s.739 - Application to deal with a dispute

Alleged dispute about matters arising under the Enterprise Agreement - Enterprise Agreement interpretation - Medical Benefit Payments cease - personal illness - Salary Continuance Insurance Payments - interpretation, specific treatment of Production Reward Scheme

[1] The Mining and Energy Union (the Applicant/the Union) made an application pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act) in relation to a dispute arising under the Ensham Mine Employees Enterprise Agreement 2021 (the Agreement) with Ensham Resources Pty Ltd T/A Ensham (the Respondent/the Employer).

[2] The matter was listed for conciliation; however, the matter could not be resolved. The parties sought arbitration of the matter, pursuant to clause 23 of the Agreement.

[3] In line with the Commission's Directions, the parties provided the following agreed question for arbitration:

"Is an employee entitled to receive medical benefit payments described in clause 9.7 of the Ensham Mine Employees Enterprise Agreement 2021 whilst the employee is absent from work because they are unable to work on account of personal illness and receiving payments under the salary continuance insurance arranged by the Respondent in accordance with clause 13.1 of the Agreement?"

[4] The Union was represented by Mr Chris Newman, Legal Officer of the Mining and Energy Union and registered as a practicing solicitor. Appearing with him was Mr J Donnelly, the interim Union Lodge President and Mr S Brunker, District Vice President. The Employer was represented by Mr Jim Murdoch KC, instructed by Ms Vanessa Lac of Franklin Athanasellis Cullen Lawyers.

[5] Legal Representation was recognised in accordance with clause 23.2 of the Agreement, which allows parties to be represented at any step in the dispute resolution process under the Agreement.

• [6] The Respondent is the coal mine operator of the Ensham Mine in Central Queensland. The workforce includes employees who undertake the open cut and underground mining operations (mining employees/employees), in addition to other employees and staff. The mining employees are employed pursuant to the Agreement.[1]

• [7] The Agreement contains an arrangement for a Medical Benefit Payment under clause 9.7. In addition, Salary Continuance Insurance Payments are made pursuant to clause 13.1, based on compliance with the conditions in the relevant Agreement clause set out below.[2]

[8] The Respondent argued that employees are not entitled to receive Medical Benefit Payments whilst not working due to personal illness and receiving Salary Continuance Insurance Payments. In summary terms, it was stated by the Respondent that the reasons for this were set out in an email (dated 13 November 2024) from Ms Doris Prewett, Human Resources Manager of the Mine, to Mr Shane Brunker of the Union. That correspondence included below, set out the Respondent's response to the Union's precursor inquiry (to the question to be arbitrated) as follows:

"Your email on 22 October 2024 sets out that the MEU's position is that clause 9.2 of the Agreement operates on its own merits and, consequently, the medical benefit payment set out in clause 9.7 of the Agreement should be paid to employees who are on salary continuance insurance under clause 13.1 of the Agreement and are still engaged by Ensham as an employee.

1. Clause 13.1 of the Agreement provides for insurance cover where an employee is not providing work or services to Ensham as follows:

"Where, on account of personal illness, an Employee is unable to work at Ensham for a period in excess of seven consecutive rostered shifts, Ensham will provide that Employee with salary continuance insurance on the following basis:

• payment of a gross amount of $1,500 per week for Employees (or pro-rata for any part of the week);

Affected Employees will continue to receive the Production Reward Scheme Fortnightly and Quarterly Payment directly from Ensham."

1. The drafter of the clause specifically turned their mind to the payments an employee would receive under clause 13.1 being $1,500 per week (as varied), the Production Reward Scheme Fortnightly, and the Quarterly Payment. Had the common intention of the parties been that employees would receive the medical benefit payment while absent from work and not providing services to Ensham, that payment would have been expressly prescribed in clause 13.1. This is further supported by the fact that the clause does not refer to the defined term of "Total Remuneration" which includes the medical benefit payment. Clause 9.9.8 of the Agreement sets out the payments an employee is entitled to receive while on paid leave as contained in the Agreement and refers to the employee's "Total Remuneration". Again, the drafter of the Agreement turned their mind to what an employee would be entitled to in those circumstances.

1. Having regard to the above, we do not agree that an employee is entitled to the medical benefit payment while on a period of leave and receiving payments under Salary Continuance Insurance."

[9] Consent Directions were set for the filing of submissions and evidence, and the matter was listed for Hearing. Both parties provided submissions in relation to the disputed interpretation of the clauses in question and also provided further oral submissions at the Hearing.

[10] The first matter that was dealt with at the Hearing was the affidavit of Ms Doris Prewett, Human Resources Manager for the Respondent. The Applicant was critical of this evidence and stated that, given the alleged low probative value of the material, it should be attributed a minimum of weight. In particular, Mr Newman set out that Ms Prewett was alleging that the Medical Benefit Payment in the past, had only been paid on one occasion, and it was paid in error. He emphasised, that there was no payroll record in evidence, supporting that the payment that Ms Prewett stated was made in error. In that regard, the Applicant's representative made reference to the email which; Ms Prewett relied on with information conveyed from the prior HR Manager. The witness in reliance on that information, confirmed that the Mine's past practice, aligned with the current Employer's interpretation of the two clauses which are the subject of the current proceedings. Mr Newman characterised paragraphs 11 and 13, below, of Ms Prewett's statement as hearsay evidence:

"[11] On one occasion there was one fortnightly payment of a medical benefit payment that was made in error. This payment occurred in the pay period ending 22 January 2024. The payment was made at a time when the payroll was undergoing a complete transfer from one system to a new system. For pragmatic reasons, the erroneous payment was not pursued for repayment.

[13] On Thursday, 2 May 2024, I emailed Idemitsu's HR Manager, [redacted] (who was on leave at the time), regarding Ensham's practice prior to 1 September 2023. Mr [redacted] responded on Tuesday, 7 May 2024 when he returned from leave, that employees did not receive the medical benefit allowance while on salary continuance insurance payments."

[11] The affidavit included a copy of the email exchange.

[12] Mr Newman submitted that Ms Prewett's evidence should be struck out due to the reduced reliability that could be attributed to it. Alternatively, he proposed he would waive the right to cross examine Ms Prewett, if by agreement, it was only admitted on the basis of the Commission assessing, what weight could be assigned to the evidence. His submission was that no weight could be placed on this evidence.

[13] Mr Murdoch, for the Respondent, in response submitted that the information was not controversial in the sense that the Union was not suggesting that there is any contrary evidence regarding the past practice with the payment of the Medical Benefit Payment. The Respondent relied on the material as the current management (through this witness) provided evidence that the Medical Benefit Payment had also not been paid, apart from one occasion in error, during her custody of the HR payroll documents. In addition, he stated that in using their best endeavours with previous management (as set out in the email chain) they had confirmed that there had been no history of the Medical Benefit Payment being made in the circumstances of the current question for arbitration.

[14] The affidavit was accepted on that agreed basis. The evidence in that affidavit as it relates to the occurrence of payments of the Medical Benefit Payment whilst an employee is in receipt of Salary Continuance Insurance Payments is considered later in the decision. In addition, the case law applicable to the interpretation of Enterprise Agreement provisions is assessed in relation to this question for arbitration.

[15] The application was made pursuant to s.739 of the Act:

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute."

The main objectives of the Ensham Disputes Avoidance Procedure are:

• to resolve disputes and grievances in an efficient and timely manner as far as practicable on the job;

• to avoid stoppages of work and loss of production and salaries whilst the dispute or grievance is being processed.

To meet these objectives, Employees and their Supervisor will discuss issues in the workplace as they arise from time to time, fully investigating the issue at that point in time. Should a dispute or grievance arise out of matters in this Agreement or in relation to the National Employment Standards that they are unable to resolve on the job, the following procedure should be followed.

Step 4 It may be referred by either Ensham or the Employee to the Fair Work Commission for resolution. It is agreed that both parties consent to the Commission exercising arbitral powers to determine the dispute. Nothing in this provision authorises the Fair Work Commission to make any determination otherwise prohibited by law.

Either party may be represented at any of the steps in the above procedure.

During a dispute the status quo existing immediately prior to the matter giving rise to the dispute will remain. Work will proceed without stoppage or the imposition of any ban, limitation or restriction until the disputes avoidance procedure has been completed. The status quo is represented by the rights of the parties under this Agreement and at law."

In this Agreement except where otherwise clearly indicated:

"salary" or "salaries" are as defined in Clause 9.1 Calculation of Annual Salaries

"Total Remuneration" means the total value of the salaries calculated in accordance with Clause 9.1 - Calculation of Annual Salaries, and payments in accordance with Clauses 9.2 - Other Remuneration, 9.3 - Production Reward Scheme and 9. 7 - Medical Benefit Payment."

[18] Clause 5.2 of the Agreement states as follows:

Employees shall perform such work as Ensham shall from time to time reasonably require, including work which is incidental and peripheral to the Employee's core tasks provided that the Employee is competent to perform such duties, within statutory requirements, and is authorised, where necessary, to perform the task.

Any transfer between open cut and underground mining operations will be by mutual agreement, i.e. entirely voluntary.

Ensham has the right to withhold payment in the event of any unauthorised absence from work or any other failure to perform duties as defined in this Clause 5.2, for the actual time of such non-attendance or non- performance."

[19] Clause 9.1 of the Agreement relevantly provides:

The salaries contained within this Agreement, or calculated in accordance with this clause, are all-encompassing and include all allowances and other payments. No further payment will be made for any allowance which might otherwise apply or may be sought on the site unless specifically contained in this Agreement."

[20] Clause 9.3 of the Agreement relevantly provides:

From the commencement date of this Agreement, a Production Reward Scheme payment will be paid. The underlying basis behind this payment is to maintain production levels through flexibility of work skills, continuous operations of production units and in consideration of the competitive environment in which we operate.

The payment is $400 per fortnight (i.e. $200 per week x 2)

This payment is determined by the following formula:

$Quarterly Payment= Coal Railed (tonnes) during Qtr x $0.001

From the commencement of the first quarter after the retrenchment of open cut Employees has commenced, the following formula will replace the above formula for coal railed up to 1.1 million tonnes during the quarter:

$Quarterly Payment= Coal Railed (tonnes) during Qtr x $0.00121

From the commencement of the first quarter after the retrenchment of open cut Employees has commenced, the following formula will apply instead of the above formulas, for coal railed in excess of 1.1 million tonnes for the quarter.

$Excess Tonnes Quarterly Payment= Coal Railed (tonnes) during Qtr > 1.1 million tonne x $0.002

Qtr = 3 month period ending on 31st March, 30th June, 30th September and 31st December.

The first payment under this Agreement will be calculated based on the tonnes railed between the commencement of this Agreement and the end of the quarter in which this Agreement commences.

The minimum payment shall be $650 per quarter (pro rata for incomplete quarters).

The Quarterly Payments will be made on the first pay day after calculations are completed following 31st March, 30th June, 30th September and 31st December. The Quarterly Payments are made at these times, including when an Employee is on any form of paid leave.

Although the Quarterly Payment is included in the definition of Total Remuneration, it is still only paid as it falls.

An Employee who was employed for a complete quarter (a period of notice paid in lieu is considered to be "employed"), but is no longer employed on the date the payment is made, will still be eligible for payment for that quarter."

[21] Clause 9.7 of the Agreement relevantly provides:

Ensham shall pay a medical benefit allowance of $7,799 per annum before tax, i.e. $299.95 per fortnight. Employees will organise their own medical insurance. Ensham will continue to provide the payroll deduction service for payment of insurance premiums.

The benefit will be varied annually in June, by an amount equal to any increase in the Health Commodity Index published by the Australian Bureau of Statistics for the year ending the previous March."

"13.1 Sick/Accident, Salary Continuance and TPD Cover

Ensham will arrange for insurance cover for all Employees covered under this Agreement for 24-hour Sickness and Accident/Salary Continuance Insurance, and Total Permanent Disablement/Death cover insurance.

Any single absences of 1/2/3-day etc can be covered by the taking of personal leave. No paid sick leave shall be paid for absences in excess of the Employee's accumulated entitlements.

Where, on account of personal illness, an Employee is unable to work at Ensham for a period in excess of seven consecutive rostered shifts, Ensham will provide that Employee with salary continuance insurance on the following basis:

• payment of a gross amount of $1,500 per week for Employees ( or pro-rata for any part of the week);

• the payment will be varied annually in June, by an amount equal to any increase in the All Groups CPI for Brisbane, published by the Australian Bureau of Statistics, for the year ending the previous March;

• payment shall not commence until after the fourteenth day from the commencement of the Employee's inability to attend for work;

• Ensham will organise the initial application and associated paperwork on behalf of the Employee, after which the Employee will liaise directly with the agent of the insurer for continuation of the payment, providing the medical certificates and any other information directly to the insurer as required;

• where the Employee requests assistance from Ensham in regard to Sick and Accident Continuance Insurance, Ensham will provide assistance to the Employee;

• Ensham shall not use, retain or disclose private medical information obtained by Ensham in the course of organising an Employee's claim for insurance;

• payment shall be a maximum of 24 months, or for the period the Employee is unable to attend for work, whichever is the lesser

• payment will not apply while an Employee is receiving payments under the provisions of the Workers' Compensation and Rehabilitation Act 2003 ("WCR Act"). Where payments under the WCR Act cease, an Employee will receive payment for any period remaining of the 24 months from commencement of the Employee's inability to attend for work, provided they continue to qualify for payment in accordance with the salary continuance insurance policy

• where an Employee continues to qualify for payment in accordance with the salary continuance insurance policy, payment will continue following termination of employment, for up to a maximum of 24 months from commencement of the Employee's inability to attend for work

• the dates of commencement of an employee's inability to work and of that Employee's ability to attend for work will be as certified by a duly qualified Medical Practitioner. In the case of an Employee who returns to work from a non-WorkCover injury or illness, an Employee must elect to undergo an examination by a medical practitioner nominated by Ensham or their own treating practitioner provided that the practitioner assesses the Employee against their full range of duties, a copy of which will be provided by Ensham.

• payment will be made directly to the Employee by Ensham subject to the Employee complying with all reasonable requirements of Ensham's insurer.

Affected Employees will continue to receive the Production Reward Scheme Fortnightly and Quarterly Payment directly from Ensham.

Employees will also be covered under a Group Life Plan offering individual Insurance' cover up to $200,000 for persons up lo age 60, and scaling back to $50,000 cover for persons at age 65.

These amounts are provided by Ensham's insurer and are based upon length of life actuarial assessments.

Ensham will review with the insurer opportunities for Employees to supplement, at the Employees' cost, the income protection, life insurance and TPD insurance to suit their own personal needs. This review will be conducted on the basis that any further arrangements are at no cost to Ensham." (emphasis added)

[23] In summary terms, the Applicant submitted that the question for arbitration should be answered in the affirmative. The Applicant submitted that where employees are absent from work because they are unable to undertake work due to personal illness and are in receipt of the Salary Continuance Insurance Payments in clause 13.1, they should also be entitled to the Medical Benefit Payment in clause 9.7.

• [24] The Applicant argued that clause 13.1 provided for the gross payment of $1,500 per week (indexed) for employees unable to perform work due to personal illness for a period in excess of seven consecutive rostered shifts. The clause is silent in regard to what allowances or other benefits are or are not to be paid to employees, whilst on Salary Continuance Insurance Payments.[3]

• [25] The Applicant submitted that under the Agreement's definition of Total Remuneration 'they are entitled to additional allowances or other entitlements to their 'salary'.'[4] The Applicant also submitted that the Medical Benefit Payment is a specific entitlement contained at clause 9.7 of the Agreement, which sits outside of the definition of 'salary' in clause 9.1 and as such is a separate payment paid to employees.[5] Further, the Applicant submitted that the entitlement to the Medical Benefit Payment under clause 9.7 of the Agreement is a payment for all employees covered by the Agreement.[6] That is, as employees are unable to work due to personal illness and placed on Salary Continuance Insurance Payments, they are still considered to be 'employees' covered by the Agreement, they must therefore also maintain their entitlement to receive the Medical Benefit Payment.

[26] The Applicant submitted that the effect of clause 13 is only to provide for the Salary Continuance Insurance Payments and does not state what allowances or other benefits are or are not to be paid to employees whilst on Salary Continuance Insurance Payments. The Applicant emphasised that these payments are a payment in lieu of an employee's salary when an employee was unable to go to work due to being in receipt of Salary Continuance Insurance Payments as a result of a non-work related illness or injury.

[27] The Agreement defines salary as being derived from clause 9.1. Clause 9.1 provides that employees are entitled to additional benefits outside of their salary as specified in the Agreement. The Agreement clearly defines an employee's salary as the annual salary package paid to the employee for working the relevant roster, in each year of the Agreement. The term 'salary' is defined so that no other additional payment and entitlement is paid to the employee unless it is specifically contained in the Agreement. The Applicant stated that this demonstrated that other benefits provided by the Agreement fall outside of the employee's salary, and these entitlements are not linked to the performance of work and wages for such payment.

[28] The Applicant submitted that the wording of clause 9.7 does not link the Medical Benefit Payment to the performance of work, and as a specific allowance in the Agreement it does not sit within an employee's annualised salary as defined in the Agreement. As the Agreement does not include the Medical Benefit Payment as part of the employee's salary, it therefore cannot be removed/applied in lieu of the payment made to employees as part of their Salary Continuance Insurance Payment.

[29] The Applicant submitted this interpretation is industrially sensible, as employees on Salary Continuance Insurance Payments are effectively the same as employees on unpaid leave, where they do not accrue service, but their service is not broken. The Salary Continuance Insurance Payment is made in lieu of the wages an employee is unable to earn for attending work due to their personal illness.

[30] The Applicant accepted that employees who, due to a personal illness, are unable to perform their duties are therefore not entitled to any wages/salary for work performed, given they cannot be directed to perform duties and are away from the Workplace both due to personal illness. However, the Applicant submitted that an employment relationship can involve many additional entitlements that sit outside of the basic bargain of the payment of wages for work performed between an Employer and an employee.

[31] Provided that an employee maintains their continuity of service with their Employer, those employees would continue to enjoy the benefit of those entitlements, unless specifically agreed otherwise. It was argued that as clause 9.7 of the Agreement is an entitlement that does not form part of an employee's wages for work performed, as long as that employee maintains their employment, they ought to be entitled to have the advantage of this Medical Benefit Payment whilst on leave without pay.

[32] The Applicant submitted that the dispute had arisen in relation to employees receiving the Salary Continuance Insurance Payment in clause 13.1 of the Agreement. These employees were not paid their Medical Benefit Payment, which was ceased or suspended whilst they were on the leave associated with the Salary Continuance Insurance Payment.

[33] The Union contested that clause 13.1 gave the Employer any ability to cease the payment of the Medical Benefit Payment whilst an employee is on the Salary Continuance Insurance Payment, as per clause 13.1 of the Agreement. The clear remedy the Union sought in relation to the outcome of this dispute is that the Medical Benefit Payments are still applicable or to be paid during periods where an employee is in receipt of the Salary Continuance Insurance Payments.

[34] In terms of the Union's submissions regarding the interpretation of firstly clause 13.1; that where an employee complies with the obligations of clause 13.1, the employee being unable to work due to personal illness for a period in excess of seven consecutive rostered shifts, they are entitled to the Salary Continuance Insurance Payments which has an indexed value from $1,500 to $1,800 per week. The Union argued that the Salary Continuance Insurance Payment is paid ostensibly in lieu of what an employee would otherwise take as leave without pay in the circumstances of them being subject to personal illness. On that basis, the Union stated that the Salary Continuance Insurance Payment is essentially in lieu of what an employee's salary would ordinarily be paid to them.

[35] Accordingly, Mr Newman referred to the definition of 'salary' under clause 3 of the Agreement and its specific definition as included in clause 9.1. He stated that the calculation of salary contained within this Agreement is all encompassing, including all allowances and payments. He further emphasised that in accordance with the Agreement provision, that no further payment will be made for any allowance which might otherwise apply or may be sought on the site unless specifically contained in the Agreement. The clause therefore he stated is that salaries are all encompassing; they are roster payments for the shift length including all allowances and overtime public holidays. He described it as a standard annualised salary for work performed under a roster under the Agreement at this Mine site. That is, he stated clause 9.1 makes it very clear that that is the salary for work performed and that it includes everything, except if there are other allowances specifically contained in the Agreement. He stated any other payment that is made outside of clause 9.1, makes it clear that the salary for work performed includes everything except other allowances specifically contained in the Agreement. That is a reference to matters such as the Production Reward Scheme payments, Superannuation and the Medical Benefit Payment in clause 9.7 of the Agreement. For clarity he stated salary and clause 9.1 for the rostered shift is the Total Remuneration, including all allowances and overtime and other payments such as public holiday payments in lieu of working the roster performed.

[36] The Union argued that when an employee is on Salary Continuance Insurance Payments, those employees maintain their service with the Employer. The employees are unable to work, and unable to perform their rostered shifts due to personal illness or injury. Accordingly, they are also unable to earn their salary as they are not working their rostered shifts. The Union submitted this invokes the Salary Continuance Insurance Payments which covers their salary as per clause 9.1. However, the Union submitted in circumstances where the employee maintains their continuity of service with the Employer through the entire period, it permits an employee's entitlement to their other benefits in the Agreement, which includes clause 9.7.

[37] The Union argued there is no right for the Employer under clause 13.1 to cease the Medical Benefit Payment; and in doing so, the Union argued that this makes no industrial sense. That is, the withdrawal of those payments at a time when employees are experiencing personal illness, and it is reasonable to consider they require access to private health insurance during this time. The Union argued that an employee has priced their private health insurance on the basis of them being in receipt of the annual Medical Benefit Payment. Accordingly, the removal of this payment at a time when they need it most, does not make any sense. This is particularly in circumstances when the employee is not in receipt of their salary, but a reduced salary in terms of the Salary Continuance Insurance Payment.

[38] Mr Newman emphasised that this was the arrangement considered in terms of the connection between the clauses, in terms of how these clauses would operate. He further stated there was no evidence to support the Employer ceasing this Medical Benefit Payment during the period when Salary Continuance Insurance Payments were applicable.

[39] Mr Newman stated that in line with the ordinary language of the Agreement, one must refer to the wording in the Salary Continuance Insurance Payments clause. He stated that the Respondent's argument; to look at the Total Remuneration, places the matter in error as Total Remuneration is a completely separate concept in the Agreement, than salary as defined.

[40] It was submitted that one has to look at the words of the Agreement and their ordinary meaning in the context and purpose in the Agreement. The Union pointed to the clear definitional difference between salary and Total Remuneration. On that point, Mr Newman stated that Total Remuneration is used at specific points throughout the Agreement, but it is not mentioned once in clause 13.1. That clause refers to the Salary Continuance Insurance Payment which is a separate concept that does not include the Medical Benefit Payment. In contrast, he stated Total Remuneration does include the Medical Benefit Payment. He particularly noted that Total Remuneration and salary are separately defined. Accordingly, the Union submitted on the language of the Agreement that it was intended that the Salary Continuance Insurance Payment would be in lieu of the salary payment. He stated this is in line with the plain and ordinary meaning of the words in the context that they are used in the Agreement as well as in the industrial sense of the clauses.

[41] The Union further clarified that clause 13.1 is a payment made in the circumstances of personal illness in lieu of salary not any other form of remuneration and that salary does not include the Medical Benefit Payment and accordingly the wording does not give rise to a method or right to cease this payment.

Summary of the Respondent's Submissions and Evidence

[42] The Respondent stated that their position was that the question for arbitration should be answered in the negative. The Respondent submitted that employees who are on Salary Continuance Insurance are not entitled to the Medical Benefit Payment Allowance.

[43] Ms Prewett, People and Culture Lead for the Respondent, provided an affidavit (as referred to), her evidence being in support of the Respondent's position.

• [44] The Respondent agreed that clauses 9.7 and 13.1 of the Agreement must be construed using the principles applicable to the interpretation of industrial instruments, that were relevantly set out in the Full Bench decision of Berri.[7]

[45] The Respondent submitted that the plain meaning of the words in clause 13.1, is the Salary Continuance Insurance Payment of $1,839 per week (as currently indexed) (or $95,628 a year for two years whilst not working at all).

[46] The Respondent submitted that clause 13.1 expressly provides what allowances in the Agreement employees will continue to receive whilst on Salary Continuance Insurance, including employees continuing to receive the Production Reward Scheme Payment (clause 9.3). No other allowances in clause 9 are referred to in clause 13.1.

[47] The Respondent submitted that the plain meaning of clause 13.1 demonstrated that the clause specifically deals with what an employee, who cannot work for an extended period due to non-work related or personal illness, would receive. That is, Salary Continuance Insurance Payments of $1,839 per week (which have been increased from the $1,500 in the Agreement) and the Production Reward Scheme Payment, the employees are entitled to as set out. The Respondent stated that these generous payments are made for up to 24 months whilst an employee is away from work due to personal illness. The Respondent submitted that if it was the common intention that an employee in these circumstances would receive the Medical Benefit Payment whilst on Salary Continuance Insurance, the Agreement would have expressly prescribed this in clause 13.1, as it had done for the Production Reward Scheme Payments.

[48] The Respondent argued that this position also reflected the historic practice of not paying the Medical Benefit Payment whilst an employee was in receipt of the Salary Continuance Insurance Payments. This practice had been implemented for over ten years and had not been disputed.

[49] The Respondent submitted that clause 9.9.8 of the Agreement prescribed the payments employees are entitled to receive while on paid leave as contained in the Agreement, being Total Remuneration which includes the Medical Benefit Payment. The Respondent stated that this is distinct from when they are absent from work on unpaid leave and receiving the Salary Continuance Insurance Payments and not the Medical Benefit Payment.

[50] The Respondent disagreed with the Applicant's submission that clause 13 does not state what allowances or other benefits are, or are not, to be paid while the employee is on Salary Continuance Insurance Payments. Clause 13.1, they stated, clearly provides that affected employees are to, in addition to the Salary Continuance Insurance Payments, receive the Production Reward Scheme Payments which are benefits under clause 9.3 of the Agreement (neighbouring the Medical Benefit Payment at clause 9.7). The Respondent submitted that the express reference to the inclusion of Production Reward Scheme Payments in clause 13, is clear evidence that Medical Benefit Payments is to be excluded whilst on the Salary Continuance Insurance Payments.

[51] The Respondent accepted that employees who are working or on paid leave (annual, personal, etc) are entitled to their salary, the Production Reward Scheme Payments and the Medical Benefit Payment. The Respondent submitted that while an employee is not working and not on paid leave, however they are not entitled to their salary, and also not the Medical Benefit Payment whilst on the (very generous) up to two-year Salary Continuance Insurance Payments.

[52] The Respondent submitted in response to the Applicant's submissions that whilst the Agreement does not explicitly state that the entitlement to the Medical Benefit Payment Allowance is contingent on an employee being available and directed by the Respondent to perform work, nor does the Agreement state that the entitlement to salaries or Total Remuneration is contingent on an employee being available and directed by the Respondent to perform work. Their submission was that the Applicant's observation does not advance the argument either way.

[53] The Respondent submitted that clause 5.2 operates to allow it to withhold 'payment' during any failure of duties, and this clause enables it to withhold non-salary payments such as under clause 9.7. The Respondent submitted that in the absence from work under clause 13.1, the effect of the employee not performing or attending work, gives the Respondent the right to withhold payments including the Medical Benefit Payment. The Respondent submitted that this is consistent with the industrial context and purpose of the clause.

[54] In addition to the written outline of submissions as filed by the Respondent, Mr Murdoch provided oral submissions at the Hearing in which he traversed the relevant clauses in the current and past Agreements. He stated clause 3 definitions, which refers to the definition of salary and further in clause 9.1 the calculation of annual salaries. Further to this, Total Remuneration is defined to mean the total value of salaries calculated in accordance with clause 9.1 calculation of an annual salaries and payments, in accordance with clauses 9.2 Other remuneration, 9.3 Production Reward Scheme, and 9.7 the Medical Benefit Payment.

[55] The Respondent's submissions referred to clause 5, in particular 5.1 permanent employment shall be on a fortnightly basis and 5.2 deals with the requirement to carry at work. Mr Murdoch referred to clause 5.2, the clause being significant as the Employer has the right to withhold payment in the event of any unauthorised absence from work or any other failure to perform duties as defined in this clause 5.2, for the actual time of such non-attendance or non-performance.

[56] The submissions further addressed the definition of salary contained within this Agreement being all encompassing and includes all allowances and other payments. It stipulates that no further payment will be made for any allowance which might otherwise apply or may be sought on the site unless specifically contained in this Agreement.

[57] The Union referred to the degree of tension between clause 9.1 (calculation of annual salaries) and the definition of Total Remuneration. This was due to the way annual salaries are defined in Total Remuneration, which would seem to have the Production Reward Scheme and Medical Benefit Payment as matters which are in addition to an annual salary. On that point, Mr Murdoch said that there does not appear ultimately to be any consequence of that and maybe that that apparent tension is the result of Agreements being progressively rolled over time after time after time. However, he noted that in relation to both the definition of Total Remuneration and calculation of annual salaries in the definition of Total Remuneration, the Production Reward Scheme and the Medical Benefit Payment appear to be put in the same basket. Further he stated that if clause 9.1 is examined, that this contemplated that salaries would be part of their all-encompassing character and include all allowances and other payments. In terms of 9.2, it refers to other remuneration he stated one might think the other remuneration would be what was contemplated in 9.1, with the reference to all allowances and other payments, however the Production Reward Scheme appears at sub-clause 9.3 separately.

[58] This clause for the Production Reward Scheme Payments provides for two components in 9.3.1 the fortnightly payment and 9.3.2 the quarterly payment. Clause 9.7 the Medical Benefit Payment is described as an allowance, and that while it is expressed as an annual amount, it is also expressed as a fortnightly amount. The annual Medical Benefit Payment currently being $9,487, the fortnightly amount also being increased to $364.89. He emphasised that there was no compulsion on employees to take out private health insurance as a result of receiving the Medical Benefit Payment.

[59] In arguing the interpretation of the clauses in dispute, Mr Murdoch referred to what he stated were a number of pertinent points where an employee would be eligible for the Salary Continuance Insurance Payments. He stated that the triggering item for the capacity to claim Salary Continuance Insurance is that the employee is unable to work for a period in excess of seven continuous rostered shifts on account of personal illness. Mr Murdoch stated that an employee in that category had an option of either taking (where available) accrued personal leave or claiming the sick and accident pay Salary Continuance Insurance. Similarly, an employee who has accrued personal leave might elect to take the personal leave but lodge a claim for the insurance. Those alternatives need to be examined in line with clause 12, whereby personal leave days are fully accumulative and an employee as per the fourth paragraph under the table in that clause, may give rise to an employee electing to cash out personal leave in excess of 15 days into her or his superannuation fund account or into their nominated bank account and to go to a future entitlement to that leave.

[60] Further the Respondent referred to the paragraph in clause 12, where employees shall be paid for unused personal leave on termination of employment at the employees Total Remuneration rate. The employee may elect to receive the payment in their superannuation fund or in their nominated bank account. Mr Murdoch explained that whilst that does not impact on the question for determination, it refers to the full context in which the insurance under clause 13.1 works. That is the Salary Continuance Insurance Payments is not automatic, but the insurance is triggered where an employee is unable to work for a period in excess of seven consecutive rostered shifts where an employee wishing to receive this Salary Continuance Insurance Payment is required to apply for it and to furnish the relevant medical certificates and any other required information directly to the insurer as required. This payment is for a maximum period of 24 months for the period the employee is unable to attend for work; whichever is the lesser. The payment is made directly to the employee by Ensham, subject to the employee complying with all reasonable requirements of the insurer. Those affected employees in receipt of the Salary Continuance Insurance, continue to receive the Production Reward Scheme fortnightly and the quarterly payment direct from the Mine. The Employer stated that this reflected that these were not part of the insured benefit, but an additional liability which the Employer continued to meet.

• [61] In particular, the Respondent's representative emphasised that their argument in relation to the Production Reward Scheme and the Medical Benefit Payment is that when the parties drafted their Agreement, they clearly turned their minds to whether there should be an exception made in relation to nonpayment of remuneration. It was submitted that the parties made an exception in the case of fortnightly and quarterly Production Reward Scheme payments, but they did not make the same exception in relation to the Medical Benefit Payment. Only one of the payments being selected in the case of employees who were on the Salary Continuance Insurance Payments. Mr Murdoch characterised that as a highly relevant distinction; that only one of these payments have been picked out for retention in the case of employees who are on the Salary Continuance Insurance Payments, providing an inconsistency of treatment. To this end, he submitted the contention made on behalf of the company relies on a series of Agreements for the Ensham Mine commencing at the 2004 Agreement,[8] which contained the Medical Benefit allowance at clause 10.8 and at clause 14 the provision for the Insurance Scheme. Mr Murdoch distinguished this particular provision as it did not include any payment for the Production Bonus, either fortnightly or quarterly amount at that time the Production Bonus Scheme was included at 10.3 of that Enterprise Agreement. However, he emphasised that at the time there was no provisional clause 14 for the Production Reward Scheme payments to continue during the time that the employee was on the Insurance Payments under clause 14.

[62] He then moved to the 2007 Agreement, where there was provision for the Medical Benefit Payment. In addition, in terms of the Insurance clause, there was a new provision at 14.1.4 which affected if employees will continue to receive fortnightly and quarterly Bonus payment.

[63] Mr Murdoch's submission on this point was that any sensible review of history at that time by the negotiating parties, was that they turned their minds to where employees on the Salary Continuance Insurance needed to receive any of the payments that otherwise they would be forfeiting. As a result, the Bonus payments were introduced for the period that employees were receiving the Salary Continuance Insurance. He submitted that has been the status quo that had rolled forward through the various Agreements ever since. In addressing the current 2021 Enterprise Agreement, he stated the provisions of clause 13.1 need to be considered in the context of the whole Agreement as well as according to their terms. That is, he stated in clause 13.1 the benefit being the Salary Continuance Insurance Payments, are made based on circumstances where an employee is unable to work for a period in excess of seven consecutive rostered shifts, it was necessary then to revert to clause 5.2. He stated this clause gave the Employer the right to withhold payment in relation to any other failure of an employee to perform duties. On that basis, Mr Murdoch stated that this is not simply withholding payment of salary or payment of allowances. It is withholding payment of any obligation to pay that otherwise would apply, except for the case of clause 13.1 being the right to receive the Production Reward Scheme, but the exception is not applicable to the Medical Benefit Payment. That is, he stated in the context of the Agreement, specifically clause 13.1; the parties that made the Agreement provided expressly for one form of payment to be confirmed, while an employee was on the Salary Continuance Insurance Payments and that one exception related to the Production Reward Scheme payments. On the basis of that express exception for the Production Reward Scheme Payments, there was no equivalent exception in relation to the Medical Benefit Payment. That is, the parties stated it was not intended that the Medical Benefit Payment would continue while employees were on the Salary Continuance Insurance Payments.

[64] Mr Murdoch emphasised that whilst some matters in an Agreement are expressly dealt with, others are not dealt with. He set out that it might be due to the parties inadvertently overlooking them, but it was not considered that this was a valid argument here given the 2004 initial Agreement contained no provision for the Production Bonus Quarterly payments to continue while a person was on the Salary Continuance Insurance Payments. However, he set out that in the 2007 Agreement, the parties turned their mind to it and made an exception for it to be paid and expressed it in clear words.

[65] Mr Murdoch relied on the series of predecessor Agreements referred to at paragraph 8 of Ms Prewett's affidavit, being the Agreements in the years 2004, 2007, 2009, 2014, 2017. Further to this it was submitted that there had never been any inclusion of a provision whereby the Medical Benefit Payment was made while an employee was on the Salary Continuance Insurance Payment. Accordingly, Mr Murdoch argued that this could not be the result of an oversight. He drew attention to the 2007 Agreement's treatment of the payment of the Bonus during periods of payment of the Salary Continuance Insurance Payment. Parties elected not to treat payment of the Medical Benefit Payments in a comparable manner during periods of the Salary Continuance Insurance Payments.

Interpretation of the Relevant Provisions of the Enterprise Agreement: Case Law

• [66] This dispute, in considering the question for arbitration, requires the interpretation of various clauses in the Agreement in connection with the operation of the two clauses to this determination. The principles relevant to the approach that the Commission should take to the construction of Enterprise Agreements was set out in the decision of the Full Bench of the Commission in "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd[9] (Berri). Those principles are as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from: (i) the text of the agreement viewed as a whole; (ii) the disputed provision's place and arrangement in the agreement; (iii) the legislative context under which the agreement was made and in which it operates.

1. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

1. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

1. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

1. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

1. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

1. In construing an enterprise agreement, it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

1. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

1. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

1. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

1. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

1. Evidence of objective background facts will include: (i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; (ii) notorious facts of which knowledge is to be presumed; and (iii) evidence of matters in common contemplation and constituting a common assumption.

1. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

1. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

1. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding."

• [67] In Workpac Pty Ltd v Skene[10], the Full Court of the Federal Court succinctly restated the principles of interpretation as follows:

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation "...turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...". The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced." (references omitted)

• [68] In AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women's Hospital[11], a Full Bench of the Commission also distilled the principles relevant to the construction of Enterprise Agreements from the Full Court of the Federal Court majority decision in James Cook University v Ridd[12] as follows (with citations removed and some paraphrasing):

• The starting point is the ordinary meaning of the words, read as a whole and in context.
• 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. The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.
• Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association.
• Context may include ideas that gave rise to an expression in a document from which it has been taken.
• 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.
• A generous construction is preferred over a strictly literal approach but agreements should make sense according to the basic conventions of the English language.
• 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.

• [69] In CFMEU v Endeavour Coal Pty Ltd T/A Appin Mine[13] a Full Bench of the Commission held that the context of an Agreement provision is significant. In this regard, the Full Bench set out the explanation of this point provided by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA[14] emphasising the following matters:

• • Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means[15] and there is always some context to any statement;[16]
• • Language considered in its context will often have a clear meaning and context will often not displace that meaning - "but not always";[17]
• • To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side;[18]
• • The phrase used by Mason J in Codelfa "if the language is ambiguous or susceptible of more than one meaning" does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context;[19] and
• • Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction[20]

• [70] The case law in relation to the approach to the construction of Enterprise Agreements makes it clear that context and purpose must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning. In principle 15 in Berri, the Full Bench also dealt with the relevance of post Agreement conduct to the construction of the terms of an Enterprise Agreement. In doing so, they cited the judgment of Gray J in ALHMWU v Prestige Property Services Pty Ltd[21] 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."[22]

• [71] In that case Gray J then went on to observe that the matter he was dealing with was not one where a party had changed its mind and gone back on a common assumption but rather, was a case where no common assumption ever existed.[23] This appears on the current material before the Commission that it may be a similar circumstance; where no common assumption existed as to the payment of the Medical Benefit Payment during periods of receipt of the Salary Continuance Insurance Payment. However, in contrast a common understanding was established for the continuation of the payment of the Production Reward Scheme Payments during receipt of the Salary Continuance Insurance Payment. This step reflected the common agreed practice for the payment of the Production Reward Scheme Payments as documented in the Salary Continuance Insurance Payment clause. This step was not taken to reflect a common understanding with the Medical Benefit Payment in similar circumstances.

[72] Having regard to those case authorities, the starting point is to consider the 'ordinary meaning of the relevant words' in the 'context' in which they appear, and whether the clauses have a plain meaning (or if they are ambiguous or susceptible of more than one meaning).

[73] In terms of the Berri principles of interpretation, it was stated by the Union that any reference by the Employer to the alleged past conduct in relation to the Medical Benefit Payment not being made during periods of Salary Continuance Insurance Payments, should not be considered as persuasive evidence. Mr Newman stated that this post Agreement conduct (as referred to by the Employer) amounted to conduct, merely equivalent to conduct which there was the absence of a complaint about the non-payment (of the Medical Benefit Payment) which is insufficient to establish a common understanding of the implementation of the clause. He stated that the post Agreement conduct referred to by the Respondent, had not shown that there was a meeting of the minds or a consensus regarding the conduct being aligned with the correct interpretation of the clauses. Mr Newman submitted that the Commission should be cautious about accepting this reference to this post Agreement conduct as determinative of the disputed interpretation.

[74] Whilst this is an Agreement interpretation exercise undertaken firstly in accordance with principle one in Berri, being an interpretation of the 'ordinary meaning of the relevant words' of the Agreement provisions, passing reference has been made to the 'deal' struck between the negotiating parties in reaching the Agreement. However, no evidence of this is before the Commission. Both parties submitted with certainty two different cases on the interpretation of the main clauses. Neither party argued the ambiguity of the clauses arising from the provisions and accordingly no associated, ancillary evidence was presented in support of either interpretation. The Employer did refer to the post Agreement conduct of non-payment of the Medical Benefit Payment in the exact circumstances under consideration as being influential in the interpretation, the Applicant denied this. As set out in the circumstances where the prior Mine operator's HR Manager was not able to be cross-examined, this evidence has not considered as influencing the interpretation.

[75] Whether weight can be attributed to the evidence of the current HR Manager was set out at the commencement of this decision as an issue to be determined. Ms Prewett stated that there had been no history of the Medical Benefit Payment during a period of Salary Continuance Insurance Payments from the prior or current Employer, barring one exception in the pay period ending 22 January 2024 which she stated was made in error. The HR Manager for the prior Mine owner/operator emailed Ms Prewett that the Medical Benefit Payments were not paid by the prior owner/operator during periods of employees being on Salary Continuance Insurance Payments. Whilst I do not apportion any discredit to the standing of Ms Prewett in regard to this evidence from the prior Mine operator/owner. I do not attribute weight to that evidence particularly as it is based on the circumstances reported from another source not able to be cross-examined by the Applicant's representative. In addition, there was no supporting documentation of the scenario of the one payment as alleged by the current Employer to have been made in error.

• [76] In not attributing weight to this evidence, the standing of the witness is not impugned in terms of the evidence she has provided. This was simply the best available evidence for her to convey in relation to any past payment of the Medical Benefit Payment whilst the Salary Continuance Insurance Payments were made from the former and current Employer. Based on the reasons provided, this evidence is not determinative of the question for arbitration. Her, evidence however has been considered; that in the discharge of her duties, she was clear that no Medical Benefit Payment had not been made to employees while they were in receipt of Salary Continuance Insurance Payments except for one occasion.[24] The Commission recognises that this evidence is relied on by the Employer in conjunction with the fact that this is the first time that a dispute has arisen in relation to this issue. It is acknowledged that this is reflective of the interpretation made in this decision that no entitlement pursuant to clause 9.7 is available whilst an employee is in receipt of Salary Continuance Insurance Payments under clause 13.1.

[77] The interpretation of the ordinary words in the disputed clauses is that the Employer has no obligation stated to make Medical Benefit Payments during periods of Salary Continuance Insurance Payments. The Employer does have an obligation to pay the Production Reward Scheme whilst employees are on Salary Continuance Insurance for personal injury/illness due to the particular treatment of that payment in the clause. The inclusion of the Medical Benefit Payment in similar certain terms is not within the clause of the Agreement.

[78] In the present matter, it is evident that the meaning of the relevant clauses is plain and unambiguous. The references to other relevant terms and conditions in the clause are to other terms and conditions in the Agreement.

[79] The Medical Benefit Payment is an additional payment that sits outside the salary being an allowance of $7,999 per annum or $299 per fortnight. The practical mechanism for that payment is that the Employer provides a payroll deduction, in circumstances where the employee organises their own medical insurance. There is no obligation on the employee to direct this payment to a medical benefit fund. The Medical Benefit Payment is not tied to work performed. It is an annual payment made by the Employer where the employee simply maintains their continuity of service with the Employer, and that is the basis of their entitlement to the Medical Benefit Payment.

[80] The clear separate treatment of the Medical Benefit Payment and the Production Reward Scheme provisions in the Agreement, aids the resulting interpretation. That is, the Production Reward Scheme and the Medical Benefit Payment are characterised in the definition of Total Remuneration, but not withstanding that same characterisation of the payments, only one of the payments, the Production Reward Scheme, was selected as a term of the Agreement for payment in the case of employees who were receiving the Salary Continuance Insurance Payments. This specific separate treatment of these two payments, during the period of the Salary Continuance Insurance Payments, is a relevant distinction and purposive treatment of these payments that reliance can be placed on in the Agreement interpretation.

[81] It has been taken into account as emphasised by the Union, that the current Employer or owner of the Mine did not take ownership until September 2023. It is acknowledged that the current Respondent, did not negotiate the current 2021 Agreement that is applied by them. That is, the current Respondent had no history of negotiations with the Agreement in terms of an objective intention of the parties to the provisions of the 2021 Agreement. The Applicant also did not refer to any material in this regard. However, the interpretation of Enterprise Agreements is regularly undertaken by parties separate to those who have negotiated the provisions. The principles set down by the Full Bench in Berri were made to assist the interpretation exercise of Enterprise Agreement provisions.

[82] The history of these clauses in dispute in the series of the Ensham Enterprise Agreements and their particular, separate treatment in the clauses, supports the interpretation that Medical Benefit Payments are not payable to an employee while in receipt of a Salary Continuance Insurance Payment. Whereas, the Production Reward Scheme Payments on the wording of the clause in the Agreement, are to be paid while an employee is in receipt of Salary Continuance Insurance Payments.

[83] The interpretation of the Agreement clauses in accordance with the principles as required of the Full Bench decision in Berri has been provided.

[84] It is understood why the Union and its members are aggrieved at the Medical Benefit Payment not being paid at a time when employees are suffering personal illness and in receipt of the Salary Continuance Insurance Payments. As set out by the Union representative, it would be reasonable at this time to expect these employees to access their private medical insurance and to maintain their normal medical fund payments.

[85] The cessation of the Medical Benefit Payment as per the clause in the Agreement, effectively reduces the amount of their Salary Continuance Insurance Payments by the equivalent amount they were in receipt of for the Medical Benefit Payment. To ensure the continuity of their private health cover, particularly at this time of personal illness, would require them to find the corresponding amount for their health cover payment from the funds received from their Salary Continuance Insurance Payments. The withdrawal of Medical Benefit Payments immediately lessens the amount of funds available to service the health cover. In addition, the clause the employees agreed to for the Medical Benefit Payment included an agreed annual amount (paid fortnightly). The cessation of these payments during the period of personal illness would result in the employees not receiving this agreed annual amount as set out in the Medical Benefit Payment clause. The intent of the Medical Benefit Payments is commendable whilst the removal of the Medical Benefit Payment at a time of lengthy personal illness, is counterintuitive. However, it is well known that in accordance with principle two of Berri, it is not for the Commission to rewrite an Agreement to achieve what might be regarded as a fair or just outcome in particular circumstances.

[86] The Salary Continuance Insurance Payments clause specifically directs that payment of the Production Reward Scheme Payment is to be made during periods of Salary Continuance Insurance Payments. The language of this is in no way ambiguous or susceptible to more than one meaning. In comparison, the Medical Benefit Payment was not referenced in the Salary Continuance Insurance Payment clause. The Medical Benefit Payment could have been addressed in the same specific way whilst an employee was in receipt of the Salary Continuance Insurance Payment, but this was not done.

[87] The interpretation task has considered the ordinary meaning of the relevant words in the applicable clauses. The Commission has been referred to a series of other clauses in the Agreement that provide context to the wording or operation of the clauses in question. No other common intention clauses of the parties, apart from the definite wording for when the Production Reward Scheme would be made, was identified. However, the purposive treatment of the Production Reward Scheme clause was significant given the lengthy sequence of prior Agreements where no step had been taken to afford specific treatment to the Medical Benefits Payment clause.

[88] Accordingly, on the basis of the reasons provided and on the wording, presentation, and consistent discharge of the operation of the clauses as presented, the question for arbitration below, is answered in the negative:

"Is an employee entitled to receive medical benefit payments described in clause 9.7 of the Ensham Mine Employees Enterprise Agreement 2021 whilst the employee is absent from work because they are unable to work on account of personal illness and receiving payments under the salary continuance insurance arranged by the Respondent in accordance with clause 13.1 of the Agreement?

J Murdoch KC of Counsel_,_ instructed by V Lac, for the Respondent

[1] See clause 3 and clause 8 of the Enterprise Agreement.

[2] See clauses 9.7 to 13.1 of the Enterprise Agreement.

[3] See clause 13.1 of the Enterprise Agreement; Page 6 of Form 10.

[4] See clause 9.1 of the Enterprise Agreement; Page 6 of Form 10.

[5] See clause 9.1 & 9.7 of the Enterprise Agreement; Page 6 of Form 10.

[6] See clause 9.7 of the Enterprise Agreement; Page 6 of Form 10.

[7] Australian Manufacturing Workers' Union v Berri Pty Limited [2017] FWCFB 3005; (2017) 268 IR 285.

[9] [2017] FWCFB 3005 at [114].

[10] [2018] FCAFC 131 at [97].

[11] [2022] FWCFB 7.

[12] [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ at [65]; see also WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197].

[13] [2017] FWCFB 4487.

[14] [2014] NSWCA 184 at [71]-[85].

[15] Manufacturers' Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.

[16] Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].

[17] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].

[18] Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 per Lord Hoffman, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spiegelman CJ, Weinberg AJA and Simpson J agreeing).

[19] Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17] cited in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR at [71]-[85].

[20] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].

[21] [2006] FCA 11.

[24] Paragraph [10] of the Affidavit of Ms Prewett.

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