2025 WAIRC 00165
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00165



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 26 FEBRUARY 2025



DELIVERED
:
FRIDAY, 14 MARCH 2025



FILE NO.
:
M 61 OF 2024



BETWEEN
:
CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION


CLAIMANT





AND





QUBE PORTS PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – Construction of a clause of an enterprise agreement – Failure to call for volunteers one month in advance of a Closed Port Day – Whether cl 33.3.7(a) of the enterprise agreement imposes an enforceable obligation on the employer
Legislation : Fair Work Act 2009 (Cth)
Acts Interpretation Act 1901 (Cth)
Instrument : Qube Ports Pty Ltd Port of Bunbury Enterprise Agreement 2020
Case(s) referred
to in reasons: : City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426
Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54
Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182
Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241
Avard v Australian Capital Territory [2024] FCA 690
WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536
Result : Claim is dismissed
Representation:
Claimant : Mr K. Sneddon (of counsel)
Respondent : Ms S. Millen (of counsel) and with her, Ms A. Hatzisarantinos (of counsel) as instructed by Allens




REASONS FOR DECISION
Introduction
1 On 13 May 2024, the Construction, Forestry and Maritime Employees Union (the claimant) lodged a claim alleging Qube Ports Pty Ltd (the respondent) failed to call for volunteers one month in advance of a Closed Port Day (CPD) on 6 March 2023, 29 March 2024 and 25 April 2024 (the Claim).
2 In failing to call for volunteers one month in advance of a CPD, the claimant alleges that the respondent has contravened s 50 of the Fair Work Act 2009 (Cth) (FWA) in that the respondent has contravened cl 33.3.7(a) of the Qube Ports Pty Ltd Port of Bunbury Enterprise Agreement 2020 (the Agreement).
3 The claimant claims the payment of a civil penalty for the alleged contravention and for the penalty to be paid to the claimant pursuant to ss 546(1) and (3) of the FWA.
4 The respondent denies the alleged contravention and says the controversy between the parties involves interpreting the relevant clause in the Agreement.
5 Schedule I of these reasons outlines the jurisdiction, standard of proof and practice and procedure of the Industrial Magistrates Court (IMC).
6 Schedule II of these reasons outlines the principles applicable to the construction of an industrial agreement.
Agreed Facts
7 The parties provided a statement of agreed facts.
8 In summary, the claimant has standing to commence the Claim, and the respondent is a national system employer under the FWA. The Fair Work Commission approved the Agreement on 2 February 2021, and it came into operation on 9 February 2021 with a nominal expiry date of 30 June 2024. The Agreement applies to stevedoring employees in the classifications set out in cl 11.1 and Schedule 2 and who are employed by the respondent at the Port of Bunbury.
9 Pursuant to cl 33.2.1(b) of the Agreement, the following days were allocated as a CPD:
· 6 March 2023 where a call for volunteers to work was sent by the respondent on 28 February 2023;
· 29 March 2024 where a call for volunteers to work was sent by the respondent on 18 March 2024; and
· 25 April 2024 where a call for volunteers to work was sent by the respondent on 5 April 2024.
10 To those agreed facts, I would also add there is no evidence that any employee at the Port of Bunbury was compelled to work on 6 March 2023, 29 March 2024 or 25 April 2024.
The Parties’ Contentions
11 The principles applicable to the interpretation of industrial agreements are well known. In summary, the interpretation of an industrial instrument begins with consideration of the natural and ordinary meaning of the words used. City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426, 438 (City of Wanneroo).
An industrial instrument is to be interpreted in light of its industrial context and purpose and must not be interpreted in a vacuum divorced from industrial realities. City of Wanneroo 438, 440.
An industrial agreement must make sense according to the basic conventions of the English language. City of Wanneroo 440.
The circumstances of the origin and use of a clause is relevant to an understanding of what is likely to have been intended by its use. Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54.
Narrow and pedantic approaches to the interpretation of an industrial agreement are misplaced. Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182; Amcor Limited v Construction, Forestry, Mining and Energy Union & Ors [2005] HCA 10; (2005) 222 CLR 241.

The claimant’s submissions
12 The claimant says the requirement for the respondent to call for volunteers one month in advance of a CPD is unambiguous, easily understood and needs no additional words to its meaning.
13 The clause is not qualified in any manner and sets an objective measure for the call of volunteers. The term ‘one month’ is not defined in the Agreement, and the claimant appears to refer to three different ways to interpret a month (common understanding of a minimum of 28 days, the Cambridge online dictionary, and s 2G of the Acts Interpretation Act 1901 (Cth)). With respect to the claimant, the appropriate definition and that which is relevant to an industrial instrument made under the FWA is s 2G of the Acts Interpretation Act 1901, namely:
(1) In any Act, month means a period:
(a) starting at the start of any day of one of the calendar months; and
(b) ending:
(i) immediately before the start of the corresponding day of the next calendar month; or
(ii) if there is no such day—at the end of the next calendar month.
14 Relevant to the Claim, the call for volunteers was made at 6, 10 and 20 days in advance of the respective CPD. In that sense, it matters not whether a month was defined as 28 days or as a calendar month where the longest call period was 20 days, which the claimant says was less than the period cl 33.3.7(a) of the Agreement requires.
15 The claimant expanded its submissions at the hearing to include that the use of the word ‘will’ in cl 33.3.7(a) is an ‘imperative command’ necessary for employees to understand their obligations and entitlements under the Agreement. The imperative command is not qualified and there is no discretion.
16 The clause cannot be rewritten to give a meaning that does not exist on the plain reading of the clause where both parties agreed to its inclusion.
17 The claimant maintains that the word ‘will’ used in its context creates a binding obligation on the respondent. The claimant accepts that cl 33.3.7(a) is part of a broader framework (in rostering) but it requires planning and certainty by both parties. The claimant says its construction does this.
18 In reply to the respondent’s oral submissions the claimant says there is nothing in cl 33.3.7(a) of the Agreement that says employees cannot volunteer before, during, or after the call for volunteers, or otherwise prevents an employee from ‘putting their hand up’ to volunteer. The claimant disputes cl 33.3.7(a) being an enabling clause and says the clause could have been drafted in a way consistent with it being such a clause but it was not.
The respondent’s submissions
19 The respondent contends that cl 33.3.7(a) of the Agreement forms part of a framework which enables it to allocate employees to work on a CPD, as part of that framework cl 33.3.7(a) enables, but does not require, the respondent to call for volunteers one month in advance, and an impractical outcome in an unpredictable industry would result if the respondent was required to strictly call for volunteers in the manner suggested by the claimant.
20 Having regard to the context and purpose of cl 33.3.7(a) of the Agreement, there is no basis to adopt the literal interpretation agitated by the claimant.
21 The purpose of the clauses relevant to working on public holidays and CPDs generally is to allocate and determine employee entitlements as a consequence of being allocated to work on those days. Thus, cl 33.3.7(a) of the Agreement ought to be read and construed in light of this overall purpose and within the framework it applies.
22 The respondent suggests that the preferred construction of cl 33.3.7(a) of the Agreement is that in circumstances where the respondent determines that it required employees to work on a CPD, it can from one month before that date call for volunteers. However, there is no absolute obligation to do so. The terms of cl 33.3.7(a) of the Agreement reduces the need for the respondent to compel employees to work on CPDs by ascertaining employees’ interest and availability to work CPDs and only if required enliven the respondent’s right to compel employees to work on a CPD.
23 The respondent submits that its principal obligation is to provide employees with certainty about whether they will or will not be allocated to work on a CPD by providing them four days’ notice of the ‘final requirement’ to work in accordance with Part A, cl 33.3.7(c) of the Agreement, and paying them accordingly if they are required to work on a CPD. The call for volunteers at one month in advance has no impact on an employees’ rights and entitlements, nor does the failure not to call for volunteers one month in advance, where the final allocation requirements have been met.
24 Support for this is found in the factors relating to final allocation, including: the order of allocation on CPD; the availability of work; and skill required for the vessel or kind of vessel berthed: Part A, cl 33.3.8 of the Agreement. Support is also found in cl 33.3.3, where there is no difference in remuneration for an employee who volunteers or is compelled to work on a CPD.
25 In the context of the purpose of the call for volunteers, the use of the word ‘will’ in cl 33.3.7 of the Agreement does not create an obligation on the respondent but enables the respondent to call for volunteers to work on a CPD from one month before the date. However, this does not impose an absolute requirement to do so. The clause is part of the ‘machinery provisions’ that achieve the purpose of the overall provision, and where the primary obligation of the clause is otherwise met, there is no contravention of merely facilitative provisions.
26 The language in cl 33.3.7 of the Agreement permits something to be done, rather than requiring it to be done such that the taking of action, or not taking of action, ‘does not contravene any express or implied obligation under the agreement’. Respondent’s submissions, [20] referring to Avard v Australian Capital Territory [2024] FCA 690, [96]

27 The nature of stevedoring work is variable and inconsistent requiring less than one month’s notice of work where the skills required may also vary at short notice. As a result, cl 33.3.7(a) of the Agreement cannot be construed, as a matter of industrial practicality, to require a call for volunteers to work on a CPD in all circumstances.
28 The respondent also expanded its submission at the hearing. The respondent contends the claimant’s submission asks the Court to find one sentence in the abstract capable of being contravened where the respondent did not call for volunteers within one month. The respondent says the claimant’s construction makes no industrial or business common sense in an unreliable industry.
29 The respondent highlighted its submission with two examples:
(1) a seasonal port or a port with no known vessels expected on a CPD; and
(2) the respondent does not call for volunteers and does not roster as it believes there is no likelihood of a vessel berthing on a CPD, but a vessel arrives unexpectedly.
30 Based on the claimant’s suggested construction, in the first scenario the respondent must still call for volunteers one month prior to a CPD because it will be susceptible to a civil penalty notwithstanding it has no intention of engaging employees to work. The respondent says this is an impractical and an ‘absurd’ outcome and one which creates uncertainty for employees for reasons explained below.
31 In the second scenario, the respondent says the claimant’s construction disadvantages employees who may want to work on a CPD at shorter notice (for example, for financial reasons or where the employee has missed the notice for some reason), fails to consider the industrial reality and, again, makes the respondent susceptible to a civil penalty where employees suffer no detriment or prejudice.
32 The respondent explained that the preferred construction for cl 33.3.7(a), when read as a whole and in context, is that it is an enabling clause ‘unlocking’ the respondent’s power to compel employees to work on CPDs. The respondent’s suggested construction is:
· where the respondent calls for volunteers one month in advance of a CPD (first sentence), if there are no volunteers or insufficient unskilled or skilled volunteers the respondent is empowered to compel available employees to work on a CPD (second sentence); and
· where the respondent calls for volunteers less than one month in advance of a CPD, the respondent cannot compel available employees to work on a CPD but can accept volunteers at shorter notice.
33 The respondent contends that its construction gives effect to the following:
· the inherent unpredictable nature of stevedoring inferred from the ordinary rostering procedure referred to in cl 29.2 of the Agreement;
· the order of allocation to be applied on public holidays and CPDs provided in cl 33.3.8 of the Agreement;
· the purpose of the clause in making provision for ‘special days’;
· providing certainty to employees such that if there is no call for volunteers one month in advance of a CPD, employees know they cannot be compelled to work but equally they will not suffer a disadvantage if they apply to or are asked to volunteer at short notice and wish to do so; and
· the builtin protection where under cl 33.3.7(c) of the Agreement the respondent is to provide four days’ notice of the final requirement to work on a CPD.
What is the Preferred Construction of Clause 33.3.7(a)?
34 Clause 33.3.7 of the Agreement provides:
a. The Company will call for volunteers one month in advance of a Closed Port Day. If there is insufficient labour and/or skills to work a vessel, available Employees may be compelled to work.
b. Nothing prevents an Employee from initially declining or volunteering to work on Closed Port Days. Employees who have not expressly made themselves unavailable may be required to work.
c. The Company will provide four days’ notice of the final requirement to work on a Closed Port Day.
35 Clause 33.3.7 is within the clause that deals with public holidays where employees are required to be reasonably available for work on public holidays: cl 33.1 of the Agreement. The Agreement provides for two types of public holidays: Normal Public Holidays; and CPDs: cl 33.2.1 of the Agreement.
36 CPDs are: Good Friday; Anzac Day; Labour Day on the day it is celebrated in the relevant State or Territory; Christmas Day; and another day as agreed between the respondent and the majority of employees (for example, Picnic Day): cl 33.2.1(b)(i) to (iv) of the Agreement.
37 Clauses 33.3.1 to 33.3.6 of the Agreement outlines, amongst other things, the payment and annualised hours for public holidays with CPD attracting a higher rate and credit to annualised hours, including where the CPD is not worked but where certain employees are available to work.
38 Clause 33.3.8(a) of the Agreement provides the order of allocation of employees on CPDs, which, subject to skill, is in order of employee type who have volunteered, not volunteered and available and then Guaranteed Wage Employees and Supplementary Employees. Clause 2.1 of the Agreement defines a Guaranteed Wage Employee as one who is irregularly engaged and who is guaranteed a minimum wage under the Agreement. A Supplementary Employee is a non-permanent casual.

39 Clause 33.3.8(b) provides that FullTime Salaried Employee (FSE) and Provisional FullTime Salaried Employee (PFSE) who have been granted Planned Time Off (PTO) or made themselves unavailable on any public holiday cannot be compelled to work.
40 There is additional provision made for the CPD which is also Christmas Day, but also for Christmas Eve and New Year’s Eve: cl 33.4 of the Agreement. In essence, cl 33.4.1 of the Agreement foreshadows the possibility that where unforeseen circumstances arise, the intended cessation of work at 3.00 pm on Christmas Eve and New Year’s Eve may be extended to a maximum of 12 hours. This clause is intended to apply where the vessel would be completed inside the extension period.
41 Following on from this, cl 33.4.2 of the Agreement provides:
Employees will not be compelled to work on Christmas Eve, Christmas Day or New Year’s Eve. However, the Company may conduct operations at these times by calling for volunteers for work as required between:
(a) 1500 hours on Christmas Eve and the nominal commencement of the day shift on Boxing Day; and
(b) 1500 hours on New Year’s Eve and the nominal commencement of the day shift on New Year’s Day.
42 The respondent says that one sentence in cl 33.3.7(a) cannot be viewed in isolation to create an obligation susceptible to a civil penalty, particularly where, on the evidence, no employee suffered any disadvantage or prejudice or was subject to compulsion as a result of the shorter notice periods. The claimant points to cl 33.3.7(c) of the Agreement and says one sentence is capable of an obligation attracting a civil penalty if contravened. The claimant leans into the use of the word ‘will’ in both clauses.
43 To approach the task of construction in the limited manner suggested by the claimant would not be consistent with the authorities: see WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197], the essence of which is summarised at paragraph 11 above.
44 That is, the first sentence of cl 33.3.7(a) is not divorced from the second sentence, nor is it divorced from the whole of cl 33 or the whole of the Agreement. An interpretation that facilitates a harmonious, sensible outcome is preferred to one that does not. Accordingly, and notwithstanding the use of the word ‘will’, the context is important.
Context and Purpose
45 The starting point in the Agreement is that employees are required to be reasonably available for work on public holidays. Thereafter, the Agreement divides the two types of public holidays defined under cl 33.2.1 and treats CPDs differently to Normal Public Holidays.
46 That is, working on a CPD attracts a higher rate of pay, all hours worked are credited to the employees’ annualised hours, and it is predicated on a preference of employees volunteering to work on a CPD. This also extends to unforeseen circumstances on Christmas Eve referred to in cl 33.4.1 of the Agreement where employees may volunteer to work beyond 3.00 pm on Christmas Eve.
47 Thus, contextually, the purpose of cl 33.3.7 of the Agreement appears to recognise CPDs as holding a ‘special’ significance for employees (over that held for other public holidays) and crafts a regime that balances the needs of the business with the employees’ interests in not working on those days or if required, or volunteer, to work on those days and be properly compensated for doing so. Notably, not all employees will necessarily have a particular interest in the religious holidays of Good Friday and Christmas Day or observe Anzac Day. However, it is likely there is a historical basis for treating these days differently and the Agreement provides for that difference.

48 To that end, employees who have expressly made themselves unavailable will not be required to work: cl 33.3.7(b) and cl 33.3.8(b) of the Agreement. FSE and PFSE who have been granted and approved PTO cannot be compelled to work, and employees will not be compelled to work on Christmas Day: cl 33.4.2 of the Agreement.
49 However, cl 33.3.7(b) of the Agreement, in the second sentence, provides that nothing prevents an employee from initially declining or volunteering to work on CPDs. The use of the word ‘initially’ implies that employees can change their mind and express an alternative preference with the respondent’s final notice to be given four days before the CPD.
50 Thereafter, there is a prescribed order of allocation for CPDs but not for Normal Public Holidays, based principally on the status of employment and whether the employee has volunteered or has been required to work: cl 33.3.8 of the Agreement.
51 Further provision is made for working on Christmas Eve, Christmas Day and New Year’s Eve, which is based solely on calling for volunteers at the time. That is, it is not tied to any notice requirement or timing of any notice: cl 33.4.2 of the Agreement.
52 The notion of volunteering to work on CPDs permeates cl 33.3.7 to cl 33.4.2 and, therefore, must have some relevance both to the respondent and to employees. Given the ‘special’ treatment afforded to CPDs, it can reasonably be inferred that the respondent may prefer for employees to want to work on CPDs rather than being forced to do so. Equally, there may be employees who want to work on CPDs and other employees who are content for them to do so. Further, the respondent may anticipate a reduction in work requirements on CPDs but may also want some flexibility to engage employees at short notice. Employees may want to preserve time off on CPDs but may also want the option of earning increased pay and time to annualised hours if the work is on offer, even at short notice.
53 In circumstances where both the respondent and the employees are on equal footing in terms of the need for workers and the desire to do the work, the timing of any call for volunteers is less important than the actual call itself. That much can be seen in cl 33.4.2 of the Agreement.
54 The real difference between the respondent and employees is where the respondent requires workers on CPDs and there are insufficient or no volunteers to do the work. That is, the issue is one of compulsion to work on CPDs.
Determination on Preferred Construction
55 For the following reasons, the respondent’s suggested construction of cl 33.3.7(a) of the Agreement is preferred. That is, the first sentence of cl 33.3.7(a) of the Agreement is facilitative whereupon it enables the respondent to compel employees to work on CPDs provided it has first given sufficient notice by calling for volunteers.
56 Notwithstanding the use of the word ‘will’ in the first sentence of cl 33.3.7(a) of the Agreement, I do not accept that the intention behind the use of the word ‘will’ in the first sentence was to constrain the respondent to a specific time frame within which volunteers could be asked to volunteer to work if required or if they wanted to.
57 The intention was likely two-fold:
(1) give employees sufficient notice that they may be required to work on CPDs; and
(2) ensure the respondent could not force employees to work on CPDs without first giving them sufficient notice.
58 When seen this way, the respondent assumes all of the risk that it may have no employees available to work on a CPD unless it properly organises itself in advance.
59 When seen this way, the respondent’s suggested construction provides certainty, rather than uncertainty, for the employees in that if the respondent does not call for volunteers one month in advance the employees know they cannot be forced to work on a CPD. But if the employees thereafter volunteer to work on a CPD, they are freely choosing to do so reflecting the meaning of volunteering.
60 This is consistent with: the lack of notice required in cl 33.4.2 of the Agreement but the option to volunteer in specified circumstances; the possibility of a change of mind contained in cl 33.3.7(b); the order of allocation in cl 33.3.8; and the ‘special’ treatment afforded to CPDs over and above that to Normal Public Holidays.
61 In addition, this construction does not infringe upon, and works harmoniously with, other protections built into:
· cl 33.3.7(c), where the respondent is to provide four days’ notice of the final requirement to work on a CPD;
· cl 33.3.8(b), where FSE and PFSE are unavailable and unable to be compelled in certain circumstances; and
· cl 33.4.2, where employees cannot be compelled to work on Christmas Eve, Christmas Day or New Year’s Eve, but they can volunteer to work.
62 Noting cl 33.3.7(a) of the Agreement is contained in Part A, the generic part of the Agreement, to accept the claimant’s literal construction would, as suggested by the respondent, expose the respondent to the risk of civil penalty if it did not one month in advance call for volunteers to work on each and every CPD at each and every port whether there was an intention or requirement for work to be undertaken at the port or not.
63 The claimant’s suggested construction does not reflect the reality of the protection afforded by the whole of cl 33.3.7(a) or the context in which it appears. Further, it pays little attention to the industrial realities of the stevedoring industry and adopts an overly inflexible approach which has no apparent advantage for employees.
Conclusion
64 I am not satisfied that the first sentence in cl 33.3.7(a) of the Agreement imposes an enforceable obligation on the respondent punishable by the imposition of pecuniary penalties under the FWA in the event of non-compliance with the obligation.
65 The Claim is dismissed.



D. SCADDAN
INDUSTRIAL MAGISTRATE


SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (WA)
Jurisdiction
[1] An employee, an employee organization or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA.
[2] The IMC, being a Court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: FWA, s 12 (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA), s 81 and s 81B.
[3] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: FWA, s 544.
[4] The civil penalty provisions identified in s 539 of the FWA include the terms of an enterprise agreement where the agreement applies to give an entitlement to a person and to impose an obligation upon a respondent employer: FWA, s 51(2). The agreement applies if it covers the employee or the employee organisation and the employer, the agreement is in operation and no other provision of the FWA provides that the agreement does not apply: FWA, s 52(1) (when read with s 53 of the FWA).
[5] An obligation upon an ‘employer’ covered by an agreement is an obligation upon a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA, s 42, s 53, s 14 and s 12. An entitlement of an employee covered by an agreement is an entitlement of an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer’: FWA, s 42, s 53 and s 13.
Contravention
[6] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the Court may make orders for an employer to pay to an employee an amount that the employer was required to pay under the modern award: FWA, s 545(3)(a).
[7] The civil penalty provisions identified in s 539 of the FWA include:
· Contravening a term of an enterprise agreement: FWA, s 50.
[8] An ‘employer’ has the statutory obligations noted above if the employer is a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA, s 14 and s 12. The obligation is to an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer’: FWA, s 13
[9] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the Court may make orders for:
· An employer to pay to an employee an amount that the employer was required to pay under the FWA: FWA, s 545(3).
· A person to pay a pecuniary penalty: FWA, s 546.
[10] In contrast to the powers of the Federal Court and the Federal Circuit Court, an eligible State or Territory court has no power to order payment by an entity other than the employer of amounts that the employer was required to pay under the FWA. For example, the IMC has no power to order that the director of an employer company make payments of amounts payable under the FWA: Mildren v Gabbusch [2014] SAIRC 15.
Burden and standard of proof
[11] In an application under the FWA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not,’ the burden is discharged, but, if the probabilities are equal, it is not.
[12] In the context of an allegation of the breach of a civil penalty provision of the Act it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. (362)

SCHEDULE II: Construction of Industrial Instruments
[1] This case involves, in part, construing industrial agreements. The relevant principles to be applied when interpreting an industrial instrument are set out by the Full Bench of the Western Australian Industrial Relations Commission in Fedec v The Minister for Corrective Services [2017] WAIRC 00828; 97 WAIG 1595 [21] - [23].
[2] In summary (omitting citations), the Full Bench stated:
The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement;
(1) The primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
(2) It is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;
(3) The objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;
(4) The apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;
(5) An instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ’;
(6) An instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation; and
(7) Industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.
[3] The following is also relevant:
· Ascertaining the intention of the parties begins with a consideration of the ordinary meaning of the words of the instrument. Ascertaining the ordinary meaning of the words requires attention to the context and purpose of the clause being construed. City of Wanneroo at [53] - [57] (French J).
· Context may appear from the text of the instrument taken as a whole, its arrangement and the place of the provision under construction. The context includes the history of the instrument and the legal background against which the instrument was made and in which it was to operate. City of Wanneroo [53]  [57] (French J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 [28]  [30] (Katzmann J).