Fair Work Act 2009

s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

• [1] The Australian Rail, Tram and Bus Industry Union (ARTBIU) is a union registered under the Fair Work (Registered Organisations) Act 2009 (Cth). Metro Tasmania Pty Ltd (Metro Tasmania) is the largest passenger transport service provider in Tasmania. Jitendra Maharjan is an ARTBIU member[1] who is employed by Metro Tasmania as a Bus Operator.[2]

• [2] On 7 March 2024, the ARTBIU applied under s 739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure found in clause 10 of the Metro Tasmania Bus Operators Enterprise Agreement 2020 (2020 Agreement). The ARTBIU and Metro Tasmania are in dispute about whether Mr Maharjan is entitled to paid parental leave for the period between 8 February 2024 to 4 April 2024 inclusive under clause 34 of the 2020 Agreement.[3] The ARTBIU was a bargaining representative for the 2020 Agreement and is covered by it.[4]

• [3] This dispute concerns the rejection of requests for paid parental leave pursuant to clause 34 of the 2020 Agreement. The ARTBIU wants the Commission to find that Mr Maharjan is entitled to paid parental leave under clause 34 of the 2020 Agreement and that Metro Tasmania refused him access to that entitlement.[5]

• [4] I am satisfied the ARTBIU took steps to resolve the dispute by discussions at the workplace pursuant to clause 10 of the 2020 Agreement. The dispute was not resolved at the conference conducted by the Commission and the matter proceeded to hearing. It is not in dispute that the Commission has jurisdiction to arbitrate the matter.[6]

• [5] Metro Tasmania refused Mr Maharjan paid parental leave under clause 34 of the 2020 Agreement.[7] By way of background, on 11 April 2022, Mr Maharjan was offered and then accepted employment with Metro Tasmania as a Bus Operator.[8] Before their son was born, Mr and Mrs Maharjan planned for Mrs Maharjan to be the primary carer of that child.[9] Mr Maharjan had arranged to be on scheduled annual leave between 11 February 2024 to 9 March 2024.[10]

• [6] Mr and Mrs Maharjan attended Royal Hobart Hospital on 7 February 2024 because Mrs Maharjan was experiencing pain. Mrs Maharjan gave birth to her son by an emergency caesarean section on 8 February 2024.[11] Between 8 to 13 February 2024, Mr Maharjan spent time at the hospital with Mrs Maharjan and helped to care for the child.[12] He initially took unpaid leave to attend the birth[13] and his annual leave commenced on 11 February 2024.[14]

• [7] On 15 February 2024, Mr Maharjan made his first paid parental leave application by applying for two weeks of paid parental leave for the period between 3 March 2024 to 17 March 2024 inclusive.[15] In support of his first application, Mr Maharjan provided his employer with a certificate dated 13 February 2024 completed by a registered midwife and issued from the Tasmanian Health Service, specifying that he is the primary carer for his partner and child after the caesarean section.[16] Mr Maharjan says he made this application based on his understanding of his entitlement at the time.[17]

• [8] On 21 February 2024, Chris Le Fevre, Operations Manager of Metro Tasmania advised Mr Maharjan that his paid parental leave application was refused[18] because Mr Maharjan did not qualify for paid parental leave.[19]

• [9] On 22 February 2024, the ARTBIU wrote to Metro Tasmania asserting that Mr Maharjan was eligible for parental leave.[20] The ARTBIU challenged Metro Tasmania's refusal and sought access to 8 weeks of paid parental leave for Mr Maharjan.[21]

• [10] On 1 March 2024, the ARTBIU received a response from Metro Tasmania denying that Mr Maharjan was entitled to paid parental leave.[22]

• [11] On the same day, Mr Maharjan made a second paid parental leave application by applying for eight weeks of paid parental leave for the period between 10 March 2024 to 5 May 2024 inclusive.[23] The period of paid parental leave sought was subsequently clarified by the ARTBIU to be for the period between 8 February 2024 to 4 April 2024 inclusive.[24] On 4 March 2024, the ARTBIU provided to Metro Tasmania a supporting medical certificate from Mrs Maharjan's doctor dated 2 March 2024, which certified that Mrs Maharjan was unable to look after her baby as primary carer "as she is post C-section and not fully well" and that her husband was unable to work for eight weeks between 8 February 2024 until 4 April 2024 inclusive as he "is the primary carer of her baby" because of Mrs Maharjan's medical condition.[25] Mrs Maharjan had consulted the doctor after suffering a tear at the caesarean section.[26] The ARTBIU asserted that Mr Maharjan was the primary carer for the baby and claimed Mr Maharjan to be entitled to paid parental leave under the 2020 Agreement.[27]

• [12] On 7 March 2024, Mr Maharjan applied for annual leave in advance.[28] The ARTBIU informed the Commission on 8 March 2024 that the parties reached an agreement on a temporary measure.[29] The temporary measure was for Metro Tasmania to process 2 weeks of paid special leave for Mr Maharjan to be paid at his ordinary rate while the dispute is being resolved.[30]

• [13] Later, on 22 March 2024, the ARTBIU informed the Commission that it considered the dispute to be unresolved and requested the matter be listed for conference.[31] On 22 March 2024, the ARTBIU notified Metro Tasmania that whilst the matter remained unresolved, Mr Maharjan would take two weeks of annual leave in advance (until 6 April 2024) under clause 29.14 of the 2020 Agreement, which Metro Tasmania approved.[32] On 9 April 2024, Mr Maharjan returned to work, following Mrs Maharjan's recovery from her medical condition on around 2 April 2024.[33]

• [14] The ARTBIU contends that Mr Maharjan is entitled to paid parental leave under clause 34 of the 2020 Agreement as:
• • Mr Maharjan "met the same eligibility entitlements as required by unpaid parental leave"[34] and that he is eligible for unpaid parental leave;[35]
• • Mr Maharjan "was the primary carer for the child"[36] and that this is evidenced by two doctor's certificates;[37] and
• • Mr Maharjan "sought to take the leave at the time of the birth of the child".[38]

• [15] Broadly, the ARTBIU claims that Metro Tasmania had not determined Mr Maharjan's application for paid parental leave on its merits and gave no real or genuine consideration to his application. The ARTBIU claims that Metro Tasmania does not want its male employees to access paid parental leave under clause 34 of the 2020 Agreement and that it was not going to approve Mr Maharjan's application because of the prospect of the floodgates opening and allowing other potentially costly paid parental leave applications to be made.

• [16] The ARTBIU seeks an order that Mr Maharjan be paid parental leave for the relevant period and be reimbursed for any other paid leave in that period.[39]

• [17] Metro Tasmania submits that Mr Maharjan did not satisfy the requirements in clause 34 of the 2020 Agreement to be eligible for paid parental leave. It argues, inter alia, that Mr Maharjan did not provide appropriate notice to Metro Tasmania,[40] that he could not have been the primary carer of the child at the same time as Mrs Maharjan,[41] and that there was no intention for him to be the primary carer.[42]

• [18] The resolution of the dispute turns on the proper construction of the 2020 Agreement and the application of that agreement to the facts. The principles applicable to construing an enterprise agreement are not in dispute and may be briefly stated. 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.[43]

• [19] Turning then to the text of the 2020 Agreement, clause 34 relevantly provides as follows:

(a) In addition to unpaid parental leave a Bus Operator is entitled to 8 weeks paid parental leave (or 16 weeks at half pay) if the Bus Operator:

(i) meets the same eligibility entitlements as required by unpaid parental leave;

(ii) will be the primary carer for the child; and

(iii) takes the paid parental leave at the time of the birth or adoption of the child (or other time if agreed by Metro).

(b) The Paid Parental Leave under clause 34(a) is separate to the Federal Government's Paid Parental Leave scheme." (bold text in the original)

• [20] Clause 34 of the 2020 Agreement is in terms clear. It provides for an entitlement of paid parental leave of 8 weeks (or 16 weeks at half pay) for a Bus Operator if the three conditions specified are met.

• [21] Clause 34(b) of the 2020 Agreement specifies the entitlement to paid parental leave under the 2020 Agreement is separate to the statutory paid parental leave scheme. The introductory words in clause 34(a), "[i]n addition to unpaid parental leave", make clear that paid parental leave for which clause 34 provides is additional to unpaid parental leave.

• [22] Clause 34(a)(i) of the 2020 Agreement requires that a Bus Operator meet the same eligibility entitlements as required by unpaid parental leave. I take the reference to "same eligibility entitlements" to mean the same eligibility conditions or requirements.

• [23] Clause 33 of the 2020 Agreement relevantly provides as follows:

Note: While the National Employment Standards are subject to change, an extract currently states: All employees in Australia are eligible for unpaid parental leave if they have completed at least 12 months of Continuous Service with their employer." (bold and italicised text in the original)

• [24] Division 5 of the Act relevantly provides:

"Division 5 - Parental leave and related entitlements

67 General rule - employee must have completed at least 12 months of service

(1) An employee, other than a casual employee, is not entitled to leave under this Division (other than unpaid pre‑adoption leave or unpaid no safe job leave) unless the employee has, or will have, completed at least 12 months of continuous service with the employer immediately before the date that applies under subsection (3).

(3) For the purposes of subsections (1) and (2), the date that applies is:

(i) birth‑related leave starting before the birth of the child; or

(b) in any other case - the date on which the employee's period of leave is to start." (bold and italicised text in the original; underlining added)

• [25] Section 70 of the Act provides:

An employee is entitled to 12 months of unpaid parental leave if:

(i) the birth of a child of the employee or the employee's spouse or de facto partner; or

(ii) the placement of a child with the employee for adoption; and

(b) the employee has or will have a responsibility for the care of the child.

Note: The employee's entitlement under this section may be affected by other provisions of this Division." (bold text in the original)

• [26] There is no dispute that Mr Maharjan completed 12 months of continuous service at the time he applied to Metro Tasmania to take paid parental leave.[44]

• [27] Mr and Mrs Maharjan were expecting their child in the second week of February 2024.[45] Mr Maharjan has been employed as a Bus Operator at Metro Tasmania for over two years, having commenced the role on 26 April 2022.[46] The eligibility requirement in s 67 of the Act is satisfied.

• [28] To the extent that s 70 of the Act is said to be an eligibility requirement, it is uncontroversial that if Mr Maharjan had applied for some National Employment Standards (NES) unpaid parental leave to cover the disputed period, that leave was associated with the birth of a child of his spouse. Also uncontroversial is that Mr Maharjan had, during the disputed period, a responsibility for the care of the child - the dispute is only whether he was the primary carer. Consequently, s 70 is satisfied.

• [29] There is no requirement under clause 34 of the 2020 Agreement that a Bus Operator apply for unpaid parental leave - only that the operator meets the same eligibility entitlements as required by unpaid parental leave. In relation to the disputed period, Mr Maharjan clearly did.

• [30] Metro Tasmania argues that the inclusion of the words "[i]n addition to" and "will be" in clause 34 of the 2020 Agreement result in the paid parental leave entitlement arising only in circumstances when an employee applied for unpaid parental leave in accordance with the provisions of the NES.[47] Metro Tasmania submits that the application for paid parental leave is to be "based on what the plans are for the relevant couple at the time"[48] and that Mr Maharjan did not meet the unpaid parental leave requirements by not providing appropriate notice to Metro Tasmania.[49] It says that if an employee were to not provide any notice to take leave under that clause, it would "not make any industrial sense" and not be what the parties intended.[50] It claims that under the NES, "in most cases employees need to provide at least 10 weeks' notice of taking unpaid parental leave" under s 74(2) of the Act.[51] Metro Tasmania argues that Mr Maharjan did not seek to take unpaid parental leave by giving "at least 10 weeks written notice".[52] It further contends that Mr Maharjan had not provided sufficient evidence satisfying it that "he was to be the primary carer"[53] either "on an ongoing basis" or for any period of time[54] and in circumstances where it was always intended for Mrs Maharjan to be the primary carer of the child.

• [31] The ARTBIU contends that compliance with s 74(2) of the Act does not condition an entitlement to paid parental leave under clause 34 of the 2020 Agreement.[55] The ARTBIU also contends that clause 34 does not state that an employee needs to demonstrate they are the primary carer on an ongoing basis.[56] It says that to determine whether an employee is the primary carer depends on "what actually occurs in relation to the care".[57] Further, the ARTBIU contends that Mr Maharjan applied for paid parental leave as soon as it became known that his wife's medical condition would make her unable to provide primary care for their child.[58]

• [32] As I have already noted, the paid parental leave entitlement for which clause 34 of the 2020 Agreement provides is not conditional on an employee applying for unpaid parental leave in advance or at all. The words "[i]n addition to unpaid parental leave" in clause 34(a) are words of clarification. That which is required by clause 34 is an employee meeting the specified threefold criteria. The notice requirements for taking unpaid parental leave in s 74 of the Act on which Metro Tasmania relies pertain to the right to take leave at a specified time, not an employee's entitlement to leave per se as specified in ss 67 and 70. The notice giving requirements of s 74 affect the entitlement - when it may be taken - but not eligibility.[59] Eligibility is as specified in ss 67 and 70. Nothing in clause 34 requires a person entitled to take paid parental leave to also have applied for and intend taking unpaid parental leave under the NES. Once that is understood, the notion that the notice requirements for unpaid parental leave in s 74 condition the paid parental leave entitlement in clause 34 falls away. On the evidence and for the reasons already discussed, Mr Maharjan meets the eligibility requirements as specified in ss 67 and 70 and so meets the first condition in clause 34.

• [33] Metro Tasmania argues that Mr Maharjan had not provided sufficient evidence that his wife was unable to be the primary carer and so it was reasonable that it had not been satisfied that Mr Maharjan was the primary carer for the child. Jacqueline Allen, General Manager People & Safety for Metro Tasmania, gave evidence that Mr Maharjan's paid parental leave application dated 15 February 2024 included a medical certificate dated 13 February 2024 that was for the period between 7 February to 13 February 2024.[60] Metro Tasmania determined that Mr Maharjan was not entitled to paid parental leave under the 2020 Agreement and that "the correct entitlement was carer's leave".[61] Metro Tasmania claims it was not satisfied that Mr Maharjan was entitled to paid parental leave under the 2020 Agreement based on the retrospective nature of a medical certificate dated 2 March 2024 provided to Metro Tasmania, which stated that Mr Maharjan was unable to work for eight weeks between 8 February 2024 until 4 April 2024 inclusive.[62]

• [34] Clause 34 of the 2020 Agreement contains no express requirement for an employee to provide evidence in support of their application. In contrast, other provisions in the 2020 Agreement set out various evidentiary requirements, including those regulating compassionate leave,[63] jury service,[64] community service leave[65] and personal/carer's leave.[66] The absence of such a requirement from clause 34 speaks loudly to the intended operation of the provision. The provision does not countenance the subjective opinion of one or more of Metro Tasmania's managerial staff about the sufficiency of medical evidence provided as carrying the day, nor is an employee applying for paid parental leave required to show, as seems to have been the case here, that the birthmother is incapable of providing the care. Clause 34(a)(ii) conditions the paid parental leave entitlement on a requirement that the Bus Operator will be the primary carer for the child. The reason the Bus Operator will be the primary carer is immaterial. But here the reason was given. The birthmother was recovering from giving birth to her son by caesarean section on 8 February 2024 and the father was to assume the primary carer role whilst the mother recovered. That a mother giving birth by caesarean section may, in many cases, also be able to fulfil the role of primary carer is beside the point. Clause 34 does not condition the entitlement on the capacity of the birthmother but rather, on the intention of the applicant for leave to be the primary carer. Here the birthmother was recovering and although providing some care was not fulfilling the primary carer role. That role was undertaken by Mr Maharjan.

• [35] In any event, I agree with the ARTBIU that the provision of the medical certificate was sufficient to establish the birthmother was unable to provide primary care to the child.[67]

• [36] As already noted, clause 34(a)(ii) of the 2020 Agreement sets out that a Bus Operator has the paid parental leave entitlement if the Bus Operator "will be the primary carer for the child". The phrase "primary carer" is not defined in the 2020 Agreement, but the ordinary meaning of that phrase in the context of the care of children is a person who has the day-to-day responsibility for the care of a child.

• [37] The ARTBIU submits that Mr Maharjan helped to care for the baby and "took on primary responsibility" for care of the child following release from the hospital.[68] It says that Mr Maharjan performed "all the tasks" to care for the baby "except breastfeeding".[69] It says that the medical certificates show that Mr Maharjan is a primary carer[70] and that it is not necessary to determine that Mrs Maharjan was incapable of providing care to the child.[71]

• [38] Metro Tasmania argues that Mr and Mrs Maharjan both claimed to be the primary carer of the child at the same time and submits that there had not been an intention for Mr Maharjan to be the primary carer but for Mrs Maharjan's medical condition that occurred after the birth of the child. Metro Tasmania sought to determine whether Mrs Maharjan was a primary carer under another enterprise agreement.[72] Further, it argues that Mrs Maharjan provided care to the child and could provide other needs for the child,[73] including the child's emotional needs.

• [39] The issue in dispute is whether Mr Maharjan was the primary carer for the purposes of meeting the condition in clause 34 of the 2020 Agreement, not whether Mrs Maharjan claimed to be a primary carer when taking parental leave under another industrial instrument. In determining whether Mr Maharjan was the primary carer, it is relevant to consider whether Mr Maharjan provided the primary care to the child, rather than whether Mrs Maharjan was incapable of providing the primary care. And as already noted, that Mrs Maharjan may have provided some care to the child does not diminish Mr Maharjan's claim that he was the primary carer during the relevant period. It is clear on the evidence that Mr Maharjan provided the primary care to the child for the relevant period.[74] He intended when applying for paid parental leave to be the primary carer and he was for the relevant period the primary carer of his son and so met the requirement in clause 34(a)(ii).

• [40] In support of its contention that Mr Maharjan was not the primary carer for the child, Metro Tasmania relied on evidence from Associate Professor Vinay Rane to assert that Mrs Maharjan was not incapable of providing the primary care. Although doubtless Associate Professor Rane is a well-qualified and experienced obstetrician and gynaecologist, I do not propose to give any weight to his evidence for several reasons. First, it was in the nature of generalised observations of the expected capacity of a mother giving birth by caesarean section, albeit with the benefit of reviewing Mrs Maharjan's clinical care notes during her stay at the Royal Hobart Hospital to provide primary care to her newborn child. Secondly, Associate Professor Rane had not spoken with, much less examined, Mrs Maharjan before preparing his report the subject of his evidence. Thirdly, Associate Professor Rane's evidence does not assist in resolving the dispute because on a proper construction of the 2020 Agreement, it is not necessary to show that Mrs Maharjan was unable to care for her son, but only that Mr Maharjan was the primary carer during the relevant period claimed as paid parental leave. Fourth, Associate Professor Rane's opinion about Mrs Maharjan's capacity was given many months after the event, without the benefit of a consultation and is inconsistent with the medical certificate provided in support by Mrs Maharjan's doctor who had the benefit of a consultation with Mrs Maharjan.

• [41] Metro Tasmania argues that the words "will be" in clause 34(a)(ii) of the 2020 Agreement "refers to a future event that is certain to occur or is planned"[75] and that this requires an employee to make a future plan to take paid parental leave. It says that the word "is" or "was" would have been used, instead of "will be", in clause 34(a)(ii) otherwise. This construction is rejected not only because it proffers a narrow and restrictive view but because it is devoid of the realities in which the clause may operate. A paid parental leave application may be made before the birth of the child, for example, when an applicant employee is the birthmother intending to be the primary carer or when the relevant prospective parent decides that they will be the primary carer because the other will return to work or continue working. But a prospective parent may become the primary carer in unplanned circumstances. The birth mother may, as here, be unable or have difficulty for a time to carry out a primary carer role because of physiological or psychological birthing complications or may die because of birthing associated complications. The notion that the other parent would not be entitled to claim the benefit under clause 34 of the 2020 Agreement, because although they are the primary care giver by dint of circumstances, they had not planned to be so, is quite absurd and belies any rational reading of the provision.

• [42] The phrase "will be" is the future continuous tense of "will" which in the context of the 2020 Agreement I consider is used to refer to ongoing actions - carrying out the role of primary carer - for the duration of the paid parental leave taken by a Bus Operator. In other words, it is a condition that a Bus Operator taking paid parental leave under clause 34 of the 2020 Agreement be the primary carer to the child while taking the leave. On Metro Tasmania's construction, it is sufficient before the child is born that a Bus Operator will in the future be the primary carer to be entitled to paid parental leave, but it is insufficient that the Bus Operator, as a matter of fact, is the primary carer of the child although the operator had not planned to be so. Such a construction is absurd and objectively cannot have been intended.

• [43] Metro Tasmania sought to rely on Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd[76] to support its submission that a relevant consideration in determining whether Mr Maharjan was the primary carer of the child is whether Mrs Maharjan was incapable of providing primary care. This reliance is misconceived.

• [44] The decision in BHP Coal turned on its facts and is plainly distinguishable. In contrast to the 2020 Agreement, the industrial instrument the subject of the dispute in BHP Coal provided, in respect of parental leave, that the "provisions of the [Act] will apply as a minimum, with additional payments in accordance with Company Policy (as amended from time to time)".[77] The applicable company policy required an applicant for leave to provide "any other supporting documentation required by BHP Billiton in order to satisfy itself that the benefits claimed are due".[78] The employer had provided male employees who had applied for paid parental leave as primary carer with a letter setting out the further information that it requires in order to be satisfied that the employee is entitled to the leave requested as follows:

"(a) A statutory declaration signed by the Employee that:

(1) the mother cannot provide the primary care for the child; and

(2) the employee will be the primary care giver for the period for which leave is sought.

(b) A certificate from the treating Obstetrician and/or gynaecologist providing at least the following information to certify that:

(2) she is suffering from a post-natal medical condition (in addition to/not including a Caesarean Section) which prevents her from being the primary care giver for the child;

(d) she is unable to provide primary care for the child for the certified period."[79]

• [45] It was on this basis that the Deputy President concluded in BHP Coal that evidence to the effect that the birthmother was unable to provide primary care was required.[80] Relevantly however, the Deputy President noted that in her view "if a treating Doctor states that a woman who has given birth is suffering from a medical condition that prevents her from providing primary care to a newborn child, then that is sufficient for her spouse or partner to claim an entitlement to paid primary carer's leave to provide such care to the child".[81] With that I agree. The medical certificate here did just that and it is unnecessary to look behind it.

• [46] On the evidence and for the reasons stated above, Mr Maharjan meets the second condition specified in clause 34(a)(ii) of the 2020 Agreement.

• [47] Clause 34(a)(iii) of the 2020 Agreement provides a requirement for a Bus Operator to take the paid parental leave at the time of the birth or adoption of the child. It is not in dispute that Mr Maharjan sought to take paid parental leave for a period that included the time of the birth of his child. Mr Maharjan therefore meets the third condition specified in clause 34. He is therefore entitled under clause 34 to the paid parental leave claimed for the period 8 February 2024 to 4 April 2024 inclusive.

1. Metro Tasmania Pty Ltd must pay to Mr Jitendra Maharjan paid parental leave pursuant to clause 34 of the 2020 Agreement for the period between 8 February 2024 to 4 April 2024 inclusive;
2. Metro Tasmania Pty Ltd must recredit Mr Maharjan's relevant accrued leave balances any forms of other paid leave taken by Mr Maharjan during the period between 8 February 2024 to 4 April 2024 inclusive; and
3. Metro Tasmania Pty Ltd must comply with orders 1 and 2 above within 14 days of the date of this decision.

J. Kennedy and M. O'Brien, for the Australian Rail, Tram and Bus Industry Union

S. Masters and J. Lynch, for Metro Tasmania Pty Ltd

[4] Metro Tasmania Bus Operators Enterprise Agreement 2020 (2020 Agreement) at clause 5(a)(iii)

[11] Ibid at [15]; CB33 at [6]; CB35 at [16]; CB308 at [3]; CB309 at [18]; CB365 at [6]

[43] 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, (2020) 278 FCR 566 at [65] and the authorities referred to therein; Workpac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536, (2018) 264 FCR 536 at [197]

[59] See also the legislative note to s 70 of the Fair Work Act 2009 (Cth)

[64] 2020 Agreement clause 35.2(b) and (d)

[67] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FWC 920 at [79] and [85]

[76] [2015] FWC 920

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