1. I extract two relevant concepts in this authoritative statement. The first is that interpreting a statute by reference to the meaning of the same or similar expression in an industrial award is not allowed. The second is that it requires interpreting the words in the context in which they appear.
2. Firstly, I note that the Agreement has within it words of similar expression for its own application, upon which there was no disagreement mentioned in these proceedings, not even in the negotiations for the present form of the Agreement where disagreement on the meaning of the same words in the LSL Act was not resolved.[9]
3. In particular, the Agreement refers at Sch 3 cl 1.4 to the casual loading of 25% being "applied to actual hours worked"; and at cl 3.1.3 to the casual loading of 25% being "applied to hours worked for casual employees". Mr Collins' uncontested affidavit evidence, supported by the annexed payslips, confirm that Mr Collins is paid the 25% casual loading on the whole of the minimum callout fee, even where the time he spends actually carrying out the tasks for which he was called out, is less than the minimum.[10] Consequently, for the purposes of interpreting the same or similar expression in the Agreement, the parties themselves interpret the expression "hours worked" by Flinders Ports casual employees to include all the hours of the minimum call out period.
4. The applicant did not rely on an argument that this common interpretation of a similar expression in the Agreement should determine the question of the meaning in the LSL Act.
5. The applicant's argument proceeded by reference to the second concept, interpreting the words in context.
6. Oft quoted is the following guidance from the High Court of Australia in Australian Education Union v Department of Education and Children's Services:

The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose.[11]

1. The respondent's argument that the "natural and ordinary meaning" of "hours worked" should be understood as being limited to, effectively, the definition of "work" in the Macquarie Dictionary, ignores the relevance of the further consideration of the context in which they appear.
2. The applicant argues that the context for the words "hours worked" is the calculation of the payment for the long service leave by reference to the ordinary weekly rate of pay. That is, the entitlement is to the ordinary weekly rate of pay, and s 3(2) defines how that is to be calculated. It is not a standalone phrase. The purpose of the provision is to calculate how the employee is to be paid while on long service leave.
3. There is relevant authority on the interpretation of the term "ordinary weekly rate of pay" which assists here.
4. Much earlier than Quarries, was another decision of Parsons J in Jongewaard v Price Waterhouse where she said:

The meaning of the phrase `ordinary weekly rate of pay' has to be determined from its context in the Act. In that context the word `ordinary', as it is used in the phrase `ordinary weekly rate of pay', does not simply mean ordinary in the sense of commonplace, normal or not exceptional. The word `ordinary', when used in the context of a weekly rate of pay, has acquired a slightly different meaning. It refers to the rate of pay related to the hours of work which form the basis or core of the particular contract of employment between the parties.[12]

The exclusion of overtime, shift premiums and penalty rates and the specific saving of the benefits applying to commission, casual workers and workers' accommodation are all consistent with an intention to confine the calculation of an entitlement to long service leave to that part of the worker's remuneration which is essential to the contract between the parties.

1. Although it was considering what categories of remuneration should be included rather than the calculation of hours worked, the more recent decision of the Full Court of the SAIRC in Rehn v Adelaide Football Club considered the term "ordinary weekly rate of pay":

The basis of the calculation in s 8(4) of the Act is the worker's ordinary weekly rate of pay applicable immediately before the termination. This is clearly referable to that part of the remuneration which is received episodically (i.e. weekly or fortnightly). It is also clearly referable to the normal or ordinary incidence, i.e. that which would be the experience in the usual week and fairly represents the situation.[13]

1. Here, the intention is important, as in Jongewaard. It does not include "extras" like overtime or penalty rates which compensate for additional hours and shiftwork, which are not performed while on leave, whereas the casual loading is included.
2. The applicant argues that the Agreement is relevant as it describes the rights and obligations of Flinders Ports and the employees covered by it. That is part of the context to which the terms of the LSL Act must be applied. They are relevant to how "hours worked" is to be understood in the particular circumstances of Mr Collins' casual employment.
3. Although mentioned in the context of continuity of service, Stanley J's comments in Woolford inform how the word "work" is to be interpreted in an employment context:

the common law has long recognised that service pursuant to an employment contract can consist of standing and waiting to perform work as much as the active performance of work duties. As Dixon J (as he then was) said in Automatic Fire Sprinklers Pty Ltd v Watson, "They also serve who only stand and wait". So the concept of undertaking work for another must be understood in this sense.[14]

1. Flinders Ports needs employees to make themselves available for irregular call out duty at all times of the day and night to attend to the shipping needs of the Port. The Agreement sets out the terms upon which that work will be offered and paid. The call out duty that the Marine Services Casual employees perform is the basic or core element of their employment contract with Flinders Ports, as is the payment arrangement which applies. It is to be distinguished from employment where there are regular ordinary hours with additional on call duty paid by allowance or overtime.
2. In this employment contract, by virtue of the terms of Sch 3 cl 3 of the Agreement, upon an employee accepting a call out, there is an indivisible obligation on the employee to attend for duty and to remain ready, willing and able to perform the tasks directed by the employer for the minimum period of the call out, and longer if required. The reference to employees being considered "on duty during the entire minimum call out payment period" confirms this. The matching obligation on the employer is to pay the employee for that minimum period at the rate payable for work of that nature and time, whether or not it requires the employee to perform specific tasks for it for the whole period of time for which it is obliged to pay.
3. Calling the payment for the minimum call out time a "fee" rather than referring to it as "hourly wages" also does not change its character from it being hourly wages for a minimum period of engagement. It is clearly expressed as a minimum entitlement by reference to a number of hours.
4. The practice adopted by Finders Ports of applying the terminology of "hours worked" and "hours not worked" to its payroll system, and separately recording those hours, is not determinative of the meaning of the words "hours worked" in the LSL Act. It may be relevant to the payment of a cancellation fee where no attendance was required, in accordance with Sch 3 cl 3.6.7 of the Agreement, but is not relevant to the meaning to be given to the term "hours worked" in the LSL Act.
5. Section 3(2) of the LSL Act expresses the intention that a casual worker taking long service leave will have their rate of payment calculated for them to receive what they would ordinarily receive, were they not on leave.
6. I find that for the purposes of the LSL Act, the hours worked per week include all the hours for which Mr Collins was paid per call out, regardless of whether he was required to perform duties for a lesser period than the minimum call out period, as from the time of attending for duty he was obliged to stay and perform tasks as allocated until he was dismissed from that duty, and Flinders Ports was obliged to pay him for that minimum period of duty whether it allocated tasks to him or not.
7. That arrangement, where each is contractually obliged to the other for the minimum period, is properly to be considered "work" in the context of this employment relationship.

1. The LSL Act does not define or interpret the term "unpaid leave". It falls to be considered in the context of its role in calculating the ordinary weekly rate of pay, which determines the worker's entitlement.
2. How it determines the entitlement is this. Disregarding unpaid leave, if it is taken over the period of a whole week, it means that the week of unpaid leave is subtracted from the total number of weeks by which the total number of hours worked is divided. By simple example, if there were 500 hours worked over 52 weeks, but 2 of those weeks were unpaid leave, then the calculation would be 500 hours divided by 50 weeks, giving an answer of 10 hours per week. Whereas, if the 500 hours were divided by 52 weeks, with two of those weeks being weeks where the worker was not offered shifts or declined shifts, the answer would be 9.61 hours per week. The fewer weeks included in the calculation, the higher the ordinary weekly rate of pay.
3. For the purposes of the LSL Act, it does matter whether a casual worker is taking unpaid leave or is simply unavailable for shifts.
4. Pursuant to s 3(4)(a)(i), the words, was on unpaid leave for the whole of the week, embodies three elements required to the qualify for the exclusion of that week from the ordinary weekly rate of pay calculation:

• Firstly, it must be leave;
• Secondly, it must be unpaid; and
• Thirdly, it must be for a whole week.

1. In this matter, the argument centred around whether the claimed absences were leave. They were each unpaid, and each included whole weeks.
2. For an absence to be counted as unpaid leave, it must be an absence taken as leave.
3. In the context of an employment relationship, leave is usually an entitlement of the employee, via contract, statute or industrial instrument. However, it may also be provided at the discretion of the employer.
4. As Stanley J observed in Woolford:

Leave is an entitlement relieving the employee from the performance of work duties, which is conferred by the terms of the employment contract, an industrial instrument or Act of Parliament that applies to that employment. Usually such leave is paid. Leave can also be granted to an employee by an employer as an indulgence. The employee is relieved from the performance of work outside of any contractual or statutory context. Usually in those circumstances it is unpaid.[15]

1. Considering first the question of entitlement to leave, there are the references in the Agreement to leave for casual employees referred to above.
2. As a reminder, in the case of compassionate and carer's leave, these references incorporate the NES of two days each per permissible event.[16] These clearly refer to an entitlement to that form of leave, if the conditions for that entitlement are met.
3. The reference to unpaid personal leave is clear, even though its location in Sch 3 cl 2 is odd.
4. For ease of reference, I repeat it here:

"For clarity, points will also be allocated for any periods of unpaid leave.

Notwithstanding the above each employee shall be entitled to 10 days per year unpaid personal leave. In these circumstances (where Personal Leave would be allowed to a permanent employee as per the NES) no points will be allocated for work being declined. The 10 days may be extended by majority agreement with the work group in the relevant Port".

1. As a reminder, Sch 3 contains conditions specific to Regional Ports Employees and the points allocation system in cl 2 applies to casual employees. The reference here to unpaid personal leave states that employees are entitled to 10 days per year unpaid personal leave and links the entitlement to that which permanent employees would have as paid personal leave in the NES.
2. What has been put to me by the applicant is that this reference provides for 10 days unpaid personal leave for casual employees, regardless of its location in the allocation system clause rather than the Leave clause. Further, such that Mr Collins took unpaid leave as provided for in the Agreement, it consequently is also 'unpaid leave' as referred to in s 3(4)(a)(i) of the LSL Act.
3. The respondent, while acknowledging that the Agreement provides for some forms of unpaid leave for casual employees, says Flinders Ports did not at any stage approve such leave. Mr Collins was simply unavailable for shifts at those times which, as a casual employee, he was entitled to be for his own reasons.
4. The first reference in Sch 3 cl 2 to unpaid leave, for which points "will also be allocated" is separate from the second reference to "unpaid personal leave", for which points will not be allocated. This suggests that the other types of unpaid leave provided for by the Agreement and the NES, being compassionate and carer's leave, do qualify for points allocation, whereas unpaid personal leave does not. This puts unpaid personal leave in the same allocation category as any other absence where no points are allocated.
5. While its location in Sch 3 cl 2 facilitates the reference to it not attracting allocation points, in my view its interpretation is assisted by exactly that effect - it does NOT attract allocation points, just as an absence for declining a shift does not attract allocation points. This suggests to me that the entitlement exists separately from the points allocation system and the reference here is to clarify how it is to be considered for the purposes of the points allocation system.
6. The conclusion that I draw from this is that 10 days per year unpaid personal leave, in circumstances where a permanent employee would be entitled to paid personal leave under the NES, is an entitlement for casual employees pursuant to Sch 3 cl 2 of the Agreement.
7. Having found that there is an entitlement to unpaid personal leave in the Agreement, the next question is whether or not any of Mr Collins' absences met the conditions of that entitlement.
8. The absence of any specific leave approval for Mr Collins must be considered in the context of Flinders Ports providing no system for the application and granting of that leave.
9. In relation to casual workers, the practice of Flinders Ports only using a system of leave forms and approval for paid leave, ignores the importance of unpaid leave for the purposes of long service leave entitlements and, for that matter, its own Agreement in administering the points allocation system in Sch 3 cl 2.
10. The distinction between a casual worker choosing to be unavailable and exercising an entitlement to unpaid leave may in some circumstances be a fine one. However, the existence of the entitlement to unpaid leave means that the distinction is real and has consequences. Therefore, in light of those consequences, it is incumbent upon the employer to provide a system for determining and recording whether the entitlement to unpaid leave is being exercised.
11. On the evidence of Mr Wilkins, Flinders Ports only did so for paid leave. It did not do so for unpaid leave for casual employees. It should not be allowed to rely on that failure to defeat claims for the legitimate exercise by its employees of their entitlements to unpaid leave.
12. The CFMEU argued that all the absences of Mr Collins should be considered unpaid leave as he had notified Flinders Ports of the absences and the reasons for them, which he was not required to do if he was simply unavailable for undisclosed reasons. It argued that there being no objection to any of these notifications and the actions of Flinders Ports effectively taking him off the roster for those weeks, meant that each of those weeks met the criteria for unpaid leave in s 3(4) of the LSL Act.
13. That argument suggests that a notified absence for any reason that is acknowledged, counts as unpaid leave whether or not it falls within the entitlement criteria in the Agreement or the LSL Act. As described above, leave can be an entitlement or can be granted by the employer on a discretionary basis beyond those entitlements.
14. Flinders Ports argued that there was no discretionary grant of unpaid leave and no evidence to support that conclusion otherwise. It also argued that even if there was an entitlement to leave, the grant of that leave was only effective if Flinders Ports explicitly approved the leave, which it had not done. The argument that an entitlement to unpaid leave could only be realised by Flinders Ports explicitly approving the grant of that leave is somewhat hollow when it provided no system for doing so.
15. In the case of the first absence, 3 November 2020 to 16 November 2020, Mr Collins submitted a form applying for personal leave. Although Mr Wilkins in evidence said he did not recall the application form, Mr Collins' evidence that he submitted the form, along with the copy attached to his affidavit, was not challenged. There was no request from Flinders Ports for further information to ascertain Mr Collins' eligibility, nor was there a response approving or denying the leave. However, it was agreed that during that period, Mr Collins was not offered any shifts, consistent with his notice that he would not be available.
16. I find that on that occasion, Mr Collins notified Flinders Ports that the reason for his unavailability was due to his need for unpaid personal leave, and that by adjusting its conduct in not offering him shifts for that period, Flinders Ports tacitly approved the leave. Mr Collins was exercising his entitlement to unpaid personal leave and Flinders Ports did nothing to refuse or deny that entitlement.
17. On the second two week absence, 29 May 2023 to 6 June 2023, Mr Collins advised Mr Wilkins that he was suffering from COVID-19 and consequently would not be available for shifts. Mr Wilkins in response did not offer him any shifts for that period. Given that Mr Collins had no response to his previous submission of a leave form for personal leave in 2020, I consider it immaterial that he did not do so on this occasion.
18. In the absence of any system for applying for unpaid personal leave, when there was an entitlement to that leave in the Agreement, I find that by its acceptance of his absence and the reasons for it, Flinders Ports tacitly approved the leave to which Mr Collins was entitled, which was due to his own illness.
19. I find that the claimed December 2020 and May/June 2023 absences were unpaid personal leave and consequently to be disregarded in the calculation of Mr Collins' ordinary weekly rate of pay for his long service leave.
20. The second absence notified by Mr Collins was of one week to go to a funeral in Brisbane from 9 December 2022 to 16 December 2022. This notice did not disclose the relationship between Mr Collins and the deceased, nor did his evidence. He has not established that he had any entitlement to compassionate leave on that occasion. However, even this absence met the criteria for compassionate leave, it would only carry an entitlement to two days of unpaid leave, less than the whole week required to fall with the exclusion in s 3(4)(a)(i).
21. Consequently, this could only fall within the conditions of s 3(4)(a)(i) if the leave was approved as leave on a discretionary basis by Flinders Ports. There is no evidence of that being the case. I find that the one week of absence in December 2022 did not qualify as one whole week of unpaid leave for the purposes of s 3(4)(a)(i) of the LSL Act. Consequently, that week is to be included in the calculation of Mr Collins' ordinary weekly rate of pay.

1. In light of these reasons, Mr Collins' ordinary weekly rate of pay for the calculation of his entitlement to long service leave:

a) is to include as hours worked, all the hours in the relevant period for which he was paid for each call out for which he attended for duty; and > > b) is to disregard the four weeks of unpaid personal leave taken from 3 November 2020 to 16 November 2020 and 19 May 2023 to 6 June 2023; and > > c) is to include the one week of unpaid absence for the period 9 December 2022 to 16 December 2022.

2. I will hear from the parties as to these calculations and specific orders for payment plus interest.

[1] At the time of application, this was the Construction, Forestry, Maritime, Mining and Energy Union. On 1 December 2023 after the Mining and Energy Division withdrew, the union was renamed the Construction Forestry, Maritime and Energy Union (CFMEU).

[5] Flinders Ports Pty Ltd v Woolford [2015] SASCFC 6.

[8] Barossa Quarries Pty Ltd v Keynes [2005] SAIRC 54 at [13] per Parsons J.

[10] Collins affidavit at [14] & Annexure DC9.

[11] Australian Education Union v Department of Education and Children's Services [2012] HCA 3 at [26].

[12] Jongewaard v Price Waterhouse [1992] SAIRC 11.

[13] Rehn v Adelaide Football Club [2005] SAIRC 52 at [22] per McCusker, Gilchrist and Hannon JJ.

[14] Woolford (n 3) at [74] per Stanley J.

[15] Woolford (n 5) at [105] per Stanley J.

[16] The Agreement, cls 7.4.1 and 7.4.3.