DECISION

Fair Work Act 2009
s.604—Appeal of decision

Australian Nursing and Midwifery Federation
v
Domain Aged Care (QLD) Pty Ltd T/A Opal Aged Care
(C2018/7345)

Appeal against decision [2018] FWCA 7388 of Commissioner McKinnon on 5 December 2018 – ‘better off overall test’ – construction of penalty rate provisions in relevant award – certain casuals working weekends not better off – appeal upheld – application remitted.

DECISION OF DEPUTY PRESIDENT GOSTENCNIK & DEPUTY PRESIDENT COLMAN

[1] The Australian Nursing and Midwifery Federation (ANMF) has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner McKinnon on 5 December 2018 (Approval Decision) 1 in which she approved the Opal Aged Care (Qld) Enterprise Agreement 2017 (Agreement). The Agreement covers Domain Aged Care (QLD) Pty Ltd and a related company, which trade as Opal Aged Care (Opal), and their employees who work in Opal’s aged care facilities in Queensland.

[2] The ANMF was a bargaining representative for the Agreement. It opposed the application for approval of the Agreement on numerous grounds, including that the Agreement did not pass the better off overall test (BOOT). The application for approval was heard on 18 and 19 October 2018, and followed extensive correspondence between the Commissioner and the parties. On 19 November 2018, the Commissioner issued a decision in which she considered and rejected the ANMF’s contentions that the Agreement should not be approved, but identified further concerns about whether the Agreement passed the BOOT (November Decision). 2 In the Approval Decision, the Commissioner referred to the November Decision and concluded that she was satisfied that the requirements for approval of the Agreement had been met. She approved the Agreement, subject to various undertakings.

[3] We deal first with a procedural matter. Opal contended that the ANMF’s appeal was in substance an appeal from the November Decision, and that it was therefore lodged outside the 21 day time period prescribed by the Commission’s rules. We reject this contention. The November Decision addressed the substantive arguments that the ANMF raised in opposition to the Agreement’s approval, however it contained no operative decision. It is the Approval Decision that contains the Commissioner’s operative decision. In the Approval Decision, the Commissioner refers to the November Decision and describes it as setting out her preliminary findings. By this she clearly means both findings and reasons for certain conclusions about various arguments that had been raised at the hearing. The Commissioner adopted the preliminary findings and conclusions from the November Decision in the Approval Decision as the rationale for the operative decision to approve the Agreement with undertakings. The appeal was lodged on 24 December 2018, within 21 days of the Approval Decision, as required by the Commission’s rules. No extension of time is necessary.

The appeal

[4] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. 3 An appeal may be made only with the permission of the Commission. Section 604(2) requires the Commission to grant permission to appeal if satisfied that it is ‘in the public interest to do so’. Permission to appeal may otherwise be granted on discretionary grounds. These are not specified, however considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.4

[5] The notice of appeal contains ten grounds of appeal contending that the Commissioner’s decision to approve the Agreement was affected by error. These were elaborated upon in the ANMF’s written submissions and in oral argument before us.

Grounds 1 and 3: The better off overall test

[6] Ground 1 contends that the Commissioner erred in finding that the rates of pay in the Agreement were generally higher than the rates of pay in the Nurses Award 2010 (Award). The reference to ‘rates of pay’ is clearly intended to include relevant penalty rates and loadings under the Award. This ground of appeal evidently forms part of ground 3, in which the ANMF says the Commissioner erred in concluding that the Agreement passed the BOOT.

[7] During the appeal proceedings the ANMF confirmed that it was not the rates of pay generally that were said to result in the Agreement not passing the BOOT, but rather those that apply to certain classifications of ‘assistant in nursing’ employed on a casual basis when working overtime, weekends and public holidays. The ANMF contended that, under the Award, the overtime, weekend and public holiday penalty rates for casuals are calculated on the casual rate, but under the Agreement these are calculated at the ordinary rate, with the casual loading added afterwards. In the result these casual employees are not better off overall under the Agreement. Opal says that penalty rates under the Award are calculated on the base rate, in the same way as under the Agreement, and that all employees are better off under the Agreement because of the higher base rate of pay.

[8] While this interpretative dispute between the parties can be simply stated, the factual dispute was not clearly drawn and requires some elucidation. There are three classifications of ‘assistant in nursing’ under the Agreement: ‘no qualification’, ‘experienced’ and ‘advanced.’ Before the Commissioner, the ANMF contended that the base rate of pay for the classification ‘assistant in nursing, no qualification’ was lower than the corresponding Award rate by a margin of $0.10 an hour. Opal provided an undertaking such that an employee in that classification would be paid a base hourly rate of no less than the minimum rate in the Award. The Commissioner also accepted a further undertaking that all ordinary hours worked by a casual employee on a public holiday would be paid for at 225% of the base rate of pay.

[9] In its notice of appeal, the ANMF’s ground 3(a) contends that the ‘rate of pay’ under the Agreement for the ‘assistant in nursing, no qualification’ classification was still inferior to the Award, but did not identify how this was so, given Opal’s undertaking. Intended here was evidently the pay rate and relevant loadings. Appeal ground 3(e) states generally that the Commissioner erred by failing to compare the respective rates of pay under the Award and the Agreement, thereby seeming to put in issue all classifications.

[10] However, in its written appeal submissions, the ANMF produced a table comparing Agreement and Award rates for casual ‘assistants in nursing, experienced’ and ‘assistants in nursing, advanced’. This showed both classifications receiving lower hourly overtime rates under the Agreement, and ‘experienced’ assistants in nursing also receiving lower rates for Saturday, Sunday and public holiday work, as follows:

AIN advanced and experienced (ANMF)

[11] At the hearing of the appeal, the ANMF produced a new table setting out a comparison of the casual rates of pay for a ‘no qualification’ assistant in nursing under the Agreement and the Award. 5 The ANMF’s new table showed the following:

AIN no qualification (ANMF)

[12] The ANMF’s concern that casual assistants in nursing were worse off under the Agreement therefore pertains to all three categories of assistants in nursing, although in the appeal proceedings the ‘no qualification’ level was the primary vehicle for its contention that the Agreement did not pass the BOOT.

[13] Opal submitted that the ANMF’s calculations in both tables above were incorrect because they proceeded on a misinterpretation of the relevant provisions of the Award. It said that under the Award, the casual loading was not compounded with overtime, weekend and public holiday penalties. Rather, penalties were calculated on the ordinary rate, as is the case under the Agreement. Opal relied on an attachment to its written appeal submissions which contained a table said to show the correct calculations for an ‘experienced’ casual assistant in nursing when working Saturdays, Sundays and overtime, 6 showing them better off under the Agreement:

AIN experienced (Opal)

[14] In final written submissions lodged after the conclusion of the appeal proceeding, Opal submitted a further table, this time comparing the position of a casual ‘assistant in nursing, no qualification’ under the Agreement and under the Award when working overtime, weekends and public holidays. That table reflected Opal’s interpretation of the Award, and the position it advanced in the proceedings before the Commissioner, save that it made a correction to the Award rate of pay, which it said was in fact $19.96. Opal said that this was the Award rate at the time it lodged the application for approval of the Agreement on 19 March 2018, which was therefore the ‘test time’ for the purposes of the BOOT. 7 Opal said that in any event the rates of pay in the Agreement still left all casual employees better off under the Agreement than under the Award in respect of all hours except for overtime worked on a public holiday.8 Opal’s revised table showed the following:

AIN No Qualification (Opal)

[15] In her November Decision, the Commissioner noted that she considered the rate of pay for the ‘no qualification’ assistant to be too low, and accepted an undertaking that would afford employees at this level the Award rate of pay. Her concern related to the base rate of pay for this classification, rather than the loaded rates that might be received by a person at this level. The Commissioner noted however that the parties had disagreed about the correct analysis of rates of pay for casual employees under the Award 9 and specifically whether under the Award weekend, public holiday and overtime penalties were calculated on the loaded casual rate, or on the ordinary rate of pay without the casual loading. She said the following:

“[22] There is a dispute between the parties about whether the 25% casual loading is paid on all hours worked under the relevant modern awards, including where other loadings or penalties are paid. Opal says the casual loading is only paid on ordinary hours of work while the ANMF says the casual loading compounds on other penalties including overtime (but not shift allowances). The ANMF says as a result, the Agreement is less beneficial than the relevant modern awards.

[23] Clause 10.5 of the Agreement provides for the casual loading to be paid on ordinary hours. Shift, public holiday and weekend penalties are calculated on the ordinary rate of pay excluding casual loading and the casual loading is then added to the penalty rate of pay. The casual loading is not compounded by penalties in the Agreement.

[24] Clause 10.4 of the Nurses Award is similar to the Agreement. Casual employees are paid an “hourly rate equal to 1/38^th of the weekly rate appropriate” to their classification “plus a casual loading of 25%”. Shift allowances are calculated on the ordinary rate of pay excluding casual loading, with the casual loading then added to the penalty rate of pay. Weekend and public holiday penalties are calculated on the loaded casual rate of pay, which is the “ordinary rate of pay” for casual employees (clauses 10.4, 26 and 32). Overtime penalties are also paid on the loaded casual rate of pay because the Award simply provides for “time and a half”, “double time” and “double time and a half” as the case may be (clause 32) and does not exclude payment of casual loading on those rates.

       …

[26] The result, using the classifications of Assistant in Nursing – Advanced and Aged Care Employee Level 2 as examples, is as follows:

   Assistant in Nursing – Advanced

	Agreement	Nurses Award	Difference
Ordinary hourly rate	$ 24.63	$ 21.29	$3.34
Casual hourly rate	$ 30.79	$ 26.62	$4.17
Overtime (1.5)	$ 36.95	$ 39.92	-$ 2.98
Overtime (2)	$ 49.26	$ 53.23	-$ 3.97
Overtime (2.5)	$ 61.58	$ 66.54	-$ 4.96
Shift work – night	$ 35.41	$ 30.61	$4.80
Saturday*	$ 46.18	$ 39.92	$6.26
Sunday	$ 53.88	$ 46.58	$7.31
Public holiday**	$ 61.58	$ 53.23	$8.34

*Agreement rate for employees employed on or after 18 December 2014

**Agreement rate for ordinary hours of work; excludes work at Caloundra and Nambour

…

[27] The rates of pay under the Agreement for ordinary hours of work, shift work, weekend work and public holidays are in excess of the rates of pay in the relevant modern awards. The rates of pay for overtime under the Agreement are lower than the rates of pay under the relevant modern awards. As the majority of an employees’ hours of work are ordinary hours (as opposed to overtime), the higher ordinary hourly rates of pay are generally adequate to compensate for detriments arising from the lower overtime rates of pay….”

[16] Of central importance is the Commissioner’s conclusion that, under the Award, casual employees who work on a weekend and public holiday receive the applicable weekend and public holiday penalty calculated on the loaded casual rate of pay, as the ANMF contended. The relevant provisions of the Award are as follows:

10.4 Casual employment

(a) A casual employee is an employee engaged as such on an hourly basis.

(b) A casual employee will be paid an hourly rate equal to 1/38th of the weekly rate appropriate to the employee’s classification plus a casual loading of 25%.

(c) A casual employee will be paid a minimum of two hours pay for each engagement.

(d) A casual employee will be paid shift allowances calculated on the ordinary rate of pay excluding the casual loading with the casual loading component then added to the penalty rate of pay.

26. Saturday and Sunday work

26.1 Where an employee is rostered to work ordinary hours between midnight Friday and midnight Saturday, the employee will be paid a loading of 50% of their ordinary rate of pay for the hours worked during this period.

26.2 Where an employee is rostered to work ordinary hours between midnight Saturday and midnight Sunday, the employee will be paid a loading of 75% of their ordinary rate of pay for the hours worked during this period.

28.1 Overtime penalty rates

(a) Hours worked in excess of the ordinary hours on any day or shift prescribed in clause 21—Ordinary hours of work, are to be paid as follows:

(i) Monday to Saturday (inclusive)—time and a half for the first two hours and double time thereafter;

(ii) Sunday—double time; and

(iii) Public holidays—double time and a half.

(b) Overtime penalties as prescribed in clause 28.1(a) do not apply to Registered nurse levels 4 and 5.

(c) Overtime rates under this clause will be in substitution for and not cumulative upon the shift and weekend premiums prescribed in clause 26—Saturday and Sunday work and clause 29—Shiftwork.

32.1 Payment for work done on public holidays

(a) All work done by an employee during their ordinary shifts on a public holiday, including a substituted day, will be paid at double time of their ordinary rate of pay.

[17] Clause 10.4(b) of the Award says that a casual employee will be paid an hourly rate equal to 1/38^th of the weekly wage plus a casual loading of 25%. On a plain reading of the clause, the hourly rate includes the loading; the loaded casual rate is the ‘ordinary rate of pay’. When a casual employee works ordinary hours on a Saturday or Sunday, clause 26 of the Award requires the weekend loading to be applied to the ordinary rate of pay. For casual employees, this rate is the casual rate. The same is the case with the public holiday penalty in clause 32.1.

[18] Furthermore, clause 10.4(d) makes very clear that casual employees are paid shift allowances on the ordinary rate of pay ‘excluding the casual loading’, with the casual loading then added to the penalty rate of pay. No such exclusion is made in respect of other penalties. Opal contended that it would be wrong to apply the maximum expressio unius est exclusio alterius to this provision, and referred to the Full Bench decision in AMWU v Berri Pty Limited 10 which warned against too ready an application of cannons of statutory interpretation to the task of construing an enterprise agreement.11 However in our view, it is not so much a case of applying an interpretative presumption but of reading clause 10.4 in an ordinary and logical way. It is already clear that the ordinary rate for casuals is the loaded rate. Clause 10.4(d) specifies a different arrangement in respect of shift allowances, because otherwise they would have been subject to the general position that penalties are applied to the loaded casual rate, and this was not intended to be the case of shift allowances. It is also significant that clause 10.4(d) speaks of ‘the ordinary rate of pay excluding the casual loading’, which also reaffirms that in the context of this clause, for casual employees, the casual loading is part of the ordinary rate; otherwise it would not make sense to speak of ‘excluding’ the casual loading from it.

[19] The Commissioner’s conclusion that overtime penalties are also paid on the loaded casual rates of pay is in our view also correct. Clause 28.1 simply speaks of ‘time and a half for the first two hours and double time thereafter’ for Monday to Saturday work, ‘double time’ for Sunday and ‘double time and a half for public holidays.’ The relevant ‘time earnings’ for a casual under clause 10.4 include the casual loading. Further, clause 28.1(c) provides that overtime rates are in substitution for and are not cumulative upon shift and weekend premiums. Nothing is said of the casual loading being excluded. We appreciate that this sub-clause is concerned with applying one penalty to the exclusion of another, rather than precluding the calculation of a penalty based on a loaded rate, which is the focus of the interpretative controversy in this instance. Nonetheless, clause 28.1(c) is a limitation on the interaction of different penalties, and nothing is said about confining the application of the casual loading.

[20] In arguing against the construction above, Opal sought to rely on the Award Modernisation decision of 2009 12, in which a Full Bench of the Australian Industrial Relations Commission stated that it considered the correct approach to the calculation of overtime for casual employees was to ‘separate the calculations and then add the results together... rather than compounding the effect of the loadings’.13 The passage is referable to four modern awards that the Commission was publishing in that decision including the Nurses Award 2010. However, the explanation of the Commission for its decision to make an award in particular terms cannot properly be used to defeat the plain meaning of the instrument that it ultimately made. Section 160 of the Act establishes a process whereby application can be made to the Commission to vary a modern award to remove ambiguity or uncertainty or to correct an error. If a person considers that the text of a modern award contains an error, an application can be made under this provision to correct it.14

[21] Opal also relied on the Award Modernisation Decision (AM 2008/1-12) 15 in which the Full Bench said that ‘as a general rule, where penalties apply the penalties and the casual loading are both to be calculated on the ordinary time rate.’16 A general statement such as this might be of some assistance in cases of ambiguity, but that is not the case in the present matter. The relevant provisions are in our view clear.

[22] We note that the penalty rates that apply to Saturday and Sunday work, and the triggers for overtime at time and a half and double time, are essentially the same under the Award and the Agreement. However, under the Agreement, most employees receive double time for overtime on a public holiday, whereas the Award provides for double time and a half. The Agreement provides that casual employees are paid overtime penalties in accordance with clause 26(a) of the Agreement, which are ‘in substitution for and not cumulative upon the casual loading’ (cl. 26.1(d)). Clause 24(d) of the Agreement provides that ‘casual employees will be paid weekend penalties calculated on the ordinary rate of pay, excluding the casual loading. The casual loading component will then be added to the penalty rate.’ In these respects, the Agreement states expressly what the Award does not say expressly or impliedly, namely that these penalties are not calculated on the loaded casual rate.

[23] The Commissioner’s analysis of the Award provisions concerning casual rates of pay and penalty rates for weekend, public holidays and overtime was correct. It is then necessary to consider how the Commissioner applied that analysis to the circumstances of employees covered by the Agreement. As noted earlier, the Commissioner illustrated her interpretation of the Award by setting out its application to ‘assistant in nursing, advanced’. She concluded that, although the overtime rate for this classification was less favourable than the Award, the employees were still better off under the Agreement than under the Award because of the higher ‘ordinary’ casual rate.

[24] We have no difficulty with an analysis of this kind in principle; however there is an error in the Commissioner’s calculations. The Agreement overtime rates appearing in the table are $6.16 short. They reflect the relevant multiple of the ordinary hourly rate for the classification, excluding the casual rate, as the Agreement requires, but to this must be added the actual casual loading, which in this case is $6.16. (The figures in the ANMF’s table referred to in paragraph 10 above contain the same error in relation to the ‘assistant in nursing, advanced’ classification). 17 The Agreement overtime rates therefore exceed those that apply under the Award. The Commissioner’s ultimate conclusion that ‘assistants in nursing, advanced’ are better off under the Agreement than the Award remains correct.

[25] Nevertheless, the fact that this classification of assistant in nursing is better off under the Agreement than the Award does not necessarily mean that the same is so for the other two classifications of assistant in nursing, where the ordinary casual rate differential between the Agreement and the Award is smaller. It is necessary to consider the application of the Award to the circumstances of the two other assistant in nursing classifications.

[26] First we will consider ‘assistants in nursing, no qualification’. We return to Opal’s submission (see [14] above) that the relevant base rate for this classification was in fact $19.93 because this was the Award rate that applied at the time Opal filed its application for approval of the Agreement. We agree that the date the application was made is the ‘test time’ for the purposes of the BOOT (see s 193(6)), and that $19.93 was the Award rate at the relevant time. But this does not mean that it is the only rate of pay that is relevant to the BOOT. 18

[27] Section 193 provides than an enterprise agreement passes the better off overall test if the Commission is satisfied, as at the test time, that each award covered employee and each prospective award covered employee would be better off overall if the agreement applied to the employee than if the relevant award applied to the employee. Although the test time is the date the application was lodged, the Commission is required to conduct an overall comparison, for each existing and prospective employee, of agreement and award conditions. This necessarily requires a consideration of the rates of pay under the agreement and the award that apply to existing and prospective award covered employees assessed ‘as at the test time’. A ‘point-in-time test’ is necessary because the award benchmark may change over the nominal life of the agreement, although its base rate of pay would always be the relevant minimum because of s 206. To our mind, this is the anchoring work of the ‘test-time’. The BOOT analysis occurs at this time, taking account of all that is known at this time, including all of the terms of the agreement that will apply over its nominal life. In our view, the ‘test-time’ does not confine the BOOT analysis to provisions of an agreement that are applicable only at its inception; employees must be better off overall under the agreement, not just better off at ‘test-time’.

[28] In the context of the present matter, it was known to the Commissioner that the rate of pay under the Award at the time she made her decision in December 2018 was $20.63. It should be noted that the rates of pay under the Agreement increased from 1 July 2018, so to the extent that the Commissioner considered the rates of pay under the Award that applied at the time of her Approval Decision, the corresponding Agreement rates were those affected by the July 2018 increase and appearing in the second column of Schedule C in the Agreement.

[29] We set out below the rates of pay for a casual ‘assistant in nursing, no qualification’, as at the test time, and also as at December 2018, applying the interpretation of the Award we have explained above, whereby penalties for overtime, weekend work and public holidays are calculated on the loaded casual rate:

Assistant in nursing, no qualification

[30] It will be apparent that the figures under the column ‘Award at test time’ are based on the Award rate applicable on the date the application for approval was lodged. Our figures in the column ‘Award in Dec 18’ correspond to those in the ANMF’s table for ‘assistant in nursing, no qualification’ set out at [11] above. Our figures in the column ‘Agreement at test time’ reflect those in Opal’s revised calculations attached to their final reply submissions, 19 and reflect the operation of the Agreement.20 The column ‘Agreement in Dec 18’ adjusts those figures based on the increased rate of pay that applied from July 2018. As will be evident, the rates of pay under the Agreement for this classification, both at ‘test time’ and in December 2018, fall below the Award for weekend and overtime work. The Agreement did not pass the BOOT as at test time in respect of award covered and prospective award covered ‘assistants in nursing, no qualification’. As is evident from the above table, it also did not pass even using the adjusted rates of December 2018.

[31] The ordinary weekday casual rates are more generous under the Agreement than the Award counterpart. This might be sufficient to outweigh the lower overtime rates. The Commissioner reached this conclusion in respect of the ‘assistant in nursing, advanced’ classification (she need not have, because the relevant Agreement rates were actually above the Award rates), but she has not addressed the question in respect of the ‘assistant in nursing, no qualification’ classification.

[32] It does not appear from the Commissioner’s decision that she took account of the lower weekend rates for casual employees in the ‘assistants in nursing, no qualification’ classification. While she correctly analysed the relevant provisions of the Award, she did not apply them to this classification. Further, in our view it would not have been open to the Commissioner to conclude that the Agreement could pass the BOOT in these circumstances where casual ‘assistants in nursing, no qualification’ are worse off under the Agreement than the Award on weekends. Casuals working only or predominantly on weekends would clearly be worse off. Moreover, we note that although the rates of pay for ordinary hours on weekdays are more generous under the Agreement than those in the Award, the margin by which they are more generous is less than the margin by which the Award is more generous than the Agreement in respect of weekend work.

[33] A hypothetical roster bears out the problem. A casual ‘assistant in nursing, no qualifications’ might be rostered to work two weekday shifts of eight hours at the current casual rate under the Agreement of $26.24, together with one Saturday shift of eight hours at $36.74 an hour and one Sunday shift of eight hours at $41.98 an hour. Under the Agreement she or he would be paid $209.92 for each weekday shift ($26.24 x 8), $293.92 for the Saturday shift ($36.74 x 8), and $335.84 for the Sunday shift ($41.98 x 8), totalling $1049.60. Under the Award, that employee would receive $206.32 for each of the two weekday shifts ($25.79 x 8), $309.44 for the Saturday shift ($38.68 x 8) and $361.04 for the Sunday shift ($45.13 x 8), totalling $1083.12.

[34] We return to the question of whether ‘assistants in nursing, experienced’ are better off under the Agreement than the Award. The table in the ANMF’s appeal submissions indicate that the overtime rates, weekend and public holiday rates for casuals in this classification are below their Award counterparts (see the three right hand columns in [10] above). In our view, the shortfall identified in that table for ‘assistants in nursing, experienced’ under the Agreement vis-a-vis the Award is correct. Again, we do not consider that the higher ordinary weekday rates for casuals are sufficient to outweigh the lower weekend rates; casual employees in this classification regularly working weekends would not be better off under the Agreement.

[35] It will be appreciated that, while the difference between the ordinary casual rate for ‘assistants in nursing, advanced’ is sufficient to keep those employees above the Award rate even on weekends, the narrower differential for ‘experienced’ and ‘no qualification’ assistants is not.

[36] Our conclusion on these two points is sufficient for us to uphold the appeal and quash the Approval Decision. However, some of the ANMF’s other grounds of appeal would, if upheld, be fatal to the application, with the consequence that we would in our disposition of the appeal order that the application be dismissed. It is necessary for us to consider those grounds of appeal. Furthermore, if the application is to be remitted to the Commissioner, it is appropriate that we confirm the scope of the remittal by dealing with other ‘non-fatal’ grounds of appeal.

Other BOOT issues raised by the ANMF

[37] The ANMF raised a number of other contentions in its notice of appeal that were said to concern error in the Commissioner’s satisfaction that the Agreement passed the BOOT.

[38] It was said that the Commissioner had failed to properly assess the value of Award allowances that were not provided under the Agreement. The only allowances in respect of which any substantial submission was made related to the uniform and laundry allowances, which are contemplated by clause 16.2 of the Award in the amount of $1.23 per shift for uniform and $0.32 per shift for laundry, but are not provided for in the Agreement. The ANMF contended that the approximate hourly value of the allowance was 20 cents, which would equate roughly to the total of the two allowances for a single shift, divided by 8. However, the ANMF’s position at the appeal hearing was that this was a matter going to the detrimental position of the ‘assistant in nursing, no qualification’ as against the Award, which we have already dealt with, and which was the classification, the base rate of which was the same as the Award following the undertaking provided by Opal. It is not apparent that it affects other classifications of employees.

[39] Ground 3 of the notice of appeal also referred generally to the Commissioner having failed to take account of ‘financial and non-financial detriments’ and of ‘working arrangements’, but these matters were not explained and we see no substance in them. It was said that the Commissioner was wrong not to find employees to be disadvantaged against the Award position by the absence of a cap on the amount of leave that could be cashed out under the Agreement. But this is wrong. Clause 29.5(b) of the Agreement imposes a limitation. It was said that the Commissioner determined that the interpretation of the Agreement and the presence of ambiguous drafting were not relevant to the question of detriment for the purposes of the BOOT. But the Commissioner did not say this and we find no substance in this contention.

[40] The ANMF also submitted that the Commissioner was wrong to conclude that the disciplinary process in clause 40.1(c) of the Agreement was not a detriment, as it exposes employees to a civil penalty for breach of the Agreement if contravened. However, the Commissioner noted that the disciplinary process in question applied only when an employee had failed to attend a second compulsory training session, and in these circumstances did not consider its inclusion to result in the Agreement failing the BOOT. We see no error in this conclusion.

[41] The ANMF contended that the Commissioner did not conduct an overall assessment of whether employees would be better off under the Agreement than under the Award. We reject this submission. On any fair reading of the November Decision and the Approval Decision, the Commissioner did undertake an overall assessment of the benefits and detriments of the Agreement compared to the Award, although her calculations did not address each classification. Our earlier conclusions have addressed that matter.

Ground 4: whether undertakings involved substantial change, detriment

[42] The ANMF contended that the Commissioner accepted an undertaking that resulted in substantial change, and caused financial detriment to employees, contrary to s 190(3). The original clause 26.2 of the Agreement stated that all time worked by a part-time employee in excess of 38 hours per week or 76 hours per fortnight would be paid at overtime rates under clause 26.1(a), as would all time worked by a part-time employee that exceeded ten hours per day. The undertaking altered the provision, stating that ‘subject to clause 26.1(b), clause 26.1(c) and clause 26.2(b)’, all time worked by a part time employee would attract overtime in the manner set out above. It also addressed a concern that had been raised by the Commissioner in relation to overtime payments for part-time aged care employees, whose employment would have been covered by the Aged Care Award 2010.

[43] The qualifications introduced by the undertaking in relation to employees covered by the Award were already contained in the body of clause 26 of the Agreement. The undertaking changed nothing in this regard other than wording. For example, clause 26.1(b) stated, and still states that overtime penalties do not apply to registered nurses at levels 4 and 5. This reflects the Award. It does not cause financial detriment and is not a substantial change. It is not apparent how these changes were responsive to a concern raised by the Commission, whereas the substantive changes for aged care employees clearly were so responsive. However, the absence of a written record of the Commissioner having a concern does not mean that no such concern existed, particularly in a matter where there has been a long history involving multiple written and oral interactions between the parties and the Commission. We reject the fourth ground of appeal.

Ground 5: procedural fairness

[44] The fifth ground of appeal contended that the Commissioner denied the ANMF procedural fairness by not disclosing to it matters that were adverse to the interests of the ANMF and its members. The complaint appears to be that the Commissioner did not allow the ANMF an opportunity to be heard in relation to the table that she produced at [26] of the November Decision.

[45] We reject this contention. It is obvious that the Commissioner afforded the ANMF ample opportunity to be heard, as was appropriate in light of the ANMF’s status as a bargaining representative. But the suggestion that, by not producing to the ANMF for comment a draft of the table she created for the purposes of her November Decision, the Commissioner acted unfairly is without merit. The Commissioner illustrated her analysis of the Award using the ‘assistant in nursing, advanced’ classification. There is no reason why this classification ought not to have been used for this purpose. And as we have explained, the Commissioner’s analysis of the interaction of the casual rates of pay with the overtime and weekend penalties in the Award accorded with that of the ANMF and was correct, even if the calculations contained some errors that did not affect her conclusion in relation to that particular classification.

Ground 6: unlawful terms

[46] Ground 6 contends that the Commissioner erred in concluding that the Agreement did not contain any unlawful terms (s 186(4)). The ANMF submitted that the Agreement punishes employees who take leave. It appears to contend that clause 37(e), which provides that the period of additional paid parental leave under the Agreement will be reduced by the amount of any paid ‘no safe job’ leave taken is injurious to employees because of their exercise of a workplace right. The Commissioner decided at [14] and [15] that there is nothing unlawful about such a term and nor is it discriminatory. We agree.

[47] Section 186(4) requires the Commission to be satisfied that the agreement does not include any unlawful terms. Such terms are defined in s 194 as including discriminatory terms and objectionable terms. We do not consider that clause 37(e) is discriminatory by reference to sex or pregnancy (see s 195). The basis for differential treatment under the paid parental leave clause is the fact of a person having taken paid ‘no safe job’ leave. Such a person will be someone with the same attribute as the person notionally discriminated against. A person whose paid parental leave is reduced by a period of paid ‘no safe job’ leave will not be treated less favourably than a person without the protected attribute.

[48] Furthermore, in our opinion clause 37(e) is not an objectionable term as defined in s 12 of the Act. Such a term is one that requires or permits a contravention of Part 3-1 (which deals with general protections). The word ‘permits’ in this context means ‘authorises’. 21 As noted above, clause 37(e) provides that the period of paid parental leave afforded to employees under the Agreement will be reduced by the amount of any ‘no safe job’ leave taken. The evident purpose of this provision is to ensure that the total paid parental leave for which the company will be liable in respect of a particular employee is eight weeks. A person who takes ‘no safe job’ leave under the NES receives a total of eight weeks’ paid parental leave under the Agreement like other employees who take parental leave. In our view, such a person does not suffer adverse action as defined in s 342, nor would any such action occur ‘because’ the person had a workplace right or had exercised such a right. In any event, we consider that it was clearly open to the Commissioner to be satisfied that the provision did not constitute an objectionable term. We note that an unlawful term, such as an objectionable term, simply has no effect under s 253.

Other grounds

[49] At the hearing of the appeal, the ANMF advised that grounds 7 and 8 were not pressed. However, following questioning from a Member of the Bench, the ANMF re-enlivened ground 7, which contended that the Commissioner erred by extending coverage of the Agreement when she amended clause 4, on application by Opal, pursuant to s 586 of the Act, such that the Agreement now stated expressly that it would apply to employees described in Schedules A and B of the Agreement.

[50] The Agreement did not explicitly state which employees it covered. It stated however that it covered Opal and its facilities in Queensland, a related company and its facilities in Queensland, and any aged care facilities in the state acquired or commissioned by Opal. It contains a classification structure. However, because the coverage clauses did not specifically state that the Agreement covered employees in those classifications, the ANMF contended that it covered no one. The ANMF argued that the Commissioner erred when she amended the Agreement under s 586 by impermissibly extending its coverage. 22

[51] But that is not what the Commissioner did. She noted that the parties agreed that bargaining had proceeded on the basis that the Agreement would cover relevant employees at the facilities mentioned in clause 4, that no one had submitted that they had had any different understanding of the coverage, and that this was consistent with the information contained in the notice of employee representational rights. 23 She explained that the amendment would ensure that the intended operation of the Agreement is expressly stated. Further, the coverage clause of the Agreement, prior to the amendment, was the same as that of the predecessor agreement. And when the Commissioner raised the issue of a possible correction, the ANMF did not oppose it.24

[52] The Agreement was plainly intended to cover the employees in the classifications in the Agreement. What other purposes the attachment of a classification structure might have is not explained by the ANMF. To contend that the Agreement did not cover any employees at all prior to the Commissioner’s amendment, when the intended coverage is so abundantly clear, is in our view an unsustainable argument founded on a literal and un-contextualised reading of the instrument. The ANMF contended that the amendment made the Agreement substantively something different from what the employees had voted on. Their submissions cite the king in Shakespeare’s Henry IV, who says to Falstaff ‘presume not that I am the thing I was.’ 25 But here we consider the contention is ‘much ado about nothing’. It was not necessary for the Agreement to be amended under s 586. In our view, corrections or amendments to agreements should be made sparingly. The Commission should not concern itself with infelicities of drafting in enterprise agreements: ‘Let me be that I am and seek not to alter me.’26

[53] At the conclusion of the proceedings, the Full Bench identified that an additional change had been made to clause 4 of the Agreement that was not brought to the Commissioner’s attention. Opal submitted to Commissioner McKinnon a revised coverage clause with the new wording marked up (i.e. ‘cover employees who perform the work described in Schedule A and B of this Agreement’). However, the new text also inserted at clause 4(b) the words ‘and North Lakes’ after the words ‘trading facilities in Queensland including Ashmore, Kirra Beach, Leamington, Caloundra, Nambour and Kawana’. This change was not marked-up. The Full Bench invited the parties to make submissions on this matter. Opal contended that this was an oversight that arose because it solicitors amended a different version of the clause from the one that was actually voted on. The ANMF sought leave to amend its notice of appeal to include a new ground 11, contending that the Commissioner erred by amending the Agreement to include this change.

[54] We accept that the inclusion of the additional words ‘and North Lakes’ was inadvertent. The locations referred to in clause 4(b) are inclusive, and so the addition of these words did not change the coverage of the Agreement. These words were not brought to the Commissioner’s attention and there is nothing at all to suggest that she actually decided to amend the Agreement to include them. This is the type of obvious error that would be amendable to correction under s 586. However, as we have determined to quash the Approval Decision, it is not necessary for us to correct this error and remove the words ‘and North Lakes’.

[55] Next we come to ground 9, which is an adjunct to ground 3, contending that the Commissioner erred in assessing rates of pay for casual ‘assistants in nursing, experienced’ without there having been evidence of such employees being employed as casuals. The essence of the contention is that the Commissioner checked a classification for BOOT purposes that she need not have concerned herself with, but we see no error whatsoever in her decision to consider and check this classification. Then in ground 10, having just criticised the Commissioner for having needlessly scrutinised a particular classification, the ANMF complains that the Commissioner ‘failed to consider all classifications’ as part of the BOOT analysis. Other related contentions are made but they do not warrant analysis. To the extent ground 10 relates to the BOOT concerns we have identified in relation to the ‘assistant in nursing’ classifications, it takes the matter no further. We otherwise reject ground 10.

[56] The second ground of appeal contended that the Commissioner failed to provide adequate reasons. We disagree. The relevant principles are well-established. 27 Reasons must articulate the essential grounds for reaching the decision and address material questions of fact and law so as to disclose the steps which lead to a particular result. They need not address every detail in the reasoning process or deal with every matter which was raised in the proceedings. The adequacy of reasons depends on the circumstances, including the nature of the statutory function being exercised.28

[57] The Commission deals with many thousands of applications to approve enterprise agreements each year. In respect of applications that are uncontested or do not raise concerns as to whether the various approval requirements in the Act have been met, brief decisions are appropriate. A decision containing more detailed reasoning may be required where a bargaining representative opposes its approval and articulates substantive and reasonably arguable grounds for its opposition. 29 The ANMF’s concerns about whether the Agreement passed the BOOT in relation to casual assistants in nursing were of this kind. However, the Commissioner’s November Decision devoted six pages of analysis to questions concerning the BOOT, and addressed the fundamental interpretative dispute, resolving it correctly. She also addressed the ANMF’s contentions on a range of other matters. In the Approval Decision the Commissioner recorded her satisfaction that the various statutory requirements, including those of s 186, were met. The Commissioner’s reasons were plainly adequate.

[58] Finally, during the appeal proceedings a question was raised as to whether the employee representatives who signed the Agreement had provided the employer with instruments of appointment of bargaining representatives. This notion is misconceived. Regulation 2.06A(2) states that a copy of an enterprise agreement is a ‘signed copy’ for the purposes of s 185(5) only if it is signed by the employer and at least one ‘representative of the employees covered by the agreement’. The regulation does not require the employee representative to be a bargaining representative.

[59] In its final written submissions, the ANMF raised an additional contention, that the mandatory requirements of s 185(2)(a) and Regulation 2.06A(2)(ii) had not been complied with, notionally because the signatories from the two other unions which signed the Agreement, the ASU and the AWU, were dated 21 March 2018, after the application for approval of the Agreement was made. But neither s 185(2)(a) of the Act nor the Regulations require a union to sign an agreement.

[60] The ANMF raised a very large number of objections to the approval of the Agreement, some of which pressed contentions of marginal merit. These were a distraction from the real concern that was rightly raised by the ANMF, namely the position of casual assistants in nursing ‘no qualification’ and ‘experienced’, who are not better off under the Agreement than the Award when working on weekends.

Conclusion

[61] It follows from our conclusions above that the Commissioner erred by not having regard to a relevant consideration in her analysis of the BOOT. On this basis, permission to appeal should be granted, the appeal should be upheld and the Approval Decision quashed.

[62] Opal’s application for approval of the Agreement will need to be re-determined. We consider that the application should be remitted to Commissioner McKinnon for this purpose. Opal will have an opportunity to offer further undertakings.

[63] We order as follows:

1. Permission to appeal is granted.

2. The appeal is upheld.

3. The decision ([2018] FWCA 7388) is quashed.

4. Opal’s application for approval of the Opal Aged Care (Qld) Enterprise Agreement 2017 is remitted to Commissioner McKinnon for re-determination.

DECISION OF COMMISSIONER MCKENNA

[64] I have had the opportunity to read the draft decision of Gostencnik DP and Colman DP concerning the appeal. While I agree with much of my colleagues’ reasoning and also agree that permission to appeal should be granted, the appeal should be upheld and the subject decision be quashed, I respectfully consider that there are other reasons why the decision should be quashed.

[65] By way of background, the Australian Nursing and Midwifery Federation (“ANMF”) has lodged an appeal, for which permission to appeal is required, against a decision 30 in which Commissioner McKinnon approved, with certain undertakings, an enterprise agreement titled the Opal Aged Care (Qld) Enterprise Agreement 2017 (“the Agreement”). The relevant employers concerning the Agreement are two related companies which operate aged care facilities in Queensland, namely, Domain Aged Care (QLD) Pty Ltd and DPG Services Pty Ltd t/a Opal Aged Care (collectively “Opal”). The union employee bargaining representatives for the Agreement were the ANMF, The Australian Workers’ Union, and the Australian Municipal, Administrative, Clerical and Services Union. The initiating process also identified two individual employee bargaining representatives, namely, Helen Watkins (Facility Manager) and Hamoun Mohammadi (Care Manager). Only the appellant ANMF opposed the approval of the Agreement at first instance, and the other bargaining representatives did not join with the ANMF in the appeal.

Agreement that was approved was not the Agreement that was “made”

[66] One of the bases upon which the ANMF opposed the approval of the Agreement was its contention that the Agreement did not, within terms, actually cover employees of Opal. That contention by the ANMF was based on its construction of clause 4 (Coverage) of the Agreement. In its original form as voted upon in the version of the Agreement lodged with the Commission for approval, clause 4 of the Agreement read as follows:

“4. Coverage

This Agreement shall cover the following:

(a) Domain Aged Care (QLD) Pty Ltd (ABN 49104420671) trading as Opal Aged Care and its trading facilities in Queensland including Burpengary Gardens, Abbey Gardens, Raynbird Place, Raffin Place, Greenfern Place and Varsity Lakes.

(b) DPG Services Pty Ltd (ABN 38090007999) trading as Opal Aged Care and its trading facilities in Queensland including Ashmore, Kirra Beach, Leamington, Caloundra, Nambour and Kawana.

(c) any aged care facilities in Queensland, acquired or commissioned by Opal Aged Care during the term of this Agreement;

(d) QNMU;

(e) ANMF;

(f) AWU; and

(g) Together.

This Agreement shall apply to the exclusion of all other federal or state Agreements or Awards that would otherwise apply to the work described in Schedule A and B of this Agreement.”

[67] The submissions for the ANMF that the Agreement was not actually expressed to cover employees is, at least, arguable. I tend to the view, as expressed by the majority, that the Agreement was plainly intended to cover the employees in the classifications in the Agreement. Whether it does or not is, perhaps, a matter that might have been tested had there been any future challenge in a court concerning, by way of example, a contested underpayment of wages claim brought by an employee. In that regard, see s.53(1) of the Act which provides that an enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or employer.

[68] In any event, returning to the application for the approval of the Agreement, it appears that the Commissioner considered there was some substance to what the ANMF put concerning the coverage issue. In the proceedings, the Commissioner broached with the representatives of the ANMF and Opal whether “there is a reason why the error couldn’t be corrected under section 586 of the Act?”. 31 While various matters then went backwards and forth over the course of the proceedings on the first day of the hearing (including submissions for Opal that the ANMF’s contentions were wrong concerning the construction of the Agreement and, also, reservations about the course flagged by the Commissioner),32 the end result was that the Commissioner said:

“THE COMMISSIONER: Yes. All right. Well, I think it is appropriate in the circumstances that the coverage clause is expressed to cover the employees and everybody understands that they will be covered. So if a replacement page can be provided, I would appreciate it after the hearing.” 33

[69] The transcript of the resumption of proceedings the following day records 34 that certain documents had earlier been sent for Opal to the Commissioner, including “a replacement page 4 dealing with the coverage ambiguity”. Further discussion again went backwards and forth35 in the proceedings on that second day of the hearing about the wording of the proposed amended clause 4 contained within the replacement page 4 for the Agreement.

[70] The Commissioner was subsequently to deal with the matter of the Agreement’s coverage in the following way in interlocutory decision 36 delivered on 19 November 2018 (which preceded the final decision37 by which the Agreement was approved):

“Agreement coverage

[6] The ANMF says the Agreement does not cover any employees and accordingly, it cannot be approved. It points to the text of the coverage clause at clause 4 of the Agreement, which provides for facilities of Opal to be covered but does not expressly refer to employees working in those facilities.

[7] It was put, and accepted by the ANMF, that bargaining for the Agreement proceeded on the basis that the Agreement would cover relevant employees in the facilities mentioned in clause 4. No party submitted that any person had any different understanding on that issue and the position of the parties is consistent with the information contained in the Notice of Employee Representational Rights (the Notice).

[8] Opal has applied to amend clause 4 under section 586 of the Act to ensure that the intended operation of the Agreement as one that covers relevant employees is expressly stated. I find that the parties intended to bargain for an enterprise agreement covering employees in the classifications, and working in the facilities, set out in both the Notice and the Agreement. It is in the interests of certainty that the Agreement make that clear. I will grant the amendment sought by Opal.”

[71] As to the course that unfolded, it is not, in my respectful view, jurisdictionally-available to vary an enterprise agreement in the way that occurred in relation to the application for the approval of the Agreement. For my own part, I do not consider that there is power to vary an enterprise agreement if there is, for example, some perceived ambiguity (or error) in a clause or clauses of an enterprise agreement when the Commission has before it an application made pursuant to s.185 of the Act seeking the approval of the particular enterprise agreement. The application has not, at that stage, even been approved; and it was “made” within the meaning of s.182(1) of the Fair Work Act 2009 (“the Act”) in the terms that it was. The Act contains a number of dedicated provisions concerning variations to enterprise agreements which I think may well constitute somewhat of an exclusive code concerning such matters. The Commission does not have powers at large to determine or change the terms of an enterprise agreement; the Act otherwise provides mechanisms for variation of enterprise agreements including, for example, applications pursuant to s.210 (application for approval of a variation of an enterprise agreement), s.217 (variation of an enterprise agreement to remove an ambiguity or uncertainty) and s.218 (variation on referral by the Australian Human Rights Commission).

[72] True it is that s.586 of the Act - upon which the Commissioner moved in effecting the variation - provides that the Commission “may allow a correction or amendment of any application, or other document relating to a matter before the Commission, on any terms that it considers appropriate”; but I respectfully consider, however, that it is a jurisdictional over-reach to proceed under that section such that the content of an enterprise agreement might be varied by a member in the exercise of discretion at a time when the Commission has before it an application for the approval of an enterprise agreement - and, in this case, it may be noted, it was a disputed coverage clause that was in issue. Nothing turns on the fact that the ANMF did not oppose this course in the proceedings at first instance or cavil with the content of the text of the amended page 4 actually made by Opal in relation to its application concerning the variation (and, as noted earlier, the other employee bargaining representatives did not participate in the hearing at first instance). These are matters going to power, not consent or lack of objection. Moreover, nothing turns on the fact that the predecessor clause 4 was similarly-worded (it referred to a narrower range of facilities, but the final paragraph was the same as the clause 4), as that was not the enterprise agreement which was before the Commissioner in relation to the approval application.

[73] The Agreement the Commissioner was ultimately to approve was not the Agreement that was made within the meaning of s.182(1) of the Act; it was something different, given the amended page 4 with its varied clause 4. The approval of an enterprise agreement other than in the terms that it was “made” is, in my respectful view, beyond power; it is not available to remake the wording, as occurred here, of a coverage clause. Despite suggestions for Opal in the appeal, the amendment did not come about as a result of an application pursuant to s.217 (Variation of an enterprise agreement to remove an ambiguity or uncertainty) of the Act. 38 The interlocutory decision at [8] refers to an application having been made by Opal to amend clause 4 of the Agreement under s.586 of the Act “to ensure that the intended operation of the Agreement as one that covers relevant employees is expressly stated.”

[74] To compound matters - and this was a matter which came to light only by way of detection by a member of the Full Bench - the substitute page for the Agreement that was drafted for Opal went beyond amendments which had been the subject of discussion between the Commissioner and the representatives for the ANMF and Opal during parts of the course of the two-day hearing concerning the final paragraph of clause 4 of the Agreement. That is, the varied clause 4 in the new page 4 of the Agreement which was provided by Opal, and which was, in due course, used in substitution for the original page 4 of the Agreement in the approved, published version of the Agreement, read as follows:

“4. Coverage

This Agreement shall cover the following:

(a) Domain Aged Care (QLD) Pty Ltd (ABN 49 104 420 671) trading as Opal Aged Care and its trading facilities in Queensland including Burpengary Gardens, Abbey Gardens, Raynbird Place, Raffin Place, Greenfern Place, Varsit

(b) DPG Services Pty Ltd (ABN 38 090 007 999) trading as Opal Aged Care and its trading facilities in Queensland including Ashmore, Kirra Beach, Leamington, Caloundra, Nambour, Kawana and North Lakes;

(c) any aged care facilities in Queensland, acquired or commissioned by Opal Aged Care during the term of this Agreement;

(d) QNMU;

(e) ANMF;

(f) AWU; and

(g) Together.

This Agreement shall cover the employees who perform the work described in Schedule A and B of this Agreement to the exclusion of all other federal or state Agreements or Awards that would otherwise apply.” (Underlining added)

[75] Relevantly, apart from the recasting of the final paragraph of clause 4 of the Agreement such that it makes reference to covering employees (and making some changes to punctuation marks and the formatting of the ABN numbers through additional space marks), the amended clause 4 in the substitute page 4 of the Agreement also included an additional facility that was not named in the original clause 4 of the Agreement, namely “North Lakes”. While Opal submitted that the inclusion of North Lakes did not affect the meaning of the Agreement, that the Agreement would apply once North Lakes was commissioned and that the “error was therefore immaterial”, the appeal submissions for the ANMF correctly noted this as a “major discrepancy between the coverage clause in the agreement voted on and that which was approved” - being a discrepancy which was not brought to the attention of the Commissioner. Supplementary evidence indicated that the substitute page with its (further) amended clause 4 arose as a result of representative error by the solicitors for Opal, arising from a number of draft versions of the Agreement (with North Lakes being a facility which was commissioned during 2018, with the initial reference to North Lakes having been earlier “removed from the draft agreement when it became apparent that the facility would not be operational by the time of the employee vote”).

Other miscellaneous matters

Signature requirements

[76] It appears that the Form F16 application for the approval of the Agreement did not have with it a “signed copy” of the Agreement (within the meaning of s.185(2) of the Act and reg.2.06A of the Fair Work Regulations 2009 (“the Regulations”)). That is, it appears that the copy of the Agreement that accompanied the initiating process bore only a singular employer signatory. 39 While dates do not have to be included on signature pages for an enterprise agreement, here the Agreement includes such details as to dates. The dates affixed indicate signing as late as 30 July 2018 (in this latter case, by the individual employee bargaining representatives, namely, Ms Watkins and Mr Mohammadi).

[77] The ANMF submitted that compliance with s.185(2)(a) of the Act and reg.2.06A of the Regulations “raises questions of jurisdictional fact”, and that non-compliance “means invalidity and that the agreement could not be approved.” In the very recent decision of the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Griffiths Cranes Pty Ltd 40 (“Griffiths”), I reached conclusions the effect of which would have favoured acceptance of the submissions for the ANMF in such respects as to validity in the context of consideration of s.185(2) of the Act and reg.2.06A of the Regulations. As my own view concerning such questions of validity did not, however, prevail in Griffiths it is unnecessary to further consider what has been put by the ANMF on that question of validity.

Paid maternity leave

[78] It would be remiss of me not to note that I have a concern that the Commissioner may have erred in concluding that the Agreement did not contain any unlawful terms. As part of the National Employment Standards (“NES”), concerning parental leave and related entitlements, s.81A of the Act provides as follows:

“81A Paid no safe job leave

(1) If:

(a) section 81 applies to a pregnant employee but there is no appropriate safe job available; and

(b) the employee is entitled to unpaid parental leave; and

(c) the employee has complied with the notice and evidence requirements of section 74 for taking unpaid parental leave;

then the employee is entitled to paid no safe job leave for the risk period.

(2) If the employee takes paid no safe job leave for the risk period, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the risk period.”

[79] The Agreement provides as follows in relation to parental leave:

“37. Parental Leave

In addition to Parental Leave provided for in the NES

(a) full time and part time Employees, who are eligible for unpaid parental leave, will also be entitled to paid parental leave at ordinary pay, from the date the paid parental leave commences.

(b) paid parental leave includes:

(i) 4 weeks paid maternity leave;

(ii) 4 weeks maternity leave return to work incentive; please refer to subclause 37(d);

(iii) 4 weeks paid adoption leave; and

(iv) 4 weeks paid partner leave.

(c) an Employee is also entitled to a paid period of 4 weeks special maternity leave because they have been pregnant and the pregnancy has either terminated within 20 weeks of the expected date of confinement resulting in a stillborn birth or there has been a neo-natal death.

(d) Maternity leave return to work incentive

Full time and part time Employees who return to work and complete 3 months continuous work will receive a one off payment. This payment will be equivalent to 4 weeks’ pay calculated on the hours worked before the leave commenced at their ordinary rate of pay.

(e) Any period of “paid no safe job leave” taken by an Employee pursuant to the “Transfer to a Safe Job” provisions of the Act shall be deducted from the Employee’s entitlement to paid maternity leave.” (My emphasis)

[80] While it is unnecessary to finally determine this matter, given the conclusion of the majority that will prevail, namely that there is nothing unlawful about a term such as clause 37(e) of the Agreement, and nor is discriminatory or an objectionable term, I express my reservations about it on such bases. That is, the NES bestow the rights and obligations contained in s.81A of the Act. Specifically, if the employee takes paid no safe job leave for the risk period, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the risk period.

[81] True it is that the paid maternity leave provisions of the Agreement grant entitlements to certain payments in relation to paid parental leave which are superior to the NES, but, by clause 37(e) of the Agreement it does so in such a way that the NES-specified entitlements set out in s.81A of the Act effectively are offset to the relevant extent of monetary difference: that is, any period of paid no safe job leave taken by an employee pursuant “shall be deducted from the Employee’s entitlement to paid maternity leave”. In effect, under clause 37(e) of the Agreement an employee who undertakes a period of no save job leave has a reduced period of paid maternity leave under the Agreement compared to an employee who does not undertake a period of paid no safe job leave. The only basis for the deductions from paid maternity leave entitlements of the type contemplated in clause 37(e) of the Agreement is that the s.81A of the Act has been engaged. It seems to me that the only reason for the (discriminatory) reduction in paid maternity leave entitlements otherwise arising under the Agreement is because of payments attendant upon the rights and obligations otherwise arising from s.81A of the Act; and that, it seems to me, is problematic - and for reasons including those to which the ANMF adverted to in its submissions.

Other issues

[82] The ANMF contended it had not been given procedural fairness concerning a table within the interlocutory decision. I would respectfully join with the majority in their conclusion to reject the proposition by the ANMF that the Commissioner acted unfairly by not producing to the ANMF for comment a draft of the table the Commissioner created for the purposes of her interlocutory decision. That being said, I am bound also to note there is, by majority, Full Bench authority which would stand against that conclusion: see AJ Convenience Services Pty Ltd T/A 7-Eleven Rozelle and 7-Eleven Bexley. 41

[83] Separately, as to exposure to civil penalties of the type complained of in the appeal by the ANMF - and again as to authority standing for a different proposition - see, for example, the discussion in Re Glen Eden Thoroughbreds Pty Ltd T/A Ray White Shailer Park. 42

Conclusion

[84] The orders that I would propose, subject to the provisos and issues I have noted in my decision, accord with those of the majority.

DEPUTY PRESIDENT

Appearances:

Mr L. Reidy of counsel for the Appellant.

Mr O. Fagir of counsel for the Respondent.

Hearing details:

2019.

Sydney and Brisbane (video hearing):

January 24.

Final written submissions:

Appellant, 6 February 2019.

Respondent, 6 February 2019.

Printed by authority of the Commonwealth Government Printer

<PR705898>

 1   [2018] FWCA 7388

 2   [2018] FWC 7061

 3   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 4   Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481

 5   Table submitted to the Full Bench on 24 January 2019 at 1.14pm

 6   Outline of submissions for the Respondent, 21 January 2019, Schedule 1

 7   Reply to the ANMF supplementary submission dated 6 February 2019 at [22]

 8   Ibid at [24]

 9   The Aged Care Award 2010 was also relevant to these proceedings, but is not relevant on appeal

 10   [2017] FWCFB 3005 at [46]

 11   Reply to the ANMF supplementary submission dated 6 February 2019 at [14] – [19]

 12   [2009] AIRCFB 345

 13   At [150]

 14   See for example Australian Southern Bluefin Tuna (SBT) Industry Association Ltd [2017] FWCFB 5273, and [2018] FWCFB 368, concerning the Ports, Harbours and Enclosed Water Vessels Award 2010

 15   [2008] AIRCFB 1000

 16   Ibid at [50]

 17   The figures indicated in the table for the Saturday and Sunday rates for the Agreement rates are multiples of the casual instead of the ordinary rate, however the correct rates are ahead of their Award equivalents.

 18   See PR606358; and Reply to the ANMF supplementary submission dated 6 February 2019 at [22]

 19   Opal’s figure for the public holiday overtime rate was given as $46.19, the same as the double time rate: its view appears to be that the casual loading component would be added to the double time rate, but not the p.h. overtime rate.

 20   Note that the we have adopted Opal’s figure for the Agreement rate ‘at test time’, namely $20.53, however the undertaking subsequently given aligned the rate with the Award, that is to $20.63

 21   Australian Industry Group v Fair Work Australia [2012] FCAFC 108; (2012) 205 FCR 339 at [18] and [66]

 22   November Decision at [6]-[8]

 23   Ibid at [7]

 24   AB 232-233, PN 316-318

 25   Henry IV, Part 2 Act 5 Scene 5 (Henry IV)

 26   Much Ado About Nothing, Act 1 Scene 3 (Don John)

 27   Barach v University of New South Wales [2010] FWAFB 3307; (2010) 194 IR 259 at [16]

 28   Transport Workers’ Union of Australia v WA Freightlines Pty Ltd [2011] FWAFB 3863; 211 IR 369 at [10]

 29   Health Services Union v Clinpath Laboratories Pty Ltd and others [2018] FWCFB 5694 at [13]

 30   [2018] FWCA 7388.

 31   PN260.

 32   PN261-PN332.

 33   PN331.

 34   PN903.

 35   PN903-PN916.

 36   [2018] FWC 7061.

 37   [2018] FWCA 7388.

 38   Opal supplementary submissions, 31 January 2019 at paragraphs 14, 20 and 21.

 39   As the ANMF appeal supplementary submissions in reply of 6 February 2019 noted at paragraph 36 and at in its related footnote 29, certain signature pages must have been later interposed and the matter is “confusing because there is no trail showing how these pages were interposed.” But note, in this regard, there is material in the appeal books at least as to the signatory page for Ms Watkins and Mr Mohammadi, suggesting these signatory and/or amended signatory details arose from a Commission-initiated request given certain non-compliance with requirements of reg.2.06A of the Regulations.

 40   Construction, Forestry, Maritime, Mining and Energy Union v Griffiths Cranes Pty Ltd [2019] FWCFB 1717 (Gostencnik DP and Colman DP at [1]-[66]; McKenna C dissenting at [67]-[125] – 15 April 2019).

 41   AJ Convenience Services Pty Lt d T/A 7-Eleven Rozelle and 7-Eleven Bexley [2016] FWCFB 2116 (Hamilton DP and Lawrence DP at [14]-[18]; McKenna C dissenting at [98]-[100] on a procedural fairness point.

 42   Re Glen Eden Thoroughbreds Pty Ltd T/A Ray White Shailer Park [2010] FWA 7217 (Asbury C, as she then was, 16 September 2010).