Fair Work Act 2009

s.739 - Dispute resolution

• [1] Serco Australia Pty Ltd (Serco or the Applicant) has made an application under s.739 of the Fair Work Act 2009 (Cth) (the Act) The application comes to the Commission via clause 48 Dispute Settlement Procedure of the Serco CPSU Acacia Prison General Enterprise Agreement 2019 [AE508713] (the Agreement) which provides for the Commission to arbitrate a dispute under subclause 48.7.

• [2] The dispute concerns the proper rate of accrual for personal/carer's leave, for some groups of employees under the Agreement. The Applicant says that the entitlement is as set out in Column A of the table in clause 33.4 of the Agreement.[1]

• [3] The CPSU, the Community and Public Sector Union (the CPSU or the Respondent) does not object to the Commission determining this dispute.[2]

• [4] Clause 33.4 of the Agreement lists the hours of personal/carer's leave available to each category of employee covered by the Agreement for each year of full-time service.

• [5] The Agreement was approved by the Commission on 11 August 2020.[3]

• [6] Following the High Court judgment in Mondelez Australia Pty Ltd v Automotive Food, Metals, Engineering, Printing and Kindred Industries Union[4] (Mondelez HC) on 13 August 2020, it was revealed that the parties' understanding as to the calculation of personal/carer's leave under s.96 of the Act was not correct.

• [7] Two witness gave evidence for the Applicant, Mr Brenton Williams (Mr Williams) Serco's Director of the Acacia prison and Mr John Brecht (Mr Brecht) who was engaged as a consultant to Serco for a 12-month period ending in April 2019.

• [8] Neither witness was cross examined. I accept the evidence of the witnesses.

• [9] Whether the Commission should have regard for this witness evidence when determining this application will be dealt with later in this decision.

• [10] The evidence of Mr Williams was that since July 2019 he has been employed by the Applicant as the Director of Acacia Prison (Acacia) and prior to his employment with Serco, he provided consultancy services, and worked in the management of prisons in South Australia.

• [11] When Mr Williams joined Serco, bargaining for a new enterprise agreement covering Serco employees at Acacia was already underway. This bargaining led to the making of the Agreement.

• [12] Mr Williams attended bargaining meetings with the CPSU as one of two lead negotiators for Serco. The other was Mr Brecht, who was engaged as a consultant in ER Projects.

• [13] Under the Serco CPSU Acacia Prison General Enterprise Agreement 2017 [AE427351] (the 2017 Agreement), which was the enterprise agreement in place at the time he commenced working with Serco in July 2019, full-time employees received a yearly entitlement to personal/carer's leave as set out in clause 34 of the 2017 Agreement. This is expressed as a number of hours which was generally equivalent to two weeks of an employee's average ordinary hours, although some classifications had a higher number.

• [14] Mr Williams is aware that, before his involvement in the bargaining for the Agreement commenced, the CPSU had sought that prison officers' leave entitlement should be increased to be the same as in WA government prisons, which was higher than the entitlement in the 2017 Agreement. He recollects that, when he came on board, he was told that Serco had already rejected that CPSU claim, and Serco never changed that position during any subsequent bargaining for the Agreement.

• [15] His recollection of the bargaining in relation to personal/carer's leave entitlements was that Serco's position initially was that the arrangements for personal/carer's leave in the 2017 Agreement should continue in the Agreement, on the basis that they were consistent with the National Employment Standards (NES).

• [16] However, the bargaining process was complicated when the Full Federal Court made its decision in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[5] (Mondelez FCA). His understanding was, this judgment meant that the "10 days" of personal/carer's leave in the NES meant literally ten "working days". For employees who worked 12-hour shifts, albeit on a roster that ultimately averaged 42 hours per week, this would mean they needed to accrue 120 hours of leave per year in order to be entitled to take ten whole working days off work for personal/carer's leave.

• [17] Mr Williams recalls that after Mondelez FCA, many employees and union representatives at Acacia raised Mondelez FCA with Serco management to ask about its impact on Serco employees at Acacia, and these issues were ultimately discussed in the bargaining process.

• [18] After Mondelez FCA, Mr Williams was aware that there were suggestions that there would be an appeal to the High Court. He did not want to be in a position in the bargaining where Serco had conceded a claim because of Mondelez FCA, only for it to be reversed later

• [19] Accordingly, his recollection was that after Mondelez FCA, Serco put two

successive proposals to the CPSU during bargaining for the Agreement:

(a) In November 2019, Serco put a proposal to the CPSU that employees would receive ten days of personal/carer's leave in accordance with the legislation, without specifying how many hours this was. Serco would then apply this according to the interpretation that the courts finally settled on. The CPSU told Serco that it rejected this proposal at a meeting on 15 November 2019, because under the 2017 Agreement some employees already had an entitlement greater than what Serco had previously understood "10 days" to mean. The CPSU told Serco that it was not willing to have a position where the High Court appeal succeeded, and employees became entitled to less leave than they accrued under the 2017 Agreement.

(b) In January 2020, Serco put a proposal that there would be two columns of hours: Column A, reflecting the numbers in the 2017 Agreement, and Column B, reflecting what was understood was required under Mondelez FCA. Serco explained to the CPSU that Column B would continue to apply if the High Court confirmed Mondelez FCA, but employees would revert to the Column A entitlement if the High Court reversed it.

• [20] Mr Williams's evidence was this proposal was discussed with the CPSU at a meeting on 31 January 2021. His recollection is that the CPSU responded by saying that reverting to the Column A figures would not be appropriate if the High Court's decision meant that neither the

Federal Court approach nor the approach Serco had previously taken was correct.

• [21] This was the background against which the parties discussed and negotiated the mechanism to deal with what the High Court's decision would mean for Serco and the CPSU to reach agreement, which is set out in clause 33.5 of the Agreement.

• [22] On 11 June 2020, the access period opened for the employee vote to approve the Agreement.

• [23] That day, Mr Williams caused a letter to be sent to enterprise agreement-covered staff including information about the vote.

• [24] This letter was accompanied by a number of enclosures. These included the following:

(a) a summary of key changes as between the 2017 Agreement and Agreement; and

(b) a separate letter dealing with a number of matters raised in or in connection with bargaining by the Acacia Joint Consultative Committee.

• [25] The employee vote to approve the agreement closed on 25 June 2020. The Agreement was approved by the Commission on 11 August 2020.

• [26] The High Court gave its decision in Mondelez HC on 13 August 2021, two days after the Agreement was approved and before it came into operation on 18 August 2020.

• [27] On 8 October 2020 and 24 November 2020, Mr Williams was copied into two emails from Mr Gerald Upham (Mr Upham) of the CPSU to Mr Greg Moses from Serco.[6]

• [28] The evidence of Mr Brecht was that he is the principal of JJT Human Resources. In that capacity, he provides consultancy services to organisations in relation to their human resources and industrial relations needs. He has worked in this capacity for over 20 years.

• [29] In April 2019, he was engaged by Serco to assist with several projects. His engagement was for 12 months and ended in April 2020.

• [30] One of the main projects on which he worked was the negotiation of a new enterprise agreement to cover Serco employees who work at Acacia. He attended negotiations with the Serco manager responsible for Acacia from time to time - initially the Acting Director, Mr Craig Moody, and then from late-2019 onwards, with the new permanent Director, Mr Williams.

• [31] In the bargaining process, employees were represented by the CPSU. Prison officers were represented by officials from the West Australian Prison Officers' Union (the WAPOU), which he understands is a part of the CPSU.

• [32] After each bargaining meeting he updated a document we called the "Issues List", that set out the claims by reference to subject matter, each item's status, and the parties' positions

• [33] The bargaining process Mr Brecht refers to above ultimately resulted in the making of the Agreement.

• [34] The Agreement replaced the 2017 Agreement. Under the 2017 Agreement, full-time employees accrued a specified number of hours' personal/carer's leave per year, depending upon their classification.

• [35] In bargaining for the Agreement, the CPSU made a claim that employees' personal/carer's leave entitlement should be increased, so that there would be parity with the entitlements for public sector staff employed in government-run prisons in Western Australia. Serco at all times rejected that claim.

• [36] In August 2019, the Full Federal Court handed down the decision in Mondelez FCA. As a result of Mondelez FCA, Mr Brecht understood that:

(a) the "ten days" of personal/carer's leave that employees accrue each year under the NES meant ten separate working days (regardless of how many hours were worked on a particular day), not a number of hours equivalent to what on average employees worked over two weeks; and

(b) this meant that employees who work a standard 12-hour shift, including Acacia prison officers, would need to accrue 120 hours of personal/carer's leave each year to comply with the NES.

• [37] The Serco bargaining team therefore formed the view that the personal/carer's leave provision in the 2017 Agreement would not pass the Better Off Overall Test contained within the Act and would need to change. Serco were however conscious that Mondelez Australia Pty Ltd might seek to appeal to the High Court.

• [38] By around mid-September 2019, he was aware that an application for special leave to appeal had been sought, and by around mid-December 2019, he knew that special leave had been granted and the High Court would hear the appeal. These developments were discussed with the WAPOU at bargaining meetings.

• [39] For that reason, Mr Brecht says he was directed by Mr Joe Horacek (Acting Workplace Relations Manager) for Serco to ensure that the new personal/carer's leave provision in the Agreement would:

(a) comply with the NES as understood in light of the Mondelez FCA; but

(b) not prejudice Serco if the High Court overturned it.

• [40] In November 2019, Serco put forward an initial proposal in response to Mondelez FCA. The position was that the new personal/carer's clause should delete the references to numbers of hours (as appeared in the 2017 Agreement), and simply state that employees would accrue 10 days of personal/carer's leave each year in accordance with the NES.

• [41] Serco met with the employees' bargaining representatives on 15 November 2019. In the

meeting a discussion occurred regarding the proposal he had circulated, as described above.

• [42] Mr Brecht's evidence was on the union side, the discussion on personal/carer's leave was led by Mr Upham from the WAPOU, on the basis his members were the ones impacted by Mondelez FCA. He recalls that he said words to the effect of: "We can't agree to this proposal. Under the 2017 Agreement, some employees already have a greater entitlement. If the new clause says that they get ten days and if the High Court ruling takes us back to a position where that means two weeks, those employees will be worse off than they are now."

• [43] After considering the WAPOU's position, Serco formulated a new proposal along the following lines:

(a) the personal/carer's leave clause would include a table with two columns: Column A, and Column B. For each class of employees:

(i) Column A would contain the number of hours' leave that they accrued each year under the 2017 Agreement; and

(ii) Column B would contain a number that was 10 times the length of their normal shifts, to comply with the NES as we understood it in light of Mondelez FCA.

(b) Column B would apply unless and until the High Court overruled the Federal Court.

(c) If the High Court did overrule the Federal Court, employees would, following consultation, receive leave in accordance with the NES provision, which might involve reversion to the Column A entitlement.

• [44] On 6 January 2020, Mr Brecht sent an email to the bargaining representatives attaching a proposed clause along these lines.

• [45] Mr Brecht says he and Mr Williams again met with the employees' bargaining representatives on 31 January 2020. In that meeting, we discussed the proposal he had circulated, as described above.

• [46] His evidence is Mr Upham again led the discussions for the WAPOU. He said words to the effect of: "We can't agree to this proposal. We don't know what the High Court is going to decide, and it could be something that isn't Column A or Column B. It could do something different, and if that happens, we need to be consulted about what it means."

• [47] In the meeting, Mr Upham further said words to the effect of: "Column B should be for the life of the agreement. If the High Court changes things, that should be negotiated in a new agreement."

• [48] Serco rejected this approach. Instead, Serco discussed a mechanism for the parties to consider the High Court decision, consult on the implications in applying it to Serco staff, and if necessary, have the Commission arbitrate the proper way to apply it, with a guarantee that staff would not go below their 2017 Agreement entitlement (that is, the 'Column A' amounts).

• [49] Once Serco rejected the position that the 'Column B' entitlement should apply for the life of the Agreement and they moved to discussing a process for implementing any change to the interpretation of "10 days", there was no discussion of a situation where:

(a) the High Court held that "10 days" meant something less than the entitlements in Column B of clause 33.4, but employees would nonetheless retain the 'Column B' amounts; or

(b) the Commission would be asked to decide between the accrual rates in Column A and Column B.

• [50] Rather, Mr Brecht's evidence is that the discussions dealt with the situation where the parties might need to accommodate an outcome from the High Court appeal that had not been expected and was different from the 'Column A' amounts.

• [51] A further issue that the WAPOU was keen to address in this context was that if the entitlement to leave was reduced, employees would not be deprived of or have to repay entitlements that they had received before the High Court ruling. Serco agreed to include the last sentence of clause 33.5 to address this concern.

• [52] His recollection is that they agreed the final text of what became clause 33.5 of the Agreement in that meeting on 31 January 2020.

• [53] In this way, the protracted and delayed negotiations of the personal/carer's leave clause had nothing to do with the union's claim for parity with public sector workers, which had been

rejected by Serco from the commencement of bargaining, but rather, how to adopt Mondelez FCA, if only as a short-term measure pending the High Court appeal.

• [54] Mr Brecht has never communicated to the WAPOU that Serco was simply agreeing that employees should receive the Column B entitlement. That would have made including Column A in clause 33.4, and the whole of clause 33.5, totally pointless.

• [55] The text of a draft agreement was circulated to employees more broadly for feedback in around April 2020.

• [56] Mr Brecht finished his engagement with Serco before the employee vote to approve the Agreement, or its approval by the Commission.

• [57] Clause 2.6 of the Agreement is as follows.

"2.6 This Agreement is to be read in conjunction with the terms of the National Employment Standards (NES), which will apply at all times as a minimum. Benefits or terms contained in this Agreement that are more beneficial than the NES will prevail."

• [58] Clause 33 of the Agreement relevantly provides as follows.

33.1 An employee, other than a casual is entitled to paid personal/carer's leave if the leave is taken:

a) the employee is not fit for work because of a personal illness, or personal injury affecting the employee; or

b) to provide care or support to a member of the employee's immediate family, or a member of the employee's household who required care or support because of;

(i) a personal illness, or personal injury, affecting that member; or

(ii) an unexpected emergency affecting that member.

33.2 In accordance with the provisions of the NES, full time and part time employees are entitled to 10 days of paid personal/carer's leave per year of service.

33.3 Consistent with the current application of the NES provisions, when taking paid personal leave, the Employee will be paid for the ordinary hours of work they were allocated to work and otherwise would have for the day in question.

33.4 The table below details the Serco CPSU Acacia Prison General Enterprise Agreement 2017 entitlement in Column A, and the entitlement under this Agreement in Column B:

33.5 The parties acknowledge that should the interpretation of the application of clause 33.2 above change during the period of this Agreement, the parties will negotiate any consequences in accordance with clause 4.1 of this Agreement. Should the parties not be able to reach Agreement on those changes within a six month period, either party may refer the matter to the Fair Work Commission in accordance with clause 48 Dispute Resolution Procedure. The parties collectively commit to the outcome of any such referral not being less than the entitlement in Column A above. The Employer acknowledges that should this occur, no attempt will be made to recover personal leave payments made to any Employee up till that time." (sic)

• [59] Clause 4.1, which is mentioned in subclause 33.5, is as follows.

4.1 With the exception of sub clause 3.2, and if relevant sub clause 33.5, it is agreed by the parties that up to the nominal expiry date of this Agreement the parties will not pursue any further claims, and that this Agreement will cover all matters regarding employment conditions."

• [60] Clause 48 Dispute Resolution Procedure mentioned in subclause 33.5 is as follows.

The following procedure for settling disputes will be followed by the parties.

48.1 In the event of any dispute involving matters under this Agreement or the provisions of the National Employment Standards outlined in the Fair Work Act 2009, or any Industrial Matter as defined in clause 6.13 of this Agreement, every effort shall be made by the parties to resolve the issue at the workplace level in accordance with the following procedure.

48.2 An Employee who is party to a dispute may choose to appoint another person, organisation or association of their choice to represent them during this process.

48.3 All parties commit to the principles of procedural fairness (ie, a fair go all round) when settling any dispute.

48.4 At first instance, an aggrieved Employee(s) shall discuss the issue with the supervisor with the purpose of resolving the issue.

48.5 If the matter remains unresolved after discussions with the supervisor, the Employee may refer the issue, in writing to the next manager in the hierarchy. A response will be provided within 7 days, unless otherwise agreed by the parties.

48.6 If the matter remains unresolved, the Employee may refer the issue to the People and Capability Manager or a member of the Senior Management Team who will consult with the Employer prior to responding. A response will be provided within 7 days, unless otherwise agreed by the parties.

48.7 If discussions at workplace level do not resolve the dispute, a party to the dispute or their representative may refer the matter to the FWC. The FWC may deal with the dispute in two (2) stages:

a) The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

b) If the FWC is unable to resolve the dispute at the first stage, the FWC may then arbitrate the dispute.

48.8 In resolving the dispute the FWC can exercise any of its powers under the Fair Work Act in relation to conciliation conferences, hearings, witnesses, evidence and submissions which are necessary to make the resolution of the dispute effective.

48.9 The parties to the dispute will be bound by and implement any decision of the FWC subject to an appeal to the Full Bench of the FWC.

48.10 While the parties are trying to resolve the dispute using the procedures in this clause:

a) If the dispute involves the withdrawal of labour, the parties undertake that the prison will be staffed so that it does not adversely affect the Employer's duty of care to prisoners and staff; and

b) The status quo (i.e. the conditions applying prior to the issue arising) will remain until the processes specified in accordance with the procedure outlined above are completed.

48.11 If a dispute arises which involves more than one Employee, the dispute may be raised through the JCC, however if in the opinion of the Employer, the issue can be resolved through the line management structure, the Employer shall refer the dispute back to line management in accordance with the process specified above."

• [61] There is no dispute that the NES provision referred to in subclauses 33.2 and 33.3 of the Agreement is s.96 of the Act which is set out below.

(1) For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer's leave.

(2) An employee's entitlement to paid personal/carer's leave accrues progressively during a year of service according to the employee's ordinary hours of work, and accumulates from year to year."

• [62] The parties agree the proper approach to interpreting agreements was summarised in the Full Bench decision of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd[7](Berri) as follows.

"[114] The principles relevant to the task of construing a single enterprise agreement may be summarised 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:

(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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

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

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

10. 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.

11. 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 and 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.

12. 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.

13. 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.

14. 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.

15. 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."

• [63] The dispute is in relation to the quantum of personal/carer's leave that certain classes of employees should accrue for each year of employment.

• [64] The Applicant contends that under clause 33 of the Agreement employees are entitled to the amounts set out under Column A of the table in subclause 33.4.

• [65] The starting point for interpretation of the Agreement is as explained in Berri Principles 1 and 7.

• [66] In the scheme of the Agreement, subclause 33.2 is the operative provision which confers an entitlement to paid personal/carer's leave. It provides that "in accordance with the NES", employees are entitled to accrue "10 days" of leave each year. This is clear both from its terms, and from the acknowledgement in clause 33.5 that the change to the interpretation of clause 33.2 may have consequences for employees' entitlements.

• [67] The ordinary and natural meaning of clause 33.2 indicates that employees' entitlement to personal/carer's leave under the Agreement was intended to be the same as in the NES, and that "10 days" should be read the same way as in s.96 of the Act. As in WorkPac Pty Ltd v Skene[8] the Agreement uses a term with an established industrial meaning (here, "10 days"), and absent contrary indication, one assumes the framers intended to adopt that meaning. Further, the use of the term "in accordance with the NES" indicates that the Agreement is intended to operate harmoniously with the Act - in this respect, see Skene at [214]:

"... the Agreement was made when the WR Act was in force and cls 19.2.4 and 19.4.5 of the Agreement specify that a "casual FTM" is entitled to unpaid carer's leave and unpaid compassionate leave "in accordance with the [WR Act]. Particularly given the specific reference to the entitlements of casuals under the WR Act, it is appropriate to presume that the Agreement was intended to operate harmoniously with the WR Act and apply the same meaning to "casual employee" as that applicable under the WR Act."

• [68] The Applicant submits the following matters confirm that clause 33.2 of the Agreement should be read in this way:

• (a) The context in which the Agreement is to be read includes the legislative context of the Act, under which the Agreement was made and operates. This is recognised in Berri Principle 1(iii), which picks up the comments of the plurality in Amcor Ltd v Construction, Forestry, Mining and Energy Union[9]; and

(b) Clause 2.6 of the Agreement provides that the Agreement is to be read "in conjunction with the terms of the National Employment Standards (NES)". Even in circumstances where these are not apt as words of incorporation, the term "in conjunction" indicates that the Agreement and the NES are to be read together.

• [69] As a starting position then, it is submitted, clause 33.2 of the Agreement means that employees are entitled to 10 days of personal/carer's leave per year, with the same meaning as under the Act.

• [70] With respect to clause 33.5 of the Agreement the Applicant submits it expressly shows that the framers of the Agreement anticipated, by some mechanism, the meaning of clause 33.2 might change. In that eventuality, the parties would discuss the "consequences" of this occurring, and if necessary, refer their differences about how the change in interpretation affected Serco employees to the Commission for arbitration. It is significant that the word used is "consequences". This indicates that it was understood that if a higher authority countermanded the current understanding of what "10 days" means in clause 33.2, this would in fact have a flow-on effect to Serco employees.

• [71] In accordance with Berri Principles 8 and 11, recourse to the evidence about the objective, surrounding circumstances confirms that this was the objective purpose and intention of the provision. In short:

(a) Personal/carer's leave had been the subject of a claim by the Union, which Serco had rejected and never accepted on its merits.

(b) Some four months after bargaining began, Mondelez FCA. was handed down. Under the Mondelez FCA interpretation of what constitutes "10 days" of leave, the entitlements in clause 34 of the 2017 Agreement were not sufficient to discharge employees' entitlements. For example, a security officer working 12 hour shifts could exhaust their entitlement to 84 hours of personal/carer's leave in seven "working days". A full 10 "working days" of leave, as Mondelez FCA described them, would require 120 hours of leave.

(c) By mid-September 2019 it was public knowledge that both Mondelez Australia Pty Ltd and the Commonwealth Government would seek to appeal Mondelez FCA, and by December 2019 it was known that the High Court had granted special leave.

(d) Serco and the CPSU discussed personal leave from around October 2019 to late January 2020. A number of proposals were made, including that:

(i) The new agreement do away with references to number of hours and simply refer to "10 days", whatever that might ultimately be interpreted to mean.

(ii) The new agreement contain two columns: one reflecting the requirements of s.96 as interpreted in Mondelez FCA, the other reflecting the 2017 Agreement, with the former to apply for so long as Mondelez HC prevailed but the latter to be reinstated if the High Court overturned the Full Federal Court's declaration.

(iii) The eventual form of the clause, whereby the two column approach was maintained, the parties would seek to negotiate the "consequences" of any change to the interpretation of clause 33.2, and if they could not do so the Commission would arbitrate, with the 2017 Agreement entitlement to form a minimum.

• [72] In summary, the purpose of clause 33.5 was to set up a process to work through implications of the then-forthcoming Mondelez HC at Acacia. The parties needed to contemplate the High Court adopting an interpretation which did not accord with Mondelez FCA or with the previous enterprise agreement. This point was in fact made by the CPSU in bargaining; the point may, further, be illustrated by a hypothetical in which the Federal Court had adopted the relatively simple proposition that "10 days" equals two weeks' average ordinary hours, and the much more complicated "working day" formula was being urged on the High Court by a union or employee appellant. The potential for a 'none of the above' outcome was not unprecedented: the "working day" approach adopted in Mondelez FCA was not the "calendar day" approach urged on it by the union respondent to the case.

• [73] It is submitted the above matters explain the existence and terms of clause 33.4 of the Agreement. That provision contained the two sets of entitlements: one effectively reflecting the parties' understanding of Mondelez FCA, and the other setting out the positions stated in the existing enterprise agreement. One cannot isolate the statement in clause 33.4 that Column B "details...the entitlement under this Agreement" from that context, which makes it plain that clause 33.4 did not fix the "Column B" entitlement in stone.

• [74] The Applicant says the CPSU appears to submit that Serco's reliance on evidence is an attempt to impermissibly subvert the plain meaning of the Agreement where the provisions in question are not ambiguous. That is not so. Serco does not submit that clause 33 is ambiguous. Read as the authorities require - that is, fairly, as a whole, and in context - its meaning is plain. That meaning is as Serco has set out in its submissions.

• [75] From that perspective, it might be said that to lead evidence was unnecessary. However:

(a) Given the CPSU's intimation that it may lead evidence, and it having advanced the contention that its own subjective basis for seeking 120 hours of personal leave was relevant (and had nothing to do with Mondelez litigation), Serco anticipated that it may need to meet an evidentiary case the CPSU put forward.

(b) Evidence is admissible to determine whether an ambiguity exists and Serco's submission is that the evidence demonstrates that the provision is not ambiguous, and that Serco's construction is the correct one according to the plain meaning of the Agreement.

(c) In the alternative, if one reads clause 33.4 in the way that the CPSU urges, it is clearly inconsistent with clause 33.5, as one provision would appear to unconditionally confer an entitlement, and another would allow it to be lowered by agreement or arbitration. In those circumstances clause 33 would be internally inconsistent, therefore open to two contradictory meanings, and hence ambiguous. In that case, evidence of the surrounding objective background circumstances is admissible and Serco's submission in this regard is that if the Commission were against it on the submissions made above, and concluded there were ambiguity, the evidence of the surrounding circumstances entirely supports the interpretation for which it contends.

• [76] In reply to the Respondent's submission the Applicant submits that the CPSU incorrectly states that "[t]his application seeks an interpretation of clause 33 so as to determine the true meaning of clause 33.4 of the Agreement". That description proceeds from the premise that meaning of clause 33.4 is the matter for the determination before the Commission and is paramount.

• [77] That premise is wrong, not least because clause 33.2, rather than 33.4, is the source of the entitlement. Further to ask questions only about clause 33.4 is to misstate the nature of the dispute. This dispute is concerned not with the meaning only of the words in clause 33.4, but with the quantity of personal/carer's leave that an employee accrues under the Agreement. Focussing that inquiry only on the terms of clause 33.4 ignores the context of the entitlement, as found in, and informed by, the entirety of clause 33 and any other relevant provisions of the Agreement. The CPSU's approach (to limit the enquiry to the meaning of words in one subclause), it is submitted, is plainly at odds with the well-accepted approach to interpretation of industrial instruments.

• [78] Even at the first step of interpretation one must have regard to the context in which language is used and its industrial purpose. That "context" includes all of the relevant provisions, including clauses 33.2 and 33.5, the latter of which would be rendered meaningless on the CPSU's approach. The obvious "industrial purpose" of clause 33.5 is to resolve issues in the workplace as to the amount of personal/carer's leave which employees would accrue if the interpretation of clause 33.2 were to change - a purpose which the CPSU's construction would defeat entirely. Thus, to ignore Mondelez HC as the Union urges would lead the Commission into error, as it would overlook the purpose of the relevant provisions.

• [79] The Applicant submits the CPSU effectively ignores clause 33.5. It is referred to only once in the CPSU's submission, at [43], where the Union says that,

"It is beside the point that the parties agreed to include a provision under clause 33.5 to revisit the terms of the personal/carer's leave entitlement. The existence of clause 33.5 does not give rise to any ambiguity as to the meaning of the surrounding provisions of the Agreement. "

• [80] The Applicant contends this submission misses the point. Clause 33.5 of the Agreement is an integral part of clause 33, which sets up a scheme whereby the Agreement was intended to confer, subject to minima in "Column A", the NES entitlement as it was from time to time.

• [81] The provisions clearly were intended to reflect the NES. The understanding of those provisions at the time the Agreement was made accorded with the result the CPSU now seeks, but this has been overtaken by Mondelez HC. Clause 33.5 was obviously designed to deal with that very eventuality, as is obvious from the "industrial purpose" that appears on its face and in light of the notorious fact known to all parties concerned that the High Court was yet to have the final say on the matter of what "10 days" means.

• [82] The Commission's task is simply to determine what the consequences of Mondelez HC are for Serco employees' entitlement to accrue "10 days" of leave under clause 33.2 of the Agreement. Given the majority judgments in Mondelez HC.

• [83] For the above reasons, the Applicant submits the Commission ought resolve the dispute by determining that under the Agreement, the amount of paid personal/carer's leave that employees accrue in a year is the greater of:

(a) their fortnightly ordinary hours, or if they do not work a fortnightly roster cycle, 1/26 of annual ordinary hours, in accordance with Mondelez HC; and

(b) the number of hours for their classification stated in Column A of clause 33.4.

• [84] The Respondent submits that clause 33.4 of the Agreement expressly lists the number of hours of personal/carer's leave that is available to each category of employee covered by the Agreement for each year of full-time service.

• [85] The amount of the personal/carer's leave entitlement provided in clause 33 of the Agreement is derived from what the parties' understood of the personal/carer's leave entitlement referred to in s.96 of the Act.

• [86] Following the High Court judgment in Mondelez HC on 13 August 2020, it was revealed that the parties' understanding as to the calculation of personal/carer's leave under s.96 of the Act was not correct.

• [87] Serco now seeks an interpretation of clause 33.4 of the Agreement, and it is asserted that the entitlement under the Agreement is or should be changed following the interpretation of s.96 of the Act that was provided in Mondelez HC.

• [88] To that end, Serco has filed witness statement evidence from those who were involved in discussions on behalf of Serco for the terms of the Agreement.

• [89] It is submitted the following issues arise - what is the plain meaning of the words used in clause 33.4 of the Agreement and are the words of clause 33.4 of the Agreement attended with sufficient doubt to warrant the consideration of other evidence?

• [90] The first step in the construction of the Agreement begins with a consideration of the ordinary meaning of the relevant words, having regard to the Agreement as a whole.

• [91] Clause 33.4 refers to a table which details the "entitlement" under the 2017 Agreement, and under the Agreement. As a matter of practicality and common sense, the "entitlement" that is referred to in clause 33.4 means an entitlement to personal/carer's leave as mentioned in clauses 33.1 and 33.2.

• [92] It is submitted at clause 33.1 an entitlement to take personal/carer's leave arises in circumstances where an employee is unfit for work, or where he or she is required to provide care for a family or household member. Clause 33.2 of the Agreement provides that an employee will receive "10 days" of paid leave per year of service.

• [93] Clause 33.3 of the Agreement explains how the "10 days" of personal/carer's leave is to be measured. Specifically, clause 33.3 provides that for each day that an employee takes paid personal leave, he or she "will be paid for the ordinary hours of work they were allocated to work and otherwise would have for the day in question".

• [94] The Applicant submits, the sensible and obvious meaning of the words in clause 33.3 "ordinary hours of work...for the day" is that those words refer to an employee's rostered shift.

• [95] In other words, clause 33.3 provides that an employee who takes a day of personal/carer's leave will be paid for the number of hours that he or she was rostered to work for a given day.

• [96] The work and shift patterns of custodial employees is set out in clause 27 of the Agreement. Relevantly, clause 27.2 contemplates that people employed in different custodial job classifications will work predictable roster patterns with set shifts of between 9- and 12-hour duration each work day.

• [97] The hours of work for non-custodial employees are set out at clause 28 of the Agreement. Clause 28.6 provides that persons employed as caterers will work a variable roster of 76 hours per fortnight made up on shifts of either 10- or 11-hours duration. Clauses 28.8 and 28.9 of the Agreement contemplate that Trades Instructors and Trade Supervisors will work a full-time roster of 78.5 hours per fortnight. The average daily shift length for Trade Instructors and Trade Supervisors may sensibly be inferred to be 7.85 hours in duration.

• [98] Other non-custodial employees under the Agreement work shifts with an average length of 7.6 hours duration.

• [99] The Respondent submits when one reads clauses 33.2 and 33.3 with reference to the hours of work provisions, it seems clear that the entitlement to personal/carer's leave under clause 33 of the Agreement provides that:

1. Employees will be eligible to take up to 10 days of leave each year of service;

2. Where an employee takes a day of leave, he or she will be paid for the number of hours that they would have worked according to their ordinary work roster; and

3. For the purpose of personal/carer's leave, the number of hours leave that is granted for each year of service is determined based on job classification and the roster pattern that has been prescribed.

• [100] Clause 33.4 of the Agreement gives specific detail as to how the leave entitlement is to be calculated for the different classifications of employees under the Agreement. The table at clause 33.4 specifically refers to the shift patterns that are mentioned in clauses 27 and 28 of the Agreement.

• [101] It is submitted the only sensible meaning to be given to the numbers that are listed under "Column A" and "Column B" of the table at clause 33.4 is that those numbers refer to the yearly number of hours of personal/carer's leave that can accrue or be taken by employees of each job classification. Any other characterisation of the figures listed in the table under Column A and Column B would be inconsistent with the other provisions of clause 33.

• [102] There can be no doubt that the figures listed under Column B of the table in clause 33.4 are the amounts of leave that are applicable under the Agreement. So much is clear by the last part of opening paragraph at clause 33.4 which says "...and the entitlement under this Agreement in Column B."

• [103] In summary it is submitted, the plain meaning of the words and the table appearing in clause 33.4 of the Agreement is that:

1. The yearly entitlement to personal/carer's leave is calculated with reference to the individual shift or roster pattern worked by an employee;

2. There are six different shift pattern types that are prescribed to calculate the amounts to be paid to employees who take leave under clause 33;

3. The value of an employee's entitlement to paid personal/carer's leave will depend upon their job classification referred to in the Agreement; and

4. Under the terms of the current Agreement, the maximum yearly amount of leave (in hours) that can accrue or that can be paid to an employee in respect of each year of service cannot exceed the relevant figure mentioned in Column B of the table.

• [104] The Respondent paraphrase the Applicant's submissions as follows:

1. The yearly entitlement to personal/carer's leave for employees under the Agreement is represented by the figure listed under Column A of the table in clause 33.4; because

2. The meaning and effect of clause 33.2 of the Agreement is that the daily entitlement to personal/carer's leave is similar or essentially the same under the Agreement as that provided under s.96 of the Act; and

3. Arising from the High Court decision in Mondelez HC, the true meaning of the benefit provided under s.96 of the Act is more consistent with the figures listed in Column A of the table at clause 33.4, and less so with the figures listed in the table under Column B.

• [105] On the question of whether clause 33 is ambiguous, the Respondent submits that Serco appears to rely on the words that appear at the start of clause 33.2 which say that the entitlement to personal/carer's leave is "In accordance with the provisions of the NES".

• [106] The Respondent understands the reference in clause 33.2 to mean s.96(1) of the Act which also provides 10 days of paid personal/carer's leave for each year of service.

• [107] However, the mere fact that clause 33.2 of the Agreement contains a reference to the NES or to s.96 of the Act does not mean that the entitlement to personal/carer's leave must be the same in all respects. Nor does the first part of the sentence in clause 33.2 of the Agreement give rise to ambiguity in the meaning of the personal/carer's leave entitlement.

• [108] Clause 33 of the Agreement contains many provisions that clearly distinguish and differentiate the entitlement under the Agreement from the basic NES terms. For instance, clause 33.12 provides a mechanism for an employee to effectively take personal leave during a period of approved annual leave. Clause 33.13 provides terms for the use of leave for those employees who have made claims for workers' compensation.

• [109] The Respondent submits there is no basis to assert that the mechanism by which personal leave is calculated and paid under the Agreement is to be restricted by the terms and meaning of the corresponding NES entitlement.

• [110] Insofar as it relates to the method by which leave is to be calculated for each day or for each year of service, the terms of clause 33 of the Agreement are clear and unambiguous.

• [111] Clause 33.2 provides the basic entitlement of 10 days leave per year of service, which is the same as the basic entitlement referred to in s.96 of the Act.

• [112] Clause 33.3 contains express terms that detail how to calculate the number of hours' pay that applies to each day of leave. The method of calculation referred to in clause 33.3 is described as being "[c]onsistent with the current application of the NES". It is clear by the words used in first line of clause 33.3 that the parties intended the entitlement under the Agreement to operate with regard to the practical application that they had given to the entitlement in the NES.

• [113] However, the reference to the NES provisions in clause 33.3 is not proscriptive.

• [114] Nor does the reference to the "current application of the NES provisions" give rise to ambiguity as to the meaning of the other words in subclause 33.3.

• [115] Even if the words used in clause 33.3 were unclear, the method of calculation referred to in clause 33.3 is clarified by the table in clause 33.4 of the Agreement.

• [116] The table at clause 33.4 elaborates on the description of leave given in clause 33.3 and the table provides direction that an employee's "ordinary hours of work" is calculated by reference to his or her shift pattern.

• [117] Unlike the terms of the NES, the terms of the Agreement are not required to meet a statutory objective of providing "fair" conditions of employment. Accordingly, the Agreement is able to provide employees who work different shift patterns with a different amount of leave for each day of leave that is taken.

• [118] The Respondent submits it is beside the point that the parties agreed to include a provision under clause 33.5 to revisit the terms of the personal/carer's leave entitlement. The existence of clause 33.5 does not give rise to any ambiguity as to the meaning of the surrounding provisions of the Agreement.

• [119] Serco has failed to establish that there is ambiguity in the terms of clause 33 in relation to the calculation of the leave entitlement. Accordingly, the Respondent maintains that the witness evidence of Mr Williams and Mr Brecht should be disregarded.

• [120] In any event, the Respondent also considers that the evidence of Mr Williams and Mr Brecht does not assist Serco's claim. The mere fact that the parties formulated the terms of clause 33 during a period where the High Court decision in Mondelez HC was still unknown does not now change the plain meaning of the words that appear in that clause.

• [121] It is submitted this application by Serco is misconceived. The terms of clause 33 of the Agreement are clear insofar as they detail with specific words and numbers the amounts of personal/carer's leave that is provided to employees for each year of service.

• [122] It is also clear that clause 33 of the Agreement is not formulated to mirror the personal/carer's leave entitlement set out in the NES.

• [123] There is no doubt that the parties formulated the terms of clause 33 with some regard to the NES and to their particular understanding as to how the NES provisions work in practice. However, it is not permissible to re-write the terms of the Agreement in this fashion.

• [124] The Respondent submits there is simply no basis to assert that the meaning and effect of clause 33 of the Agreement gives rise to an entitlement as sought to be enforced by Serco.

• [125] The dispute concerns the proper rate of accrual for personal/carer's leave, for some groups of employees under the Agreement.

• [126] The facts relevant to the determination of this dispute firstly concern events that occurred both after the Agreement was made by a majority vote of employees on 25 June 2020 and after it was approved by the Commission on 11 August 2020, as follows.

• [127] On 13 August 2020, a majority of the High Court in Mondelez HC overturned Mondelez FCA and decided that, the expression 10 days in s.96 (1) of the Act means an amount of paid personal/carer's leave accruing for every year of service equivalent to an employee's ordinary hours of work in a two-week period, or 1/26 of the employee's ordinary hours of work in a year.

• [128] Subsequent to the Mondelez HC decision Serco and CPSU representatives discussed and exchanged correspondence and had meetings regarding the consequence of that decision as anticipated by clause 33.5 of the Agreement. The parties however have not been able to reach Agreement.[10]

• [129] Consequently, as provided for in clause 33.5 of the Agreement this application has been made by Serco under clause 48 Dispute Resolution of the Agreement. The Respondent does not object to the Commission determining this matter.[11]

• [130] Sections 738 and 739 of the Act empower the Commission to deal with disputes where an agreement includes a term that provides a procedure for dealing with disputes. The Commission must not exercise any powers limited by the term in the Agreement

• [131] Clause 48 Dispute Resolution Procedure provides at 48.7(b) that subject to the previous steps in that procedure having been followed the Commission may arbitrate the dispute.

• [132] Both parties have relied upon the principles set down by the Full Bench of the Commission in Berri as those relevant to the Commission's task in this instance of interpreting the Agreement.

• [133] For the purposes of this decision a relevant subset of those principles is set out below.

"7. 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.

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

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

10. 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.

11. 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 and 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.

12. 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.

13. 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."

• [134] The relevant objective background facts known to both parties before this Agreement was made include the following.

1. In 2019 Serco and the CPSU were negotiating for a new agreement to replace the 2017 Agreement. Those negotiations had begun before July 2019.

2. During the negotiations the CPSU had pressed a claim for personal/carer's leave to be increased to parity with the entitlement of public sector staff employed in government run Western Australian prisons. Serco at all times rejected this claim.

3. The Full Federal Court majority judgment in Mondelez FCA was handed down on 21 August 2019.

4. This Full Federal Court majority judgment held that s.96 of the Act which refers to '10 days of personal/carer's leave' entitles an employee, regardless of their pattern of work or distribution of hours, to be absent without loss of pay on 10 working days per year.

5. By mid-September 2019 it was publicly known that an application seeking special leave to appeal the Mondelez FCA judgment to the High Court would be made and later it was public knowledge that the High Court had granted special leave to appeal Mondelez FCA on 13 December 2019.

6. Both Serco and the CPSU, during the continuing negotiations about the wording of clause 33 of the Agreement, were aware that a future decision of the High Court on the appeal of the Mondelez FCA judgment could affect the employees entitlement to personal/carer's leave.[12]

7. The Agreement was made by a majority vote of employees on 25 June 2020.[13]

• [135] Having considered the submissions of the parties it is my view that clause 33 of the Agreement has a plain meaning. Consideration of the witness evidence of surrounding circumstances confirms that there is no ambiguity in clause 33.

• [136] In my view the meaning of clause 33 of the Agreement is as follows.

• [137] Clause 33.2 of the Agreement means the employees entitlement to paid personal/carer's leave is 10 days per year of service, as provided for in s.96 of the Act.

• [138] Clause 33.3 of the Agreement means that, consistent with the Mondelez FCA judgment, the application of s.96 at the time the Agreement was made was that an employee taking paid personal/carer's leave is paid for the ordinary hours they were allocated to work and would have worked had they not been on personal/carer's leave.

• [139] The table at clause 33.4 of the Agreement details what the paid personal/carer's leave entitlement of 10 days is in hours for employees in particular classifications that work particular shift patterns. Column A details the respective hourly entitlements prescribed in the 2017 Agreement. Column B details the respective hourly entitlements under the Agreement as explained in 33.3.

• [140] Clause 33.5 of the Agreement is an agreed process to deal with any change in the interpretation of the application of clause 33.2, the entitlement to 10 days personal /carer's leave per year of service. Clause 33.5 means that should there be such a change the parties will negotiate any consequences and claims arising from a change are not subject to the no further claims clause. If the parties do not reach agreement on those changes within a six-months period either party may refer the matter to the Commission in accordance with clause 48 Dispute Resolution Procedure.

• [141] Clause 33.5 also means the parties agree the outcome of any referral to the Commission will not be less than the entitlement in Column A of the table in 33.4. The Respondent also agrees not to attempt to recover personal/carer's leave payments already made to an employee prior to the outcome of the referral to the Commission.

• [142] During the period of this Agreement the Mondelez HC judgment was delivered, and this judgment changed the interpretation of the application of clause 33.2 of the Agreement.

• [143] The parties have attempted to negotiate the consequences of this change. The parties however have not been able to agree on this.

• [144] Consequently, the Applicant referred this dispute to the Commission in accordance with clause 48 Dispute Resolution Procedure of the Agreement.

• [145] My decision is that the rate of accrual for personal/carer's leave for an employee under the Agreement is 10 days of paid personal/carer's leave per year of service, which in hours consistent with Mondelez HC is,

An employee's fortnightly ordinary hours, or if they do not work a fortnightly roster 1/26 of that employee's annual ordinary hours, provided that for employees in the classifications who work the corresponding shift patterns detailed in the table at 33.4 of the Agreement their rate of accrual shall be no less than the number of hours set out in Column A of the table.

S. Crilly of Seyfarth Shaw Australia for the Applicant.

D. Stojanoski of Slater & Gordon Lawyers for the Respondent.

[1] Form F10 filed 20 January 2021 at 2.1, paragraph 1.

[2] Respondent's outline of submission dated 29 March 2021 at paragraph 3.

[3] [2020] FWCA 4237.

[4] [2020] HCA 29.

[5] [2019] FCAFC 138.

[6] Exhibit A2, Attachments BJW4 and BJW5.

[8] [2018] FCAFC 131 at [197]

[9] [2005] HCA 10, 222 CLR 241 at [30].

[10] Exhibit A2, Attachments BJW4 and BJW5.

[11] Respondent's outline of submission dated 29 March 2021 at paragraph 3.

[12] Exhibit A1 at paragraphs 11 and 12 and Exhibit A2 at paragraphs 4, 12 to 25.

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