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.

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

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.

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)

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.

MAGISTRATE GREENWAY 2 June 2023

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.