• [43] It was submitted by the Respondent that for the reasons stated above, there would have been no need to further clarify or limit access to Leave under this clause as it was already limited via the Act.

• [44] It was submitted that further, Mr Rogers only sought to apply for Leave under both 5.3.2 (a) and 5.3.2 (d) after he had already taken leave under 5.3.2 (d). He did not prior to taking said leave, provide notice that he intended to take both. Accordingly, the Respondent was not in a position to respond as contended by the Applicant.

• [45] For the reasons stated above, the Respondent seeks a determination that the answer be made in the affirmative, that is to say a staff member is excluded from accessing paid parental leave under clause 5.3.2 (a) of the Peregian Beach Community College Enterprise Agreement 2022 due to having earlier accessed paid parental leave under clause 5.3.2 (d) of said agreement.

• [46] The Applicant submitted that the Respondent is in error where they submit that case law related to construction of agreements requires the context and purpose must be considered even when the words on their face have a clear and unambiguous meaning. The Applicant re-asserted its submissions that clear and unambiguous words are to be taken as read and other evidence shouldn't be considered to contradict the plain language of the clause.

• [47] The Applicant submitted there is no basis for the reference to and reliance on the Paid Parental Leave Act 2010 as proposed in the Respondent's submission. This act simply provides for a statutory regime in relation to a government payment of Paid Parental Leave and has no implication on enterprise agreements and should be disregarded.

• [48] The Applicant submitted had there been a common understanding of the application of the terms of the Parental Leave Act 2010 to the Agreement it is more likely than not that reference to said act would have been made in the Agreement along with reference to the National Employment Standards and the Fair Work Act 2009 as seen in clause 5.3 of the Agreement.

• [49] The Applicant submitted that the terms primary caregiver and non-primary caregiver are commonly used phrases in enterprise agreements and don't require legislative assistance in interpretation as submitted by the Respondent. Identical wording had been used in earlier Peregian Beach College Enterprise Agreements.

• [50] The Applicant submitted if the Commission is swayed by the need for extraneous definitions, then the Paid Parental Leave Act 2010 is not of assistance as even in the Respondent's submissions the act does not define the term non-primary caregiver, one of the terms the Respondent indicates is in contention in this matter.

• [51] The Applicant submitted that it is not duplicitous to seek to access multiple leave provisions under the Agreement as submitted in the Respondent's submissions. It was submitted that the Agreement clearly provides for two different entitlements with different requirements to be met to access the said leave. Clause 5.2.3 (a) requires the employee to take on primary caring responsibility of their child and 5.2.3 (d) allows for a short period of leave to assist as non-primary caregiver for their child.

• [52] It was submitted that in the alternative, if the Agreement is to be read in conjunction with the Paid Parental Leave Act 2010 the Applicant submits that any interpretation should be under the act as varied from time to time as required of the Act under the agreement.

• [53] The Applicant submitted that paragraph 29 of the Respondent submissions should be disregarded as the precedent relied upon does not support the contention that the Paid Parental Leave Act 2010 should be frozen in time. The Applicant contended the relied upon precedent points to a common understanding between the parties on the interpretation of a clause in an agreement which has not been made out by the Respondent. It was submitted the reference provided in the submissions at paragraph 29, ALHMWU v Prestige Property Services Pty Ltd 17, they believe should have read ALHMWU v Prestige Property Services Pty Ltd [2006] FCA 11 and had simply been erroneously copied from paragraph [22] of Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd [2023] FWC 806 which reads:

[22] ........... In principle 15 in Berri the Full Bench dealt with the relevance of post-agreement conduct to the construction of the terms of an enterprise agreement citing the judgment of Gray J in ALHMWU v Prestige Property Services Pty Ltd in which his Honour observed that:

"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 ... In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue."

• [54] The Applicant submitted in the alternative, if the Parental Leave Act 2010 is to be relied upon and the act as varied from time to time is the correct interpretation as earlier submitted, then nothing in the current version of the act limits their member's claim to both forms of paid parental leave under the Agreement.

• [55] The Applicant contended that in response to paragraph 34 of the Respondent's submissions, Mr Rogers did seek clarity on the leave he would be able to avail himself of prior to taking his first period of leave and it was a lack of clarity from the Respondent that saw Mr Rogers access the leave in the order that is now being anticipated.

• [56] When the context and purpose are considered, I prefer the Respondent's interpretation. It is true to say the clause does not say whether it was intended that an employee could access both the primary care giver entitlement in cause 5.3.2(a), and the non-primary care giver entitlement in clause 5.3.2(d), however the Paid Parental Leave Act 2010 as it applied at the time the Agreement was made, was clear that if an employee received Dad and Partner pay they could not subsequently also receive Paid Parental Leave. The fact that clauses 5.3.2(a) and (d) both make reference to the entitlements being, "in addition to" statutory entitlements supports the Respondent's interpretation that the Agreement intended to provide an additional amount compared to statutory entitlements, and not create a different regime to the one that operated under statutory entitlements at the time.

• [57] I don't agree with the Applicant's submission that if the statutory regime is to be considered as part of the context and purpose of the Agreement, then the statutory entitlement should be considered as it has been varied from time to time. That is because in accordance with section 182(1) an enterprise agreement is made when a majority of effected employees vote for that enterprise agreement. In this case the Agreement was made before the Paid Parental Leave Act 2010 was amended, and at the relevant time of the Agreement was made an employee who accessed Dad and Partner pay could not also access Paid Parental Leave.

• [58] The answer to the question for interpretation is yes, a staff member is excluded from accessing paid parental leave under clause 5.3.2 (a) of the Peregian Beach Community College Enterprise Agreement 2022 due to having earlier accessed paid parental leave under clause 5.3.2 (d) of said agreement.

[1] Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd (Berri) [2017] FWCFB 3005 at [14].

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