Construction, Forestry, Mining and Energy Union v Anglo Coal

4. (i) For an employee who works 12.5 hour shifts, the proper construction of clause 21 of the Anglo Coal (Drayton Management) Pty Ltd Enterprise Agreement 2012 is that the entitlement to payment under clause 21.11 for 127.5 hours of personal/carer's leave cashed out is the payment that the employee would have received if that employee had worked 187.5 hours. (ii) For an employee who works 12.5 hour shifts, the proper construction of clause 21 of the Anglo Coal (Drayton Management) Pty Ltd Enterprise Agreement 2012 is that the entitlement to payment under clause 21.11 for 119 hours of personal/carer's leave cashed out is the payment that the employee would have received if that employee had worked 175 hours. (iii) The Respondent contravened section 50 of the Fair Work Act 2009 (Cth) by contravening clause 21.11 of the Anglo Coal (Drayton Management) Pty Ltd Enterprise Agreement 2012 in that the Respondent failed to pay to each of the employees named in paragraph 4 of the statement of claim filed in proceedings SYG 2955 of 2015 the full amount required by clause 21.11 of the Anglo Coal (Drayton Management) Pty Ltd Enterprise Agreement 2012. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BUCHANAN J: 1 This appeal concerns a question of construction of provisions of an enterprise agreement made under the Fair Work Act 2009 (Cth) ("FW Act") concerning the "cashing out" of paid personal/carer's leave. 2 Arrangements of that kind are permitted by the FW Act, provided the equivalent of 15 days accrued personal/carer's leave remains (FW Act, s 101(2)(a)). The statutory minimum entitlement of personal/carer's leave for each year of service is 10 days (FW Act, s 96(1)), to be paid at the "base rate of pay" (FW Act, s 99). 3 Those provisions are found in Chapter 2, Part 2-2, Division 7 of the FW Act. Part 2-2 of Chapter 2 states the National Employment Standards, and its constituent Divisions deal with a number of leave and other entitlements - e.g. parental leave, annual leave, community service leave, long service leave and public holidays, as well as personal/carer's leave and compassionate leave, which is the particular subject of Division 7. 4 Some leave entitlements are expressed as entitlements in months of leave (e.g. unpaid parental leave), some are expressed as entitlements in weeks of leave (e.g. annual leave), some are expressed as entitlements in periods of days of leave (e.g. unpaid pre-adoption leave, paid personal/carer's leave, unpaid carer's leave, compassionate leave) and public holiday entitlements are referable to days and part-days. 5 Whatever the nature of the period, no distinction is made in the FW Act amongst the various work patterns which might apply to day workers or various kinds of shift workers or amongst the variety of shift lengths which might be worked, except for the entitlement of some shift workers to an extra week's annual leave. 6 In the case of periods nominated in weeks (e.g. annual leave), no doubt the stipulation in s 62 of the FW Act that maximum weekly hours for full-time employees are 38 does something to achieve at least a rough and ready uniformity, but in the case of leave entitlements expressed as days there must be considerable scope for substantial variation in entitlements, if those "days" are re-expressed in working hours, when attention is given to the different working hours of, say, 8-hour day workers and, say 12-hour shift workers. 7 It is an issue of that kind which is at the heart of the present appeal. 8 Before I turn to the particular provisions of the enterprise agreement which require attention, it is worth first explaining the statutory context of the present dispute with a little more specificity. 9 Sections 96, 99, 100 and 101 of the FW Act deal with the entitlement to paid personal/carer's leave. They provide: 96 Entitlement to paid personal/carer's leave Amount of leave (1) For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer's leave. Accrual of leave (2) An employee's entitlement to paid personal/carer's leave accrues progressively during a year of service according to the employee's ordinary hours of work, and accumulates from year to year. … 99 Payment for paid personal/carer's leave If, in accordance with this Subdivision, an employee takes a period of paid personal/carer's leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period. 100 Paid personal/carer's leave must not be cashed out except in accordance with permitted cashing out terms Paid personal/carer's leave must not be cashed out, except in accordance with cashing out terms included in a modern award or enterprise agreement under section 101. 101 Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer's leave (1) A modern award or enterprise agreement may include terms providing for the cashing out of paid personal/carer's leave by an employee. (2) The terms must require that: (a) paid personal/carer's leave must not be cashed out if the cashing out would result in the employee's remaining accrued entitlement to paid personal/carer's leave being less than 15 days; and (b) each cashing out of a particular amount of paid personal/carer's leave must be by a separate agreement in writing between the employer and the employee; and (c) the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone. 10 The period of "paid personal/carer's leave" referred to in s 99, for which an employee must be paid at the base rate of pay for ordinary hours, must necessarily be one or more of the "days" (or part of a day) of leave referred to in s 96. The number of hours normally worked by, for example, an 8-hour day worker and a 12-hour shift worker on a normal or rostered day of work are self-evidently different, by a margin of 50%. Nevertheless, the entitlement to paid leave is not referable to an hourly equivalent; it is expressed in days, and it necessarily follows, I think, that the possibility exists that the statutory entitlement to 10 days leave (and pay) may result in a greater hourly entitlement (and overall pay) in some cases than in others. That, it appears to me, is the effect of the statutory arrangements, whatever position might arise under the specific provisions of particular enterprise agreements. 11 The requirement in s 101(2)(c) is consistent with similar provisions concerning cashing out of paid annual leave in s 93(2)(c) and s 94(4) and consistent also with the requirement for payment of untaken annual leave on termination of employment in s 90(2). Those requirements for payment of the amount (or the full amount) that would have been payable if the leave had been taken were referred to by a Full Court in Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (2015) 231 FCR 298, as follows: 38 … Section 90(1) creates the minimum standard: payment at the base rate for ordinary hours worked. The effect of s 90(2) is that if that is the rate at which the employee is paid when he or she takes annual leave, then that is the minimum amount that must be paid for any accrued untaken annual leave. If, on the other hand, there is a modern award or enterprise agreement which provides for payment at a higher rate for annual leave that is taken, then s 90(2) stipulates that that is the rate which is payable where annual leave has accrued but has not been taken. This is the natural way to read the section and there is nothing in the legislative context which would require a different interpretation. … 44 Centennial drew attention to the provisions for cashing out annual leave in ss 93(2)(c) and 94(4), each of which requires employers to pay employees "at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone". These provisions enable an employer and an employee to agree to the employee cashing out a particular amount of the employee's accrued paid annual leave over and above four weeks. A similar provision appears in s 101(2)(c) in relation to personal/carer's leave. 45 Contrary to Centennial's submission, we do not consider the absence of the adjective "full" before "amount" in s 90(2) (in contrast to ss 93(2) and 94(4)) to be of any consequence. Both ss 93(2)(c) and 94(4) are concerned with cashing out of accrued leave entitlements. They assume that an employee has accrued more than four weeks leave and may wish to cash out some or all of the excess entitlement. Read in that context, "full" is employed to prevent an agreement under which the employee may be willing to accept a part payment in respect of an excess accrued period of leave. No such issue arises on termination when all accrued entitlements must be paid to wipe the slate clean. 12 Provisions of this kind, taken in conjunction with s 55 and s 56 of the FW Act, operate so that an inconsistent term in an enterprise agreement is of no effect. 13 Section 101(2)(c) has the result, therefore, that any cashing out under an enterprise agreement must reflect what would happen by way of payment if periods of leave were actually taken. 14 In my view the provisions of the enterprise agreement in the present case reflect the statutory consequences to which I have referred. 15 The enterprise agreement (Anglo Coal (Drayton Management) Pty Ltd Enterprise Agreement 2012) applies to work performed by members of the appellant at the Drayton Mine, near Muswellbrook in New South Wales. 16 Ordinary hours are an average of 35 hours per week (cl 11.1). There are various rosters identified by cl 12.5, including 8.5-hour shifts, 10.5-hour shifts and 12.5-hour shifts. The annual hours vary, as do the average weekly hours. For example, annual hours for 8.5-hour shift workers are 2210, for 10.5-hour shift workers are 2184 or 1911 and for 12.5-hour shift workers are 2275 or 2163.2. Numbers of shifts per year which reflect annual leave entitlements vary. For 8.5-hour shift workers they are 25 shifts, for 10.5-hour shift workers they are 22 or 20 and for 12.5-hour shift workers they are 22 or 17. 17 Sick leave, by contrast, is expressed in all roster arrangements as 127.5 hours. 18 Clause 21 makes it clear that "sick leave" is personal/carer's leave. Clause 21 states: 21 PERSONAL / CARER'S LEAVE Personal/ Carer's leave covers an employee's own sick leave when they are unable to work due to personal illness or injury, and leave to provide care to members of their immediate family or their household for whom they have responsibility, because of: a) a personal illness or personal injury affecting the member, or b) an unexpected emergency affecting the member. The parties to the agreement are committed to minimising unplanned absenteeism at Drayton Mine whilst recognising that an employee who is absent from work due to the above reasons will be entitled to paid personal/ carer's leave subject to the following conditions and limitations. 19 There are then a number of stipulations, not all of which require attention. The provisions which do require initial attention are as follows: 21.3 Annual Credit and Accumulation On commencement of employment and every following twelve months an employee, other than a part time, temporary or casual employee, will be credited with 127.5 hours of personal leave. Personal/ carer's leave will accumulate without limitation. 21.4 Leave Deduction Any personal leave taken shall be deducted from the personal/ carer's leave accumulated at the rate of 8.5 hours per shift. … 21.7 Payment An employee will be paid for each shift of approved personal/ carer's leave as if at work. … 21.9 Personal/ Carer's Leave During Shift An employee who absents themselves on personal/ carer's leave during a shift will be paid for the hours worked. Provided that the employee has sufficient accumulated personal/ carer's leave, the employee will be paid personal/ carer's leave for the remaining duration of the shift. Personal/ carer's leave taken in accordance with this clause will be deducted from the employee's accrued personal/ carer's leave as required on a pro rata drawdown basis. … 21.11 Cashing Out Options Provided an employee has a personal/ carer's accrual of not less than 255 hours, the employee may elect to cash out future personal leave benefits in accordance with this sub-clause. At the time that the employee is to be credited with personal/ carer's leave under this clause, the employee may elect to sacrifice the whole or a portion of the personal/ carer's leave entitlement for the coming year (i.e. up to 127.5 hours of leave as the case may be) and instead receive an employer superannuation contribution to the employee's nominated superannuation fund equal to the gross (pre tax) value of the personal/ carer's leave hours that the employee elects to sacrifice. Alternatively an employee may choose to direct that the sacrificed personal/ carer's leave benefits be paid through payroll to the employee or into the employee's superannuation fund in which case Drayton Mine will withhold applicable tax, and pay the net (post tax) value of the personal/ carer's leave hours which the employee elects to sacrifice. Each cashing out must be by a separate written agreement between the employee and Drayton Mine and the employee will be paid as if the employee had taken the leave. 20 There may be some lack of clarity in the potential interaction between cl 21.4 and cl 21.9 in the case of a 10.5-hour or 12.5-hour shift worker, as compared with a shift worker working 8.5 hours. Payment for hours worked under cl 21.9 is straightforward enough. So is the requirement to pay in full for the balance of the shift taken as leave. I will return towards the end of these reasons to the question of whether adjustment for the balance of the shift (i.e. the period taken as leave) would require a reduction of accrued personal/carer's leave hours equivalent to those not worked, or on a pro rata basis. 21 The next matter to note is that the annual credit of 127.5 hours of personal/carer's leave equates to 15 days' entitlement for a shift worker working 8.5-hour shifts. On that basis, the provisions of cl 21.11 serve to ensure retention of an entitlement of 30 days leave, calculated in that way. 22 Clause 21.4, operating with cl 21.7, ensures an entitlement to the same number of daily absences for those working longer shifts as are available to those working shorter shifts, in each case on full pay (the nature of which I will discuss later). So far as actually taking paid leave is concerned, in my view if a 12.5-hour shift worker (or a 10.5-hour shift worker) used the whole paid leave entitlement under the enterprise agreement it would necessarily follow that the number of hours paid for as personal/carer's leave would exceed those paid for a shift worker working 8.5 hours who took the whole entitlement. That seems to me, in the enterprise agreement as in the FW Act, to be the consequence of the statutory arrangements, which mandate a daily entitlement. 23 The proceedings at first instance before the Federal Circuit Court of Australia ("FCCA") concerned claims on behalf of a group of employees working 12.5-hour shifts. 24 All but one of the employees in question sought to cash out all of an annual credit (i.e. 127.5 hours which arguably represented a 15 days' entitlement) and the remaining employee sought to cash out a substantial part of the annual credit (119 hours which arguably represented a 14 days' entitlement). The respondent paid for the cashed out leave by applying the employees' hourly rates to 127.5 and 119 hours respectively. 25 The appellant then commenced proceedings in the FCCA seeking a declaration that the respondent had contravened s 50 of the FW Act by contravening cl 21.11 of the enterprise agreement. The appellant also sought a pecuniary penalty. The underlying premise in each case was that payments should have been calculated (in all but one case) on the basis of 187.5 hours (equivalent to 15 shifts of 12.5 hours) and (in the remaining case) on the basis of 175 hours (equivalent to 14 shifts of 12.5 hours). 26 The respondent, in response, filed an interlocutory application seeking the determination of separate questions focussed on resolving that issue. The FCCA agreed to proceed in that way. 27 The questions were answered favourably to the respondent (Construction, Forestry, Mining & Energy Union v Anglo Coal (Drayton Management) Pty Ltd [2016] FCCA 400). The application to the FCCA was dismissed. The FCCA held that the entitlement to payment in each case was confined to payment for the nominated hours of leave credit only. 28 The appellant has appealed to this Court. The respondent has suggested that leave to appeal is required but did not finally oppose leave being granted. 29 The interlocutory application made by the respondent for the trial of separate questions in the FCCA included a proposed order that the proceedings be summarily dismissed under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) ("FCCA Act") (i.e. having no reasonable prospect of success). If an order for summary judgment had been made under s 17A of the FCCA Act, then s 24(1D)(ca) of the Federal Court of Australia Act 1976 (Cth) would have the consequence that it must be treated as an interlocutory order and leave to appeal would be required. However, no order for summary judgment was made. Instead, the FCCA said: 29. In the circumstances where the Court has answered the questions in that way, there is no further dispute remaining between the parties, and it is appropriate that the proceedings be dismissed. No application was made for costs in relation to s.570 of the Act. 30 The order dismissing the proceedings was a final order. In my view, leave to appeal is not required. 31 Nevertheless, if the appeal (as commenced) succeeded, there would have remained further matters to be addressed - e.g. the question of penalty. At first, the appellant suggested that the Court might deal with those matters on appeal but I do not think that would be appropriate, or possible. The respondent opposed the suggestion and the appellant, in its submissions in reply, abandoned any claim to a penalty. 32 In final submissions, further declarations were sought, as ancillary to a decision upholding the appeal, as follows: (i) For an employee who works 12.5 hour shifts, the proper construction of clause 21 of the Anglo Coal (Drayton Management) Pty Limited Enterprise Agreement 2012 is that the entitlement to payment under Clause 21.11 for the maximum of 127.5 hours of personal/carer's leave forgone is the payment that the employee would have been received if that employee had worked 187.5 hours. (ii) For an employee who works 12.5 hour shifts, the proper construction of clause 21 of the Anglo Coal (Drayton Management) Pty Limited Enterprise Agreement 2012 is that the entitlement to payment under Clause 21.11 for the maximum of 119 hours of personal/carer's leave forgone is the payment that the employee would have been received if that employee had worked 175 hours. 33 Those declarations were additional to a more general declaration sought at first instance that the respondent had contravened s 50 of the FW Act by failing to pay the full amounts due. The more specific terms of the proposed additional declarations provide an adequate practical focus for the discussion which follows. 34 In my respectful view, the FCCA misunderstood the effect of the underlying statutory scheme, and the place and effect of the particular provisions of the enterprise agreement in implementing that scheme. That misunderstanding is reflected in the following passages: 19. The effect of Mr Crawshaw SC's argument is to contend that the number of units should be swelled by reference to the increased shift of four hours to 12.5 hours, so that the calculation of entitlement for the purpose of payment would reflect a multiplier of units relevantly in the number of either 187.5 hours or 175 hours. I should note that not all employees elected to surrender the maximum number of hours. One referred to 127 hours in the election; one referred to 119 in the election; and the others referred to 127.5 hours. … 21. It was common ground that the maximum number of hours that could be the subject of election was 127.5 hours. When put to Mr Crawshaw SC that the effect of his contention was to swell the number of hours in respect of the maximum, Mr Crawshaw SC identified the distinction between the entitlement paid. The difficulty with Mr Crawshaw SC's argument is that the opening words of cl.21 identify that the entitlement to be paid personal carer's leave is subject to "the following conditions and limitations". Whether described as a condition or limitation, cl.21.3 and cl.21.4 identify both the credit entitlement in respect of personal carer's leave, being 127.5 hours, and that any personal leave taken shall be deducted from the personal carer's leave accumulated at the rate of 8.5 hours per shift. 22. If it had been intended to provide for an increased leave entitlement by reference to a longer shift duration, it would have been easy to say so, either in cl.12.5 in the reference to sick leave entitlement, or to make that clear in cl.21.3, in terms of the maximum number of hours, or in relation to the cashing out provision by identifying something other than the 127.5 hours of leave. … 24. The effect of Mr Crawshaw SC's argument would be to either double count the value of the annual rostered rate, or to ignore the maximum number of hours in the entitlement in the calculation of the value of the leave hours the subject of the cashing out agreement. … 27. No evidence was put on to advance any case in respect of the rate identified by the respondent in its payment being erroneous beyond the contention that the number of hours should be increased by four hours per shift. The effect of that contention was to increase the number of units, and the effect of that was to exceed the maximum entitlement of the 127.5 hours. Apart from the illogicality of the applicant's contention that there should be taken into account the longer hours in the payment of the personal carer's leave, when compared to the entitlement, it does not accord with the plain and ordinary meaning of the words used. Whether or not the employee had taken the leave, the employee would not have been entitled to be credited with more than the 125.5 [sic] hours. The separate questions should be answered as follows: question 1, 127.5 hours; question 2, 119 hours. 35 In my view, that reasoning does not give sufficient prominence to the fact that, under the statutory provisions, the entitlement to paid leave which must be addressed in an enterprise agreement, and the right to cash out leave which might be given by the enterprise agreement, is based on days of paid leave without reduction of pay, regardless of shift length, rather than an overall entitlement expressed in hours. The effect of the construction favoured by the FCCA is that instead of the equivalent of 15 days (or 14) which would have been paid if the leave was actually taken, the employees in question were paid for the equivalent of 10.2 days (or 9.52) only. That is to say, they were paid less than if the leave had been taken. If the enterprise agreement had that effect, it would not conform to s 101(2)(c) of the FW Act. Sections 55 and 56 of the FW Act would have the effect that the enterprise agreement was ineffective to that extent. The stipulations in cl 21.11 that any payment be to the "value of the personal/ carer's leave hours [that/which] the employee elects to sacrifice", however, does conform with s 101(2)(c); it has the effect for which the appellant contends. That also is the effect of the concluding words in cl 21.11. 36 So far as an entitlement to actual leave is concerned, the combined effect of cl 21.4 and cl 21.7 appears to me to ensure that all employees covered by the enterprise agreement have effectively the same number of days of paid personal/carer's leave available to them, regardless of shift length, while at the same time ensuring that any absence on that account is paid as though it was time worked. Accordingly, a 12.5-hour shift worker will be paid for 12.5 hours as though worked, but only 8.5 hours of leave credit will be deducted. Inevitably, the 12.5-hour shift worker will be paid more for that day (and those 8.5 hours of leave credit) than an 8.5-hour shift worker. As the requirement in s 101(2)(c) is that cashing out occur without reduction in entitlement to payment, it is not surprising that the same arrangements flow through to the cashing out procedures and are reflected in cl 21.11. 37 So far as the cashing out provisions themselves are concerned, both the references in cl 21.11 to the value of the leave hours being sacrificed and the concluding requirement that "the employee will be paid as if the employee had taken the leave" serve to preserve the (arguably advantageous) position enjoyed by 12.5-hour shift workers over workers on shorter shifts. 38 The respondent (and the FCCA) relied on the specification in cl 21.3 and cl 21.11 of an entitlement of 127.5 hours, but the value of that entitlement, and the rights to payment which flow from it (both when leave is taken and when leave is cashed out) cannot be assessed without taking into account the way in which cl 21 as a whole operates to extend the effective period of leave, and rights to payment, for those working longer than 8.5-hour shifts. 39 The analysis so far undertaken, and the conclusions I have expressed, have the consequence that the FCCA erred in its construction of the enterprise agreement, erred in dismissing the application in its entirety and erred in failing to grant at least declaratory relief in favour of the appellant. 40 There were additional arguments advanced by the respondent on the appeal which should be addressed. 41 The respondent urged a construction of cl 21.7 and cl 21.11 to the effect that they were only concerned with calculation of rates of pay, rather than with an entitlement to leave. Furthermore, it was submitted that the respondent's practice when calculating leave payments was more generous than the enterprise agreement itself required. 42 The evidence before the FCCA was that when employees take personal/carer's leave they are paid for that leave without reduction. Based on the premise (to which I will return shortly) that the practice is more generous than a strict application of the enterprise agreement would require, the respondent sought to emphasise that cl 21.11 was a direction about a calculation which proceeded from (and only from) the rate of pay strictly required multiplied by the available hours of credit to be cashed out - i.e. the credit stated by cl 21.3 of 127.5 hours in all cases. 43 One reason why I would not accept this argument (which does not seem to me, in any event, to address the core issue in the appeal) is that if cl 21.11 had the meaning (properly construed) that payment could be made at a lesser amount than if leave had been taken, it would not be consistent with s 101(2)(c) of the FW Act and would have no effect. 44 The other reason is that I do not accept that the current practice is more generous than the enterprise agreement requires. 45 The oral submissions on the appeal concentrated on whether a site allowance needed strictly to be paid during periods of personal/carer's leave, even though it is paid as a matter of practice. To deal with this issue it will be necessary to return to particular aspects of the enterprise agreement. 46 Clause 21.7, it will be remembered, requires payment for each shift of approved personal/carer's leave "as if at work". Clause 3 of the enterprise agreement contains the following definitions: 3 DEFINITIONS In the Agreement except where otherwise indicated: … Paid as if at work has the same meaning as rostered rate of pay. … Rostered hours means the ordinary hours of work and rostered overtime. Rostered Rate of Pay in relation to an employee means: a) where the context necessitates the application of an hourly rate, the rate calculated by dividing the employee's annual salary by the number of rostered hours in the employee's roster in a year; b) where the context necessitates the application of a daily rate, the rate calculated by dividing the employee's annual salary by the number of rostered days in the employee's roster in a year; c) where the context necessitates the application of a weekly rate, the weekly rate set out in clause 12.4 Rostered overtime means overtime which forms an integral part of the employee's roster. Site Allowance means a non indexed payment made in addition to base annualised salary for Drayton Mine employees. (Bold in original.) 47 Clause 12.2 and the concluding words of cl 12.5 (after the rosters and their various entitlements are set out), provide: 12 RATES OF PAY … 12.2 Make Up of Annual Rostered Rates The Annual Rostered Rates of pay contained within this clause provide for all rostered hours of work including rostered overtime and include all wages, allowances, loadings and disability payments previously paid for varying workplace conditions, skills payments and crib flexibility payments, except where otherwise provided for in the Agreement. … 12.5 Annual Rostered Rates … The Annual Rostered Rates includes a site allowance component of $20,461 from commencement of the agreement, $21,484 from the 1st Anniversary, and $22,559 from the 2nd anniversary of the commencement of the Agreement. The Annual Rostered Rate for rosters I,J,K,L, includes additional payments to cover rostered work on public holidays. 48 Based on the definition of "Site Allowance" with its reference to "base annualised salary", and the identification of specific site allowance components in the "Annual Rostered Rates" appearing in cl 12.5, the respondent argued that the references to "annual salary" in (a) and (b) of the definition of "Rostered Rate of Pay" excluded site allowance. The respondent contended that "annual salary" was to be calculated by deducting site allowance from annual rostered rates. As a result, so the argument continued, it was not necessary to pay site allowance during periods of personal/carer's leave, although the respondent in practice did so. 49 The first point to be made is that the "base annualised salary" in the definition of "Site Allowance" cannot simply be assumed to be the same as "annual salary" in (a) and (b) of the definition of "Rostered Rate of Pay". In my view, the use of the term "base" renders such an assumption unlikely and further analysis demonstrates that to be so. 50 Furthermore, it seems to me to be clear that all the ingredients of the annual rostered rates, including rostered overtime, for example, are included in the annual salary referred to in the definition of rostered rate of pay. The term "annual salary" seems to me just to be shorthand for "Annual Rostered Rates". Otherwise, in the calculation of hourly or daily rostered rates payment for an "integral part" of work (see definition of "Rostered overtime") would be stripped out. That is clearly not the case. 51 For those reasons at the outset, and for those below, I do not accept this argument, or that the respondent is making a voluntary payment. 52 If I had accepted the argument, it would have had no significance for my final conclusion about the extent of the leave entitlement. At its highest (leaving aside the operation of s 101(2)(c)), it could only bear on the rate of pay to be multiplied by the number of hours to be recognised on cashing out (whether they be 127.5 or 187.5, for example) but it would do nothing to assist in the determination of that number of hours, which is the central issue on the appeal. 53 One further clear indication that "annual salary" includes the site allowance (i.e. that the annual salary is the "Annual Rostered Rate") is available from cl 12.4 which provides: 12.4 Payment of Weekly Salary Each week an employee will be paid a salary equal to one fifty-second of the Annual Rostered Rate that applies to the employee's roster. 54 Clearly enough, the weekly salary thus calculated includes the site allowance, as well as rostered overtime. A corresponding annual salary (for 52 weeks) should not be assumed to omit it. 55 Nor does consideration of the way in which hourly or daily rates are calculated under the definition of rostered rate of pay assist the respondent's argument. 56 The calculation of an hourly or daily rate is required in a number of circumstances under the enterprise agreement. In those instances, it is also clear in my view that the calculation required by reference to the "annual salary" referred to in (a) and (b) of the definition of "Rostered Rate of Pay" is to the annual rostered rate of pay to determine the hourly or daily rostered rate of pay, as the case may be, by dividing the annual rate by yearly rostered hours or yearly rostered days. In each instance, site allowance is a component of the annual salary and the resulting hourly or weekly rate of pay. 57 A clear example is in cl 6.7: 6 CONTRACT OF EMPLOYMENT … 6.7 Casuals A casual employee is employed by the hour and will be paid the classification rate in clause 12.1 plus 25% loading which is in recognition of there being no entitlement to public holidays (unless worked) or any form of paid leave except Long Service Leave. 58 There can be no suggestion that the site allowance component is not payable to casuals. 59 Clauses 24.1 and 24.2 provide: 24 COMPASSIONATE LEAVE 24.1 Minimum Entitlements Employees will be paid for a period of up to 2 days as if at work on each occasion when a person who is a member of the employee's immediate family or a member of the Employee's household has a personal illness, or injury, that poses a serious threat to their life and the Employee wishes to spend time with that person; or after the death of a member of the Employee's immediate family or a member of the Employee's household. For the purposes of this clause, immediate family member means parent, sibling, spouse, child, adopted child, step-child, grandparent, grandchildren, grandparent-in-law, parent-in-law, sister-in-law, brother-in-law, foster child in care. 24.2 Death of Additional Family Members Two (2) days shall also be paid as if at work in the event of the death of an employee's uncle, aunt, niece, nephew, foster parent, or step-parent. 60 It is inconceivable that reduction of normal pay, by removal of site allowance, is permitted under the enterprise agreement in those circumstances either. 61 Other provisions of the enterprise agreement mandate the payment of site allowance even while on unpaid leave. Clause 30.2 provides: 30 NOMINATED EMPLOYEE REPRESENTATIVES … 30.2 Employee Representative Leave An employee who is a Nominated Employee Representative will be able to apply for unpaid leave to attend to matters pertaining to the role of a Nominated Employee Representative including National Convention, Board of Management, trade union training etc. The Company will approve this leave provided that the operations of the mine will not be adversely affected by the granting of leave and the appropriate documentary evidence accompanies applications for such leave. All leave will continue to accrue during such period of approved leave in accordance with this Agreement and in addition Employee Representatives will receive the Site Allowance for up to 12 days (total) of such leave per year. 62 Similarly, and fatally for the respondent's contention, cl 21.8 provides: 21.8 Payment of Site Allowance on Long Term Personal Leave Where an employee has been absent due to personal illness/injury for a period of at least 21 consecutive calendar days and has exhausted their paid personal leave entitlements, the site allowance referred to in clause 12.5 will continue to be paid to employees following the expiry of their paid personal leave for a further period of six calendar months or until cessation of the absence (whichever occurs first) in the following circumstances: a) the absence must be verified by a Medical Certificate; b) the employee must be taking all reasonable steps to assist in their own recovery and return to work; c) the employee being willing to return to work under a return to work plan which may include working shorter work hours and undertaking alternative duties. A staged return to work will not affect the Site Allowance payment if the program is approved by Drayton Mine. 63 The reference to the fact that the site allowance will continue to be paid, even after exhaustion of paid personal leave entitlements, is consistent only with a view that site allowance is included in payment entitlements during periods of paid personal leave. I am satisfied that is the case. 64 The remaining argument advanced by the respondent concerned the possibility that paid personal/carer's leave might be taken for periods of less than a shift. In my view, the possibility has no significance for the present appeal. It appears to me to be clear enough, in all the circumstances, that any necessary reduction of credits would occur on a pro rata basis as cl 21.9 stipulates - i.e. on the basis of a reduction at the rate of 8.5 hours credit for a 12.5-hour shift period in the case of a 12.5-hour shift worker. 65 The appeal will be upheld. I am persuaded that it is appropriate that the additional declarations sought should be made (in substantially the form proposed) as well as a declaration concerning contravention. That will dispose of outstanding legal issues. I will not at this step make specific orders for payment to individual employees; that should probably not be necessary in light of the declarations. If further orders are necessary, the parties should confer and attempt to reach agreement. There will be no order as to costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.