REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
1 A difference has emerged between the Construction, Forestry, Mining and Energy Union (Union) and Hail Creek Coal Pty Ltd (the company) in relation to the meaning and effect of clause 13.7 in the Hail Creek Agreement 2011 (the agreement). The agreement was approved under the Fair Work Act 2009 (Cth) (Fair Work Act) by the Industrial Commission (Commission), then known as Fair Work Australia, on 13 April 2011. The agreement operated from 20 April 2011. Clause 13.7 of the agreement provides as follows:
13.7 Personal Leave
Personal leave includes both sick leave and special leave.
Notwithstanding this clause, no Employee will have access to less than the personal leave prescribed by the National Employment Standards of the Fair Work Act (Cth) 2009.
Sick Leave
Employees, other than casuals, have access to paid sick leave on Total Salary when they are unable to work due to illness or injury. Employees are required to let their Manager know as soon as possible when they realise they are unable to attend work.
An Employee's Manager may exercise their discretion requiring an Employee to provide a medical certificate or other evidence for any period of sick leave.
Where, due to illness or injury, an Employee takes extended sick leave (usually longer than 3 months duration) the Employee's Manager will have the discretion as to whether any further component of salary will continue or be amended in any further payments made.
There will be no payment for sick leave upon termination of employment.
Special Leave
Special leave may be approved for an Employee to provide care to members of their immediate family for whom they have responsibility or for other personal emergencies. Employees may be required to provide evidence of their need for special leave.
Employees will be paid their Total Salary for special leave.
2 On 20 February 2015, on the initiative of the parties and pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), I ordered, in respect of clause 13.7 of the agreement, that a separate question be determined. As provided for in that order, that separate question is as follows:
On the proper construction of the Hail Creek 2011 Agreement ("the Agreement"), which of the following interpretations of clause 13.7 is correct:
A. Contention of CFMEU
The Agreement entitles eligible employees to paid sick leave for the full period of time in which they are unable to work due to illness or injury, save for such circumstances where any such one period exceeds three continuous months duration, in which case any further entitlement to paid sick leave for the period extending beyond that three months shall be at the discretion of the eligible employee's manager.
B. Hail Creek's contention
The Agreement entitles eligible employees to paid sick leave for only the period of time up to, but not more than, the employee's entitlement to paid personal leave pursuant to the National Employment Standards ("NES"), namely section 96 of the Fair Work Act 2009, in respect of a period or periods of time in which they are unable to work due to illness or injury.
Where an eligible employee takes extended sick leave the employee's manager may at his or her discretion determine:
(a) whether such extended sick leave will be paid;
(b) if paid, the rate of pay, and the duration of the payment
"Extended sick leave" means sick leave in excess of an employees' entitlement to paid personal leave under the Agreement.
C. Court's interpretation
If the Court rejects both A and B, the proper construction of clause 13.7 of the Agreement as arrived at by the Court.
For the purpose of the court determine the above question as a separate question an eligible employee is a fulltime and/or part time employee, who is:
(a) covered by the Agreement; and
(b) unable to work due to illness or injury; and
(c) who advises their manager, as soon as possible, that they are unable to work due to illness or injury (and complies with any request for the provision of a medical certificate).
Where paid sick leave is sick leave on Total Salary (as defined by clause 1 of Annexure 1 of the Agreement).
[emphasis in original]
3 Prior to the approval of the agreement by the Commission, the Union, as well as another union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, each of which had been a bargaining representative for the purposes of the agreement, gave notice to the Commission, pursuant to s 183 of Fair Work Act, that they wished the agreement to cover them. In approving the agreement, the Commission noted, in accordance with s 201(2) of the Fair Work Act, that the agreement covered each of those industrial organisations. The Union, therefore, in its own right, has an interest, as a person covered by the agreement, in its true construction. Obviously enough, so too does the company and each of the workers covered by the agreement.
4 As to that coverage, the agreement is a successor to two earlier industrial agreements which successively applied to particular employees at the Hail Creek Coal Mine. Those earlier agreements were the Hail Creek Agreement 2007 and, before that, the Hail Creek Agreement 2003.
5 It is a feature of the current agreement that its coverage is narrower in scope than earlier agreements. For example, the Hail Creek Agreement 2007 applied to employees in professional and superintendent roles, whereas the current agreement, as a matter of generality, applies to employees working in operator and maintainer roles.
6 The principles which have been developed for the construction of industrial awards and agreements were helpfully summarised by Tracey J in Transport Workers' Union of Australia v Linfox Australia Pty Ltd (2014) 315 ALR (TWU v Linfox) at [29] to [41]:
Construction of Industrial Instruments
29 As is often the case with industrial awards and agreements which have been drafted by non-lawyers, the drafting of the instruments presently under consideration lack the precision and clarity which one would expect to find in a commercial contract. As a result it has been necessary for courts to develop principles to guide the construction of such instruments when, as happens all too often, their meaning and application are in dispute.
30 In dealing with the construction of awards in Kucks v CSR Limited (1996) 66 IR 182 at 184 Madgwick J observed that:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
31 This passage was quoted with approval by two members of the High Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 271 (Kirby J), 282-3 (Callinan J). Shortly afterwards these principles were restated by French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440 [57]:
It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.
32 In Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 Northrop J expressly agreed with what had been said by Madgwick J in Kucks and held that Madgwick J's observations had even stronger application to certified agreements than they did to awards.
33 In my view, these principles have application to the construction of the instruments which are presently in dispute.
34 Guidance as to the construction of industrial instruments may also be obtained by reference to principles which courts apply to the construction of commercial contracts. Commercial contracts should, as Kirby J held in Pan Foods Company Importers & Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 170 ALR 579 at 584 "be construed practically, so as to give effect to their presumed commercial purposes and so as not to defeat the achievement of such purposes by an excessively narrow and artificially restricted construction." An interpretation which accords with business common sense will be preferred to one which does not: see Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437.
35 In determining whether a commercial document imposes contractual obligations regard is had to the intention of the parties: would a reasonable person conclude that the person making the alleged binding promise intend to be contractually bound by that promise. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 the High Court summarised the position as follows:
It is not the subjective beliefs or understanding of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe … That, normally requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
36 A further aid to construction was referred to in submissions. It related to the possibility that the parties had, historically, adopted a common understanding as to the meaning and effect of disputed provisions in the relevant instruments.
37 Decisions of the Court accept that, in some circumstances, resort may be had to the manner in which a particular industrial instrument or provision in it, has evolved. Differences, however, have emerged as to matters such as whether such an approach is permissible only in order to resolve ambiguity and as to how willing the Court should be to enter this field.
38 In Short v FW Hercus Pty Ltd (1993) 40 FCR 511 Burchett J (with whom Drummond J agreed on this point) affirmed that any provision appearing in an industrial instrument had to be read "in its context". He cited the example of "an expression [that] was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, [which] was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award …". In construing such a provision, his Honour said, "the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use" (at 517). In supporting this proposition his Honour referred to the dictum of Isaacs J in Australian Agricultural Company Limited v Federated Engine-driver's and Firemen's Association of Australasia (1913) 17 CLR 261 at 272 in which Isaacs J cited Lord Halsbury LC as saying: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it." His Honour concluded (at 518) that:
Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. 'Sometimes', McHugh J said in Saraswati v The Queen (1991) 172 CLR 1 at 21, the purpose of legislation 'can be discerned only by reference to the history of the legislation and the state of the law when it was enacted.' Awards must be in the same position.
39 Gray J addressed the issue in Australian Liquor, Hospitality and Miscellaneous Workers' Union v Prestige Property Services Pty Ltd (2006) 149 FCR 209, and Shop Distributive and Allied Employees' Association v Woolworths Limited (2006) 151 FCR 513.
40 In ALHMWU his Honour was concerned to determine whether the Victorian Arts Centre Trust was an "instrumentality" within the meaning of two awards. The respondent had argued that it was not. His Honour said (at 222) that:
For present purposes, I am prepared to accept that the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs. If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken, however, to distinguish a common understanding from common inadvertence. If the only reason why the government instrumentality rates were not paid at the Centre was that neither the union nor the employer adverted to the possibility that there was an obligation to pay them, no common understanding results. In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of mind, no consensus, if no-one has thought about the issue.
41 His Honour expressed similar caution in the SDAEA case. He there said (at 520) that:
Counsel for the applicant contended that the past conduct of the parties could be relied upon as an aid in the construction of the Certified Agreement. There is authority that, if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement. See Merchant Service Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Assn (1958) 1 FLR 248 at 251 per Spicer CJ, 254 per Dunphy J and 257 per Morgan J, and Printing and Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 452-453. It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence to its true meaning.
7 With all respect to those who drafted it and came to approve it, clause 13.7 of the agreement is a paradigm example of the observation made by Tracey J in TWU v Linfox that it is often the case that such agreements "lack the precision and clarity which one would expect to find in a commercial contract". If the evidence led by the parties in this case as to background circumstances has any relevance, a subject to which I will return shortly, it is relevant in its underscoring of how it is that the company, on one part, and the Union, on the other, might, and I am convinced have honestly come to have, a difference of views as to the meaning of clause 13.7.
8 There is another feature of industrial agreements and their construction which should be noted. That feature was highlighted by Katzmann J in Association of Professional Engineers, Scientists and Managers, Australia v Dendrobium Coal Pty Ltd [2015] FCA 11 at [43] where, having referred to a like body of case law to that set out above in the summary offered by Tracey J, her Honour observed:
An enterprise agreement, however, is not the same as a contract. Unlike contracts, enterprise agreements bind people who are not parties to it (the employees will be covered by it, regardless of whether they were engaged before or after the time the agreement was entered into). Unlike contracts, enterprise agreements require the approval of the Fair Work Commission before they come into effect and they are only enforceable under the Act. Indeed, the Full Court has described an enterprise agreement as "an agreement in name only" - "a statutory artefact made by persons specifically empowered in that regard and under conditions specifically set down, by the FW Act": Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84 at [88], [90]. Nevertheless, the parties accepted that the principles to which I have referred above apply equally to enterprise agreements.
9 So too was it in this case that the principles to which I have referred above by the incorporation of the passage from the judgment in TWU v Linfox were accepted by the parties as applying equally to enterprise agreements.
10 It is desirable also, albeit at the price of repetition, to emphasise a passage from the judgment of French J (as the Chief Justice then was) in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440 at [57] (City of Wanneroo) in which, having acknowledged that courts should, in the construction of an industrial instrument, not make too much of infelicitous expression, nor be astute to discern absurdity or illogicality or apparent inconsistencies and meet such prose with a generous and liberal approach, he stated, by reference to his earlier judgment in City of Wanneroo v Holmes (1989) 30 IR 362 at 380:
Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.
11 This agreement also binds the parties on pain of pecuniary penalties. That feature also must be borne in mind in its construction.
12 Much was sought to be made of what was said to be an aide to construction, namely, a common understanding of the parties. There is, in respect of an enterprise agreement made under the Fair Work Act, a considerable element of artificiality in relation to any promotion of common understanding as an aide to construction. That is because, though an industrial organisation such as the Union may permissibly act as a bargaining representative, so far as its approval is concerned, the approval on the part of employees must be by a majority of those who will be eligible to be covered by the agreement. Quite what common understanding might prevail in respect of a desperate electorate is necessarily moot.
13 A useful starting point in relation to the promotion of a common understanding as an aide to interpretation is to be found in the authorities to which Tracey J refers, in the passage quoted, at [38] through to [41]. It may be accepted that if a particular clause or term has come by practice to have a particular meaning, albeit one which may not be the only or even the obvious meaning of that clause or term as a matter of ordinary English, but that practice is, and ought to be, of assistance in construing a like use of that clause or term in a successor industrial instrument. Not so to do truly would be wilful judicial blindness of the kind which Burchett J described in Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518, by reference to observations made now over a century ago by Isaacs J in Australian Agricultural Company v Federated Engine-Drivers and Firemen's Association of Australasia (1913) 17 CLR 261. Here, though, there is no common understanding. The evidence led in this case is, in my view, eloquent in that regard.
14 Historically, and prior to the making of the present agreement but after the making of its first predecessor, the 2003 agreement, the company came to circulate an employee handbook, which incorporated a form letter by the then general manager, dated 17 January 2005. It is inferentially likely that a now-former employee who came to give evidence in the proceedings, Mr Paki Paki, received such a document and that it came to colour his thinking. In the section of the handbook dealing with salary and benefits, (page 14 of 39) the following appears:
LEAVE PROVISIONS APPLYING TO ALL EMPLOYEES
Sick Leave
The Company is committed to dealing fairly and sympathetically with the circumstances of any employee who suffers and illness or injury, which prevents or restricts them from normal attendance at work, without placing a defined limit on any entitlement. For this reason, the amount of sick leave granted to employees is determined by individual medical needs and circumstances.
Salary Maintenance
In the case of your absence from work as a result of genuine personal injury (non-work related), you are entitled to claim salary maintenance for the duration of your absence.
[emphasis added]
15 At the time, clause 13.8 of the Hail Creek Agreement provided:
13.8 Salary maintenance
Employees other than casuals, have access to paid sick leave on Total Salary when they are unable to work due to illness or injury. Employees are required to let their Manager know as soon as possible when they realise they are unable to attend work.
An Employee's Manager may exercise their discretion requiring an Employee to provide a medical certificate or other evidence for any period of sick leave.
Where, due to illness or injury, an Employee takes extended sick leave (usually longer than 3 month's duration) the Employee's Manager will have the discretion as to whether further any component of salary will continue or be amended in any further payments made.
There will be no payment for sick leave upon termination of employment.
16 Read in isolation, the first sentence of that part of the then employee handbook dealing with sick leave could very easily give rise to a perception that there was unlimited sick leave available. That, of course, would not take into account the following sentence, which bespeaks a discretion in respect of the granting of sick leave of an unlimited kind. Even so, it is not hard to see, particularly when the word "entitlement" is used and then, under Salary maintenance, "entitled", how a worker, and for that matter, a union official, might have an enduring mental touchstone of unlimited entitlement so far as sick leave was concerned. That is not, though, truly the way that that handbook puts the position. Neither is it the way in which the position was put by the company in a slide presentation, which preceded the submission of what became the present agreement to the eligible employees for approval. In that presentation, also, a corporate view is evident: that unlimited sick leave is a matter of discretion.
17 Two union officials, Mr Pierce and Mr Gallow, gave evidence of negotiations which preceded the submission of the draft agreement to eligible employees for approval. There is no written record of those negotiations. I do not doubt that each of these gentlemen gave their honest and best recollection, albeit some years after the event, of the oral discussions which constituted the negotiations. Particularly when one recalls the language of the employee handbook, it is not hard to see how a shorthand term, "unlimited sick leave", might be used. The difficulty is it seems inferentially likely, from both the terms of that earlier handbook as well as the corporate slide presentation, that that shorthand term meant different things to different people.
18 Thus, the evidence as to prior negotiations, in my view, establishes not the existence of a common understanding but rather the reverse. I derive no assistance from it in relation to the construction of clause 13.7. I do derive, as I trust is already evident, very particular assistance from that evidence in understanding how, genuinely, a controversy has arisen in this case in relation to the meaning and effect of clause 13.7.
19 On the part of the company, it was submitted that assistance was to be derived from a policy document which issued in the interval between the making of the agreement, in the statutory sense of approval by a majority of eligible employees, and the approval by the Commission of the agreement. This, though, is an ex post facto document which reflects the subjective understanding of one party to the agreement. I do not regard that document as of assistance in construing clause 13.7. Once again, though, it does have a very particular use in terms of understanding how, genuinely, the present controversy arose, in the sense that it exposes the company's perception as to the meaning and effect of clause 13.7.
20 It is a feature of clause 13.7 that, in contrast with other clauses which form part of the "staff benefits" clause, clause 13 in the agreement, that the words "entitlement" or "entitled" are not used. Clause 13.1, in respect of annual leave uses the expression, "are entitled". Clause 13.3 likewise uses that expression in respect of long service leave. In respect of compassionate leave, clause 13.4 uses the expression "will be entitled". This expression is also to be found in clause 13.5, dealing with parental leave. Clause 13.6, dealing with community service leave, reverts to the expression "are entitled". Within clause 13.7, the following appears:
Notwithstanding this clause, no Employee will have access to less than the personal leave prescribed by the National Employment Standards of the Fair Work Act (Cth) 2009.
21 It was put on behalf of the Union that this is a very curious way of stating an entitlement, if, as the company submitted, as a matter of entitlement, an eligible employee's entitlement to personal leave, of which sick leave is a species, is to be found in the Fair Work Act. The role played, so the Union submitted, by the sentence commencing "notwithstanding this clause" was one of ensuring, for the purposes of approval by the Commission, that this clause would not violate a requirement that the terms and conditions in an industrial agreement must not be less favourable than those in the National Employment Standards.
22 That is certainly a role which that sentence plays in clause 13.7 but is it, read in context, the only role? Is it the case that clause 13.7 has an unarticulated premise of entitlement, namely an entitlement, not a discretionary result, but an entitlement to unlimited sick leave?
23 In terms of history, and history is useful in the construction of this clause, the origin of the "notwithstanding" sentence is to be found in the immediate predecessor to the current agreement, namely, clause 13.7 of the Hail Creek Agreement 2007. The analogue in that clause was this:
Notwithstanding this clause, no Employee will have access to less than the personal leave prescribed by Division 5 of Part 7 of the Workplace Relations Act 1996.
24 In the Workplace Relations Act 1996 (Cth) (Workplace Relations Act), provision was made for what was termed the Australian Fair Pay and Conditions Standard in Pt 7 of that Act. Within Pt 7 was to be found particular provision in respect of personal leave. It is to be remembered that that provision had a wide pervasive operation as a sequel to the Work Choices case in the High Court. Prior to that, and at the time when the 2003 agreement came to be made, there was no such pervasive provision in respect of personal or sick leave in federal industrial legislation. Instead, pervasive provision in respect of personal or sick leave was to be found in relevant state or territory industrial legislation. In Queensland, that pervasive provision was then to be found in s 10 of the Industrial Relations Act 1999 (Qld) (Industrial Relations Act).
25 Once again, the former clause 13.7 certainly had a role to play in terms of ensuring compliance with the minimum standards applicable by reason of the Workplace Relations Act. Apart from the "notwithstanding" sentences, the language in the 2007 and 2011 agreements closely replicates that found in the 2003 agreement. That agreement, as I have mentioned, was made at a time when there was no pervasive federal provision in respect of sick or personal leave; only minimum requirements as specified in, materially, the Industrial Relations Act.
26 At common law, an employer always had an ability, as a matter of discretion, to grant to an employee sick leave over and above that which was expressly conferred, either by contract, industrial instrument, or legislation. It was put on behalf of the Union that it would be an incongruous construction of clause 13.7 just to afford it a meaning which effectively did nothing more than recite that which was available in any event at common law as a matter of discretion. I do not consider that clause 13.7 is doing just that. It is doing rather more.
27 What it does, firstly, is to put beyond doubt that the rate of pay that an eligible employee will receive when on sick leave taken as a matter of entitlement is "Total Salary" as defined for the purposes of the agreement by clause 7.1 and annexure 1. Secondly, the clause intrudes as to how, in the usual course of events, the employer's discretion possessed at common law will be exercised in respect of sick leave which is granted, as a matter of discretion and beyond entitlement. Such extended sick leave beyond entitlement will, for a period of up to three months, be paid at total salary. Thereafter, the rate of pay, if any further sick leave is granted as a matter of discretion, will also be determined as a matter of discretion.
28 In my view, read in context, clause 13.7 is premised not on unlimited entitlement but, rather, on the entitlement to be found in the National Employment Standards in the Fair Work Act. That means that the entitlements to personal or carer's leave, which includes sick leave as a species, are to be found in Div 7 of Pt 2.2 in Ch 2; in particular, s 96. By the particular express reference in clause 13.7 to "Total Salary", the agreement avoids any dispute as to whether, in terms of sick leave taken as a matter of entitlement, the rate of pay for the employee's ordinary hours of work in the period, the touchstone for which s 99 of the Fair Work Act provides, is to be equated with "Total Salary".
29 I am fortified in rejecting the construction promoted by the Union of clause 13.7 by reflecting upon whether that construction would make industrial or commercial sense. It was put on behalf of the Union, and by reference to a number of other industrial instruments which have operated at other mines within the coal industry, that it is a feature of such industrial regulation that generous provision is made in respect of sick leave. One example, and in contradistinction to clause 13.7 in the agreement has been by way of enabling the cashing out, subject to conditions, of a worker's sick leave entitlement. That sort of cashing-out provision can be industrially explained on the basis that it provides an incentive for workers not to take contrived sick leave, in other words, sick leave which has, to say the least, a dubious foundation in terms of affliction.
30 However, this may be, to construe a clause such that, as a matter of entitlement, not discretion, a worker who may have a very limited time indeed after commencement an ability to take unlimited sick leave strikes me as not a sensible industrial or commercial construction. Quite how a director of a company, faced with the responsibilities that fall on directors under the Corporations Act 2001 (Cth), could ever make proper provision in the accounts of the company in respect of a workforce which included a significant class (the eligible employees) having unlimited entitlements to sick leave, escapes me. In contrast, it is readily possible to see how, in respect of employees with an entitlement as prescribed under the Fair Work Act readily ascertainable, prudent provision in corporate accounts could be made.
31 It does not follow from the foregoing that, in terms of the alternatives offered in paragraph (b) of the separate question, I am completely in agreement, at least without some necessary qualification, with the construction promoted by the company. What I mean by that is that it is necessary, in my view, on the true construction of clause 13.7, to add a further paragraph prior to the definition of "extended sick leave" which appears below in paragraph (b) recitation of the company's contention. That further paragraph, in my view, is this:
The eligible employee's sick leave entitlement must be paid on total salary as that term is defined in the Agreement. Where, as a matter of discretion, the employer's manager grants to an eligible employee a period of extended sick leave, that extended sick leave will be paid on total salary for a period of at least three months with the amount of pay, if any, for any further extended sick leave being at such rate as the employer's manager may determine.
32 I propose, therefore, to answer the separate question in the manner indicated.
33 I wish, finally, to make the following observation: Mr Pierce, Mr Gallow, Mr Paki Paki and the Union were not dishonest in their belief as to the construction of clause 13.7 entailing an unlimited sick leave entitlement, only mistaken. In that mistake, infelicitous drafting of the company's handbook was, I am quite certain, a contributor.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.