SNADEN J:
162 I am fortunate to have had an opportunity to review in draft the reasons of Rangiah J. I am indebted to his Honour for the way in which he has recited the background to the present appeal, the findings of the learned Deputy President and the issues that fall for determination.
163 Adopting the same defined terms as those that his Honour has employed, I respectfully agree that the learned Deputy President erred by concluding that the Employees ought to have been paid at the grade 3, level 3 classification described in Appendix J of the 2020 Agreement (or the equivalent and materially identical clause of its predecessor). I am unable, however, to agree that they were engaged to perform tasks consistent with the grade 3, level 2 classification. Instead, I consider that they were correctly classified as grade 3, level 1 employees.
164 Those baseline conclusions stated, it follows that I would allow the appeal, set aside the judgment of the Employment Court and, in its place, order that the respondent's application to that court be dismissed with no order as to costs (in reality, there appear to have been two such applications - both dated 1 September 2022 - one for compensation and interest, and one for the imposition of pecuniary penalties).
165 By the proceeding below, the respondent charged the appellant with having contravened s 50 of the FW Act. That provision prohibits an employer from contravening a term or terms of an "enterprise agreement". The contraventions alleged were said to have arisen because the appellant Employer had paid the Employees as though they were engaged as grade 3, level 1 employees under the 2020 Agreement and its predecessor. There is no dispute that the relevant instruments were enterprise agreements for the purposes of s 50.
166 Section 50 of the FW Act is a "civil remedy provision": FW Act, s 539(1). Alleged contraventions of it are actionable within "eligible State or Territory court[s]": FW Act, s 539(2). The Employment Court is such a court: FW Act, s 12; Fair Work Regulations 2009 (Cth), r 1.05.
167 This court has jurisdiction to entertain appeals from decisions of "eligible State or Territory court[s]": FW Act, s 565(1). Here, the decision in question was limited in its scope to questions of liability (that is, whether the Employer did, as alleged, misclassify and, thereby, underpay the Employees relative to what the relevant instruments required). Issues of quantum and penalty were reserved for further consideration, which has yet to occur.
168 The primary judgment is almost certainly an "interlocutory judgment" of the kind to which s 24(1A) of the Federal Court of Australia Act 1976 (Cth) refers: Monash Health v Singh (2023) 327 IR 196, 202-206 [27]-[44] (Katzmann, Snaden and Raper JJ). That notwithstanding, the present appeal lies without any requirement of leave: FW Act, s 565(2).
169 As his Honour, Rangiah's J reasons for judgment make clear, the appeal turns upon the proper construction of Appendix J of the 2020 Agreement (and the materially identical clause of its predecessor, cl 14.1 of the 2018 Agreement). In James Cook University v Ridd (2020) 278 FCR 566, 580-581 [65] (Griffiths and SC Derrington JJ, Rangiah J in dissent but not relevantly for present purposes), this court summarised that construction task as follows:
65 The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:
(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes (1989) 30 IR 362 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]).
(ii) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind" (Kucks v CSR Limited (1996) 66 IR 182 at 184; Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]). The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose" (Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2]).
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [53]). It may extend to "… the entire document of which it is a part, or to other documents with which there is an association" (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth (1998) 82 FCR 175 at 178).
(iv) Context may include "… ideas that gave rise to an expression in a document from which it has been taken" (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518).
(v) Recourse may be had to the history of a particular clause "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 …" (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518).
(vi) A generous construction is preferred over a strictly literal approach (George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57]), but "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" (City of Wanneroo v Holmes (1989) 30 IR 362 at 380).
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379; WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]).
170 Appendix J of the 2020 Agreement is not well written. In multiple respects, it presents as little more than a jumble of random terms that appear unlikely to have ever made sense, even to those who wrote them. Nonetheless, the court's task now (like that of the Employment Court before it) is to divine what the parties to the 2020 Agreement must be presumed, in fact, to have intended.
171 Looking structurally at the component levels that constitute "grade 3", it is apparent that there are two species of tasks referred to under "Level 2" that are intended to distinguish it from "Level 1". The first is "Dangerous goods paperwork, pallet paperwork, (order consolidation,) (dispatch paperwork) other documentation." The second is "Credit and other returns, (pallet reconciliation)".
172 I address the first component first. One of the few things that I regard as comparatively clear about the description applicable to "Level 2" is that the first half of it is concerned with some kind of interaction with written material (which is to say, "paperwork" or "documentation"). That observation is at odds with the conclusion of the learned Deputy President. He determined that the parenthesised reference to "order consolidation" should be understood as a reference to a separate species of work; namely work concerned with the consolidation of orders. To that end, the learned Deputy President reasoned as follows (primary judgment, [45]-[46]):
45 In my view the applicant's submission is correct. The described consolidation and relabelling of orders match the plain meaning of the text, and the context of this duty within the structure. The duty is not to consolidate all order or dispatch paperwork. The performed duty cannot be disregarded and displaced by a higher administrative function.
46 I find the workers do perform the intended duties regarding palletised order consolidation with new labelling.
173 The evidential foundation for that conclusion is unclear. In the course of his evidence in chief, one of the respondent's witnesses, Mr Heffernan, was questioned by the learned Deputy President about what he (Mr Heffernan) "underst[ood]" to be contemplated by "order consolidation, paperwork". Mr Heffernan's evidence was as follows:
WITNESS: Order consolidation paperwork, I know that in terms of order consolidation, that's something we do every day. When we receive stock from interstate. What they call, "cross stock." So we receive already picked orders. Pallets from - that arrive to us from interstate, from places, like, New South Wales, for example. And our dangerous goods warehouses. And it's up to the person on the forklift outside in the morning to receive those pallets. Count those pallets. Make sure that we have what the paperwork says, the manifest says that we have.
And then we consolidate - we receive the pallet, a pallet at least, or sometimes several pallets of smaller cartons, smaller orders, cartons and drums, in the morning. That might be, for example, three cartons for an order, but there'll be a lot of those very small orders in it. Then it's up to us to marry up those up, if you like, with pallets that we've already picked, ready for despatch that day. So we'll unload that truck and then identify what we have, and match them up with what we've already got, if that makes sense. And consolidate those orders.
HIS HONOUR: All right. Now is there any paperwork you have to look at in that process, and consider?
WITNESS: In terms of unloading a truck in the morning containing that stock?
HIS HONOUR: Yes.
WITNESS: We need to count, it's our responsibility to count the pallets, primarily the CHEP pallets. And make a note of what we've taken off. And just ensure that that matches up with what it says on the manifest paperwork that we receive. And then we hand that paperwork into the people in the despatch office.
HIS HONOUR: Okay. So that's counting and recording the stock that's on the CHEP pallet.
WITNESS: What - really we're counting the CHEP pallets themselves. As far as the stock, that information, all that information regarding the stock and the paperwork of what we will be receiving as a warehouse, is sent through via email the night before.
HIS HONOUR: Okay.
174 It is, I think, tolerably clear that what Mr Heffernan was there describing was not the performance of paperwork tasks; but, rather, work that is undertaken by way of receiving, picking and loading goods. Mr Tronnolone described similar work in his evidence, albeit not (or not obviously) in the context of what might or might not amount to "order consolidation" work.
175 With respect to the learned Deputy President, it is not apparent how any of that should inform the proper construction of the descriptor that Appendix J of the 2020 Agreement attaches to the grade 3, level 2 classification. It was not in contest that, in order that they might fulfil individual orders, the Employees were required, from time to time, to take stock from the Kilburn warehouse at which they worked and combine it with stock received from other warehouses. Doing so plainly required that stock from elsewhere should first be received, and then taken from in whatever way or ways that that process of consolidation required. If the parenthesised reference to "order consolidation" in the classification descriptor applicable to grade 3, level 2 employees should be understood as a reference to work of that kind, then it would likely follow that the Employees, having performed it, should properly have been classified at that level.
176 But why should the parenthesised term be understood in that way, rather than as a reference to a particular species of "paperwork"? Respectfully, one searches in vain through the evidence and the reasoning of the learned Deputy President for any answer to that question.
177 I consider it clear enough that the first half of the description applicable to grade 3, level 2 - namely "Dangerous goods paperwork, pallet paperwork, (order consolidation,) (dispatch paperwork) other documentation" - is a description of the various kinds of paperwork in which a grade 3 employee must partake in order to attract classification at level 2. There are a number of contextual indicators as to why that is so.
178 First and most powerfully, the concluding use of "other documentation" suggests that the preceding concepts were intended to be of like kind. It would be, to say the least, a curious turn of phrase for the descriptor to conclude with a general and inclusive reference to "other documentation" after having listed constituent concepts not themselves linked in some way to "documentation". A list of that kind would be self-evidently incongruous - much like, for example, a reference to "rugby league, Australian rules football, ice cream and other full-contact sports". At least in the absence of some powerful evidential basis for doing so, the court should be slow to favour a construction that gives effect to incongruity of that nature. Instead, the reference to "order consolidation" should be read ejusdem generis with the other concepts that surround it.
179 Second, there is no obvious reason of industrial policy or principle why work associated with the loading, unloading, picking or packing of "consolidated" orders - that is to say, orders that are to comprise of goods that originate partly from the Kilburn warehouse and partly from other sources - should warrant classification at a higher level than other loading, unloading, picking or packing tasks that fall within grade 3. Unlike the preparation of paperwork - which plainly does involve work additional to or qualitatively different from those baseline warehousing duties - the sorts of work described by Mr Heffernan are distinguishable from level 1 warehousing tasks only insofar as concerns the origins of the stock that is to be distributed. Why that should attract classification at a higher level is anything but clear and, with respect to the learned Deputy President, neither his reasons nor the evidence offer any indication as to why that might be presumed to have been intended.
180 Third, the historical application of the grade 3 classification structure suggests, at least from the point that the 2020 Agreement came into effect, that it was understood that the work that the Employees performed was not of a kind to which level 2 would apply. There was evidence below that the appellant and the respondent had agreed as much at the time that the 2018 Agreement was made. That evidence is likely not competent to inform the proper construction of the clause as it was originally expressed: Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385, 397 [59] citing with approval Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd (2017) 268 IR 285, 310 [114]. Nonetheless, it is apparent that the parties thereafter (throughout the relatively short life of the 2018 Agreement) conducted themselves consistently with the accord that was struck. Having agreed to a clause in the same terms in the 2020 Agreement, they should ordinarily be presumed to have intended that there should be no change to the manner in which it had been applied to that point.
181 To repeat, then, I accept that the first half of the description applicable to the grade 3, level 2 classification references the performance of various types of "paperwork". With respect, the learned Deputy President was wrong to conclude otherwise.
182 Having so concluded, the question to which attention should then turn is whether any of the Employees should properly be understood to have performed any of the "paperwork" or "documentation" tasks to which the first half of the grade 3, level 2 descriptor refers.
183 The learned Deputy President accepted (primary judgment, [33]) that:
…'paperwork' is a reference to any type of written information about orders, loads or things that have associated responsibilities, duties or tasks to be performed. This includes papers, labels, invoices, forms, notices and self-adhesive notices in the form of stickers.
184 Later (at [38]), the learned Deputy President accepted that the grade 3, level 2 classification contemplated "…more than only dealing with paperwork associated with basic loading and unloading of pallets into and out of vehicles". At [40], he reasoned that:
…the criteria mean that Grade 3 workers need to read and respond to the identified types of paperwork. They may need to check it is correct, or identify which other paperwork is required and to then deal with it by for example attaching it to a load, as in the case of packing slips and invoices, or identifying which category of dangerous goods notice or sticker may need to be applied to a load. They may need to fill in paperwork such as the internal CHEP pallet reconciliation form after checking on what has been returned.
185 Respectfully, I am unable to accept that those observations (at least in their entirety) are consistent with a realistic conception of "paperwork". Read properly and in context, the reference in the grade 3, level 2 descriptor to various forms of "paperwork" or "other documentation" cannot credibly be understood as contemplating mere interaction with written material. Were it otherwise, it is difficult to see how any work undertaken under the 2020 Agreement by employees with forklift licences could fall within the grade 3, level 1 classification. As is clear from what were accepted to be the essential characteristics of the Employees' tasks, all such work necessarily requires at least some degree of interaction with written records, including records containing information about dangerous goods, pallets and consignments.
186 By its ordinary meaning, attending to "paperwork" involves generating written records that pertain to the completion of other work. Taking a written record as an instruction to do something or as a source of information to be processed in some way would not ordinarily qualify; nor would using computers or other machines (such as printers) to compile or produce in written form information that was collected or generated electronically. To do "paperwork" is, in my view, to create something that is to serve as a written record that pertains in some way to the performance of other work.
187 So understood, attention can turn to what the Employment Court accepted as the examples of "paperwork" to which the Employees routinely attended.
188 The learned Deputy President accepted, first, that they undertook some dangerous goods paperwork; specifically, in that they were responsible for checking the content of orders prepared for dispatch and, in the case of contents that required it, attaching a "dangerous goods sticker" (and possibly other written notices) to the pallet. Again with respect, work of that nature is not to be equated with the "doing" of "paperwork". It does not involve the creation of anything. It involves the checking of manifests and the application of notices or stickers that have been elsewhere prepared. Indeed, the evidence before the Deputy President was that, on smaller orders that did not require the use of forklifts, the checking of packing slips and the application of dangerous goods stickers were tasks that were performed by grade 2 employees.
189 Further, it is not the case that the Employees were responsible for, as the learned Deputy President put it, "…selecting the correct category of required [dangerous goods] notice". On the contrary, that information came pre-stipulated on packing slips or on labels attached either to wrapped pallets or to cartons within them. The task for the Employees was simply to follow an instruction (an important one, to be sure).
190 It follows that I consider that the learned Deputy President was wrong to conclude that the Employees' work was apt to include "dangerous goods paperwork".
191 Next, the Employment Court considered whether the Employees undertook paperwork associated with "order consolidation". Although it could be clearer from his reasons, with respect, it appears that the learned Deputy President accepted not only that the reference to "order consolidation" was a reference to a physical task (or set of tasks); but also that, to the extent that it contemplated "paperwork", the Employees satisfied that aspect as well because "order consolidation" involved "relabelling" consolidated pallets.
192 It is not clear precisely what the learned Deputy President meant by that reference to "relabelling" but it doesn't much matter. The evidence is tolerably clear that the process of labelling or relabelling consolidated pallets was not one that involved "paperwork" in any sense that accords with what I have observed above. At most, it involved printing out records - that is to say, records of information prepared electronically or otherwise than by the Employees themselves - and applying them to pallets. I do not accept that that might properly be described as "paperwork" and, to the extent that he held otherwise, the learned Deputy President did so in error.
193 Next (and perhaps relatedly), the Employment Court accepted (primary judgment, [48]) that "…tasks performed regarding ensuring the correct dispatch labels are fixed to orders completed by the [Employees] is a relevant Level 2 dispatch paperwork duty". Again and for reasons equivalent to those outlined in the last paragraph, that conclusion is unsustainable.
194 Something should be said of what constituted the "correct dispatch labels" to which the learned Deputy President referred. In the case of each individual order, there were two: the first was what was described as an "EAN [presumably European Article Number] label"; the second was "a white sticker" upon which was to be written the name of the carrier by which the pallet was to be transported and the weight of the pallet in question. The latter was to be attended to so as to more easily enable forklift drivers to ascertain what they were loading and where they needed to take it. The EAN label contained equivalent information.
195 On the conception of "paperwork" to which I am drawn, there is an argument to be made that the preparation of those "white stickers" - containing, as they plainly do, information about the content of pallets and the carriers that are engaged to dispatch them - might amount to the "doing" of "pallet paperwork" (or possibly "dispatch paperwork"). The stickers assume a written form, and contain information that is generated by an employee and pertains to the performance of other work (in particular, the loading of pallets into vehicles).
196 There are, however, two circumstances that incline me away from concluding that that work falls within the descriptor applicable to the grade 3, level 2 classification. First, it is apparent that the creation of "white stickers" is a task that is undertaken for the benefit of forklift drivers. They are devices to assist drivers to see (presumably from the cabin of their forklifts) information about the pallets with which they are to work. They do not record information that isn't already recorded on the labelling that is already affixed to pallets; they are merely more accessible manifestations of some of that same information. So understood, it is difficult to constitute them separately as "records" in the sense that I consider inherent to the concept of "paperwork".
197 Second and perhaps more importantly, the creation of the "white stickers" seems inextricably linked with the loading of pallets into vehicles. The learned Deputy President was disposed to conclude (primary judgment, [47]) that the placing of white stickers on pallets was "…more than the Level 1 duty of checking the paperwork for correctly loading vehicles". But, respectfully, the "Level 1 duty" is more broadly expressed: it refers (admittedly with the same want of clarity that plagues the rest of Appendix J of the 2020 Agreement) to "loading and unloading of vehicles and relevant paperwork associated". It is unclear why the preparation of information on a sticker that displays details about a pallet in a way that is intended to make it easier for a forklift driver to load it into a vehicle should not qualify as the preparation of paperwork associated with the loading of pallets into vehicles. It should and does.
198 It follows that I consider that the learned Deputy President was wrong to conclude that the Employees were engaged in "pallet paperwork" or "dispatch paperwork" of kinds sufficient to attract the application of the grade 3, level 2 classification.
199 The learned Deputy President also found (primary judgment, [49]) that, inasmuch as they had occasion to obtain and place invoices "…on completed small orders", the Employees were engaged to perform "other documentation". For reasons that might, by now, be apparent, I do not accept that the obtaining and placement of invoices could amount to what is contemplated by the reference to "other documentation". That reference, like the others that precede it, is apt to describe the preparation of written material to record some aspect about the performance of work. On no view could the printing and placing of invoices satisfy that description. Respectfully, the learned Deputy President was wrong to conclude otherwise.
200 The evidence makes clear that there is a suite of "paperwork" that is prepared and provided to freight carriers when they collect pallets from the Employer. It includes consignment manifests and notes, emergency procedure guides, and (in some cases) "multimodal dangerous goods forms". None of that is or was prepared by any of the Employees. Although it is unnecessary to conclude for present purposes, it seems likely that the references to "paperwork" within the grade 3, level 2 descriptor were intended as references to paperwork of that nature.
201 The interactions that the Employees undoubtedly have with various written records cannot properly be shoehorned into the performance of "paperwork" (or otherwise as attendance to "other documentation") within the contemplation of what the classification description for grade 3, level 2 employees provides. To the extent that the learned Deputy President concluded otherwise, he did so in error.
202 That leaves for consideration the second half of the description that Appendix J of the 2020 Agreement attaches to the grade 3, level 2 classification: namely, "Credit and other returns, (pallet reconciliation)".
203 The learned Deputy President was satisfied that the Employees were engaged in the performance of work of that kind; specifically, because they attended to "pallet reconciliation" work. It repays here to set out the reasoning that led the learned Deputy President so to conclude (primary judgment, [50]-[55]):
50 The applicant submits the 'Credit and other returns, (pallet reconciliation)' duty is fulfilled by the workers' role in making a written record of daily reconciliation of CHEP pallets sent with orders and later returned.
51 The respondent submits this criterion refers only to the Grade 5 duty of determining if returned stock can be resold. It submits the task of recording the number of CHEP pallets leaving and returning is paperwork associated with unloading vehicles, a Level 1 duty.
52 In my view the applicant's interpretation cannot be applied to Credit returns, as returning pallets are not credits of any type. The CHEP reconciliation duty does relate to returned things, i.e. pallets, but they are not things for which credit is applicable. In reaching this conclusion I accept that the bracketed words 'pallet reconciliation' relate to 'other returns' despite the comma before the brackets.
53 I accept the respondent's submission that returns for which a credit may be relevant are products returned by customers for a credit. I accept the duty regarding credit returns, after they have been unloaded, is to first determine whether the product is 'good' or 'bad' for resale purposes. I accept the unchallenged evidence that this task is not required to be performed by any Grade 3 worker, as it is performed at the Grade 5 level.
54 The practical removal of this duty from the scope of Grade 3 means it cannot be a valid classification criterion for Level 2 or 3. It is not an intended duty for Grade 3 workers, is impossible to perform at Grade 3 and thus cannot have been intended by the parties as an applicable criterion.
55 The respondent's submission is incorrect because it disregards the wording of 'pallet reconciliation' being a Level 2 duty and focuses only on the credit return duty. Nor does the Internal Receipt [Standard Operating Procedure] used for unloading vehicles include this duty. If this criterion was not specified as a Level 2 duty there may be force in the respondent's submission, but that is not how the criteria are expressed. I accept the workers do perform the pallet reconciliation duty meant by this criterion.
204 Although it is unclear from [55] what the learned Deputy President considered was sufficient to warrant the conclusion that the Employees "perform the pallet reconciliation duty", it seems likely that he was referring to what is described at [50]: namely, that the Employees had a "…role in making a written record of daily reconciliation of CHEP pallets sent with orders and later returned".
205 The evidential foundation for that conclusion is similarly unclear. It is not apparent on the evidence that the Employees made any such record. Rather, they were responsible for ensuring that the number of pallets that, from time to time, were returned to the Employer matched what was recorded in the transport documentation with which they were returned (and, perhaps also, for bringing to the attention of their team leaders any discrepancies that were apparent from those endeavours). In other words, they made sure that what the relevant documentation said was being returned was, in fact, received.
206 Again - and appreciating the want of clarity inherent in the manner in which the classification description is framed - I do not consider that work of that nature fairly or properly contorts into what might be conceived of as "pallet reconciliation" work. Ensuring that what they load or unload from a vehicle accords with what they are meant to load or unload strikes very much as an elemental component of loading and unloading vehicles. It is properly regarded as being within what the grade 3, level 1 classification contemplates.
207 The learned Deputy President was also satisfied that the Employees were engaged in the work of "other returns" in that they had occasion, from time to time, to take stock that was returned to the Kilburn warehouse and place it "…in its correct location in the warehouse". Again with respect, that conclusion rests upon an unrealistically generous conception of what might be meant by "Credit and other returns". Receiving stock that customers have returned no more involves the processing of "Credit and other returns" than the receiving of stock from other warehouses for distribution in consolidated consignments involves the processing of sales or purchases. Taking receipt of things necessarily entails putting them somewhere. Again, that is an elemental component of unloading vehicles. It strikes me as most unlikely that a higher classification was thought appropriate to cover the receipt of some goods merely because of where they might have come from.
208 The better - and, in my view, the most sensible - way to read the descriptor that Appendix J of the 2020 Agreement attaches to the grade 3, level 2 classification is as signifying the performance of tasks that are qualitatively different from those that fall within the level 1 classification. That is traditionally the way in which graduating classification structures operate. It is also consistent with the introduction of "paperwork" as a "higher" or additional duty (relative to those performed by grade 3, level 1 employees), the performance of which should attract a higher classification and payment of a higher wage.
209 Respectfully, the learned Deputy President was wrong to conclude that the Employees were engaged in the performance of "other returns".
210 More broadly, the Employment Court was wrong to conclude that the Employees performed work sufficient to constitute them as grade 3, level 2 employees under Appendix J of the 2020 Agreement (or the equivalent clause of its predecessor). The appeal should be allowed. The judgment of the Employment Court should be set aside and, in its place, it should be ordered that the respondent's applications to that court (both dated 1 September 2022) be dismissed. Consistently with s 570(1) of the FW Act, there should be no order as to costs, either in the appeal or as concerns the proceeding below.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.