[2016] FWCA 7945 [Note: This decision and the associated order has been quashed - refer to Full Bench decision dated 7 June 2017 [[2017] FWCFB 2420]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.217—Enterprise agreement

National Tertiary Education Industry Union
(AG2016/1210)

MONASH UNIVERSITY ENTERPRISE AGREEMENT (ACADEMIC AND PROFESSIONAL STAFF) 2014

Educational services

COMMISSIONER BISSETT

MELBOURNE, 8 NOVEMBER 2016

Application for variation of the Monash University Enterprise Agreement (Academic and Professional Staff) 2014 to remove ambiguity or uncertainty – ambiguity or uncertainty found – subsequent conduct of parties not considered – without prejudice communications not considered – discretion should be exercised to vary agreement – agreement varied – determination issued

[1] The National Tertiary Education Industry Union (NTEU) has made an application to the Fair Work Commission (Commission) in accordance with s.217 of the Fair Work Act 2009 (the FW Act) to vary the Monash University Enterprise Agreement (Academic and Professional Staff) 2014 (the 2014 Agreement) to remove an ambiguity or uncertainty.

[2] In particular the NTEU seeks that the ambiguity or uncertainty be removed by the inclusion of the following in clause 5 of Schedule 3:

Irrespective of any determination of a Dean made in accordance with this Section, Teaching Associates will be paid by the University at the appropriate rate for all hours of marking required to be performed.

Submissions and evidence

Submissions

[3] The NTEU submits that the terms of the 2014 Agreement are uncertain or ambiguous in the way they deal with payment for marking by sessional staff employed by Monash University (Monash).

[4] The NTEU says that this conclusion must be reached on consideration of the provisions of clauses 16, 22, Schedule 2 and Schedule 3 of the 2014 Agreement.

[5] Clause 16 deals with modes of employment and allows for sessional employment, which means ‘casual employment of academic Teaching Associates’ (clause 16.2 and 16.12); clause 22 provides for salary increases and that sessional staff be paid at the rates in Schedule 2 (clause 22.1); and details descriptors of the activities for which sessional staff are paid (Schedule 3). The relevant clauses of the 2014 Agreement are at Attachment A to this decision.

[6] Based on these clauses the NTEU posits two varying constructions in relation to the payment to be made to sessional staff for marking.

[7] In the first instance it says that a proper construction of the provisions of the 2014 Agreement leads to a conclusion that casual academic staff must be paid at the specified hourly rate for all work performed, including all marking work.

[8] The NTEU submits that:

Taken together, clauses 16, 22, Schedule 2 and Schedule 3 identify that Teaching Associate (casual) staff “required to undertake marking” 1 “are paid at hourly rate specified in Schedule 2”2, “will be paid marking rates as set out in the Agreement”3 and the hourly rate in Schedule 2 is specified as “$/hour”4
[footnotes in original]

[9] That is, it says that sessional staff must be paid the hourly rate for marking as specified in Schedule 2 of the 2014 Agreement for every hour spent marking (not otherwise part of the hourly rate).

[10] The NTEU submits that such a construction is in accordance with the provisions of the Higher Education Industry – Academic Staff – Award 2010, (the 2010 Award) in particular clauses 13, 14 and 18 of that Award.

[11] In the alternative the NTEU submits that clause 5 of Schedule 3 could operate to create a ‘piece rate arrangement’ by which the determination of the Dean sets the hours to paid for marking regardless of the hours actually worked.

[12] The NTEU relies on paragraph 3 in clause 5 of Schedule 3 to support this conclusion:

The number of hours allowed for marking and the appropriate marking rate per hour will be determined by the Dean taking into consideration the expected time taken to undertake the marking based on the complexity of the marking in the context of the academic discipline involved. The Dean’s determination of the number of hours for marking will be consistent with guidelines issued for each faculty. These guidelines will be developed in consultation with academic staff within the relevant discipline or organisational unit and will set out reasonable expectations about the number of hours to be allowed for marking based on the complexity of the marking and allowing for variations in level of experience of the marker in the context of the academic discipline involved. 5
[emphasis in original]

[13] The NTEU relies on the definition of ‘allow’ in the Macquarie Online Dictionary to support its construction.

[14] The NTEU acknowledges that the ‘hours allowed for marking’ could be an administrative matter for internal budgets or could be a reference to hours paid without further action.

[15] Monash says that the first step in determining if the Agreement is susceptible to more than one meaning requires an objective assessment based on the ordinary principles of construction of an agreement.

[16] In applying these principles it says that the meaning of clause 5 of Schedule 3 in the 2014 Agreement is clear and unambiguous. It says that casual academic staff are paid the hourly rate for marking work, except where it can be reasonably performed in the classroom. It says that the payment is not calculated on a time-recording system but marking is based on an allowance of hours determined by the Dean consistent with guidelines within each faculty.

[17] For this reason it says that there is no reason to consider the surrounding circumstances or vary the 2014 Agreement.

Evidence

[18] Evidence was given for the NTEU by Mr Joshua Cullinan, Industrial Officer for the NTEU in Victoria.

[19] Mr Cullinan’s evidence is that the provisions under consideration in the 2014 Agreement are not substantively dissimilar to those included in the Monash University Enterprise Agreement (Academic and Professional Staff) 2009 (the 2009 Agreement). He says that in the lead up to the bargaining for the 2009 Agreement the NTEU developed its claims which included a claim that marking undertaken by sessional staff be paid for separately.

[20] Mr Cullinan said that, at the time of the 2009 Agreement, he was responsible at the NTEU for checking agreements ‘against member expectations.’ 6 He said he participated in the two late bargaining meetings in October 2009 for the 2009 Agreement although agrees that there was no discussion of marking in those meetings. He engaged in some correspondence with Mr Gregory Crundall of Monash about concerns the NTEU had with the proposed 2009 Agreement. If he had not believed that the 2009 Agreement provided for marking to be paid for on the basis of hours worked the NTEU would have raised this with Monash.

[21] Mr Cullinan gave evidence that during the life of the 2009 Agreement, which ceased on 7 October 2014, he did not recall the NTEU raising a concern with how sessional staff were paid in respect to marking. 7

[22] Mr Cullinan says that on 9 April 2015 the NTEU issued an entry notice pursuant to the FW Act to Monash. That notice indicated that the NTEU suspected a contravention of clause 5 of Schedule 3 of the 2014 Agreement. Then entry notice required Monash to produce:

All records or documents…created or held…by a faculty Dean…Monash HR, or a person delegated responsibility…for compliance with Schedule 3, Part 3, Paragraph 5 of the Agreement which:

[23] Mr Cullinan produced the documents provided as a result of the entry notice. 9 His evidence is that some of these documents were created after the entry notice was served and others had no discernible date on them. His evidence is that there are some parts of Monash for which no such documents as required by the notice were produced.

[24] In cross examination Mr Cullinan agreed that in raising a dispute with Monash about the matter in 2015 the NTEU sought:

… a resolution by which the university will genuinely engage in detailed consultation with sessional academic staff as part of the development of the compliant guidelines required under schedule 3 of the agreement. 10

[25] He agreed that the reference to ‘guidelines’ was to guidelines that would be directed towards the determination to be made by the Dean and that such a determination would be directed to the number of hours allowed for marking and the appropriate marking rate. 11 Further, he agreed that at the time of the notification, some staff were not being paid for the actual time taken to do the marking and the NTEU did not, in raising the original dispute, say anything about whether marking should be paid in accordance with hours actually worked although maintained that he did consider that sessional staff were entitled to be paid for hours actually worked.12

[26] Mr Cullinan agreed that the NTEU sought the establishment of a joint management/NTEU committee which would have research done on the establishment of a marking standard that would then form the basis of consultation with academic staff 13

[27] Mr Andrew Picouleau gave evidence for Monash. He had worked at Monash for 16 years in senior roles with Monash HR, finishing in 2015. He now works on contract for Monash. He says that, given his extensive experience he has a ‘sound and deep understanding of issues relating to methods and practices regarding payment for sessional marking carried out by sessional academic staff’. 14

[28] Mr Picouleau’s evidence is that throughout the time he was employed at the University he was aware that ‘sessional staff are not paid on the basis of time actually worked’ except for those in the Faculty of IT. 15 He says that this is the case for marking and for lectures and tutorials where the amount paid includes a component for ‘associated work’.16

[29] Mr Picouleau says that sessional staff have traditionally been paid in one of two ways. The first is a lecture or tutorial rate which incorporates a rate for contemporaneous marking. The second is a payment for marking, recognising that some marking would need to be conducted outside a lecture or tutorial. He says that this second rate of payment has never required payment of a rate per hour for all hours spent marking. 17 His evidence is that this approach has been documented in the Staff Handbook of January 198218 with the relevant provisions replicated in the Staff Handbook of November 1991.19

[30] Mr Picouleau gave evidence as to the history of composite payments (which include a payment in the tutorial or lecture rate for contemporaneous marking) and payment for marking in relevant Awards and agreements which applied to or covered the University:

[underlining added]

[31] Mr Picouleau said that under the 2005 Agreement the practice at Monash was to pay sessional staff in accordance with the Dean’s determination in each faculty. He said that the most ‘significant change that has occurred since 1982 was the rewriting of clause 5 of Schedule 3 in the 2009 Agreement’ 23 with some minor changes being made in the 2014 Agreement.

[32] Mr Picouleau said he led the negotiations for the 2009 Agreement. He said that Mr Cullinan was not involved in those negotiations but did agree that Mr Cullinan had attended two meetings late in the process but this was after the marking issue had been finalised. Mr Picouleau also led the negotiations for the 2014 Agreement and that Mr Cullinan was not involved in those negotiations in any substantial way but, in any event, paragraph 3 of clause 5 of Schedule 3 of the 2014 Agreement was not a point of negotiation.

[33] In respect to the negotiations for the 2009 Agreement, Mr Picouleau said that, on 30 May 2008, the NTEU issued a log of claims for the bargaining with Monash. It included a claim for ‘significant improvement in casual academic pay, including pay for all duties performed and hours worked.’ 24 The NTEU issued a further claim in August 2008 from which Mr Picouleau concluded that the NTEU was not seeking anything new with respect to payments for marking from that contained in the 2005 Agreement.

[34] Mr Picouleau agreed that meeting notes for a bargaining meeting between the NTEU and Monash on 29 October 2008, probably taken by Mr Crundall of Monash, indicate that Monash said ‘no to marking’ in response to the NTEU. Mr Picouleau agreed that this was most likely a rejection by Monash of the claim of the NTEU. 25

[35] Mr Picouleau agreed that the notes of a bargaining meeting between the NTEU and Monash on 19 June 2009 indicate that Mr McGowan of the NTEU stated that the ‘NTEU wants separate payment for all marking outside of class teaching, not just outside teaching period.’ 26 At a meeting on 26 June 2009 Mr Adam Schumacher, Deputy Vice Chancellor, said that:
The intent of the clause is that academic marking other than that assigned on a weekly basis and is marked could reasonably be marked in the relevant classroom tutorial or equivalent teaching equivalent will be paid separately – with paid underlined. 27

[36] In the same meeting Mr McGowan of the NTEU indicated that the NTEU was opposed to any piecework approach to payment [for marking by sessional staff] but otherwise not opposed to the development of guidelines. 28 Mr Picouleau also agreed that at that meeting, Mr Peter Marshall for Monash said that any agreement on sessional marking will be subject to ousting of any more beneficial arrangements.29

[37] On 10 July 2009 Mr Picouleau prepared and provided to NTEU representatives an ‘offer document’ which was a marked up version of an earlier document. 30 Mr Picouleau’s evidence is that this document was drafted after negotiations but no agreement was reached on this wording. A further marked up proposal of the wording was tabled by Mr Picouleau on 13 July 2009.31 Mr Picouleau agreed that he had typed the words and that the words weren’t proposed by the NTEU in a written form.32

[38] The wording proposed on 13 July 2009 was approved as part of the 2009 Agreement. Mr Picouleau produced notes of the meeting between Monash and the NTEU 33 of 13 July 2009 taken by Mr Steve Smith (a member of Monash’s bargaining team). Mr Picouleau says that wording on marking was agreed at the meeting and this is reflected in the notes of the meeting.

[39] Mr Picouleau said that, consistent with the 2009 Agreement, sessional staff were paid for marking that was not ‘associated work’ as defined in the 2009 Agreement ‘in accordance with relevant faculty guidelines and practices, and were not paid by reference to the actual hours worked.’ 34 He said that, consistent with this, there is no system at Monash for sessional staff to record the actual number of hours they were engaged in marking although agreed that he has never completed a timesheet for marking or approved a timesheet for marking and that he has not undertaken a review of timesheets submitted for marking.35

[40] Under cross examination Mr Picouleau was asked:

How do you know that there aren’t other areas of the University, like IT, that pay for hours worked?  -Well, I have the benefit of the documents that we gathered and which have been provided to the NTEU. They give a very complete picture of the practice as at late last year of the arrangements for sessional marking. And prior to that, I have had over the course of years many exchanges and discussions with deans and the relevant associate deans, deputy deans, about issue including the implementation of the changed arrangements in the 2009 agreement. For example, been given the opportunity to become better informed about those arrangements. 36

[41] In reference to his evidence that payments for marking were made in accordance with faculty guidelines after the making of the 2009 Agreement, Mr Picouleau said that there was no set of underlying documents that supported this evidence. His statement as to the way sessional staff were paid was based on ‘his knowledge’ following his discussions with ‘Deans, associate deans, faculty managers, heads of departments’ 37

[42] Mr Picouleau said that payment to sessional staff for marking on the basis of hours worked is contrary to the 2014 Agreement although he took no steps in respect to the issuing of guidelines at the time the 2014 Agreement was made. He did however take steps to ensure this was done ‘later in 2015’. 38

[43] Mr Picouleau also gave evidence of his knowledge of how marking is paid at a number of other Universities.

Questions as to evidence

[44] Prior to considering if there is ambiguity or uncertainty and, if there is, whether and how the 2014 Agreement should be varied, there are two matters to be dealt with respect to the evidence. The resolution of each of these may have implications in respect of the any findings as to ambiguity or uncertainty and any variation that may arise. Whilst I heard evidence on both of these matters it was agreed that the evidence would be considered only if I found I should admit such evidence.

[45] The two matters are firstly, whether I should have regard to the conduct of the parties after the 2014 Agreement was made and second, whether I should admit into evidence ‘without prejudice’ communication between the parties.

Should I have regard to the subsequent conduct of the parties?

[46] The NTEU submits that I should have regard to the (without prejudice) correspondence it sent to Monash on 17 September 2015, the content of which Monash did not dispute at the time, as evidence of the intent of the parties with respect to the 2014 Agreement.

[47] Monash objects to the admission of this material into evidence on the grounds that:

[I]t is not legitimate to use as an aid to construction of [a] contract anything which the parties said or did after it was made. 39

[48] The NTEU relies on the decision in Spunwill Pty Ltd v BAB Pty Ltd (Spunwill) 40 as cited by the Full Bench in CPSU v Telstra Corporation Ltd41 (Telstra). In Telstra, the Full Bench said:

[42] Generally speaking, it is well established that the subsequent conduct of the parties to a contract is not admissible as an aid to construction of a contract. A contrary view was expressed by Santow J in Spunwill Pty Ltd v BAB Pty Ltd. However, even on the Spunwill approach subsequent conduct will only be relevant to the limited extent that the” conduct evidences a clear and mutual subjective intention as to what the contract originally meant.”

[44] Before leaving this point we note our concurrence with Telstra’s contention that Tenix is not authority for the proposition that post agreement conduct is relevant to ascertaining the mutual intention of the parties. Neither the decision subject to appeal nor the CPSU suggested otherwise. The Full Bench in Tenix referred to Re Victorian Public Transport as authority for the proposition that the Commission, in the exercise of its discretion to vary, is to have regard to the mutual intention of the parties at the time the agreement was made. It did not expressly state any principle as to how the intention is to be discerned. However, it is clear from the reasoning in the decision that the mutual intention of the parties was ascertained by reference to the terms of the agreement and the surrounding circumstances. It is equally clear that the conduct of the parties subsequent to the agreement was not a relevant consideration in determining the mutual intention of the parties. But the subsequent conduct of the parties in Tenix was a relevant consideration in the final exercise of the discretion.

[45] In our view the reference to the subsequent conduct of the parties, as it appears in Re Victorian Public Transport Agreement, is intended to be a reference to such conduct as evinces a clear and mutual subjective intention as to what the contract originally meant. This is the same sense in which it was considered relevant in Spunwill.
[Footnotes omitted]

[49] It further relies on the principles set out in Telstra 42 ‘relevant to ascertaining the mutual intention of the parties in an application’ such as this.

[50] Monash submits that Spunwill as cited in Telstra is bad law and that it is well established that subsequent conduct is not admissible as an aid to construction. It says that a proper statement of the authorities in relation to construction is set out in the decision of the Full Bench in Australasian Meat Industry Employees Union v Golden Cockeral Pty Ltd 43 (Golden Cockeral).

[51] I have carefully considered the submissions of the NTEU and Monash on this matter. I have concluded that I should adopt the more broadly accepted approach to the question of subsequent conduct. I have therefore adopted the approach of the Full Bench in Golden Cockeral. I shall not take account of the subsequent conduct of the parties in determining either if there is ambiguity or uncertainty or in determining the mutual intention of the parties with respect to the 2014 Agreement.

[52] Beyond the statement in Spunwill there is no authority which supports a consideration of subsequent conduct of the parties to a contract (or agreement) as informing the intention of the parties in reaching that agreement.

[53] Even if I did adopt the approach suggested by the NTEU it would be of little assistance because I would need to consider the conduct of Monash post the making of the 2014 Agreement, including how it has paid (some) sessional staff for marking and that no dispute was raised in regards to this conduct by the NTEU. This does not assist in resolving the controversy.

[54] Further, the Full Bench in Telstra said that subsequent conduct may be relevant ‘in the final exercise of the discretion’ – that is, in ultimate decision on how to vary the agreement to overcome the identified ambiguity or uncertainty.

[55] For the purpose of determining if ambiguity or uncertainty exists, or the mutual intent of the parties to the 2014 Agreement, I will not have regard to the evidence provided to the Commission of conduct after the 2014 Agreement was made. I shall therefore not have regard to the evidence of Mr Cullinan at paragraphs 36-49 and annexures JJC11 and JJC12 of exhibit NTEU1, his oral evidence on this matter or the related evidence of Mr Andrew Picouleau.

Should I have regard to the without prejudice communication between the parties?

[56] Monash have sought to introduce into evidence communication it received from the NTEU dated 20 August 2008 marked as ‘without prejudice’ (the 2008 communication). That communication directly related to the bargaining for the 2009 Agreement with Monash. The NTEU objects to the admission of the material.

[57] Monash submits, in support of its application that the document be admitted, that:

[58] The NTEU objects to the admission of the 2008 communication into evidence on the grounds that it is without prejudice communications, that it was provided to Monash about a year before the 2009 Agreement was made and it is of no probative value to the matter before the Commission. The NTEU also says that to admit the without prejudice document into evidence ‘puts at substantial risk future negotiations with Monash University, if it's going to be permitted to adduce evidence on the basis of the documents that were put seven years ago.’ 45

[59] There is further communication between the NTEU and Monash from 2015 which the NTEU seeks to rely on which it marked as without prejudice. The NTEU says that it was a ‘mistake’ that it labelled the communications without prejudice and that if it had understood the effect of such a label it would not have marked the correspondence as such.

[60] Section 591 of the FW Act states:

591 FWC not bound by rules of evidence and procedure

[61] However, the rules of evidence cannot be ignored ‘in favour of a course of inquiry which results in unfairness.’ 46 In addition, Commission members are ‘bound to act “judicially” in the sense that they are obliged to respect and apply traditional notions of procedural fairness and impartiality.’47

[62] The Evidence Act states:

55 Relevant evidence

[63] Relevant evidence is admissible in proceedings unless otherwise excluded by the Evidence Act. 48

[64] Section 131 of the Evidence Act states:

131 Exclusion of evidence of settlement negotiations

(a)  a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or

(b)  a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

(e)  the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or

(g)  evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or

[65] In Apotex Pty Ltd v Les Laboratoires Servier (No 5) 49 Flick J gave consideration to the application of s.131(2)(g) of the Evidence Act. He stated:

[42] It was common ground that the maintenance of a claim for privilege founded upon “without prejudice” communications cannot be the occasion for the Court being misled.

[43]…

[44] For the purposes of s 131(2)(g) it has been said that “two requirements” must be satisfied: Korean Airlines Co Ltd v Australian Competition and Consumer Commission (No 3) [2008] FCA 701 at [76] to [77], [2008] FCA 701; 247 ALR 781 at 789. Jacobson J there observed:

[76] Two requirements must be satisfied for an otherwise privileged communication to fall within the exception stated in s 131(2)(g). First, other evidence must have already been adduced which would be likely to mislead the court unless evidence of the without prejudice communication is adduced.

[77] The second requirement is that the evidence of the without prejudice communication must contradict or qualify the evidence that has been adduced.

[66] Monash seeks the admission of the 2008 communication on the grounds that the NTEU relies on Mr Cullinan’s assertions of the claim of the NTEU in lead up to the negotiations for the 2009 Agreement that the NTEU had sought for payment for all hours spent in marking. Mr Cullinan’s assertions are made without any documentary evidence to support them although he says it is evidence of the circumstances surrounding the making of the 2009 Agreement. Monash suggests that from this I may be misled.

[67] It cannot be that a party to negotiations – including in an industrial context – can make a claim as part of the bargaining process, mark that communication as without prejudice and then, once the agreement is made, attempt to alter the objective facts, by asserting that quite a different claim was made.

[68] In Re Department for Education and Children’s Services Deputy President Hampton considered whether he should have regard to without prejudice communications in the form of a log of claims which led to the making of the agreement under consideration. He said:

The implications for the future conduct of negotiations is a relevant consideration, given the development of the concept of privilege. Indeed, the ‘‘public policy’’ aspects of this approach, are even more important in the industrial relations arena and are confirmed by the objects of the Act and their emphasis upon fair and effective negotiations. It is also the case that the term ‘‘without prejudice’’, is sometimes used by the parties in differing contexts, and care must be exercised to ensure that the status of the negotiations was understood and accepted by the relevant parties. In any event, the ability for parties to conduct their negotiations in an open manner that ensures that their positions are able to be communicated and compromised without such being taken out of that context and used against them, is vital. Accordingly, it is clear to me that evidence of negotiations that are clearly conducted on a without prejudice basis should only be admissible where the circumstances of the matter clearly require such an approach. These circumstances are likely to exist where the nature of the application and the findings to be made to determine such, clearly require consideration of all of the circumstances leading to the matter coming before the Commission. As such, evidence of without prejudice negotiations is likely to be admissible, in the absence of consent, only in exceptional cases and even then, considerable care must be taken to ensure that the precise status and authority of the negotiations, and the negotiators, is taken into account… 50

[69] I have carefully considered the submissions of the parties in relation to this matter. I am satisfied that the 2008 communication does form part of the ‘objective background facts known to all the parties and the subject matter of the agreement.’ 51 This, however, does not grant its admission to evidence.

[70] I have thoroughly examined all of the evidence of Mr Cullinan. The NTEU, in their submissions, said that it established a claim in relation to the 2009 negotiations for ‘all marking to be paid separately.’ 52 Mr Cullinan, in his witness statement which he adopted as evidence said:

On the basis of the demands of casual academic staff, NTEU decided in 2008 to make a major claim for bargaining at Monash University, and all other universities, to have all marking paid for separately. 53

[71] Mr Cullinan did not say in his evidence that the NTEU claimed that all hours spent in marking should be paid. Rather, it is more nuanced that that. He says that the NTEU sought in bargaining for the 2009 Agreement that marking be paid for separately. I take this separation, and hence Mr Cullinan’s evidence, as a reference to the arrangements that existed prior to the 2009 Agreement where marking was considered as ‘associated work’ and was paid within the tutorial or lecture rate. How marking, once separated, was to be paid in the 2009 Agreement only becomes apparent from the drafting of clause 5 of Schedule 3.

[72] On this basis I do not consider that the Commission would be misled by the evidence already adduced if the 2008 communication was not admitted into evidence. For this reason I will not admit the 2008 communication into evidence.

[73] If I am wrong as to my characterisation of the evidence of Mr Cullinan I would, given the provisions of s.591 of the FW Act and the views expressed by Deputy President Hampton in Re Department for Education and Children’s Services, have regard to the 2008 communication in resolving the mutual intention of the parties in drafting schedule 3 of the 2009 Agreement. If I did not in such a circumstance the Commission may well be misled.

[74] In relation to the NTEU letters of 2015 (that is, post the making of the 2014 Agreement) that it says it marked ‘without prejudice’ in error, the NTEU should note that privilege will attach to communications ‘which are genuine negotiations with the intent to compromise an existing dispute.’ 54 This is not, however, a matter I need to decide. For the reasons given above I have decided not to admit that correspondence. For this reason I do not need to decide if this without prejudice communication is truly without prejudice or if it should be admitted because of an exclusion in s.131(2) of the Evidence Act.

Is there ambiguity or uncertainty in the 2014 Agreement?

The approach to the question

[75] Section 217 of the FW Act is in the same form as s.170MD(6) of the Workplace Relations Act 1996 (the WR Act). Section 170MD(6) was considered by the Full Bench of the Australian Industrial Relations Commission (AIRC) in Re Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 55  (Tenix) where it said:

[35] In the context of s.170MD(6)(a) the Commission must first identify the existence of an ambiguity or uncertainty before exercising its discretion to vary the agreement. We agree with the Full Bench in Re: CFMEU Appeal which described the existence of an ambiguity or uncertainty as “a necessary statutory prerequisite to any variation being made.” 56

[footnote omitted]

[76] Of the approach to be taken to an application to vary an agreement to remove ambiguity or uncertainty, the Full Bench said:

[28] Before the Commission exercises its discretion to vary an agreement pursuant to s.170MD(6)(a) it must first identify an ambiguity or uncertainty. It may then exercise the discretion to remove that ambiguity or uncertainty by varying the agreement.

[29] The first part of the process - identifying an ambiguity or uncertainty - involves an objective assessment of the words used in the provision under examination. The words used are construed having regard to their context, including where appropriate the relevant parts of a related award. As Munro J observed in Re Linfox - CFMEU (CSR Timber) Enterprise Agreement 1997:

[30] We agree that context is important. Section 170MD(6)(a) is not confined to the identification of a word or words of a clause which give rise to an ambiguity or uncertainty. A combination of clauses may have that effect.

[31] The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention.

[32] Once an ambiguity or uncertainty has been identified it is a matter of discretion as to whether or not the agreement should be varied to remove the ambiguity or uncertainty. In exercising such a discretion the Commission is to have regard to the mutual intention of the parties at the time the agreement was made. 57

[footnotes omitted]

[77] As was observed in Tenix, the correct approach to identifying an ambiguity or uncertainty requires the making of an objective judgment as to whether, on the proper construction of the relevant provision of an agreement, the wording of that provision is susceptible to more than one meaning.

[78] The 2014 Agreement states that:

[79] I would observe firstly that, whilst no submissions were made to this effect, a plain reading of clause 5 of Schedule 3 suggests that it, alone and without reference to other parts of the 2014 Agreement, creates a level of uncertainty. Paragraph 1 provides an absolute discretion to the University to change the way marking is paid. That does not have to be in line with the process outlined in paragraph 3. This is because paragraph 1 says ‘except as otherwise determined at the discretion of the University’ the provisions set out will displace more beneficial arrangements. This suggests that the University retains the right to make changes in a way it determines appropriate.

[80] This discretion puts into doubt the meaning of the absolute statement in paragraph 2 that ‘Teaching Associates will be paid marking rates as set out in this Agreement…’ which specify a rate per hour. This particular statement cannot co-exist with the absolute discretion.

[81] Paragraph 3 then allows (but does not require) the Dean to determine the number of hours that will be paid (presumably at one of the rates specified in the Agreement).

[82] It seems to me that it is not possible for a sessional employee to be paid at the rate per hour in Schedule 2 of the 2014 Agreement if the Dean can, at the same time, limit the number of hours that will be paid or the University can put in place some other arrangement at its discretion.

[83] Secondly, the difficulty of the approach taken by Monash to the question of ambiguity or uncertainty is that it has examined paragraph 3 of clause 5 of Schedule 3 in isolation of any other clause in the 2014 Agreement. As the Full Bench observed in Tenix, the task of identifying ambiguity or uncertainty ‘is not confined to the identification of a word or words of a clause that give rise to an ambiguity or uncertainty. A combination of clauses may have that effect.’ 58

[84] Whilst paragraph 3 of clause 5 of Schedule 3, when read in isolation, may appear clear, when read in combination with other paragraphs in the clause and in conjunction with clause 16.12, clause 22.1 and Schedule 2, in particular, suggest there is ambiguity as to what a sessional employee is to be paid and the number of hours for which they will be paid for marking.

[85] If Schedule 3 is not considered, clause 16.12, clause 22.1 and Schedule 2 might suggest (as was put by the NTEU) sessional staff are entitled to be paid an hourly rate for (amongst other things) marking. When Schedule 3 is considered it suggests that the hourly rate will not be paid for each and every hour worked but rather only for the hours determined by the Dean as are appropriate if he or she issues such a determination. There is some conflict between the provisions to create ambiguity or uncertainty. In reaching this conclusion I would observe that the approach of the NTEU is selectively choosing words from various clauses to prove its point with respect to ambiguity is not a robust approach to the task and should not generally be relied upon.

[86] Should a determination not be made by the Dean clause 5 of Schedule 3 provides some broader discretion to make some other arrangement for the payment of marking.

[87] I do not accept the NTEU’s characterisation of clause 5 of Schedule 3 as being equivalent to piece rates. Piece rates connote payment based on the number of ‘pieces’ completed – payment per shirt sown or bucket of fruit picked. Without indicating my enthusiasm of otherwise for clause 5 of Schedule 3 it does not do this. Paragraph 3 of the clause rather allows the Dean to confine the number of hours within which the work is to be completed by setting the maximum number of hours for which payment will be made. This can be distinguished from payment for each paper marked, which is the basis of a true piece rate.

[88] In reaching my conclusion I have not had regard to the 2010 Award. The 2014 Agreement says, at clause 7 that it ‘wholly displaces any award (existing or future) and any agreement which, but for the operation of this Agreement would apply.’ Considering the words of the Agreement in the context of the 2010 Award is not appropriate given that the 2010 Award does not apply.

[89] Taking all of these matters into account I am satisfied that there is ambiguity or uncertainty in the 2014 Agreement. That ambiguity or uncertainty is concerned with the payments to be made to sessional employees who are engaged in marking where that marking is not part of a composite rate already paid; that is where the marking is a distinct function to be performed.

[90] My conclusion is consistent with the view expressed in Tenix that the ‘Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention.’ 59

How should the ambiguity or uncertainty be resolved?

[91] NTEU submits the Commission should take three factors into account when considering whether to make a variation to remove ambiguity or uncertainty – the mutual intention of the parties at the time the 2014 Agreement was made, fairness, and the best construction for such a variation.

[92] The NTEU says that in 2005 it made a claim for all marking to be paid for separately and the 2009 Agreement removed the inclusion of reasonably contemporaneous marking from the lecture and tutorial rates of pay. This was reflected in the 2009 Agreement and replicated in the 2014 Agreement.

[93] The NTEU submits that ‘fairness’ was relevantly considered by the Full Bench in Tenix where the Full Bench said:

[106] Absent other considerations we would have found this aspect of Tenix’s submission to be compelling. But there are other considerations. In particular we think as a matter of construction the third interpretation of the Agreement ought to be adopted. Further we are of the view that such a construction is consistent with the mutual intention of the parties. Moreover, considerations of fairness tell against the variation sought by Tenix. 60

[94] It further submits that the ‘best construction’ should be one that accords with the views of Bromberg J in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) (Teys). 61  The NTEU says that, on the basis of the authority in Teys the Commission should not allow for a variation to the Agreement that ‘permits [an] indeterminate minimum payment’ not put to the Commission at the time the Agreement was approved as such an approach would not pass the better off overall test (the BOOT) under the FW Act. 62

[95] The NTEU also says that it is implicit that the Commission should not vary the 2014 Agreement such that the varied 2014 Agreement would not pass the BOOT.

[96] Monash submits that the NTEU has sought to introduce a new test with respect to the removal of ambiguity or uncertainty – ‘fairness and best construction’. It says that there is no basis on which such a test should be introduced and that the two-stage process outlined above (finding as to ambiguity, etc and then a consideration of if and how the agreement should be varied to remove that ambiguity, etc) should be adhered to.

[97] Monash submits that, in considering any variation to the 2014 Agreement, the Commission should have regard to the mutual intention of the parties at the time the 2014 Agreement was made. It submits that there is nothing to suggest that the mutual intention was that sessional staff would be paid for all hours spent marking but rather that the payment for marking would be based on the determination of the Dean.

[98] With respect to the decision in Teys, Monash says that, on appeal, the Full Court of the Federal Court held that Bromberg J was in error in deciding that s.257 permits a variation of an agreement other than in accordance with Division 7 of Part 2-4 of the FW Act and that he was in error in identifying a ‘tension’. 63 For these reasons Monash says that it is not safe to rely on the decision at first instance in Teys to support the submissions of the NTEU.

[99] Having found that ambiguity or uncertainty exists it is not mandatory to vary the 2014 Agreement. Any such decision is a discretionary decision. Should the 2014 Agreement be varied, however, the purpose of the variation is to remove that identified ambiguity or uncertainty. It is not an exercise of arbitrating the competing claims of the parties as to what the variation should be. 64.

[100] In Re Department for Education and Children’s Services Deputy President Hampton, in dealing with similar provisions, properly observed:

The jurisdiction created is however to correct any such deficiency in an Agreement, and as such, the exercise of discretion in the context of the Act generally, is not to be exercised by the Commission so as to arbitrate on the parties’ preferred positions on the merit of the issue, as it would in its general jurisdiction. The Enterprise Agreement is essentially the property of the parties, and the Commission’s power to intervene, once approved, is limited by the precise terms of ss 84 and 86 of the Act. This does not mean that the process of variation cannot take place against the wishes of one of the Agreement parties, but rather, carefully directed at correcting the ambiguity or uncertainty in a manner consistent with development of the Agreement and the objects of the Act. In line with this approach, not every ambiguity or uncertainty will lead to a variation. The parties must be encouraged to continue to deal with their own affairs as far as that is reasonable and fair to all interests. 65

[101] With respect to ‘fairness’, the exercise being undertaken is not one of creating an agreement that is subjectively fair (or fairer) to one party or another. The task is to remove ambiguity or uncertainty in the Agreement having regard to the mutual intention of the parties. Any consideration of fairness must be considered in the context of the FW Act.

[102] I do not accept that I should apply a ‘best construction’ test as put by the NTEU. Again I think the NTEU misrepresent the role of the Commission in an application such as this.

[103] I do not agree with the NTEU that I must be satisfied that the 2014 Agreement, as I may decide to vary it, must pass the BOOT. Div 7 of Part 2-4 of the FW Act deals with variations to agreement, including variations to remove ambiguity or uncertainty.

[104] Subdiv A of Div 7 allows for variations to be made to an agreement by an employer or employees. Section 207(3) in Subdiv A stipulates that a variation has no effect unless it is approved under s.211 of the FW Act. Section 211 is also in Subdiv A and provides for the Commission to approve a variation if an application is made by a person covered by the agreement and the Commission is satisfied that it would have been required to approve the varied agreement if it had been made under s.186 of the FW Act which includes whether the agreement wold have passed the BOOT.

[105] Section 217 of the FW Act under which this application to remove ambiguity or uncertainty has been made is in Subdiv B of Div 7 of part 2-4. There is no requirement for the Commission to have regard to s.207(3) in deciding to vary an agreement to remove ambiguity or uncertainty. The Commission is not required to have regard to whether an agreement varied pursuant to an application under s.217 would be required to be approved if such a varied agreement was made under s.186 of the FW Act.

[106] I accept the views expressed by the Full Court in Teys where it said that ‘it may be accepted’ that ‘s.207(3) had no application to a variation done under Subdiv B of Div 7 – “Variation of enterprise agreements where there is ambiguity, uncertainty or discrimination”’. 66

[107] I am satisfied however that a consideration as to whether the varied 2014 Agreement might pass the BOOT, whilst not a requirement, is a reasonable check at an overall level on any determination. Such a check is not and cannot be determinative of the varied agreement. This is, perhaps, the ‘fairness’ that the Full Bench referred to in Tenix.

[108] The NTEU further says that the clear mutual intention of the parties was to ensure that sessional staff were paid for all hours worked and this included all time spent marking. Monash says the intent was to further particularise the pre-existing arrangement whereby the number of hours allowed for marking was determined by the Dean.

[109] Regardless of what may have been the mutual intention of the parties in negotiating the 2009 Agreement and the 2014 Agreement, it is evident that there is a patchwork of arrangements across Monash with respect to the payment of sessional staff for marking. It is also clear on the evidence of Mr Picouleau that no directive was ever given by Monash HR after the finalisation of the 2009 or 2014 Agreements to faculties requiring them to ‘develop guidelines in consultation with academic staff’ or have determinations of the Dean promulgated consistent with these guidelines.

[110] The evidence of Mr Picouleau that payments for marking were in accordance with faculty guidelines is unreliable to the extent it suggests that guidelines and determinations exist in all faculties, particularly given his concession that there were no documents on which he made this assertion but rather he based it on discussions with unnamed (and not called) people within the university.

[111] Any claim that Mr Cullinan’s makes that NTEU had always sought payment for sessional staff for all hours spent marking (if this is what he does say in his evidence) is not reliable. He was not present in negotiations where marking was considered. Mr McGowan, who clearly was a key player in the negotiations for the 2009 Agreement for the NTEU was not called as a witness. He, along with Mr Picouleau, was integral to the negotiations. No reason was given for not calling him.

[112] For the reasons given above I do not intend to rely on the conduct of the parties post the making of the 2014 Agreement nor do I intend to rely on any ‘without prejudice’ communications between the parties.

[113] In these circumstances I consider that the best evidence I have are the notes from the bargaining meetings and other known facts.

[114] What was known to the parties at the time the negotiations for the 2009 Agreement took place were the provisions of the 1996 Staff Handbook, the content of the 2002 Award and the 2005 Agreement,

[115] The relevant provisions of each of these are:

1996 Staff Handbook 67

1.2.10.2 Sessional teaching activity types

…

1.2.10.2.2 A tutorial

A single payment is for a one-hour session which includes payment for all additional time spent on preparation, consultation, marking etc., associated with a tutorial.

1.2.10.3 A lecture

A payment, based on required work level, 1 for each one-hour lecture which includes time to prepare and carry out all associated activities

…

1.2.10.2.5 Marking

Payment, based on the required work level, is at an hourly rate.

1.2.10.3 Discretion of deans and heads of administrative units

1.2.10.3.1 Deans, on the advice of head of the administrative unit, within these guidelines have discretion to define the form of activity and to determine whether sessions, for the purpose of payment, should be regarded as:

      …

    A demonstration, supervision or practice class…which attracts payment at the hourly rate for a demonstration for each hour of class contact…plus further payment where associated work is involved and, in addition, payment for marking…

      or

    A tutorial where a one-hour session attracts three hours of payment which assumes one hour each of preparation, class contact and marking…

      or

      A lecture…

1.2.10.4 Demonstrations, supervisions and practice classes

…

1.2.10.4.4 Sessional staff may be paid also for marking class exercises or examination papers at the end of the subject or course sequence, where they are required to do so by the supervising lecturers in charge of the subject or course. The number of hours and the appropriate marking rate per hour will be determined by the dean, on the advice of the head of the administrative unit.

Payment, based on required work level, is at the hourly rate.

[underlining added]

Higher Education Academic Salaries Award 2002 68

Clause 6.1 Academic staff members will be paid in accordance with Schedule A – Salary rates

A2.6 Marking

      All marking other than that referred to in A.2.2., A.2.3 and A.2.5 will be paid according to the following table for all time worked…

The Award establishes four distinct minimum salary rates per hour of marking.

Monash University Enterprise Agreement (Academic and General Staff) 2005 69

Schedule 2 sets out rates per hour for marking.

Schedule 3:

Defines tutoring and lecturing rates as including two hours of ‘associated working time’ including contemporaneous marking.

States in clause 5 that:

Sessional staff also may be paid for marking class exercises or examination papers at the end of the subject or course sequence…The number of hours and the appropriate marking rate per hour will be determined by the Dean.

[116] It is against this background that the negotiations for the 2009 Agreement occurred. These negotiations were attended by Mr McGowan and others for the NTEU, and Mr Picouleau and others for Monash.

[117] At the time the parties negotiated the 2005 Agreement they were well aware of the content of the 2002 Award. I have no evidence as to how or why the provisions came to be in the 2005 Agreement. What is evident however is that the critical elements with respect to payment for separate marking based on a determination of the Dean did not change between the 2005 Agreement and the 2009 Agreement although the reference to ‘contemporaneous marking’ as part of the associated work for tutoring or lecturing was removed in the 2009 Agreement.

[118] The (excerpts of) notes from the meetings between Monash and the NTEU in relation to the bargaining of the 2009 Agreement were admitted into evidence and were the subject of cross examination of Mr Picouleau who was a participant in those meetings. The evidence indicates that:

[119] With respect to the meeting of 13 July 2009 I am satisfied that the document to which Mr McGowan’s statements refer is the ‘marked up’ version of Schedule 3 Mr Picouleau says he provided to the NTEU on that day.

[120] I accept the evidence of Mr Picouleau with respect to the drafting 71 that was done (the ‘offer’ documents) of clause 5 of Schedule 3 of the 2009 Agreement. It is common in negotiations for discussion to occur and one party go away and draft a clause based on their understanding of the discussion. Such a clause may then be subject to re-writes as the nature of the discussions is sought to be properly captured and changes agreed upon. Whilst I accept that the NTEU may not have put any of the words in writing to Monash there is no evidence that the drafting did not arise from negotiations between the parties.

[121] It is evident that the parties entered into a bargain in 2009 that removed contemporaneous marking from the lecturing and tutoring rates and built on the provisions of the 2005 Agreement with respect to payment for separate marking. There is no evidence that the parties sought to substantially alter this precept of the 2005 Agreement with respect to the Dean’s determination. Even if the NTEU had started out with such an intention it entered into an agreement that retained many of the features with respect to the ability of the Dean to determine the number of hours to be paid for marking.

[122] I cannot accept Mr Cullinan’s evidence otherwise. He was not part of the bargaining where marking was discussed and produced no direct evidence of, what he argues, was the intention.

[123] I have also taken note of:

[124] Taking all of this into account I am satisfied that the mutual intention of the parties was to set an hourly rate for marking and establish a systematic approach to the making of a determination by a Dean with respect to the hours to be allowed for marking.

[125] I am also satisfied that it was intended that, until a Dean’s determination was made in accordance with paragraph 3 of clause 5 of Schedule 3, sessional staff would receive the hourly rate set out in Schedule 2, or any other more beneficial arrangement, for all hours spent marking. Absent any determination from the Dean, it is difficult to see how it could be otherwise.

Conclusion

[126] Having found that there is ambiguity or uncertainty in the 2014 Agreement I am satisfied that it should be varied to remove that ambiguity or uncertainty.

[127] I have therefore decided that the first and second paragraphs in clause 5 of Schedule 3 of the 2014 Agreement should be deleted and replaced with the following:

Except as otherwise determined by the University in accordance with the provisions of this clause, the marking rates in schedule 2 (or more beneficial arrangements where these exist) will apply for all hours of marking undertaken by sessional staff not otherwise included in sessional rate descriptors.

Teaching Associates will be paid a marking rate for each hour of marking as set out in this Agreement, subject to any determination of the Dean made in accordance with this clause, where they undertake marking as a requirement of the supervising lecturer in charge of the subject or course, other than marking which is performed (or could reasonably be performed) in the relevant classroom, tutorial/lecture or equivalent teaching environment.

[128] I am satisfied that the amendment as proposed gives clarity to the intentions of the parties in entering into the 2014 Agreement (based on the 2009 Agreement). That ambiguity related to the rate to be paid for marking and restrictions on the number of hours of marking which would be paid.

[129] The NTEU submit that I cannot vary the 2014 Agreement such that it would not pass the BOOT. I am satisfied that the variation I have proposed does not change the substance of the Agreement but resolves an ambiguity. For the reasons given above I do not agree with this submission.

[130] Whilst I appreciate that it may be possible that sessional staff only performing marking and no other work at Monash (so that they receive no other benefit from the 2014 Agreement) are worse off under the 2014 Agreement compared to the 2010 Award, there is no evidence before me that there are any staff who worked such a pattern at the time the 2014 Agreement was approved or now.

[131] I do not consider that I need to have regard as to how a variation of the 2014 Agreement that applies only at Monash University might impact on other Universities. I have not had regard to such matters as put by Monash or in the evidence of Mr Picouleau.

[132] I do not consider that the variation I have proposed is not in accordance with the objects of the FW Act.

[133] An order to this effect will be issued with the decision. The order will take effect from 9 November 2016.

Seal of the Fair Work Commission with member's signtaure.

COMMISSIONER

Attachment A

16. MODE OF EMPLOYMENT

16.1 The University may employ a staff member on a continuing, fixed-term, sessional or casual basis. Employment may also be on the basis of part-year/seasonal or annualised hours employment in accordance with clause 20 and Schedule 4.

16.2 Upon engagement, the University will provide the staff member with an instrument of appointment which stipulates the type of employment and the terms of the engagement including:

…

Sessional Employment (Academic Staff only)

16.12 “Sessional employment” means the casual employment of academic Teaching Associate staff who are appointed to undertake a single or specific number of sessions related to demonstrating, tutoring, lecturing, marking, supervision, academic research assistance, music accompanying with special educational service, undergraduate clinical nurse education or other required academic activity.

22. SALARY INCREASES

22.1 All University staff members to whom this Agreement applies will be classified and paid in accordance with Schedule 1 with the exception of Teaching Associate staff who are paid a sessional or hourly rate as specified in Schedule 2 of this Agreement, casual academic Research Assistant staff who are paid rates as specified in Schedule 2 of this Agreement, and staff members employed on a Performance-Based Contract.

SCHEDULE 2 – TEACHING ASSOCIATE SESSIONAL RATES AND CASUAL ACADEMIC RESEARCH ASSISTANT RATES

Descriptors for the below activities are contained in Schedule 3

Part-time non-fractional rates: $/hour

Rates immediately prior to FWC approval

($)

3% as from FFPPOA FWC approval

($)

3% as from FFPPOA expiry of one calendar year following FWC approval

($)

3.5% as from FFPPOA expiry of two calendar years following FWC approval

($)

3.5% as from FFPPOA expiry of three calendar years following FWC approval

($)

Marking

          

Complex

55.77

57.44

59.16

61.23

63.38

Standard

39.78

40.97

42.20

43.68

45.21

Standard with doctoral qualifications or full subject co-ordination duties

47.57

49.00

50.47

52.23

54.06

SCHEDULE 3 – TEACHING ASSOCIATE SESSIONAL RATES DESCRIPTORS

1. TUTORIALS

2. LECTURES

5. MARKING

Except as otherwise determined at the discretion of the University, the following provisions will displace any more beneficial marking payment arrangements applying by way of local custom and practice within the University as at the commencement of this Agreement.

Teaching Associates will be paid marking rates as set out in this Agreement where they undertake marking as a requirement of the supervising lecturer in charge of the subject or course, other than marking which is performed (or could reasonably be performed) in the relevant classroom, tutorial/lecture or equivalent teaching environment.

The number of hours allowed for marking and the appropriate marking rate per hour will be determined by the Dean taking into consideration the expected time taken to undertake the marking based on the complexity of the marking in the context of the academic discipline involved. The Dean’s determination of the number of hours for marking will be consistent with guidelines issued for each faculty. These guidelines will be developed in consultation with academic staff within the relevant discipline or organisational unit and will set out reasonable expectations about the number of hours to be allowed for marking based on the complexity of the marking and allowing for variations in level of experience of the marker in the context of the academic discipline involved.

The complex marking rate is paid for marking that is undertaken as a supervising examiner or which requires the significant exercise of academic judgement where for example detailed feedback and comments on complex assignments or examination papers and/or large body of work such as a thesis is required.
The standard marking rate is paid for marking that does not require a significant exercise of academic judgement such as where the marker is able to determine the correct answer by application of a marking template or where general commentary or feedback on a written piece of work is provided.

 1   See clause 16 and Schedule 3.

 2   See clause 22.

 3   See Schedule 3.

 4   See Schedule 2.

 5   Statement of Joshua Cullinan, 1 July 2016, paragraph 33.

 6   Ibid, paragraph 17.

 7   Transcript PN535.

 8   Exhibit NTEU1, annexure JJC-04.

 9   Exhibit NTEU1, annexure JJC-07.

 10   Transcript PN548.

 11   Transcript PN552-4.

 12   Transcript PN556-8.

 13   Exhibit NTEU1, annexure JJC-10.

 14   Exhibit Monash1, paragraph 9.

 15   Ibid, paragraph 11.

 16   Ibid.

 17   Ibid, paragraph 20.

 18   See Exhibit Monash2, tab 8.

 19   See Exhibit Monash2, tab 6.

 20   Exhibit Monash1, paragraph 27.

 21   Ibid, paragraph 28.

 22   Ibid, paragraph 29.

 23   Ibid, paragraph 31.

 24   Ibid, paragraph 41.

 25   Transcript PN1156.

 26   Transcript PN1166

 27   Transcript PN1173-4.

 28   Transcript PN1180-1

 29   Transcript PN1186-7.

 30   Exhibit Monash 2, tab 13.

 31   Ibid 2, tab 15.

 32   Transcript PN1126.

 33   Exhibit Monash2, tab 16.

 34   Exhibit Monash1, paragraph 57.

 35   Transcript PN892-4.

 36   Transcript PN895.

 37   Transcript PN1238-41.

 38   Transcript PN 1324.

 39   Agricultural and Rural Finance Pty ltd v Gardiner (2008) 238 CLR 570.

 40   (1994) 36 NSWLR 290.

 41   (2005) 139 IR 141.

 42   Ibid [46].

 43   [2014] FWCFB 7447.

 44   (1998) 80 IR 294 at [307]-[309].

 45   Transcript PN378.

 46   Re Construction, Forestry, Mining and Energy Union PR935310, at [36].

 47   Coal & Allied Services v Lawler (2011) 192 FCR 78, at [25].

 48   S.56 of the Evidence Act.

 49   (2011) 199 FCR 62.

 50   (1998) 80 IR294, at [308]-[309].

 51   Australasian Meat Industry Employees Union v Golden Cockeral [2014] FWCFB 7447, at [41]6(a).

 52   NTEU submissions, 1 July 2016, paragraph 48.

 53   Exhibit NTEU1, paragraph 16.

 54   Cross on Evidence, (8th ed), at 941.

 55   PR917548.

 56   Ibid, [35].

 57   Ibid, [28]-[32].

 58   Ibid, [30].

 59   Ibid, [31].

 60   Ibid, [106].

 61   [2016] FCA 2.

 62   NTEU closing submissions, 2 September 2016, paragraph 79.

 63   Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2016] FCAFC 122.

 64   Re Department for Education and Children’s Services (1998) 80 IR 294, at [309].

 65   Ibid, at [321].

 66   [2016] FCAFC 122, at [15]

 67   Exhibit Monash2, tab 5.

 68   Ibid, tab 10.

 69   Ibid, tab 3.

 70   Exhibit Monash2, tab 16.

 71   Ibid, tabs 13 and 15.

 72   Ibid, tab 17. See, in particular, clause 3.4.

 73   Ibid, tab 19.

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