Weekly Bulletin


Number 19       4 June 2023


Case No. N10981635, N10981792, MAG-CI-220031609

JASON SMITH Second Plaintiff
SYLVIA SCANLAN Third Plaintiff

MAGISTRATE: Magistrate T. W. Greenway
WHERE HELD: Melbourne Magistrates' Court
DATE OF HEARING: 16 May 2023
CASE MAY BE CITED AS: Morton-Pedersen & Ors v ESTA

For the First and Second Plaintiff Mr D. Dwyer Communications Electrical and Plumbing Union
For the Third Plaintiff Mr M. Coggin Victorian Ambulance Union
For the Defendant Mr L. Howard Lander & Rogers



1 The plaintiffs1 are employees of the Emergency Services Telecommunications Authority (ESTA), a statutory authority and national system employer within the meaning of the Fair Work Act 2009 (Cth) (Act). 2

2 In these proceedings, the plaintiffs allege that ESTA has not paid them a mentoring allowance for mentoring shifts they performed whilst employed in the position of Workplace Trainers (WPTs). 3 The allowance is claimed pursuant to two enterprise agreements:
(a) the Emergency Services Telecommunications Authority Operational Employees Enterprise Agreement 2015 (2015 Agreement)4; and
(b) the Emergency Services Telecommunications Authority Operational Employees Enterprise Agreement 2019 (2019 Agreement)5.

3 The primary clauses relied upon by the plaintiffs are the same in both enterprise agreements. Those clauses are as follows:

4 In summary, the plaintiffs submit that the Court should place emphasis on the unqualified nature of the Mentor Allowance and give the phrase its ordinary and natural meaning.

5 ESTA disputes this interpretation. ESTA's position is that mentoring duties are subsumed with the WPT role and have been reflected in an increased annual remuneration for WPTs. When the broader industrial and textual contexts are considered, ESTA submit that, while being appointed WPTs, employees are no longer Mentors for the purposes of the Mentor Allowance.

6 The proceedings were heard together as they concerned the construction of the same enterprise agreements. It was agreed that ESTA's liability to pay the mentoring allowance be determined first. If liability was established, issues of quantum and penalty would be heard on a separate occasion.

Agreed Facts

7 For the purposes of determining liability, the parties agreed upon the following:
(a) Smith, Morton-Pedersen and Scanlan obtained the ESTA accreditation as a Mentor, having completed a 2-hour seminar;
(b) Smith performed mentoring duties on the occasions marked "Mentor-WPT" in the Segment Report provided by ESTA;10
(c) Morton-Pedersen performed mentoring duties on the occasions marked 3 "Mentor-WPT" in the Segment Report provided by ESTA;11 and
(d) Scanlan performed mentoring duties on the occasions marked "mentoring" in the ESTA Segment Reports.12

Background to ESTA and its Employment Classifications

8 ESTA operates and provides the Victorian community with a 24-hour emergency call-taking and dispatch service for police, fire, ambulance, and the State Emergency Services.

9 The functions caried out by ESTA were previously conducted by predecessor entities known as Emergency Communications Victoria and Intergraph Best (Vic) Pty Ltd (Intergraph).

10. employs approximately 1,246 operational employees (983 operational and 263 administrative) across three sites in Victoria. The ESTA enterprise agreements provide for a classification of employee positions. These include

Classification Level
Trainee Call-taker
Call-taker 1
Call-taker 2
Call-taker 3
Call-taker 4
Call-taker Workplace Trainer 3
Call-taker Workplace Trainer 4
Trainee Dispatcher
Dispatcher 1
Dispatcher 2
Dispatcher 3
Dispatcher 4
Call-taker and Dispatcher WPT 3
Call-taker and Dispatcher WPT 4
Off-Shift WPT (2019 only)
Assistant Team Leader
Team Leader 1
Team Leader 2

11. The two primary operational roles that perform ESTA's duties and functions are Call-takers and Dispatchers. Call-takers are the entry level position. They receive 000 calls from the community and enter relevant information into a Computer Aided Dispatch system. The role of Dispatcher is to review entries made by Call-takers and to determine the most appropriate emergency response to each situation.

12 WPTs are responsible for training Call-takers and Dispatchers and otherwise perform the Call-taker and Dispatcher roles.

13 The Team Leader is the highest operational employee classification. A Team Leader's responsibilities include providing ongoing leadership, management, direction, and support to a team of Call-takers and Dispatchers.

14 Team Leaders are also required to deliver performance feedback to their direct reports and to manage shift-based compliance to individual and service performance 5 targets. For each shift, a Team Leader is rostered on for each service - ambulance, fire or Police/SES.

15 Assistant Team Leaders are responsible for providing secondary assistance to Team Leaders in managing and supporting Call-takers and Dispatchers.

Summary of Evidence


16 Smith was a Call-taker WPT Level 3 from 2 September 2017 to 27 March 2021 and was paid a salary at that level. On or around 27 May 2019, he completed a Certificate IV in Assessment and Workplace Training.

17 During this time, Smith carried out mentoring duties on approximately 51 occasions and has not been paid the Mentoring Allowance. Smith described the role of WPT as including the following steps:
(a) classroom training by WPT of 4 to 6 weeks depending on the agency (fire/ambulance/police). There are usually 4-16 trainees;
(b) assessments along the way by a WPT;
(c) a final assessment known as a scenario assessment by a WPT. At this stage the trainee has not been in a live environment;
(d) following the successful completion of the scenario assessment, the learners would move to a live environment and answer live calls with a Mentor for about 5 weeks;
(e) an assessment by a WPT will then occur, which if passed, will allow independent operation by the learner; and
(f) after some 6 - 12 months of consolidating their skills, a final qualification assessment is done by a WPT. 6

18 A mentoring shift is usually set out in advance by the ESTA's rostering program "Segment".

19 Smith's evidence was that a mentor sits with, observes, and instructs learners who operate in the live environment. Responsibility for any shortcomings of the mentee rests with the Mentor. For mentoring shifts of Call-takers, the Mentor provides written feedback on the Mentee in the form of a call record log. Similar written feedback is provided to Dispatchers.

20 Smith also referred to ESTA's informal description of a mentor, which provides:

21 Smith's evidence was that he had disputed the non-payment of Mentoring Allowance from approximately 31 October 2017. He made a further written dispute to ESTA on 21 May 2019.

22 On 7 May 2021, Smith commenced an application for dispute resolution in the Fair Work Commission in relation to the non-payment of the Mentor Allowance whilst a Call-Taker WPT Level 3. Ultimately, Smith did not proceed with the application, and he withdrew it after a conciliation conference.


23 Morton-Pedersen has been an ESTA employee since April 2013. On 1 March 2017, Morton-Pedersen became a Call-taker WPT Level 4 and was paid the salary at that level. On or around 23 April 2021, he completed a Certificate IV in Assessment and Workplace Training.

24 During this period, Morton-Pedersen has performed mentoring duties on approximately 42 occasions and has not been paid the Mentoring Allowance.13

25 Morton-Pedersen's evidence was that the majority of a WPT's duties are conducted in a planned environment, mostly in the classroom with pre-prepared session plans and training materials. A WPT does not usually undertake training duties in a live operational environment, other than conducting formal assessment and training needs analyses. When assessing an individual in a live environment, the WPT is working on a set of prepared guidelines and formal training checklists.

26 On the other hand, mentoring is only ever undertaken in a live environment. A mentor is responsible for the processing of a mentee's live calls and is expected to take an active role in ensuring live emergency calls are processed in a timely and safe manner. This involves live coaching of a mentee and sometimes intervening or taking over an emergency call.

27 Mentors also complete daily and weekly mentoring reports, that are submitted to the Team Leaders and WPTs. In addition, Mentors make a record of each specific call undertaken by a mentee.

28 If not assigned to training or mentoring, Morton-Pedersen would carry out his usual dispatching duties.


29 Scanlan commenced as a Dispatcher with ESTA's predecessor, Intergraph in 1996. She completed a Call-taking Ambulance course and an Ambulance dispatching course in 1998. From around 1999 to approximately 2009, Scanlan was employed as a Team Leader. Around 2009 to 2010, Scanlan stepped down as a Team Leader and worked primarily as a Dispatcher. 8

30 In or around 2014, Scanlan was appointed to the role of an On Shift Workplace Trainer. The reference to "On Shift" meant that Scanlan would still perform operational duties as a Call-taker or Dispatcher if not training.

31 Scanlan's evidence was that she mainly carried out workplace training in a classroom environment. She primarily taught the Certificate 3 in Emergency Communications to Dispatchers. When conducting such training, Scanlan was not rostered on as operational staff for that shift.

32 Occasionally, whilst on dispatching duties, Scanlan was requested by a Team Leader to repeat training modules with individual Call-takers or Dispatchers if a shortfall in their performance was identified. In addition, Scanlan's evidence was that a WPT's duties included ongoing assessments for independent operations, final qualification, training reports and training needs analysis reports.

33 Scanlan identified coaching as a further aspect of workplace training. She described coaching as:

34 In contrast, Scanlan's evidence was that mentoring occurs after a new employee has completed their training course and is eligible to operate in the live environment. A new employee is then required to be mentored by another operational employee for 5 rotations, or approximately 20 shifts.

35 Mentoring is conducted one-on-one in a live environment. It involves assisting a newly qualified employee gain confidence in the practical application of their skills, identifying any gaps in knowledge and liaising with Team Leaders to organise more training or coaching as required. 9

36 A mentor is also required to record the details of the mentoring session in a written report. For example, in relation to dispatching, a mentor completes a mentee's dispatch record at the end of each shift. This records information on a mentee's performance and identifies any areas which require improvement.

37 On 12 June 2018, Scanlan sent an email to ESTA payroll querying why she had not been paid the Mentor Allowance since becoming a WPT. On 20 June 2018, Ms Corrina Dowling, Manager Workplace Relations, advised Scanlan that "as a WPT, your duties include mentoring. These duties are reflected in your remuneration as a WPT and the Mentor Allowance is not payable".15

38 Scanlan also raised the non-payment of the Mentoring Allowance through her union representative on 30 January 2019 and 6 July 2020.

Mario Matic

39 Mr Mario Matic (Matic) is currently employed by ESTA as a Manager in Resource Planning. Matic commenced working with ESTA in 2008 and has previously held positions as:
(a) a Call-taker from 2008 to 2010;
(b) a Dispatcher from 2010 to August 2015;
(c) an Assistance Team Leader during his time as a Dispatcher from 2010 to 2015;
(d) an Off-shift Workplace Trainer from 2015 to December 2017; and
(e) a Performance and Capability Lead (previously titled Delivery Lead) from January 2018.

40 Since 4 May 2022, Matic has been acting in the role of Senior Manager of Learning and Performance. His main duties are to oversee ESTA's Registered Training Organisation function and other training functions. As part of his various roles, Matic has worked closely with WPTs.

41 Matic's evidence was that WPTs deliver accredited training both in the classroom and within the workplace, or `on shift'. The ability to train is accrued by their Certificate IV qualification in workplace training and assessment (Certificate IV), an essential qualification for the WPT role. 16

42 The key responsibilities of WPTs are to develop training curriculum, strategies and learning initiatives. In addition, WPTs identify and address the training needs of Call-takers and Dispatchers.

43 A WPT is also responsible for guiding a learner's skills and knowledge acquisition over a period of four to twelve weeks, depending on the course being undertaken. The formal duties and responsibilities of WPTs are set out in the position descriptions dated 7 April 2011, October 2016, February 2017, 1 August 2019 and March 2021.17

44 The WPT position description has remained in similar terms since 2011. Matic generally accepted Smith's outline of the WPT process. However, Matic emphasised the following WPT duties as set out in the position descriptions:
(a) tailoring training strategies to meet group or individual learning requirements;
(b) performing training needs analysis of personnel to identify training needs and make recommendations to fill learning gaps;
(c) providing constructive, supportive feedback to learners; and
(d) performing call-taking/dispatch duties to maintain skill sets, when not on shift training. 18

45 Matic's evidence was that a substantive part of the role of WPT is to perform live operational training duties, such as formal assessments and training needs analyses. It is ESTA's general preference to have a WPT be a Mentor as they have a higher level of training expertise. 11

46 Matic indicated that ESTA's preference was to appoint employees who had previous mentoring experience as WPT. He described the mentoring position as a `stepping stone' towards the role of a WPT.

47 WPTs also keep detailed records of their training functions. WPTs complete Training Feedback Reports, Off-Shift Weekly Training Reports, Return to Work Course Logs, On Shift Assessment Reports, On Shift Learning and Development Records, Return to Work Reports, Return to Work Scenario Observations Checklists, Trainer Observation Checklists, Call Record Sheets and Weekly Progress Reports.

48 As to Mentors, Matic's evidence was that mentoring involves an employee sitting with and observing Call-takers and Dispatchers performing their role. According to Matic, a mentor offers practical guidance and gives feedback in the live environment. Further, a mentor provides an effective safety net for a learner and ensures a call is actioned appropriately.

49 To be accredited by ESTA as a mentor, an employee must complete a two-hour training course where participants learn how to deliver feedback and have coaching conversations. A mentor is not a position within ESTA's organisational structure. Rather, a mentor is defined as a person carrying out mentoring duties, which in turn attracts a mentoring allowance.

50 A mentor is also required to fill in certain paperwork, but this is less onerous than that of a WPT. For mentee Call-takers, a Mentor completes a call-log where they effectively `tick off' each step of the process that a Call-taker performs correctly. These call-logs are not usually retained by ESTA. As to mentee Dispatchers, a logbook is kept that records the hours they have completed for training purposes. At the end of each shift, Dispatchers and mentors are supposed to complete the logbook with the mentor providing feedback on the Dispatcher's performance. This rarely happens in practice as mentors are busy with other duties, meaning logbooks are typically only completed by the mentee Dispatcher.

51 Finally, Matic explained that the Segment rostering system designated "WPT 12 mentoring" to alert payroll that no mentoring allowance was payable. This contrasted with a "non-WPT Mentoring" shift, which accrued the mentoring allowance. Matic also identified that ESTA had paid Smith and Morton-Pedersen at the higher WPT salary, notwithstanding that they completed the Certificate IV at a later date. Matic explains this was done as an act of good faith and to recognise that Smith and Morton-Pedersen were already undertaking additional WPT duties.

52 Matic was otherwise unaware of any complaints from any other of the 60 WPTs- (other than the plaintiffs) regarding the non-payment of the Mentor Allowance. His evidence was that he had no knowledge of ESTA intending to pay WPTs the Mentor Allowance.

Michelle Smith

53 Ms Michelle Smith (Ms Smith) is currently employed with ESTA as a Senior Strategic Advisor. She has been employed with ESTA and its predecessors since July 1995. Ms Smith's evidence was comprised of a witness statement which was admitted into evidence without objection. 19 She did not attend court, as she was not required for cross-examination.

54 Over the course of her employment she has held the following positions:
(a) Dispatcher;
(b) WPT;
(c) Team Leader;
(d) Assistant Centre Manager; and
(e) Centre Manager.

55 Ms Smith's evidence is that operational employees initially commence as Call-takers in one service stream only (e.g. fire, ambulance or SES). Over time ESTA encourages its employees to train in other services and obtain further accreditations.

56 During her time as a WPT between 1997 and 2003 (also known as `internal trainer'), Ms Smith recounts receiving a training allowance for undertaking WPT duties. This allowance was set out in cl 17.2 of the relevant enterprise agreement as follows:

57 In or around 2000, the internal trainer role was re-named to WPT and the requirement for WPT to complete the Certificate IV was introduced. The training allowance was included in cl 17.6 of the relevant enterprise agreement:

    An Employee who is selected as a WPT and who successfully completes an accredited Certificate IV shall receive an annual payment of $2,000. This amount will be added to the Employee's salary for all purposes for the duration of the payment. Continuation of this payment, in each case, shall be reviewed annually. 21

58 ESTA was established in 2005 and a new enterprise agreement was negotiated. Clause 19.6(a) of that agreement provided for the WPT allowance and was substantially in the same form as cl 17.6, save for a reference that the allowance would continue for the duration of the WPT's appointment. 22

59 The WPT allowance continued in the subsequent enterprise agreements in 2009 and 2013, but the amount of the allowance increased.23 The next iteration of the enterprise agreement was negotiated in 2015.

60 Ms Smith attended negotiation meetings for the 2015 Agreement in her capacity as an advisor on behalf of ESTA's Operations department. Her evidence was as follows: 14

    My recollection was that ESTA wanted to have greater ability to use WPT for training purposes both on-shift and off shift. Instead of remunerating WPT by way of an annual allowance which was reviewable each year, as was the case previously, ESTA decided to appoint On-shift WPT on a more ongoing basis and recognise this through paying a specific amount in recognition of the appointment as part of their annual salary.
    Relevant provisions were negotiated to be included in the ESTA 2015 Agreement and were agreed to commence from 1 March 2017. The relevant provisions were 21.6 and 21.7 of the 2015 Agreement. The annual allowance ceased as a result of these changes.
    At the same time, ESTA decided to reduce the overall number of WPT as there was previously a large pool, but no one solely dedicated to the role. The new classifications that were introduced at the time - Call-taker WPT and Call-taker and Dispatcher WPT - helped internally recognise those who were appointed to the WPT role on a more permanent basis.
    I recall that one of the main drivers for this change was ESTA wanting to establish defined career progression paths and make a distinction between the `training' and `leadership' pathways. Prior to 1 March 2017, employees were able to be both WPT and ATLs. Going forward, ESTA wished to have Call-takers and Dispatchers seeking to advance their career focus on either a leadership or training pathway and pursue one of those by becoming either an ATL or a WPT.
    At that time there was a limited number of WPT who were continually being scheduled to facilitate Off-shift training courses whose primary roles were as Call-takers, Dispatchers and ATLs. As a result, operational staffing was often impacted at short notice as was leadership coverage and On-shift training commitments to support CTD training courses, return to work training and remedial training. ESTA's preferred model and the rationale for it was explained to the unions at the time who advocated for the WPT and ATL increments in the revised structure.
    The above changes were further codified in the 2019 Agreement where the classification structure referred to the two types of WPT "on-shift" and "off-shift" and recognised these two roles with different increments to be applied to their base salaries (previously Off-shift WPTs had been covered by ESTA's support office enterprise agreement). 24

61 The 2015 Agreement provided transitional provision in relation to Assistant Team Leaders and introduced the Call-taker/Dispatcher WPT from 1 March 2017.

62 Clause 21.6 of the 2015 Agreement stated:

    21.6 Workplace Trainer - Arrangement pre 1 March 2017
    21.6.1 An employee who is selected as a Workplace Trainer and who successfully completes an accredited Certificate IV in Assessment and Workplace Training course shall receive an annual allowance. This amount will be added to the Employee's salary for all purposes for the duration of the appointment as a Workplace Trainer. 15
    21.6.2 The annual allowance for a Workplace Trainer is $5,824.
    21.6.3 Annual Review of Workplace Trainers:
    (a) Each Workplace Trainer's performance as a Trainer will be reviewed annually (in September) or more frequently when necessary as part of addressing identified improvement requirements.
    (b) Following that review, retention in the role of Workplace Trainer will be dependent on meeting performance requirements.
    (c) If a Workplace Trainer is not successful in the annual performance review, he/she shall be entitled to assistance, advice and retraining from ESTA in order to reach the necessary standard. This will be provided immediately and the Employee shall be required to meet the standard within six months or be removed from the role of Workplace Trainer.
    (d) Where, after the six month period, an existing Workplace Trainer is not to continue in that role, payment of their Workplace Trainer allowance will cease from the date of notification.
    21.6.4 Reduction in the Number of Workplace Trainers
    (a) When the number of Workplace Trainers is to be reduced, ESTA will:
    (i) advise all Workplace Trainers;
    (ii) select the Workplace Trainers to be ceased in that role; and
    (iii) provide the selected Employees with three months' notice that they will cease to be a Workplace Trainer and that their allowance will cease at that time.
    21.6.5 Increase in the Number of Workplace Trainers
    (a) Where there is a need to fill a role of Workplace Trainer as a result of:
    (i) an increase in the number of Workplace Trainers required, or
    (ii) the need to replace an existing Workplace Trainer,
    the role will be advertised throughout ESTA.
    21.6.6 Team Leaders
    (a) Team Leaders are not eligible to be or remain as Workplace Trainers.
    21.6.7 Casual Employees
    (a) Casual Employees are not eligible to be or remain as Workplace Trainers.
    21.6.8 Part-Time Employees
    (a) Part-time Employees are eligible to be selected as Workplace Trainers subject to the following additional provisions:
    (i) A Part-time trainer will be required to work the hours reasonably scheduled for training and associate requirements, consistent with Full-time trainers, as determined by ESTA from time to time.
    (ii) A Part-time Employee who is required to work additional hours, up to Full-time hours, in order to undertake their training responsibilities will do so at single time rates of pay. 25

63 Clause 21.7 of the 2015 Agreement set out arrangements for WPT after 1 March 2017. From that date, ESTA would reduce the pool of existing WPT to the number required to fill the new Call-taker WPT and Call-taker and Dispatcher WPT positions. After a selection process, ESTA would engage one Call-taker WPT or Call-taker and Dispatcher WPT per team (25 in total). Once the new WPT positions commenced, the position of WPT ceased as did its corresponding allowance. 26

64 Clause 21.7 of the 2015 Agreement stated:

    21.7 Call-taker WPT and Call-taker and Dispatcher WPT - Arrangements post 1 March 2017
    21.7.1 No later than 1 March 2017, ESTA will reduce the number of Workplace Trainers in accordance with clause 21.6.4 ("Selection Process").
    21.7.2 ESTA will reduce the pool of existing Workplace Trainers to the number required to fill the new Call-taker WPT and Call-taker and Dispatcher WPT positions. As a result of the Selection Process, ESTA will engage one Call-taker WPT or Call-taker and Dispatcher WPT per team (i.e. 25 in total).
    21.7.3 If insufficient existing Workplace Trainers elect to take up the positions outlined in clause 21.7.2, the remaining positions will be offered to the broader operational workforce. The reduction in numbers and subsequent appointments to new positions will occur no later than 1 March 2017 and will be actioned concurrently with introduction of the Assistant Team Leader positions.
    21.7.4 For the avoidance of doubt, once the positions of Call-taker WPT and Call-taker and Dispatcher WPT commence:
    (a) the position of Workplace Trainer and the allowance that attaches to that position will no longer exist; and
    (b) clause 21.6 (and any other reference to `Workplace Trainers' in this Agreement) will no longer have any effect.
    21.7.5 ESTA will not compel multi-skilled Call-taker WPT and Call-taker and Dispatcher WPT to train in their additional service if they do not have a sufficient level of comfort in their own skill level to do so.
    21.7.6 Any Workplace Trainer who is not selected by ESTA for the Call-taker WPT and Call-taker and Dispatcher WPT positions will continue to be employed in their existing classification.

65 The salary for a Call-taker/Dispatcher WPT was paid upon successfully being appointed to the Call-taker/Dispatcher Level 3/4 role, successfully completing an accredited Certificate IV, and maintaining accreditation as a Call-taker/Dispatcher Level 3/4.28

66 A Call-taker WPT level 3 received an additional salary of $5,998 compared to a Call-taker Level 3. A Call-taker and Dispatcher WPT level 3 received the same increase. 29 This effectively replaced the annual allowance of $5,825 for a WPT.30

67 The 2019 Agreement introduced a new methodology for the payment of ESTA's employees. Prior 14 August 2020, salaries were paid upon operative base salaries.31 From 15 August 2020, a new classification and salary structure was adopted. 31 2015 Agreement, clauses 21.1, 21.2. CB, pg 44 - 45; 2019 Agreement, clause 25.2. CB, pg 98.

68 Clause 25.3 set out the applicable classifications, rates of pay, and increments. Clause 25.6 provided the new classification structure.

    25.6 Classification structure - from 15 August 2020
    25.6.1 On 15 August 2020 all employees will transition to a new classification structure provided that where disadvantage would occur as a result of transitions to the new classification structure, the employee's salary will be `grand parented' (i.e. they will continue to receive their existing salary until they would be entitled to a greater amount under this Agreement or any successor). Grand parented employees will be entitled to annual salary increases in accordance with the salary increases outlined in this agreement.
    25.6.2 Under the classification structure commencing from 15 August 2020, all Employee's salaries will be built on the classification of Trainee Call-Taker with additional increments (some of which are time-based and some of which are skills based) payable in accordance with the table below.
    25.6.3 All new employees engaged by ESTA will be engaged in one of the following primary streams consisting of two skill sets:
    (a) Police and SES; or
    (b) CFA and MFB; or
    (c) Ertcomm and Netcomm. Increment Event which triggers entitlement to increment
    1 Year Call-taker 1 year from date of commencement of employment as a Call-taker
    2 Year Call-taker 2 years from date of commencement of employment as a Call-taker
    1 Year Dispatcher 1 year from date of classroom signoff on first Dispatcher skills increment
    2 Year Dispatcher Date of classroom signoff
    ERTCOMM Call-taker Date of classroom signoff
    NETCOMM Call-taker Date of classroom signoff
    CFA Call-taker Date of classroom signoff
    MFB Call-taker Date of classroom signoff
    VicPol Call-taker Date of classroom signoff
    31 2015 SES Call-taker Date of classroom signoff
    ERTCOMM Dispatcher Date of classroom signoff
    NETCOMM Dispatcher Date of classroom signoff
    MFB Dispatcher Date of classroom signoff
    CFA Dispatcher Date of classroom signoff
    ViPol Dispatcher Date of classroom signoff
    SES Dispatcher Date of classroom signoff
    On-shift WPT Date of contract as on shift WPT
    Off-shift WPT Date of contract as Off-shift WPT (this increment will always be in addition to the On-shift WPT increment)
    3 Years of Service 3 years from date of commencement of employment. 32

69 Ms Smith's evidence was that the definition of Mentor and the Mentor Allowance was introduced into the 2003 enterprise agreement. Ms Smith maintained that there was a clear distinction existed between the role of a mentor and WPT. Ms Smith described the role of a WPT as formally delivering training, conducting assessments, signing off on competencies, and guiding the learning of Call-takers and Dispatchers. In addition, a WPT must have a Certificate IV or be willing to undertaken one.

70 When Ms Smith worked as a WPT or Internal trainer between 1997 and 2003, she received an allowance for the time she spent undertaking WPT duties - such as facilitating training courses, providing on-shift coaching and training and compiling all the associated reports related to WPT tasks.

71 As to mentoring, Ms Smith described a Mentor as providing some limited on-shift observation and guidance to support learning ahead of formal training courses, or to consolidate learning after initial training. Ms Smith's evidence as to the Mentor role was as follows:

    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. 19 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:

    Good afternoon Matthew,
    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.
  • .Assess performance of personnel.
    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

Smith and Morton-Pedersen's Submissions

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.

Scanlan's Submissions

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.

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.

ESTA's Submissions

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. 22

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.

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 was in relation to `Shift Penalty Application'. It provided that:

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:
(a) provide constructive, supportive feedback to learners;
(b) assess performance of personnel; and
(c) other duties as directed by the manager ESTA Learning Centre44, consistent with the above duties and responsibilities.45

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.

Applicable Legal Principles

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:

99 His Honour continued:

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 (Original emphasis.)

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 (citations omitted)

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: 27

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:

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 Scanlan (Scanlan).
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).
4 Court Book ("CB"), page 29.
5 CB, page 73.
6 CB, Page 82.
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")
9 Ibid.
10 CB, pg 154 - 158.
11 CB, pg 146-147.
12 CB, pg 671-672 and 674.
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.
15 CB, pg 719.
16 or a willingness to undertake the Certificate IV.
17 2011, 2016, 2017, 2019 and 2021 WPT position descriptions.
18 Ibid.
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.
28 CB, pg 48 - 50.
29 $1 more.
30 CB, pg 48 - 50.
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.
35 CB, pg 367.
36 CB, pg 369.
37 2015 Agreement, clause 25.11.
38 2015 Agreement, cl 21.10 and 2019 Agreement, cl 25.11.
39 2015 Agreement, cl 21.6.1.
40 Citing Hadgkiss v Sunland Constructions Pty Ltd & Ors (2007) 158 FCR 193, 11.
41 2015 Agreement, cl 22.2.5 and 24.7 & 2019 Agreement, cl 26.2 and 28.7.
42 CB, pg 52.
43 CB, pg 54.
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) 264 FCR 536, 197.
48 Amcor Ltd v Construction, Forestry, Mining and Energy Union (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.
50 Ibid, 128.
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 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.
56 CB, pg 82.
57 2015 Agreement. CB, page 51.
58 2019 Agreement. CB, page 104.
59 Ibid.
60 Briginshaw v Briginshaw (1938) 60 CLR 336.
61 Ibid; Hadgkiss v Sunland Constructions Pty Ltd & Ors [2007] FCA 346; 158 FCR 193.
62 Prior to 1 March 2017
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.
65 ECV 2003 Agreement.
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.

  • 0428 942 878 dan.dwyer@cwunion.net Dan Dwyer
          Secretary/Lawyer - industrial matters & advice
  • 0447 365 433 cdtsvic@cwu.asn.au Administrative
          eg payments, applications (Open 8am-4pm MTWT)
  • Home Page
  • 0439 762 455 SRiley@cwu.asn.au Sue Riley
          Secretary - industrial matters & advice
  • 03 9663 6815 cdtsvic@cwu.asn.au Administrative
          eg payments, applications (Open 8am-4pm MTWT)
  • Home Page
  • Authorised by Dan Dwyer Assistant Secretary, Sue Riley Secretary - CWU Telecommunications & Services Branches.

    NSW Branch

    VIC Branch

    Index to Bulletins


    Bulletin Index

    Bulletin 21
    Bulletin 20
    Bulletin 19
    Bulletin 18
    Bulletin 17
    Bulletin 16
    Bulletin 15
    Bulletin 14
    Bulletin 13
    Bulletin 12
    Bulletin 11
    Bulletin 10
    Bulletin 09
    Bulletin 08
    Bulletin 07
    Bulletin 06
    Bulletin 05
    Bulletin 04
    Bulletin 03
    Bulletin 02
    Bulletin 01

    Bulletin 43
    Bulletin 42
    Bulletin 41
    Bulletin 40