Triple Zero Victoria v Morton-Pederson [2025] FCA 419

Triple Zero Victoria v Morton-Pederson [2025] FCA 419 | Case summary | Zoe

[21]

The appellant employs persons to attend to emergency telephone calls and dispatch emergency services for police, the State Emergency Service, fire and ambulance services across Victoria. Some of these employees are employed as Workplace Trainers. Other employees are engaged from time to time to mentor other employees.
The two enterprise agreements which are relevant to these proceedings are the Emergency Services Telecommunications Authority Operational Employees Enterprise Agreement 2015 (2015 Agreement) and the Emergency Services Telecommunications Authority Operational Employees Enterprise Agreement 2019 (2019 Agreement). These agreements confer entitlements on, relevantly, the appellant's Workplace Trainers and Mentors. Workplace Trainers are paid to perform training duties through a Workplace Training increment as part of their annual salary (see clauses 21.6.1-21.6.3, 21.8.12-21.8.15, 21.1 and 21.2 of the 2015 Agreement, and clauses 25.2, 25.3, 25.4.12-25.4.15 of the 2019 Agreement), whilst a Mentor is paid, in addition to the salary attaching to their classification, an hourly allowance on each occasion they perform mentoring duties (see clause 21.10 of the 2015 Agreement and clause 25.11 of the 2019 Agreement).
The proceedings before the learned magistrate concerned three concurrent claims that were made by the present respondents as employees of the appellant for the payment of the Mentor Allowance under 2015 Agreement and the 2019 Agreement. At the times relevant to the claims, all three employees were appointed as Workplace Trainers. They contended in the Magistrates' Court that they should have been paid the Mentor Allowance, in addition to the Workplace Training increment paid as part of their annual salary, at the times that they performed mentoring duties. The appellant argued that the Workplace Training increment paid as part of their annual salary is intended to, and has always, compensated them for all training duties, including mentoring.
The learned magistrate found for the three employees, ordered compensation, and imposed civil penalties on the appellant that totalled $30,000. Compensation was agreed between the parties, and was done by reference to the appellant's records which showed each occasion the employees had performed mentoring duties on their shifts.
In the proceeding in the Magistrates' Court the parties tendered a statement of agreed facts, which they jointly adopted as a chronology in this court.
The appellant relies on the evidence of two of its employees before the learned magistrate, being that of Ms Michelle Smith, a Senior Strategic Advisor, and Mr Mario Matic, a Senior Manager Learning & Performance. The appellant also relies on written submissions dated 13 February 2025, and reply submissions dated 6 March 2025.
The first and second respondents rely on written submissions dated 27 February 2025. The third respondent relies on the witness statement of Ms Scanlon dated 31 March 2023, and written submissions also dated 27 February 2025.

[79]

The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:

(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197]).

(ii) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind" (Kucks v CSR Ltd (1996) 66 IR 182 at 184; Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197]). The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose" (Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2]).

(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at [53]). It may extend to "... the entire document of which it is a part, or to other documents with which there is an association" (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth [1998] FCA 249; (1998) 82 FCR 175 at 178).

(iv) Context may include "... ideas that gave rise to an expression in a document from which it has been taken" (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518).

(v) Recourse may be had to the history of a particular clause "Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form ..." (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518).

(vi) A generous construction is preferred over a strictly literal approach (George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at [57]), but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties" (City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 380).

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378-379; WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197]).

[83]

(a) The Magistrate failed to give any or sufficient weight to the fact that clauses of the Agreements that provide for the payment of the Mentor Allowance state that the Mentor Allowance is payable while ESTA accredited Mentors "are performing their mentoring duties" (emphasis added); > > (b) The Magistrate failed to give any or sufficient weight to the evidence before him to the effect that mentoring formed part of the ordinary duties allocated to Workplace Trainers as part of their substantive position; > > (c) The Magistrate failed to give any or sufficient weight to the wages provided to Workplace Trainers, paid to compensate Workplace Trainers for, among other things, mentoring; > > (d) The Magistrate failed to give any or sufficient weight to the fact that mentoring duties are performed by employees other than Workplace Trainers; > > (e) The Magistrate failed to give any or sufficient weight to the context provided by the whole of the Agreements, in particular the distinctions that the Agreements draw between Workplace Trainers and Mentors for the purpose of administering payments; > > (f) The Magistrate failed to give any or sufficient weight to the terms of the predecessors to the Agreements which informed the purpose of the Mentor Allowance and the origins of the role of Workplace Trainer; > > (g) The Magistrate erred in his conclusion that the evidence before him established a common inadvertence between the parties subject to the Agreements as to whether the Mentor Allowance was payable to persons employed as Workplace Trainers; > > (h) The Magistrate failed to construe the provisions governing the payment of the Mentor Allowance by reference to the ordinary and natural meaning of the term "allowance" being: a payment made in addition to wages on account of some extenuating or qualifying circumstance; > > (i) The Magistrate failed to construe the provisions governing the payment of the Mentor Allowance by reference to the industrial usage of the term "allowance" being: a payment intended to:

[89]

The third respondent answers the appellant's case on grounds 1 and 2(a)-2(d) as follows. First, she submits that the appellant does not deal separately with what are the clear words creating the obligation to pay the mentoring allowance. The first and second respondents make the same point. Secondly, the third respondent submits that the appellant's contention that there are two categories of employee who perform work within the work of a "Mentor" as defined in clause 6 of both agreements (Workplace Trainers on the one hand and call-takers or dispatchers who are accredited as mentors and who are allocated mentoring duties on the other) is contrary to the findings of the learned magistrate. It is said that the learned magistrate found that mentoring work as defined in clause 6 of each of the agreements is not part of the job description of Workplace Trainers (see, for example at [117]-[127] of the learned magistrate's reasons).
The third respondent submits that while this court must make up its own mind as to facts, it should not do so as if it were trying the matter at first instance. The third respondent contends that even if there is, or may be, a different view as to the facts, this does not create an appellable error.
The third respondent's position is that insofar as grounds 1 and 2(a)-2(d) are concerned, the appellant fails to explain why the learned magistrate erred in his findings at [117]-[127]. And to the extend the appellant relies on the phrase "their mentoring duties" to suggest that the Mentor Allowance is not paid if a person performs mentoring as part of their normal duties, the third respondent says that this fails to grapple with the uncontested evidence that mentoring is given by specific allocation (as to which the third respondent refers to the learned magistrate's finding at [116]).
Thus the third respondent submits that in the context of both of the agreements it should be accepted by the court that persons who are required to perform mentoring duties are generally rostered on to do so (although occasionally they may be directed to perform such duties on an ad hoc basis) and the obligation to mentor is to mentor a particular employee. In these circumstances the third respondent submits that it is not open to the appellant to assert that "their mentoring duties" means anything other than the facts as found by the learned magistrate (at [116]).
Further, the third respondent submits, the appellant's assertion that a Workplace Trainer is not entitled in those circumstances to the payment of a mentor allowance because their job description "includes tasks falling within the definition of Mentor" ignores the plain findings of the learned magistrate that the definition of Mentor and the job description of Workplace Trainer were not identical, in particular the finding that they were effectively different.
The first and second respondents rely substantially on the third respondents' submissions as to grounds 1 and 2(a)-2(d). Their principal submission in this regard is that the language of both agreements is clear and unambiguous and there is no reason for the court to enquire further into the relevant context to find support for the conclusion that Workplace Trainers are not entitled to be paid a Mentor Allowance.

[90]

Insofar as the respondents submit that the appellant's ground one alleges an error of fact or an error made in the exercise of a discretion, I do not accept that this is so. As the appellant submits, this appeal does not involve an examination of witness credibility or reliability, and the conclusion of the learned magistrate is not entitled to deference of the kind the respondents suggest. Axiomatically, and as the appellant submits, the duty of an appellate court is to decide the case - the facts and the law - for itself: Warren v Coombes at 552 (Gibbs ACJ, Jacobs and Murphy JJ). The court must conduct a real review of the trial and the judge's reasons, and cannot excuse itself from "weighing conflicting evidence and drawing [its] own inferences and conclusions": Fox v Percy (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ) citing Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 564 (Isaacs J).
It is for this court on appeal to determine the proper meaning of clause 21.10.1 of the 2015 Agreement, and clause 25.11.1 of the 2019 Agreement. In this regard I accept the appellant's submission that the respondents do not address the reality that both agreements draw an explicit distinction between Workplace Trainer and Mentor. I accept that the agreements draw these distinctions because they proceed on the basis that at a particular point in time it is possible to be a Mentor or a Workplace Trainer, but not both. I accept also that this conclusion is buttressed by the fact that the clauses establish an allowance for "their mentoring duties" rather than an allowance simply for "mentoring duties". I accept that the phrase "their mentoring duties" is significant because it indicates that the "mentoring duties" that attract the allowance are duties which sit outside the employee's usual duties. This is not so for a Workplace Trainer.
The appellant is correct to submit that distinctions are not to be drawn between particular Mentors and the form of their mentoring duties for the purpose of the Mentor Allowance, and that there is an explicit distinction drawn in the agreements between the position of a call taker or dispatcher undertaking responsibilities and a Workplace Trainer.
For these reasons it must be accepted that it is mentoring undertaken when a call taker or dispatcher acts as a Mentor, as opposed to a Workplace Trainer, that attracts the Mentor Allowance.
Grounds 1 and 2(a)-(d) must therefore succeed. This conclusion would be sufficient for the appeal to be allowed, the learned magistrate's orders of 11 August 2023 to be set aside, and the proceedings in the Magistrates' Court to be dismissed. Nonetheless, in deference to the parties' submissions there is utility in also addressing the appellant's grounds 2(e), and 2(h)-(i), given their connection to grounds 2(a)-(d). In all the circumstances it is unnecessary to consider the appellant's grounds 2(f)-(g): see Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593 at 600-601 [7]- [8] (Kiefel CJ, Gageler and Keane JJ), 629-630 [101] (Bell, Nettle, Gordon and Edelman JJ).

[94]

It must first be observed, consistently with the appellant's submissions, that insofar as the third respondent submits that Workplace Trainers receive "the workplace training annual allowance" this is not correct. I accept that under the agreements Workplace Trainers are paid a salary (which includes an annualised Workplace Training increment) for the performance of their skills in their day to day duties, including their mentoring skills. That the agreements do not contain a description of the duties of a Workplace Trainer is of no consequence. As the appellant submits, the agreements do not define the entire employment relationship between the appellant and its employees (for example, the position descriptions which define an employee's duties are clearly relevant in this regard). I accept that the agreements only seek to prescribe the pay and conditions which attach to particular positions and that the scope of what the positions may require will generally be informed by the contract of employment and other relevant documents (such as the position descriptions). I also accept that the proper interpretation of enterprise agreements must take account of this context: see Construction Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd (2012) 203 FCR 371 at [50] (Buchanan and Katzmann J); Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237 at 287-288 (Wilson J).
To the extent that the first and second respondent submit further that there is necessarily a distinction between Workplace Trainers and Mentors because a Workplace Trainer's duties are performed in a classroom environment and Mentoring is performed in a "live environment", during their shift, I do not accept this submission. As the appellant submits, and as can be seen from the clauses of the agreements which are extracted above, the relevant clauses draw a clear distinction between an on-site Workplace Trainer and an off-site Workplace Trainer. I accept the appellant's submission that a Workplace Trainer's duties (found in the relevant position description) may be performed both in a classroom and on-site during a shift or "live environment" because employees require continued training by Workplace Trainers even after their classroom training, and that the distinction the first and second respondents seek to draw is artificial.
I accept therefore that another aspect of the learned magistrate's error in his construction of the agreements was that he failed to give any or sufficient weight to the context provided by the whole of the agreements insofar as they draw a distinction between Workplace Trainers and Mentors for the purpose of administering payments.
Grounds 1 and 2(e) succeed also.

[95]

In support of these further grounds the appellant notes that the additional payment for being a Mentor is expressed as an allowance (see clause 21.10 of the 2015 Agreement and clause 25.11 of the 2019 Agreement). It is submitted, by reference to the Macquarie Dictionary and the evidence of Mr Matic, that an allowance ordinarily means pay "in addition, as to a wage, et cetera, on account of some extenuating or qualifying circumstance." It is the appellant's position that the longstanding industrial practice of paying an allowance is for compensation of two kinds: expense-related and condition-related allowances. The appellant submits that expense-related allowances seek to reimburse for actual expenses incurred (such as travel, tools and meals allowances), whilst condition-related allowances are to compensate for the particular nature or location of the relevant work itself (that is, disabilities, special skills or duties, or locality allowances). The appellant makes reference in this regard to the Wage Fixing Principles Case (1978) 211 CAR 268 [Principle 8], and notes that the Workplace Trainer position has developed in line with this understanding, referring in this regard to the evidence of Ms Smith. It is submitted that a wage (even where augmented by an annualised increment) has a different purpose, which is to compensate for the employee's application of skill and knowledge that is required for the job. The appellant refers to observations in the industrial context that "in the ordinary course skill and knowledge which is endemic to a classification should be contained in a wage rate": see Australian Broadcasting Corporation v Australian Public Sector, Professional and Broadcasting Union (1992) CAR 545; Health Services Union of Australia v Vision Australia (2000) 98 IR 376 at [47].
The appellant submits that the evidence established that the job of a Workplace Trainer extended to mentoring duties, and that the learned magistrate erred in finding to the contrary (at [117]-[130]).
In this respect the appellant notes that:

[97]

The appellant submits that consistently with the object of providing Workplace Trainers with a salary (and not an allowance), the position description goes on to describe duties as encompassing the performance of "[o]ther duties as directed by the Manager ESTA Learning Centre, consistent with the above duties and responsibilities". It may be accepted that this description is in the position descriptions which currently apply to Workplace Trainers, and also in those which have applied historically to them between April 2011 and February 2017. All were all in evidence before the learned magistrate.
The appellant submits that the position description establishes that there is a mentoring dimension to the job of a Workplace Trainer, and that the core features of mentoring as expressed in clause 6 (guiding, advising, monitoring, assessing) find expression in the position description. Further, it is submitted that the fact that the language is not exact is not material, having regard to the fact that the purpose of clause 6 is to describe qualifying criteria for a payment of an allowance, whereas the purpose of the position description is to describe exhaustively what skills and knowledge can be used from time to time to make up the substantive position of Workplace Trainer.
The appellant submits that the learned magistrate's approach to this issue (at [117] - [121]) reflects the narrow and pedantic approach to industrial instruments that this court has eschewed, referring in this regard to Ridd at [65(ii)], citing Kucks v CSR Limited (1996) 66 IR 182 at184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] Marshall, Tracey and Flick JJ); and WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ).
The appellant points also to the second respondent's concession in cross examination before the learned magistrate that the Workplace Trainer position description language was describing mentoring duties, which it is said was consistent with the evidence going to the established practice within the appellant, about which there was no dispute. Workplace Trainers, the appellant submits with reference to the evidence of its senior managers Ms Smith and Mr Matic, have always performed mentoring duties, and have never been provided with the Mentor Allowance when doing so. The appellant contends, again relying on the evidence of these two senior employees, that historically there has been no objection to this practice from within the appellant's Workplace Trainer cohort (aside from the second and third respondents).
Fundamentally, the appellant submits that it is inconsistent with the purpose of an allowance to provide it to someone for the performance of duties that make up their substantive position.

[98]

The third respondent submits that the appellant's grounds 1 and 2(h)-(i) proceed on the incorrect basis that the duties of a Mentor as defined are identical with the position description of a Workplace Trainer.
The third respondent contends also that this is contrary to the findings of the learned magistrate and there is no proper basis for regarding those findings of fact, and the fact that there is a "mentoring dimension to the job of a workplace trainer" is not to the point.
The third respondent submits that even if (which it denies) the mentoring position were to be identical with part of the Workplace Trainer job descriptions, the plain words of the respective clauses of the agreements setting out when a mentor allowance is to be paid are not qualified by that coincidence.
As has been mentioned, it is the third respondent's submission, adopted by the first and second respondents, that the words of each of the two agreements are clear. That is, that the clauses mandate the payment of a mentor allowance when two criteria exist: a person must be an accredited mentor; and, secondly, they must perform mentoring duties. The respondents submit that they are accredited mentors. It is their position that they are rostered to perform, have performed, and continue to perform mentoring duties on discrete occasions which are duly recorded by the appellant.
In other words it is the respondents' position that even if there is an identity between the two positions there is no basis to suggest that an allowance should not be paid in the circumstances described in the agreements. They maintain that there is no inconsistency in paying an employee an allowance when they perform a particular aspect of their duties, and that allowances are not paid to employees who are not performing their duties.
The first and second respondents submit, in addition, that the appellant's grounds of appeal fail to distinguish between Mentoring (as defined) as a task and as a classification for the purposes of the agreements. It is said that Mentoring is a task and not a classification and therefore does not attract a wage. In this regard it is submitted that under the agreements a Workplace Trainer may be qualified as a Mentor but not be entitled to any additional remuneration. The first and second respondents submit that the Workplace Trainer increment is better understood as a payment for a skill or qualification (being a Certificate IV qualification), whereas the Mentor Allowance on the other hand is compensation for a task performed. It is only when a Workplace Trainer is performing Mentoring duties that the Mentor Allowance is payable to them, which the first and second respondents submit Workplace Trainers perform on occasion and not continuously.
The respondents submit finally that the appellant's contentions ignore the words of the clause which require the allowance to be paid to "all" employees who are accredited mentors who perform mentoring duties. It is said that the appellant's contentions require that no meaning should be given to the word "all", or that it is unnecessary in the clause, and that words used should be given meaning and effect, referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ).

[99]

I accept the appellant's submission that it is inconsistent with the purpose of an allowance as that term is generally understood in this context to provide it to an employee for the performance of duties that make up their substantive position. For this reason I accept that the appellant has also made out grounds 1 and 2(h)-2(i), that is that the learned magistrate erred in his construction of the agreements by failing to construe the provisions governing the payment of the Mentor Allowance by reference to the ordinary and natural meaning of the term "allowance" and the industrial usage of that term.
The appellant is correct to observe that the respondents' submissions do not come to terms with the distinction that the Workplace Trainer position description seeks to describe what skills and knowledge the appellant may call on from time to time, and that the definition of Mentor in clause 6, on the other hand, is describing qualifying criteria for an allowance payment that attaches to positions that do not entail mentoring.
It is also correct that the respondents have not engaged with the second respondent's admission in cross examination that the Workplace Trainer position description contemplates mentoring duties. I accept the appellant's submission that the respondents fail to explain why the agreements should be taken to mean that Workplace Trainers should, in effect, be paid twice for performing such duties - once through their Workplace Training increment included in their annualised salary, and again through payment of the Mentor Allowance.
It is also relevant to record, as appellant submits, that the first and second respondents observations as to the distinction between an allowance and a wage in the industrial context supports, rather than undermines, the appellant's position. As the first and second respondents observe, a wage for a position is generally intended to provide compensation for skills and knowledge inherent in the role, whereas an allowance is a payment in compensation for some additional skill, knowledge, or hardship. I accept the appellant's submission that this is precisely why Workplace Trainers have not been paid, and are not required to be paid, the Mentor Allowance for their mentoring duties.
It may further be observed, as the appellant does in its submissions in reply, that the first and second respondents' contention that Workplace Trainers receive their wage only because they possess a Certificate IV qualification cannot be reconciled with the terms of clause 21.6 of the 2015 Agreement which continues the payment of the allowance to the duration of the appointment as a Workplace Trainer (see also clause 25.4 of the 2019 Agreement). Nor can it be reconciled with the evidence of the position descriptions, which describe the position as one that involves the application of a diverse range of skills and knowledge, rather than one which simply requires a certificate IV qualification.
Insofar as the first and second respondents submit that in all of the circumstances that payment of the Mentor Allowance to Workplace Trainers is a sensible industrial outcome, for the reasons given I do not accept that this is so.
Grounds 1 and 2(h)-2(i) must also succeed.

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