Fair Work Australia, acting as an arbitrator of a dispute, interfering with what would otherwise be a lawful exercise of managerial prerogative (such as the making or varying of a policy which employees are required to observe) was laid down Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (XPT case)…
[footnote excluded]
In the matter before the Commission the UWU says the Agreement limits the exercise of managerial discretion – that is that managerial prerogative is prevented by the Agreement.
The UWU agrees that the provisions of clause 31.8.7 (restricted leave period) establishes a limitation on taking an ADO but only in the circumstances prescribed by that clause. The UWU suggests that if Toll does have the discretion to refuse ADOs under clause 25 as it argues, it would not require the discretion afforded during the restricted leave period in clause 31.8.7.
The purpose of notice, generally, is to give the employer (or employees in the case of roster changes, for example) an opportunity to make arrangements for the changed circumstances they may face. In both cases the UWU submits that notice is given in lieu of any mutual intent. In this context clause 25.10 is directed to providing Toll with notice so that it may make appropriate arrangements for the absence of the employee who exercises their right to take an ADO. Notice, however, does not equate to a discretion to refuse the ADO.
The UWU submits that there is no provision in clauses 25.10-25.12 that would empower Toll to refuse an ADO where the appropriate notice has been given. Rather, the UWU submits that clause 25.12 provides circumstances where the ADO elected by the employee may be substituted either at the requirement of Toll or the request of the employee. In both circumstances however the clause suggests by it wording that the ADO has already been fixed by the preceding clauses.
Toll agrees in its submission that the purpose of the notice of an ADO specified in clause 25.10 of Schedule A of the Agreement is so that alternative arrangements can be made in the employee’s absence. However, Toll submits that there may be circumstances where the operational requirements of Toll necessitate the employee’s attendance at work, or at least some imposition of limits on the absence.
Toll submits that, while clause 25.10 provides that 3 days’ notice must be given of an ADO, the clause does not limit Toll’s ability to refuse the ADO. From a textual perspective there is nothing in clause 25 that prevents Toll from refusing an ADO or that says Toll must approve an ADO – even if notice is given in accordance with the clause. Further, Toll submits that contextually the Agreement provides circumstances where Toll can refuse an ADO, including in clause 31.8.7.1 of Schedule A of the Agreement, supporting its view that it may also do so under clause 25.
Similarly Toll submits that, having regard to the purpose of the Agreement, the framers of the Agreement could not have intended that it would operate in such a way to impede the operation of the warehouse. It is clear that excellent customer service throughout all sections of the operation should be maintained.[5] It is only for this reason that ADOs have been refused in the past.
Relying on the decisions in XPT Trains and Re Cram[6] Toll submits the Commission’s jurisdiction to interfere with Toll’s decision-making as its concerns its operation is not clear. Employers, Toll submits, necessarily retain inherent discretion to organise and dictate how they see fit within the confines of the notions of reasonableness.[7] To answer the UWU’s question in the negative may have the effect of a ‘deluge of requests that [Toll] is unable to refuse’ which would leave it unable to operate it business at Altona.
In the circumstances highlighted in the evidence of Mr Vidot with respect to leave that was approved over the restricted leave period in 2022/2023, Toll submits that nothing in Toll’s exercise of its discretion could be seen as unjust or unreasonable. For this reason the Commission should not lightly chose to interfere in what was the lawful business management decision of Toll.[8]
Toll submits that clause 25 is not as clear as suggested by the UWU. The clause uses a variety of terms – ‘request’, ‘seek’ and ‘elect’ – which all describe an employee making a request in relation to an ADO.
Toll submits that, if the taking of an ADO is going to have a negative impact on the running of its business, it is reasonable that Toll can refuse that request.
Toll says that the approach in clause 31.5 in relation to the application for the taking of annual leave should be taken to ADOs. It suggests that this approach was intended is supported by the evidence of Mr Morrell and Mr Vidot.
In relation to the application of the principles in AMWU v Berri Pty Ltd[9] (Berri) Toll submits that, while the discretion it says is available to Toll to refuse an ADO under clause 25 is not apparent, it is not necessary to re-write the provision to obtain a ‘just outcome’. Viewed objectively Toll says that a reasonable person would consider it reasonable for an employer to have the discretion in relation to ADOs similar to that provided in relation to annual leave.
CONSIDERATION
Principles of construction
The principles that apply to the construction of an agreement are well summarised in Berri and are not repeated here. The parties agree on their application to the matter before the Commission. As the Full Bench most recently observed in AMWU v BOC Limited[10]
[17] …The task of construing an industrial instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include other provisions of the industrial instrument, read as a whole, and the disputed provision’s place and arrangement in the instrument. The statutory framework under which the industrial instrument is made, or in which it operates may also provide relevant context, as might an antecedent instrument or instruments from which a particular provision has been derived. Regard may be had to relevant context and surrounding circumstances to determine whether there is any ambiguity in a provision of an industrial instrument. The language of an industrial instrument is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the relevant parts of the instrument remains the starting point and the end point in the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.[11]
The Agreement
The relevant terms of the Agreement are set out above. Clause 25 deals with hours of work with those hours to be performed in accordance with clause 25.4. It is to be observed that clause 25.6 provides some discretion to implement a model that varies from that in clause 25.4 and that may explain the particular model utilised at the Altona site.
The determination of how hours of work will be organised is clearly at the discretion of the employer.[12] Access to an ADO on a day nominated by the employee can only arise where an employer has determined working hours such that employees have a day off in the work cycle but that day is not determined by the employer (as is the case at the Altona site).
Having established a system of ADOs at the Altona site as it has, it is difficult to read the remainder of clause 25 in a way other than to provide discretion to the employee as to when they shall take their ADOs, subject only to meeting the notice requirement.
Clause 25.10 specifies the notice be given by an employee to access an ADO – 3 days’ notice for 1 or 2 ADOs and 4 weeks’ notice for 3 or more ADOs. A failure to provide the required notice will provide the employer with the right to refuse the ADO but this discretion arises because of the operation of clause 25.11.1 which restricts the right to elect the day to have as an ADO to circumstances where the notice in clause 25.10 is given, not from any broad discretion otherwise provided or prevailing in clause 25.
While clause 25.10, read in isolation, does not appear on its face to limit any right of management to refuse a request for an ADO, clause 25.11 operates clearly to give the employee the right to take an ADO subject only to giving the required notice. The word ‘elect’ makes this clear.
The Macquarie Dictionary defines ‘elect’ to mean:
1. to select by vote, as for an office.
2. to determine in favour of (a course of action, etc.): she elected to remain.
3. to pick out or choose.
4. …
In the context of clause 25.11 it is clear that the word is used in the sense of ‘to determine in favour of’ the day on which an ADO is to be taken. Clause 25.11 therefore allows the employee to choose to take an ADO subject only to notice being given. It therefore operates to limit any discretion Toll may claim to refuse the ADO. There is, however, a residual but limited discretion afforded to Toll in relation to the taking of ADOs to circumstances where the required notice is not given or where an excess number of ADOs needs to be taken. In such circumstances it is clearly the employer who will decide if the ADO can be taken (when the required notice is not given) or when it will be taken (in the case of an excess of accrued days for a particular employee).
Clause 25.12.2 would seem, on its face, to support the position of the UWU that the taking of an ADO is at the discretion of the employee. That clause requires either the payment of overtime or the provision of an alternative day off if an employee is required to work on their chosen ADO. The provision of an alternative day off instead of overtime is solely at the option of the employee.
Clause 25.12.3 limits when a notified ADO can be changed, such change being subject to agreement with Toll.
A review of the clause as a whole does not support a conclusion that Toll has a discretion (beyond that outlined in limited circumstances) to accept or reject notification of an ADO. Clause 25 identifies when a discretion or absolute right will exist (to either the employee or Toll) or when agreement between the employee and Toll is required. The use of different language in different sub-clauses supports a conclusion that Toll does not have a broad discretion to reject an ADO as posited by Toll.
Contrary to the submissions of Toll, I do not consider the words ‘elect’, ‘seek’ and ‘request’ are used interchangeably in the clause. Nor do I accept that ‘elect’ is used as a synonym for ‘request’ although I accept that ‘seek’ may be used as a synonym for ‘request’. How the various words are used can only be determined in context of the words around them.
I agree that some cross referencing and headings in the clause are ‘muddy’ but it seems this is true of much of clause 25 such that nothing can be read into it. It is no more than the use of ‘infelicitous language’ and reflects a lack of attention in the drafting process. Each sub-clause, in context of the clause, is easily understood and does not give rise to ambiguity or uncertainty.
My conclusion as to the operation of clause 25 is supported by a consideration of Schedule A of the Agreement as a whole. Clause 31.5 sets limits and a greater level of management control over the taking of leave during the year and clause 31.8.7[13] provides management discretion during the ‘restricted leave period’ that operates from 30 November each year until 31 January in the following year. Both of these clauses suggest that, where necessary, the parties have turned their minds to when and how management discretion should operate with respect to certain absences. That management discretion is clearly spelt out in the language of clause 31.5 and clause 31.8.7, but is not apparent in clause 25 in relation to the taking of ADOs, suggests it was not intended that discretion would operate in relation to ADOs as it may in relation to annual leave and the restricted leave period.
The evident purpose of clause 25 is to establish a means, acceptable to the employer, for the implementation of the 38-hour week. The clause clearly anticipates that there are a variety of ways that the 38-hour week could be implemented but leaves to management to determine what suits its particular sites. In this case, having determined not to have a fixed day off for all employees or to roster the days off across the week and to allow accumulations of ADOs,[14] it then provides some confidence to employees that they will be able to take their ADOs.
I do not consider, in determining the intent and operation of this clause, that I should look to other schedules of the Agreement. Each schedule is specific to a particular work site and, as the UWU put it, the Agreement in its current form is the ‘amalgamation of four separate enterprise agreements’ with Part A containing common terms and Part B relating to each specific site. While each schedule along with Part A may tell me something about that particular schedule I do not consider that a particular schedule can provide any guidance as to the intent in another schedule. There has been no merging of the schedules such that a single intent might be discerned at this stage.
To import into the clause a general discretion for Toll to refuse an ADO where such refusal was not unreasonable would be, in my view, an attempt to re-write the clause to provide an outcome different to that apparent in the wording.
I do not accept Toll’s submission that if management discretion does not exist the power of the Commission to arbitrate the dispute is unclear. As set out above in relation to jurisdiction, I am not, in this case, being asked to determine if a discretion available to Toll has been reasonably exercised. If that was the case the Toll argument would have some merit. Rather, I am being asked to determine if there is a general discretion to Toll in clause 25 to refuse an ADO as a necessary step to answering the question posed by the UWU.
I do not consider that the notification of an ADO is provided on the same form as that used for annual leave (and all other absences from the workplace) evidences an intention of the parties that Toll should have discretion on ADOs such as it does on annual leave. The form is an administrative convenience for Toll and is not referred to in the Agreement.
In conclusion I would observe that there is no impediment in the Agreement preventing Toll from speaking to employees about an ADO they may have nominated and asking if it can be changed but this is not the same as a discretion to management to refuse the ADO once notified.
CONCLUSION
The question posed in this arbitration is:
In respect of the Toll Altona site, can the employer refuse an employee application for an ADO, in circumstances where the employee has met the notice requirements set out in clause 25.10 of Schedule A?
The answer is: no.
This resolves that part of the dispute as notified by the UWU in relation to the operation of clause 25 of the Agreement.
COMMISSIONER
Appearances:
A Thwaites for the Applicant
K Sweatman of Kingston Reid for the Respondent
Hearing details:
2023.
Melbourne:
5 April 2023.
Final written submissions:
Applicant, 24 April 2023
Respondent, 18 April 2023
[1] See clause 25.10, Schedule A of the Agreement
[2] Clause 25.4 of Schedule A of the Agreement
[3] (1984) 295 CAR 188
[4] [2011] FWA 8288
[5] Clause 4.1. of the Agreement
[6] (1987) 163 CLR 117 at [29]
[7] Toll submissions, paragraph 20, CB page 32
[8] Lend Lease v CFMEU[2015] FWCFB 1889 at [27]
[9] [2017] FWCFB 3005
[10] [2023] FWCFB 78
[11] Australian Workers’ Union v Orica Australia Pty Ltd [2022] FWCFB 90 at [18] and the authorities referred to therein; See also James Cook University v Ridd [2020] FCAFC 123 at [65] and the authorities referred to therein.
[12] Clause 25.5: The method of implementing the 38-hour week shall be at the discretion of the Employer who shall nominate which method…
[13] I make no finding in relation to Mr Vidot’s evidence in relation to the exercise of Toll’s discretion during the restricted leave period. This is a matter relevant to a further part of the dispute notified to the Commission but not dealt with here.
[14] Clause 25.11.1: 4 or 5 subject to management agreement.
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