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[2023] VMC 7
General information, not legal advice.
Magistrates' Court of Victoria
2023-06-02
Original judgment source is linked above.
The application process to become a Mentor has changed over time. In the 1990s, it was informal and if a WPT/Assessor was not available, new learners would be partnered with employees who were prepared to support them in a mentoring capacity. I believe in the early 2000s accredited employees were required to submit an expression of interest to the Training Manager to apply to become Mentors. Training was provided to them to understand their role and responsibilities which included report writing. The amount of training has increased since what was initially provided and Mentors are now internally accredited.[33]
72 Ms Smith was also unaware of ESTA paying any WPTs the Mentor Allowance for WPT duties, other than administrative or payroll errors.
73 Ms Smith recalls that the issue regarding whether WPT are entitled to the Mentor Allowance was first raised around 2012. Her evidence was as follows:
I recall that this issue of whether the Mentor Allowance is payable to Workplace Trainers was first raised around 2012, although I do not recall specifically who raised it. I do recall the Training Manager, Peter Phillips, and the General Manager HR, Peter Coulter, discussing the matter at length. At that time, ESTA made its position clear that the Mentor Allowance was not payable to Workplace Trainers.
I am also aware that this issue has been agitated on several occasions since and ESTA has maintained a consistent position that the Mentor Allowance is not payable to Workplace Trainers.
Following the issue being raised, three enterprise agreements have been negotiated between ESTA, its employees and their unions and no material changes have been made to the Mentor Allowance provisions which would suggest that the allowance is payable to Workplace Trainers.[34]
74 In 2019, Ms Smith was involved in a dispute raised by Scanlan regarding payment of the Mentor Allowance. By letter dated 5 February 2019, Smith stated ESTA's position as:
It is ESTA's position that the role of a Workplace Trainer encompasses the duties of mentoring and that Ms Scanlan is appropriately remunerated as a WPT for any mentoring duties she undertakes. [35]
75 The dispute was reagitated in July 2020 by the Victorian Ambulance Union, Communication Workers Union and United Firefighters Union. By email dated 15 July 2020, Smith wrote to the VAU:
I write in response to your below notification of a dispute regarding the payment of the mentor allowance to Workplace Trainer (WPT) Sylvia Scanlon [sic]
I note that this is the fourth time in just over 16 months that the unions have raised a dispute with ESTA regarding the payment of the Mentor Allowance to either WPTs or Team Leaders (TLs) - the last two disputes being lodged on or around 7 January 2020 and 24 January 2020. On each occasion, ESTA has maintained its consistent position that WPTs and TLs are not eligible for the Mentor Allowance in accordance with the Operational Employees Enterprise Agreement 2015 and 2019.
In accordance with the last response provided by Executive Director Operations, Patrick Berry on 10 February 2020 (see attached), I can confirm that ESTA's position on this occasion has not changed.
ESTA does not believe that WPTs or TLs are entitled to payment of the Mentor Allowance. This is because mentor-type tasks fall within the scope of the key duties and responsibilities of those roles (e.g. coaching, development and review responsibilities). Allowances are typically only payable where an employee is taking on additional responsibilities or performing additional duties. This is not the case in respect of WPT or TLs who are currently remunerated for those duties.
As per the response from Mr Berry on the 10 February 2020, the accountabilities for WPTs outlined in their position description include:
• "Tailor training strategies to meet individual or group learning requirements in order to achieve successful learning outcomes and meet performance requirements...
ESTA is satisfied that both WPTs and TLs are required as part of their roles to undertake mentoring duties and that this is a key accountability for their position. They are already remunerated for these duties and therefore, are not entitled to receive the allowance... [36]
76 The plaintiffs submitted that the entitlement to the Mentoring Allowance was expressed in plain words. There was no qualification of the entitlement to receive the mentoring allowance, save for being an accredited mentor who performed mentoring duties. Reliance was placed upon the word 'all' in the phrase 'all ESTA accredited Mentors' as specifically including WPTs. [37]
77 Further, there was no ambiguity or absurdity achieved by construing the clauses in their ordinary and natural meaning. Context showed that there was a sufficient distinction between the role of a mentor and the duties of a WPT, as acknowledged by ESTA and Ms Smith. In those circumstances, the payment of an hourly allowance to WPTs for the specific mentoring role was not an absurd outcome or interpretation.
78 Scanlan also emphasised that the starting point for interpretation was the ordinary meaning of the words, read as a whole and in context. Again, it was submitted that the words of cl 21.10 and 25.11 do not exclude any employee classification from the entitlement to receive the mentoring allowance.[38] To find otherwise, it would be necessary for the Court to read additional words into the clauses.
79 As to textual context, Scanlan submits that both enterprise agreements provide a clear definition of Mentor and its specific functions. Mentoring involves acting 'as a guide and adviser to another employee during their training development phase... monitoring their performance and assessing their individual learning needs and providing constructive feedback' and providing 'on-shift familiarisation'.
80 The definition of a WPT is also expressly set out in cl 21.6.1 of the 2015 Agreement. [39]
81 This definition does not involve mentoring. As for the 2019 Agreement, there is no express definition of WPTs and also no mention of a WPT performing mentoring.
82 Scanlan further submitted that the industrial context also supports her interpretation in that mentoring is separately allocated on the ESTA Segment roster. It is not included within a roster shift of "On Shift Workplace Duties". Further, mentoring occurs after new Dispatchers have completed their initial training course and are required to be mentored for at least 20 shifts. Mentees are not trained by mentors. Accordingly, the mentoring clauses should be interpreted as a separate allowance which attaches to a specific purpose.
83 ESTA submitted that, on their proper construction, the mentoring allowance clauses do not operate with respect to WPTs. This was because once an accredited mentor was promoted to the WPT position, they effectively relinquished their status as an ESTA accredited mentor. Elevation from a mentor to a WPT was essentially a promotion. ESTA submitted that any other interpretation resulted in 'double dipping', an absurd outcome, and one which was not objectively intended.
84 ESTA relied upon several matters to advance its argument.
85 First, the plaintiffs carried the onus of proof and had failed to discharge it. There was no evidence regarding the negotiations for the enterprise agreements. The only evidence before the Court was Ms Smith's recollection that ESTA agreed to formalise the WPT role into the position classifications Further, given the nature of the allegations, it was submitted that the Briginshaw standard applied.[40]
86 Secondly, the text of the enterprise agreements supported ESTA's construction that WPTs were not mentors. Particular reliance was placed upon cl 22.2.5 and 24.7 of the 2015 Agreement which separately identified each role for the purpose of shift penalty or overtime entitlements. [41]
87 Clause 22.2.2.5 was in relation to 'Shift Penalty Application'. It provided that:
Where a Workplace Trainer, Mentor or other Employee is required to change from their normal rostered shift(s) in order to either conduct or participate in ESTA training, and, for the period of that change the amount of shift penalty (or penalties) payable would be less than that which would have been payable had the change not taken placed, the Employee shall be paid the penalty (or penalties) which would have been paid but for the change.[42]
88 Clause 24.7 was in similar terms, but concerned overtime. It provides that:
Where a Workplace Trainer, Mentor or other Employee is required to change from their normal rostered shift(s) in order to either conduct or participate in ESTA training, and, for the period of that change the amount of "rostered Overtime" would be less than that which would have been payable had the change not taken place, the Employee shall be paid the "rostered Overtime" which would have been paid but for the change. Any additional Overtime incurred whilst training would only be payable for hours in excess of their normal shift rostered hours. [43]
89 Thirdly, the WPT's position description provided important objective context. In the 2019 and 2016 WPT position descriptions, ESTA placed reliance upon the following 'Key Accountabilities' to support the proposition that mentoring was part of a WPT's duties:
90 Further, in the 2016 position description under the heading 'Key Communications, point 1 provided:
Daily with call-taker/dispatch employees to provide assessments, deliver training, provide induction training and provide learning support as required.[46]
91 Considering the mentoring clauses within this context, ESTA submitted that it was unambiguous that the increased salary paid to WPT included the 'purchase' of mentoring duties by WPT. In contrast, the mentor allowance was akin to a higher duties allowance, payable only to employees who perform work outside their usual duties - ie, Call-takers and Dispatchers who were not WPTs.
92 Mentors are paid the allowance 'while they are performing their mentoring duties', and not when they perform the duties of a WPT, which is a distinct role/function. ESTA's position is that when a WPT performs mentoring, they are performing WPT duties not mentoring duties.
93 Fourthly, as a historical practice, WPTs had never been able to receive a Mentor Allowance for the performance of their WPT duties. Furthermore, ESTA has consistently communicated this position to its workforce.
94 Fifthly, ESTA's current practice is for current WPTs not to be paid the Mentor Allowance when performing WPT duties. Rather, mentoring is a 'stepping stone' for a promotion to the WPT role.
95 Sixthly, the repeated acceptance of ESTA's position over time establishes a common understanding that the mentor allowance is not applicable to training-based duties carried out by a WPT. That common understanding was based upon:
(a) the vast majority of WPT have not challenged ESTA's position that the mentor allowance is not payable to WPTs;
(b) to the knowledge of Matic and Ms Smith, they are not aware of any WPT ever receiving the mentor allowance for their WPT duties; and
(c) where queries or disputes have arisen, ESTA has maintained its position and the disputes have not been pressed. In the case of Smith, his Fair Work Commission application was discontinued after conciliation.
96 The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. [47]
97 The interpretation will turn upon the language of the particular agreement, understood in the light of its industrial context and purpose.[48]
98 Both parties referred to the summary of legal principles set out by Justice Wheelahan in King v Melbourne Vicentre Swimming Club Inc. His Honour stated:
It is a core element of those principles that the process of construction of an instrument having legislative or quasi-legislative force is not a search for the actual subjective intent of the makers of the instrument, but the process of construction must direct attention to the words that are actually used. That is because the inquiry is directed to the proper construction of what the instrument says, and not what it was meant to say. In undertaking the inquiry, the objective, expressed intention is to be gathered from the text of the instrument in light of context and purpose...
In relation to the construction of statutes, the modern approach is that regard should be had to context and to purpose, whether or not there is some ambiguity that is to be resolved. Reference to context and purpose is an aid to the proper construction of the text that has been employed, and recourse may be made to materials that are extrinsic to the instrument to assist in the identification of context and purpose. But context is not an end in itself. A consideration of the language contained in the text of the instrument remains both the starting point and the end point of the task of construction. [49]
Part of the context in construing an industrial instrument may, in an appropriate case, be a recognition that the instrument may have been drafted by lay persons with a practical bent of mind, with the consequence that the construction of ambiguous terms should favour a sensible and practical industrial result, shorn of narrow legalism and pedantry. There are, however, limits on the extent to which the resolution of questions of construction may be driven by reference to history and context, and a liberal approach to construction, because ultimately what is to be determined is the proper construction of the instrument based on the objective meaning of the text. The Fair Work Act contains provisions that require the Commission to publish its written decisions, reasons, approved enterprise agreements, and variations to modern awards, with the consequence that they are widely available to members of the public: s 168, s 601. There is much to be said for the notion that instruments such as awards should be reasonably capable of being understood and implemented by the participants in the industries to which they apply by reference to the language employed in the instrument itself, without having to investigate and ascertain the pedigree of the instrument in order to identify some latent meaning to be discerned by an analysis of the mental states or purposes of others. [50]
100 The purposive approach to the construction of enterprise agreements was also endorsed by Kirby J in Amcor, where His Honour said:
The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.[51]
101 The subjective intentions of those who negotiated the enterprise agreement as to its meaning are irrelevant.[52]
102 Similarly, it is impermissible to use post-agreement conduct to construe the terms of the agreement.[53]
103 An exception to this may be demonstrated if there is evidence of a common understanding between the parties before the making of the agreement as to the meaning of its terms.[54]
104 In Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd, Justice Wheelahan highlighted that great care must be taken in drawing upon a suggested common understanding as an aid to construction. His Honour said:
The reasons for caution before regard may be had to a suggested common understanding commence from the premise that it is the instrument itself that is to be construed, and any recourse to industrial practices said to amount to a common understanding are no more than part of the context in which the text of the instrument is to be construed. Industrial practices do not take the place of the terms of the instrument. There is also the need to maintain coherence with other principles, including that: (1) usually, recourse to extrinsic matters cannot displace the clear meaning of text; (2) the subjective understanding of individuals is rarely relevant to objective meaning; (3) this is also the case in relation to collective agreements where surrounding circumstances might have to rise to the level of being notorious or known by those intended to be bound by the instrument and (4) parties cannot by words or conduct contract out of, or waive the terms of an enterprise agreement, which has statutory force. [55]
Construction of the Mentoring Allowance under the Enterprise Agreements
105 The task of construction starts and ends with a consideration of the words of the enterprise agreements, understood in light of the industrial context and purpose. The mentoring allowance clauses are as follows:
Mentor means an Employee who is responsible for and acts as a guide and adviser to another Employee during their training 1 development phase while monitoring their performance and assessing their individual learning needs and providing constructive feedback. "Mentor" also means an Employee who provides on-shift familiarisation to Employees who are complying with a prerequisite training course requirement or whilst the Employees are in training. [56]
A Mentor Allowance shall be paid to all ESTA accredited Mentors while they are performing their mentoring duties. [59]
106 The language of the clauses in question is unqualified. However, the Court must also consider the broader industrial context and purpose as part of the task of construction.
107 First, I do not accept that the Briginshaw standard is applicable. [60]
108 These proceedings concern the interpretation of the enterprise agreements. As a matter of law, there is one true construction. If the plaintiffs are successful, the mentoring allowance is payable and ESTA are liable for it. Accordingly, there is no scope for the operation of the Briginshaw standard of proof and Hadgkiss is distinguishable. [61]
109 It is ESTA's principal submission that when a WPT is requested to do mentoring, they are carrying out the duties of a WPT. Accordingly, there should be no doubly-available entitlement to payment in respect of work that can be said to derive from the nature being a Mentor or WPT.
110 In construing the agreements, the Court is entitled to consider provisions of predecessor agreements as objective context.
111 Historically, a 'trainer' has always been paid an additional amount upon completing a form of training accreditation. From 1996 to 2013, the enterprise agreements provided a trainer with an annual allowance for completing the 'Train the Trainer' course, or later, the Certificate IV. Until the 2015 Agreement, a 'trainer' was not an employment classification but an employee who was selected.
112 The 2015 Agreement introduced the classifications of Call-Taker WPT and Call-taker and Dispatcher WPT, effective from 1 March 2017. There was no formal definition of a WPT. Instead, WPTs were entitled to an annual allowance once they completed a Certificate IV (21.6.1), or a Call-taker/Dispatcher WPT (21.8.12 to 15) salary level upon completion of the Certificate IV. [62]
113 The annual training allowance then became a salary increment (WPT Increment).
114 The WPT position descriptions of 5 May 2011 and October 2016 also provide objective context as to the WPT role.[63] However, ESTA submits that mentoring essentially falls within the position descriptions, citing in particular a WPTs duties to:
(a) communicate effectively and provide constructive feedback to learners;
(b) perform training needs analyses; and
(c) carry out other duties as directed within their scope of training and competence.[64]
115 The clauses providing the definition of Mentor and the Mentor Allowance have remained the same since the 2003 enterprise agreement. A Mentor is defined as an employee who performs either of the following functions:
(a) is responsible for and acts as a guide and adviser to another employee during their training / development phase while monitoring their performance and assessing their individual learning needs and providing constructive feedback; and
(b) provides on-shift familiarisation to employees who are complying with a prerequisite training course requirement or whilst the employees are in training. [65]
116 An employee becomes an ESTA accredited mentor once they have completed a 2-hour course advising how to deliver feedback and have coaching conversations. Mentoring is usually set out in advance using the Segment roster, but it can be on an ad-hoc basis. As stated by Smith, Scanlan and Matic, a new employee is required to be mentored for five rotations (or 20 shifts) once they complete the initial training and enter the live environment.
117 Importantly, the position descriptions do not include mentoring as part of a WPT's duties. ESTA submits that this amounts to a distinction without a difference. I do not accept that proposition.
118 The 2011 and 2016 position descriptions must be considered as a whole. A key role of the WPT is to carry out RTO courses. The other responsibilities set out in the position description also make references to training - training modules, training strategies, training curriculum, training needs analyses and assessing trainee's performance. Accordingly, the matters relied upon by ESTA, such as 'providing constructive feedback' and 'training needs analysis', could equally be understand as referring to the formal training role of WPTs.
119 Further, the functions set out in the second definition of Mentor extend beyond the duties of a WPT in the position descriptions. On-shift familiarisation does not involve formal training. Rather, as stated by Matic and the plaintiffs in their evidence, a mentor sits with an inexperienced employee and provides guidance and support in a live environment. A mentor also fulfills a 'safety net' function to the learner and ensures the call is actioned appropriated. The same analysis applies in respect of the 2017 and 2019 position descriptions and the 2019 Agreement.[66]
120 Similarly, the fact that ESTA may direct a WPT to perform other duties, such as mentoring, is neutral on addressing whether a WPT is entitled to be paid the mentoring allowance for such duties. The text of the agreements does not deal with the potential interaction between mentoring duties or WPT duties.
121 For the above reasons, I consider the position descriptions are largely equivocal on whether a WPT should be paid the Mentor Allowance whilst carrying out mentoring duties.
122 To further support their interpretation, ESTA submit that allowing the Mentor Allowance to WPT who carry out mentoring is akin to 'double dipping'. It was submitted that such an outcome would not be objective intention of the parties to the agreements. WPTs are paid the WPT Increment regardless of the duties they perform - call taking, dispatching, training or mentoring.
123 As stated above, a trainer's entitlement to a training allowance, or WPT Increment was the completion of an accredited training course. In more recent times, as stated by Ms Smith and Matic, ESTA have paid the WPT Increment once a WPT undertakes the Certificate IV. The WPT Increment was in the same amount as the previous training allowance (allowing for inflation). This allowance was never paid to reflect the actual hours of training that were carried out. Rather, it was paid to ensure there were sufficient trainers available 'on hand' to carry out workplace training.
124 The WPT role was formalised for this objective from 1 March 2017, as Ms Smith explained in her evidence.[67] The fact that a WPT receives the WPT Increment, even when performing their usual call-taking or dispatch duties is consistent with such a purpose.
125 Nor do the agreements expressly refer to a mentoring component being factored into the WPT Increment. Under the agreements, a WPT remains an accredited ESTA mentor. In those circumstances, the fact that a WPT may be paid the Mentoring Allowance on top of the WPT Increment is not a plainly absurd or anomalous interpretation. Obtaining a higher qualification, or the willing to undertake one, is also consistent with receiving the WPT Increment.
126 ESTA also relies upon its historic and current practice that WPTs are not paid a mentoring allowance. Conduct of the parties subsequent to the making of the agreement cannot be used as a guide to the construction of its terms. However, evidence of a common understanding is capable of informing context if it establishes a meeting of the minds about the operation of a provision in issue.
127 In the present case, I do not consider ESTA's current practice carries much weight as objective context, if any. Further, I am not satisfied that the evidence establishes a common understanding.
128 The WPT formal position was introduced from 1 March 2017. In relation to the years prior, the height of ESTA's evidence was Ms Smith stating she was not aware of any WPT ever receiving Mentor Allowance for their WPT duties. Whilst performing WPT duties, Ms Smith's evidence was that she was paid the training allowance for 'on-shift coaching and training'. As the mentoring allowance was introduced in the 2003 enterprise agreement, Ms Smith's evidence as to ESTA's practice is of little weight. In my opinion, the evidence falls short of establishing a practice that WPT who performed mentoring duties were not eligible for the mentoring allowance.
129 The height of Matic's evidence was that he not aware of ESTA ever intending to pay WPTs the Mentor Allowance. Further, of the ~60 WPT, only the plaintiffs have raised disputes and Smith had withdrawn his Fair Work Commission Complaint. In my view, the complaint evidence (or lack thereof) is more consistent with common inadvertence. Ordinarily, a failure to advance an argument as to the effect of a particular provision will not constitution evidence of a common understanding.[68]
130 In any event, the evidence establishes that the dispute surrounding the payment of the Mentor Allowance has been raised semi-consistently since October 2017. Both the plaintiffs and ESTA maintained their position and provided reasonable justification for its adoption. In my view, the Court is unable to draw any support for either construction from this evidence. This conclusion applies equally to Smith's withdrawal of his application after conciliation.
131 In summary, after considering the industrial purpose and context of the agreements and their predecessors, I conclude that these matters do not qualify the ordinary meaning of the Mentor Allowance clauses, namely that "a Mentor Allowance shall be paid to all ESTA accredited Mentors while they are performing their mentoring duties. As stated in King:
... the text of modern award [enterprise agreements] are widely available to members of the public and should be reasonably capable of being understood and implemented by participants in the relevant industry by reference to the language of the award itself, without having to delve into the pedigree of the instrument. [69]
132 Accordingly, I find that ESTA is liable to pay the Plaintiffs the Mentor Allowance under the enterprise agreements.
133 I will hear the parties on any further or consequential orders.
[1] Messrs Tristan Morton-Pederson (Morton-Pederson), Jason Smith (Smith) and Ms Sylvia
[2] The plaintiffs are entitled to commence proceedings pursuant to s 539(2) of the Fair Work Act
2009 (Cth). Further, the Communications Electrical and Plumbing Union (CEPU) is an
organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and is entitled to represent the interests of Smith and Morton-Pederson.
[3] Commenced pursuant to s 545(3) of the Fair Work Act 2009 (Cth).
[7] Emergency Services Telecommunications Authority Operational Employees Enterprise Agreement 2015, CB, page 51. ("2015 Agreement")
[8] Emergency Services Telecommunications Authority Operational Employees Enterprise Agreement 2019 Agreement. CB, page 104. ("2019 Agreement")
[13] For completeness, Morton-Pedersen received one payment for Mentoring Allowance due to an administrative error.
[14] Witness Statement of Sylvia Scanlan dated 21 April 2023, 33.
[16] or a willingness to undertake the Certificate IV.
[17] 2011, 2016, 2017, 2019 and 2021 WPT position descriptions.
[19] Witness Statement of Michelle Smith dated 3 October 2022. CB, pg 220.
[20] Intergraph Best (Vic) Pty Ltd, Victorian Communications Centre Enterprise Agreement 1996. CB, pg 231.
[21] Intergraph Best (Vic) Pty Ltd, Victorian Communications Centre Enterprise Agreement 2000. CB, pg 254.
[22] Emergency Services Telecommunications Authority, Enterprise Agreement 2006 ("2006 Agreement"). CB, pg 278.
[23] Emergency Services Telecommunications Authority, Enterprise Agreement 2009 ("2009 Agreement"). CB, pg 309; Emergency Services Telecommunications Authority, Enterprise Agreement 2013 ("2013 Agreement"). CB. Pg 338
[24] Witness Statement of Michelle Smith dated 3 October 2023, 33, 34, 36, 37, 38, 39. CB, pg 226.
[25] 2015 Agreement, Clause 21.6. CB, pg 47.
[26] 2015 Agreement, clause 21.7. CB, pg 48.
[27] 2015 Agreement, clause 21.7. CB, pg 48.
[31] 2015 Agreement, clauses 21.1, 21.2. CB, pg 44 - 45; 2019 Agreement, clause 25.2. CB, pg 98.
[32] 2019 Agreement, cl 25.6. CB, pg 102.
[33] Witness Statement of Michelle Smith dated 3 October 2022, 41. CB, page 227.
[34] Witness Statement of Michelle Smith dated 3 October 2022, 45, 46, 47. CB, pg 228.
[38] 2015 Agreement, cl 21.10 and 2019 Agreement, cl 25.11.
[40] Citing Hadgkiss v Sunland Constructions Pty Ltd & Ors [2007] FCA 346; (2007) 158 FCR 193, 11.
[41] 2015 Agreement, cl 22.2.5 and 24.7 and 2019 Agreement, cl 26.2 and 28.7.
[44] Or Operations Learning & Development Delivery Lead.
[45] 2019 and 2016 WPT position descriptions, CB, pg 204 and 213.
[46] 2016 position description, CB, pg 213.
[47] WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536, 197.
[48] Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241, 2 (Gleeson CJ and McHugh J) (Amcor), 30 (Gummow, Hayne and Heydon JJ), 66 (Kirby J).
[49] [2020] FCA 123, 122 - 123; endorsed on appeal [2021] FCAFC 123, 40 - 44.
[51] Amcor, 96; see also Gummow, Hayne and Heydon JJ, 30.
[52] Australian Nursing Federal v Tasmania (2002) FCA 1573, 54 - 56.
[53] Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90, 94, citing Short v F W Hercus Pty Ltd (1993) 40 FCR 511, 517.
[54] Transport Workers Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829, 95.
[55] Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd [2013] FCA 330.
[60] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
[61] Ibid; Hadgkiss v Sunland Constructions Pty Ltd & Ors [2007] FCA 346; 158 FCR 193.
[63] This post-dates the commencement of the 2015 Agreement on 14 April 2016 but informs the 2019 Agreement. The duties set out in later position description are in substantially similar forms.
[64] 2016 WPT position descriptions, CB pg 213; 2011 WPT position descriptions, CB pg 209.
[66] 2017 and 2019 position descriptions and the 2019 Agreement.
[67] Witness Statement of Michelle Smith dated 3 October 2022, CB, pg 220.
[68] Health Services Union v Ballarat Health Services [2011] FCA 1256, 76 (Gray J).
[69] King v Melbourne Vicentre Swimming Club Inc. [2020] FCA 123, 122 - 123; endorsed on appeal [2021] FCAFC 123, 40 - 44.
Morton-Pedersen & Ors
ESTA [2023] VMC 7
(2018) 264 FCR 536
(2005) 222 CLR 241
(1938) 60 CLR 336
(1993) 40 FCR 511
(2007) 158 FCR 193