AA v Australian Federal Police [2020] FWC 71

1 Fair Work Act 2009 s.739 - Application to deal with a dispute AA v Australian Federal Police (C2018/6141) DEPUTY PRESIDENT KOVACIC CANBERRA, 10 JANUARY 2020 Application to deal with a dispute – dispute as to whether the Applicant is entitled to payment of the Air Security Officer Flight Operations Allowance under the Australian Federal Police Enterprise Agreement 2017-2020 – determined that the Applicant is not entitled to be paid the Allowance. [1] On 1 November 2018 AA (the Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) and in accordance with the dispute resolution process of the Australian Federal Police Enterprise Agreement 2017-2020 (the Agreement)1. The dispute concerns whether the Applicant is entitled to payment of the Air Security Officer Flight Allowance (the ASO Allowance) under clause 35 of the Agreement. [2] The Applicant is assigned to the Australian Federal Police’s (AFP – the Respondent) Security Response Group – Discreet Operations (SRG-DO) area and in his application contended that since the Agreement commenced operation on 24 May 2018 he had not been paid the ASO Allowance despite being operationally ready to perform his duties and undertake the operational duties of an Air Security Officer (ASO) when required. The relief sought by the Applicant, as outlined in his application, was a determination that the ASO Allowance be paid to SRG-DO members consistent with clause 35(3)(a) of the Agreement and that it be paid from the date the Agreement commenced operation. [3] The application was the subject of conferences on 4 and 19 December 2018 which failed to resolve the dispute. It was not disputed that in those circumstances the Fair Work Commission (the Commission) was empowered by the dispute settlement procedure in the Agreement to determine the dispute. [4] The application was heard on 28 February 2019, with the parties provided the opportunity to subsequently provide further written submissions in respect of an unredacted version of Exhibit 5 which was to be provided by the Respondent to the Commission and the Applicant on or before 19 March 2019 in accordance with an Order issued by the Commission on 18 March 2019.2 The Respondent’s further written submissions in reply regarding Exhibit 5 were received by the Commission on 2 April 2019. At the hearing, Mr Michael Chilcott, General Counsel with the Australian Federal Police Association (AFPA), [2020] FWC 71 DECISION -- 1 of 25 -- [2020] FWC 71 2 appeared for the Applicant, while Mr Michael Seck of Counsel appeared with permission for the Respondent. [5] The Applicant gave evidence on his own behalf together with Mr Adrian Smith, the AFPA’s Secretary/Treasurer and an AFPA representative in the negotiations for the Agreement, and Ms Vicki Linabury, Manager – Legal and Industrial with the AFPA. Neither the Applicant, Mr Smith nor Ms Linabury were required for cross-examination. [6] Evidence for the Respondent was given by Superintendent Richard Breiner, Coordinator of Discreet Operations (DO) in the Respondent’s Specialist Response Group (SRG) and Ms Emma Hardy, the leader of the Respondent’s Bargaining Team for the Agreement. [7] On 18 March 2019 the Commission issued a Confidentiality Order3 made pursuant to ss.593(3)(d) and 594 of the Act which provided inter alia that the Applicant’s identity would not be disclosed. [8] By way of background, and as noted in a separate decision4 concerning a dispute relating to the Agreement, the Respondent in late 2017/early 2018 foreshadowed its intention to restructure the Air Security Program and have the work absorbed into the work of the SRG- DO teams, with that change confirmed in mid-20185, i.e. after the Agreement was made and had both been approved and commenced operation. As part of the proposed changes to the program police officers would no longer be engaged to fulfil only ASO duties and instead ASO duties would be performed by members of the SRG-DO teams. [9] For the reasons set out below, I find that the Applicant is not entitled to be paid the ASO Allowance. The Agreement provisions [10] Clause 35 of the Agreement, which appears in Part VI – Allowances and Other Entitlements of the Agreement, provides as follows: “35 Air Security Officer Flight Operations Allowance (1) Employees performing the role of an Air Security Officer who are required to undertake duties on board an aircraft as part of their core duties will receive a flight operations allowance. (2) This allowance is payable in recognition of the inconvenience experienced due to the transient location of their workplace and the time necessarily spent away from their home location. (3) The air security officer flight operations allowance is not payable to an Employee: (a) unless they are assigned to a position in Discreet Operations, or; (b) who only perform Air Security Officer duties from time to time when travelling operationally, or; -- 2 of 25 -- [2020] FWC 71 3 (c) who receives another form of allowance in recognition of the inconveniences experienced due to the transient location of their workplaces and the time necessarily spent away from their home location. (4) The air security officer flight operations allowance of $15,000 per annum will be paid pro-rata on a fortnightly basis, in arrears. The allowance will not count as Base Salary or as salary for superannuation purposes. (5) The AFP will meet all approved costs associated with the AFP employment related travel requirements in accordance with this Agreement where the Air Security Officer is required to stay overnight at a location (other than their home location) in between scheduled duty. Time spent undertaking operational duty on board an aircraft is not employment related travel for the purposes of this sub-section.” [11] The term ‘Air Security Officer’ is defined in clause 8VI of the Agreement as follows: “Air Security Officer means an Employee who: (i) has a current Air Security Officer qualification; and (ii) is required to undertake Air Security Officer duties on board an aircraft on a fulltime basis.” [12] I note also that Regulation 1.03 of the Aviation Transport Security Regulations 2005 (Cth) defines the term ASO as follows: “"air security officer" means: (a) a protective service officer, special protective service officer, member, or special member, of the Australian Federal Police who is directed by the Commissioner to carry out the duties of a position of air security officer; or (b) a person who is: (i) employed and trained by a foreign government to travel on aircraft to provide security for aircraft and their passengers and crew (other than a person who is employed to provide exclusive personal protection for 1 or more individuals travelling on an aircraft); and (ii) operating in accordance with an arrangement between the foreign government and the Australian Government.” The Applicant’s case [13] The Applicant submitted that central to this dispute was the appropriate construction and interpretation of clause 35 of the Agreement which provided for certain members of the Respondent to receive the ASO Allowance. Specifically, the Applicant posited that the inconsistency of language used in clauses 35 and 8VI of the Agreement was the root of the dispute in this matter. -- 3 of 25 -- [2020] FWC 71 4 [14] The Applicant also stated that the principles applicable to the proper construction of an enterprise agreement were summarised by the Full Court of the Federal Court in WorkPac Pty Ltd v Skene (WorkPac)6 and in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri)7. [15] The Applicant’s construction of the Agreement can be summarised as follows:  the term ‘fulltime’ in the definition of an ASO (clause 8VI) must be read in conjunction with clause 35 of the Agreement;  ‘fulltime’ must be understood as meaning permanent, regular and ongoing otherwise an illogical outcome would be reached such that the clause could not ever be operative;  the term ‘fulltime’ should also be considered in the light of the reference to ‘time to time’ in clause 35(3) of the Agreement which would have no work to do if ‘fulltime’ was given the meaning ascribed to it by the Respondent; and  clause 35 must be interpreted and understood having regard to the industrial realities in which it exists. [16] Beyond that, the Applicant contended that:  the inclusion of ‘fulltime’ in the definition of an ASO was an error of drafting during bargaining for the Agreement, highlighting that the equivalent provisions to clauses 35 and 8VI of the Agreement in the predecessor agreement (the Australian Federal Police Enterprise Agreement 2012-20168 – the 2012 Agreement) both included the term ‘core duties’;  the proposed agreement voted down by employees in July 2017 used the term ‘fulltime’ in both clause 8VI and clause 35;  while clause 35 was subsequently amended to replace the term ‘fulltime’ with the term ‘core duties’, the definition of ASO in clause 8VI retained the term ‘fulltime;  assurances were provided by bargaining representatives for the Respondent that members assigned to SRG-DO performing ASO duties would be entitled to receive the ASO Allowance and that the Allowance would also be payable in situations where an employee performed ASO duties in addition to other duties;  the approach of the courts to the construction of legislative instruments as set out in Kelly v R (Kelly)9 was to not construe a definition in isolation from the operative provision(s) in which the definition is used but instead to insert the definition into the operative provision and then construe the operative provision, adding that such an approach rendered the definition of ASO in clause 8VI as being unable to operate within clause 35 as it resulted in significant logical and grammatical infelicities; -- 4 of 25 -- [2020] FWC 71 5  to give supremacy to the definition of an ASO as proposed by the Respondent would result in clauses 35(1) and (2) [sic (3)] of the Agreement having no work to do as the qualification for the ASO Allowance was solely contained in the definition, positing that the gateway to an entitlement to the ASO Allowance in clause 8VI was more demanding than the gateway in clause 35;  on the natural and plain meaning of the terms ‘core duties’ and ‘fulltime basis’ the Commission could not regard them as derivative or interchangeable, adding that the terms were therefore unalike;  the term ‘core duties’ could be equated to regular duties or, as reflected in Superintendent Breiner’s and Ms Hardy’s evidence, duties that are performed on a ‘somewhat regular basis’;  the Commission may seek to disregard the definition of ASO in clause 8VI of the Agreement because clause 35 can operate without the need of the definition and clause 35(2) [sic 35(3)] gives effect to the Respondent’s intention to exclude auxiliary ASO’s from the payment of the ASO Allowance;  having regard to the decision in Berri, when consideration was given to the surrounding circumstances in this case, the words in clause 8VI of the Agreement were ambiguous and susceptible to more than one meaning; and  Superintendent Breiner’s and Ms Hardy’s evidence was that the Respondent’s intended purpose for the operation of clause 35 was that the ASO Allowance would be payable to an employee undertaking ASO duties on board an aircraft on a somewhat regular basis. [17] In short, the Applicant submitted that the Commission should determine the dispute by requiring the Respondent to pay him the ASO Allowance from 24 May 2018. [18] Key aspects of the Applicant’s oral submissions included that:  the juxtaposition of clauses 8VI and 35 of the Agreement gave rise to an ambiguity which should be resolved in his favour, adding that no ambiguity arose if clause 35 was read on its own and that the problem only arose as a result of clause 8VI;  applying the approach in Kelly, i.e. incorporating the definition of an ASO into clause 35 of the Agreement, did not allow clause 35 to operate in any sensible way;  Ms Hardy’s evidence was that from her perspective there was no change in the eligibility to receive the ASO Allowance under the Agreement when compared to the 2012 Agreement;  the expectation of employees (including himself) and relevant managers (including Superintendent Breiner) was that the Deployability Allowance paid to some SRG-DO employees under an individual flexibility arrangement would be replaced by the ASO Allowance for those employees performing SRG-DO/ASO duties; -- 5 of 25 -- [2020] FWC 71 6  the Respondent’s position as to the meaning of clause 35 was consistent from October 2017 until June 2018 when it made the decision not to pay the ASO Allowance to those employees performing SRG-DO/ASO duties;  the Respondent’s submission that it was minded to ensure the ASO Allowance provisions of the Agreement reflected the future structure of the ASO Program was contrary to the evidence, noting inter alia that there was no evidence about how the Agreement did that;  there was nothing in clause 35 which ‘threw back’ to clause 8VI;  the ‘core duties’ for an SRG-DO team member were as per the Role Scope Team Member – Discreet Operations Specialist Response Group annexed to Superintendent Breiner’s witness statement10 (see paragraph [33] below);  the message sent by the document produced by the Respondent titled What has changed between the previous EA 2012 – 2016 and the proposed EA 2017 – 2020?11 was of no change to the ASO Allowance provision (see paragraph [23] below);  drawing on the principles set out in Berri and Kelly, clause 8VI resulted in the term ‘fulltime’ having no work to do and essentially not forming part of the Agreement;  if the Respondent’s position were accepted, the difficulty with clause 8VI was that it had the effect that clause 35 had no work to do and as a result no ASO Allowance was payable;  the Respondent’s intention all along was to pay him the ASO Allowance, with the reasons for its decision not to pay the Allowance not apparent;  Ms Hardy’s email response (on behalf of Ms Barrett) of 11 December 2017 to Superintendent Breiner (see paragraph [31] below) made the Respondent’s position regarding the intent of clause 35 abundantly clear, positing that there was no ambiguity in that email; and  principle 13 as set out in Berri elevated the importance of the document produced by the Respondent titled What has changed between the current EA, the voted down EA and the proposed EA 2017 – 2020?12 [19] In his written submissions regarding the unredacted version of Exhibit 513, the Applicant contended that while the email correspondence contained in the documents was post-agreement conduct it was relevant to the construction of clause 35 of the Agreement because it was consistent with the intention of Superintendent Breiner regarding the coverage and operation of the clause 35, the understanding of members of the SRG-DO and the explanatory material produced by the Respondent during the access period for the Agreement. Included in the email correspondence in Exhibit 5 was the following email dated 28 June 2018 from Superintendent Breiner to several members of the SRG-DO: “I can confirm that all operational DO members should be receiving this allowance rather than the SRG allowance. -- 6 of 25 -- [2020] FWC 71 7 This was also confirmed with IR/HR and the EA negotiation team prior to the vote.”14 [20] In his witness statement15 the Applicant deposed that he commenced in SRG-DO in January 2018 and after completing the ASO Development Program in February 2018 was gazetted as an ASO. The Applicant further deposed that he distinctly recalled being told by Superintendent Breiner and Sergeant Greg Corin that he and others in SRG-DO would receive the ASO Allowance on commencement of the Agreement, adding that the non-payment of the Allowance was raised with Superintendent Breiner and Sergeant Corin in a team meeting in late June 2018 with both officers agreeing to raise the issue with Respondent’s Industrial Relations area. The Applicant also stated that since 24 May 2018 he had not received the ASO Allowance, he had been assigned to a position in SRG-DO, he had been required to perform ASO duties as part of his core duties and he had not received an official reason as to why he and others were not receiving the ASO Allowance. Attached to the Applicant’s witness statement was an email dated 28 June 2018 from Sergeant Corin advising SRG-DO team members that the names set out in the email would be provided to the Respondent’s Pay Team so that they would be paid the Allowance from the date the Agreement commenced operation. The Applicant’s name was included in the email.16 [21] Mr Smith deposed in his witness statement17 that he had been involved in bargaining for the Agreement from its commencement in January 2016 until it ceased in late 2017, adding that throughout the course of bargaining there were lengthy discussions about the ASO Allowance. Mr Smith further deposed that, based on his recollection of the bargaining and a review of the minutes of various bargaining meetings which referred to the ASO Allowance, the main point of contention during bargaining in respect of the Allowance was the Respondent’s inclusion of a review mechanism which would have enabled the AFP Commissioner or their delegate to review the Allowance during the life of the agreement and remove the entitlement. Mr Smith stated that the Respondent sought to change the wording of the definition of an ASO to include the term ‘fulltime’, adding that he understood the rationale for that change was to exclude the payment of the Allowance to employees who performed ASO duties incidental to their core duties. Mr Smith noted that these changes were included in the version of the agreement voted down by employees in June 2017. [22] Beyond that, Mr Smith deposed that:  once the Respondent confirmed that it would no longer include a review mechanism in the ASO Allowance clause in the proposed agreement the Allowance became a ‘closed’ claim on the log of claims document;  in late September 2017 he received from the Respondent’s bargaining representative a draft proposed agreement in which clause 35 had been amended to remove reference to ‘fulltime’ and replace it with a reference to ‘core duties’;  the abovementioned draft proposed agreement was discussed at the bargaining meeting of 4 October 2017, with the minutes of that meeting indicating that the Respondent confirmed that the intention of the changes made in respect of the Allowance was to remove current restrictions with paying the Allowance to employees who perform ASO duties and also perform another function;  he did not recall turning his mind to the definition of ASO in clause 8VI of the Agreement or recall any discussion during bargaining regarding the inconsistency in -- 7 of 25 -- [2020] FWC 71 8 language between clauses 8VI and 35 in relation to the terms ‘fulltime’ and ‘core duties’; and  he had been informed that SRG-DO team members were ASO qualified and had been required to perform ASO duties as part of their core duties for some time, with the performance of ASO duties contained in their position description. [23] Attached to Mr Smith’s witness statement was a copy of a document produced by the Respondent titled What has changed between the current EA, the voted down EA and the proposed EA 2017 – 2020?18 The document, which is dated November 2017, read as follows in respect of the ASO Allowance. Current 2012 – 2016 EA Recently voted down EA Proposed EA 2017 - 2020 ASO allowance Employees performing the role of an Air Security Officer (ASO) rostered to undertake duties on board an aircraft as part of their core duties will receive the ASO Allowance No ability for the Commissioner to undertake a review of the ASO allowance or to vary or remove it during the life of the agreement Requirement for employees to be assigned to the role of an ASO on a full time basis in order to receive the ASO allowance Ability for the Commissioner to undertake a review of the ASO Allowance and to vary or remove the allowance payable after six months from the commencement of the agreement Removal of requirement for employees to be assigned to the role of an ASO on a full time basis to receive the ASO allowance An employee needs to be performing the role of an ASO who is required to undertake duties on board an aircraft as part of their core duties to receive the ASO allowance Removal of the ability for the Commissioner to undertake a review of the ASO allowance or to vary or remove the allowance payable during the life of the agreement [24] Also attached to Mr Smith’s witness statement was a similar document produced by the Respondent in May 2018 and titled What has changed between the previous EA 2012 – 2016 and the proposed EA 2017 – 2020?19 The document as it related to the ASO Allowance did not include the column headed ‘Recently voted down EA’ but was otherwise in identical terms. [25] Key aspects of Ms Linabury’s witness statement20 included that:  around mid-July 2018 she participated in consultations regarding changes to the Air Security Program and recalled Superintendent Breiner advising that ASO qualified and certified members of SRG-DO would receive the ASO Allowance; -- 8 of 25 -- [2020] FWC 71 9  it was her understanding that the Respondent had always intended paying the ASO Allowance to SRG-DO members performing ASO duties; and  as far as she was aware the Respondent had not given written reasons as to why it would not pay the ASO Allowance to the Applicant and others in SRG-DO, adding that while the Respondent seemingly relied on the reference to ‘fulltime’ in clause 8VI of the Agreement, no explanation had been provided as to the inconsistency between that provision and clause 35 of the Agreement. [26] Attached to Ms Linabury’s witness statement was an email from the Respondent’s Industrial Relations area providing data regarding the number of ASO flight duty occurrences for SRG-DO members not in receipt of the ASO Allowance.21 The Commission at the initial conference regarding the dispute held on 4 December 2018 suggested that the Respondent provide such data to the AFPA. Specifically, the data indicated that over the three month period 1 September to 30 November 2018 the Applicant had completed two ASO occurrences (one domestic and one international), while over the same period the average number of ASO occurrences for other SRG-DO members who were not in receipt of the Allowance was less than two round trips. The email stated among other things that: “On the basis of this data, the position of the AFP remains that [the Applicant] and the other members of Discreet Operations not in receipt of the ASO Flight Operations Allowance do not satisfy the eligibility requirements of section 35 of the AFP Enterprise Agreement 2017 – 2020 (EA) to receive this allowance, due to these employees not performing ASO duties on a full-time basis.”22 (Emphasis as per original) The Respondent’s case [27] The Respondent submitted that the focus of the dispute concerned the construction of clauses 8VI and 35 of the Agreement, agreeing that an employee’s entitlement to the ASO Allowance turned on the definition of an ASO in clause 8VI but disagreeing that the dispute was simply about the meaning of the phrase ‘on a fulltime basis’ in the clause. Specifically, the Respondent submitted that in practical terms the questions to be determined included whether in order to satisfy the definition of an ASO in clause 8VI:  an employee needed to be performing ASO duties, being duties usually associated with an ASO and which may include duties on an aircraft, for the entirety of their normal working hours, contending that this was the correct interpretation of the relevant clauses; or  an appropriately qualified employee assigned to a position within the SRG-DO was eligible to receive the ASO Allowance even if they performed duties that were not the duties of an ASO and provided that they may from time to time be required as part of their core duties to perform ASO duties, positing that the answer to this question was no. [28] The Respondent further submitted that if its view was correct the Applicant was not entitled to the Allowance because he was not an ASO for the purposes of the Agreement. -- 9 of 25 -- [2020] FWC 71 10 [29] Beyond that, key aspects of the Respondent’s submissions included that:  the words in clauses 8VI and 35(1) were clear and unambiguous;  when read together the clauses made it clear that an employee must undertake the relevant duties as part of their core duties and on a fulltime basis;  the reference to core duties was a qualitative requirement that the relevant duties must, drawing on the plain and ordinary meaning of the word ‘core’ as per the Macquarie Dictionary, be the employee’s ‘essential’ or ‘dominant duties’;  drawing on the decision in Harradine v Secretary, Department of Social Security23, the question of whether an employee satisfied the definition of an ASO by undertaking duties on an aircraft on a fulltime basis was a question of fact and degree having regard to the extent of the relevant duties actually being performed by the employee;  the reference to ‘on a fulltime basis’ was a quantitative requirement in relation to the extent to which the employee must undertake the relevant duties, adding that:  whether an activity was engaged on a fulltime basis was relative and not absolute,  the ordinary meaning of the word ‘fulltime’ as per the Macquarie Dictionary is ‘during all normal working hours’,  the appropriate reference point for determining whether an employee undertakes ASO duties on a fulltime basis is determined by the employee’s normal hours of work,  the absence in the Agreement of a definition of ‘fulltime’ or ‘fulltime employee’ suggested that the parties intended that the word ‘fulltime’ take its ordinary meaning, and  the requirement that an employee perform the relevant duties on a fulltime basis did not mean that the employee must be performing the relevant duties for 40 hours per week;  the meaning of the words ‘on board an aircraft’ should be understood as a description of ASO duties generally and did not mean that an employee must spend the entirety of their normal working hours on board an aircraft to satisfy clause 8VI of the Agreement, adding that the phrase ‘on board an aircraft’ was reference to both an ASO’s duties that were undertaken on board an aircraft and those related duties that were undertaken on the ground;  the insertion of the term ‘on a fulltime basis’ in clause 8VI was intended to clarify the operation of the clause following organisational changes in the Air Security program, with it (the Respondent) being minded to ensure that clauses 8VI and 35 reflected the future structure of the Air Security Program; -- 10 of 25 -- [2020] FWC 71 11  the insertion of the term ‘on a fulltime basis’ was also intended to make it clear that it (the Respondent) required employees to be performing ASO duties on a fulltime basis in order to be entitled to the ASO Allowance, i.e. to undertake ASO duties as they had been expected to do when allocated to fulltime ASO roles;  its position in respect of the circumstances in which the Allowance was paid had not changed though the wording of the relevant clauses had been changed to reflect the new circumstances of the workplace;  at no point did it indicate to anyone that it was seeking to increase the application of the Allowance; and  the inclusion of the phrase ‘on a fulltime basis’ in clause 8VI was not a drafting error. [30] In its closing submissions the Respondent contended among other things that:  the dispute largely turned on the proper construction of the relevant provisions of the Agreement, adding that the decision in Berri set out the principles relevant to the task of construing an enterprise agreement;  the starting point in construing an enterprise agreement was always the language of the agreement itself;  post-agreement conduct was relevant in limited circumstances, adding that in this case the post-agreement conduct contradicted the Applicant’s submission;  in this case there was no post-agreement conduct that demonstrated a common understanding of the effect of the Agreement’s ASO Allowance provisions, adding that in June 2018 shortly after the Agreement commenced operation a divergence of views emerged with the Respondent of the view that the Applicant was not entitled to be paid the Allowance while Superintendent Breiner did not share that view;  the fact that the ASO Allowance was an annual amount paid fortnightly in arrears was important as it suggested that the Allowance was intended to compensate those employees who spent a substantial majority of their time experiencing the inconvenience of working in a transient location while performing the role of an ASO;  clause 8VI was an ‘integer’ of clause 35;  every part of the Agreement had to be given meaningful work to do, noting that definition clauses were not there to serve no purpose but were included to assist in understanding the relevant provision and circumscribing how the provision is to operate;  the Role Scope Team Member Air Security Program, Air Security Officer24 and the Role Scope Team Member – Discreet Operations Specialist Response Group25 operated jointly, with the latter not overtaking the former despite being issued after the former; -- 11 of 25 -- [2020] FWC 71 12  the word ‘required’ in clause 8VI did not mean ‘may be required’;  the Applicant sought to establish that there was ambiguity by reference to the negotiations for the Agreement rather than looking at the terms of the relevant provisions;  Superintendent Breiner was not a member of the Respondent’s Bargaining Team but was consulted as part of the Respondent informing its position, adding that his focus was on one part of the Agreement whereas the bargaining parties were focussed on the entire agreement;  limited weight should be attached to Superintendent Breiner’s emails as there was a degree of ambiguity within the emails;  the reference to discretion in Ms Hardy’s email of 9 October 2017 referred to a discretion as to which allowance was to be paid to SRG-DO team members, i.e. the ASO Allowance or the Deployability Allowance;  the document produced by the Respondent titled What has changed between the current EA, the voted down EA and the proposed EA 2017 – 2020?26 was incorrect when it stated that the proposed EA 2017-2020 entailed the “Removal of requirement for employees to be assigned to the role of an ASO on a full time basis to receive the ASO allowance”;  the proper interpretation of the words in clauses 8VI and 35 of the Agreement was that:  the reference to ‘core duties’ in clause 35(1) needed to be read in conjunction with the words ‘on a fulltime basis’ in clause 8VI(ii),  this necessitated both a quantitative and a qualitative assessment of the work performed by an employee,  the quantitative aspect of the assessment required that the employee’s ASO duties were a principal part of their ongoing duties, i.e. a permanent feature of what they did, and  as to frequency, the ASO duties needed to constitute the substantial majority or predominant part of the employee’s duties, consistent with the Role Scope Team Member Air Security Program, Air Security Officer27, the fact that there was a designated Air Security Program operating at the time which involved ASO duties consistent with that Role Scope and the fact that changes to the Program only occurred after the Agreement was approved;  as the Applicant did not work predominantly as an ASO he was therefore not entitled to the ASO Allowance; and -- 12 of 25 -- [2020] FWC 71 13  the practical result that some employees working in SRG-DO would no longer receive the ASO Allowance was the product of an operational decision and was not due to the change in the definition of an ASO in clause 8VI. [31] Superintendent Breiner in his witness statement28 provided an overview of the AFP, the Specialist Response Group (SRG), ASO functions, the history of and changes to the Air Security Program and the ASO Auxiliary (i.e. a pool of police officers who had completed the ASO training program but worked in other police officer roles). As to the ASO Allowance, Superintendent Breiner deposed inter alia that:  on 10 July 2017 he met with the members of the Respondent’s Bargaining Team and others at which the following was agreed:  to be eligible to receive the ASO Allowance employees needed to be a member of SRG-DO, adding that this would entitle all staff performing SRG-DO duties who held the ASO qualification to access the Allowance,  only those performing ASO duties as part of the core duties would be eligible for the ASO Allowance to distinguish fulltime ASO/SRG-DO members from ASO Auxiliary members,  ASOs were to be moved to a rostered operations working pattern thereby enabling ASO’s to be deployed more flexibly and efficiently, and  the requirement to roster those in receipt of the ASO Allowance for two nightshifts be removed resulting in a gain of additional hours for staff to perform operational tasks;  on 14 September 2017 he sent an email to Messrs Gilliland and Ryan (both in the SRG area) which proposed revised wording for the ASO Allowance clause with the email including the following: “… DO members who are required to perform the ASO role on the roster as per the current core duties would be entitled to receive this allowance. It does not refer to the fact that there is a need to perform the role full time only that it is part of Core duties, which it currently is.”29 (Emphasis as per original);  later that day he forwarded the abovementioned email (together with Mr Ryan’s response) to the Respondent’s Bargaining Team, with his accompanying email stating inter alia that: “If we were to move the ASO Program to Operations from Rostered Operations are efficiencies to be gained … and a requisite financial saving. Should the current parameters of the ASO Flight Allowance not change and the accompanying IR guidance be favourable, then use of this wording and allowance scope should be able to be used.”30;  on 29 September 2019 he received an email from Ms Barrett of the Respondent’s Bargaining Team amending the wording of his proposed ASO Allowance clause31; -- 13 of 25 -- [2020] FWC 71 14  in subsequent email correspondence (dated 9 October 2017) Ms Barrett stated that: “The payment of the flight allowance is at the discretion of DO management; noting that the employee must have an ASO qualification. We would however, expect that an employee in receipt of the allowance would be undertaking ASO flight duties on a somewhat regular basis.”32;  on 11 December 2017 he sent an email to the Respondent’s Bargaining Team seeking clarification of the payment of the ASO Allowance, with his email stating: “The intent was that the fulltime ASO/DO members who performed that role would be entitled to this allowance over the ASO auxiliary members who only perform the role on an ad-hoc basis.”33;  he forwarded a copy of the Bargaining Team’s response to the workforce, with the response stating inter alia that: “The intent you have noted below is what is outlined in the proposed agreement. The wording of the proposed agreement was varied to ensure that the allowance would be paid to any employee within Discreet Operations who performs ASO duties. The reference in sub-section 35(3)(b) is to clarify that if there is a move to have ASO qualified employees from other areas of the AFP undertake ASO flight duty they would not be entitled to the flight operations allowance. The reference to pro-rata is around clarification for those employees who are part-time or do not spend an [sic] full 12 months in this area that they will not receive the full $15,000 entitlement.”34; and  issues raised during musters or in informal conversations with the workforce during discussions before and after the vote on the Agreement revolved around the following three questions (Superintendent Breiner’s response to each of those questions as set out in his witness statement appears in italics): 1) If an ASO transitioned to an SRG-DO role would they be entitled to the ASO Allowance? Any member of SRG-DO performing on ASO duties as part of their core duties would be entitled to the Allowance. 2) Who would have the delegation to decide who was entitled to the ASO Allowance? Based on advice from the Respondent’s Bargaining Team he as SRG-DO Coordinator would be responsible for determining who would be entitled to the Allowance. 3) What would be the quantum of flights required in order to receive the ASO allowance? Consistent with advice received from the Respondent’s Bargaining Team the quantum of flights would be flights on a ‘somewhat regular basis’. [32] Attached to Superintendent Breiner’s witness statement were copies of the Role Scope Team Member Air Security Program, Air Security Officer35 and a Role Scope Team Member -- 14 of 25 -- [2020] FWC 71 15 – Discreet Operations Specialist Response Group36 dated 19 October 2012 and June 2017 respectively. The former document includes the following: “Air Security Officers (ASOs) are armed police officers responsible for the containment or resolution of high-risk security incidents on selected domestic and international flights. ASOs provide … containment capability to safeguard Australian registered aircraft against in-flight attack. This role may include:  … Role Scope The role is a sworn police officer role. The role predominantly provides a discreet in flight policing capability in order to ensure the safety of Australian recognised commercial aircraft, passengers and crew on domestic and international sectors. The ASO role also contributes to the AFP’s Aviation capability at Australian airports.”37 [33] The latter document includes the following: “Role Description The SRG Discreet Operations team provides overwatch and/or enhanced support to Covert and Capabilities, Air Security Program, Close Personal and Witness Protection and provides discreet operational capabilities as directed. Essential requirements  …  ASO qualification or ability to obtain the qualification.”38 [34] Key aspects of Superintendent Breiner’s oral evidence included that:  the decision to restructure the Air Security Program was made in June 2018;  with regard to his email of 7:59 am on 26 June 201839, he sought to have the ASO Allowance paid to certain SRG-DO staff on the basis that they were not being paid any allowance but were deploying flexibly, adding that this was refused by the Respondent’s Industrial Relations area;  he was not asked to comment on the definition of an ASO included in the Agreement;  his understanding based on the abovementioned email of 9 October 2017 from Ms Barrett was that the SRG-DO cohort who were ASO qualified would receive the ASO Allowance subject to the proposed agreement being endorsed by employees and approved by the Commission; and  he would have recommended that the Applicant be paid the ASO Allowance on the basis that he was ASO qualified and was undertaking flight duties as part of his core duties, adding that at the appropriate time after May 2018 he did in fact agitate for the payment of the Allowance to the Applicant. -- 15 of 25 -- [2020] FWC 71 16 [35] Ms Hardy in her witness statement40 provided a detailed overview of among other things the discussions regarding the ASO Allowance at various bargaining meetings over the period 31 March 2016 to 18 October 2017, the vote on the proposed agreement in December 2017 and email correspondence between Superintendent Breiner and the Respondent’s Bargaining Team (including the email correspondence referred to in Superintendent Breiner’s evidence – see paragraph [31] above). Ms Hardy also deposed that the information sheets setting out the difference between the Agreement and the 2012 Agreement and the proposed agreement voted down in June 2017 (see paragraph [23] above) which stated in respect of the Agreement that it removed the “requirement for employees to be assigned to the role of an ASO on a full time basis to receive the ASO allowance” was an unfortunate error. Ms Hardy further deposed that the document did not represent the Respondent’s position which was that the ASO Allowance was payable to ASOs who perform ASO duties on board an aircraft on a fulltime basis. [36] Key aspects of Ms Hardy’s oral evidence included that:  she was not aware of when the review of the Air Security Program referred to in her witness statement41 had commenced nor had she seen a copy of any review report, adding that she did not make any inquiries regarding the review in the context of bargaining for the Agreement and was not aware if any recommendations arising from the review had been implemented;  she did not believe that the clause relating to the ASO Allowance in the Agreement was to be applied any differently to the equivalent clause in the 2012 Agreement;  the definition of ASO in the Agreement was not changed following the first proposed agreement being voted down by employees in July 2017 as the intent of the changed definition was to stop employees from other areas of the Respondent who may have an ASO qualification from claiming the ASO Allowance when they were travelling for work related purposes;  her understanding was that nothing had changed as to how the provision in the Agreement relating to the ASO Allowance would be applied as a result of the changed definition of an ASO in the Agreement when compared to the 2012 Agreement, adding that the application of the definition of an ASO to the substantive provision relating to the Allowance was no different in the Agreement to how the equivalent definition applied in the 2012 Agreement;  the document at Annexure EH-54 of her witness statement did not include any explanation of the difference in wording between the definition of an ASO in the Agreement and equivalent definition in the 2012 Agreement because the change had no practical effect; and  she was unable to explain why the three column document at Annexure EH-54 was dated May 2018 whereas the document attached Mr Smith’s witness statement (see paragraph [23] above) was dated November 2017, adding that she did not recall the document at Annexure EH-54 being circulated to employees in May 2018. -- 16 of 25 -- [2020] FWC 71 17 Consideration of the issues [37] The Full Court in WorkPac summarised the principles applicable to the interpretation of enterprise agreements as follows: “The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “ … turns on the language of the particular agreement, understood in the light of its industrial context and purpose … ”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie[1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).”42 [38] The principles relating to the interpretation of enterprise agreements were also set out in Berri. The principles are set out below: “[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows: 1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from: (i) the text of the agreement viewed as a whole; (ii) the disputed provision’s place and arrangement in the agreement; (iii) the legislative context under which the agreement was made and in which it operates. 2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties. 3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the -- 17 of 25 -- [2020] FWC 71 18 language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties. 4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations. 5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement. 6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement. 7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning. 8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists. 9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement. 10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement. 11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. 12. Evidence of objective background facts will include: -- 18 of 25 -- [2020] FWC 71 19 (i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; (ii) notorious facts of which knowledge is to be presumed; and (iii) evidence of matters in common contemplation and constituting a common assumption. 13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement. 14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was. 15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”43 [39] It is not disputed that the interaction of clauses 8VI and 35 of the Agreement sits at the heart of this dispute. [40] As noted in both WorkPac and Berri the resolution of a disputed construction of an agreement turns on the language of the agreement having regard to its context and purpose. In this case, as previously noted clause 35 of the Agreement appears in Part VI of the Agreement which is headed ‘Allowances and Other Entitlements’. In addition to the ASO Allowance, Part VI of the Agreement deals with overtime (clause 26); temporary operational and critical event composite payments (clauses 27 and 28 respectively); higher duties, night shift, on-call, close duty and remote localities allowances (clauses 29, 30, 31, 33 and 34 respectively); and recall to duty (clause 32). In broad terms, Part VI of the Agreement provides for payments to compensate for various disabilities, temporary patterns of work and/or additional work. As to the ASO Allowance, the purpose of the Allowance is set out in clause 35(2) of the Agreement, i.e. the “allowance is payable in recognition of the inconvenience experienced due to the transient location of their workplace and the time necessarily spent away from their home location.” The fact that the allowance is an annual amount paid fortnightly as opposed to paid on each occasion the ‘inconvenience’ cited in clause 35(2) is experienced by an employee suggests that the inconvenience is of a prolonged or extended nature. That view is reinforced by clause 35(3)(b) of the Agreement which excludes employees “who only -- 19 of 25 -- [2020] FWC 71 20 perform Air Security Officer duties from time to time when travelling operationally” from being paid the Allowance. [41] WorkPac and Berri both state that the starting point in interpreting an enterprise agreement is the ordinary meaning of the words. The disputed words in this case are the terms ‘on a fulltime basis’ in clause 8VI and ‘as part of their core duties’ in clause 35(1). The Macquarie Dictionary defines the words:  ‘fulltime’ as “of, relating to, or taking all the normal working hours” and “during all normal working hours”;  core as “the central, innermost, or most essential part of anything”; and  duties as “action required by one's position or occupation; office; function”. [42] Drawing on those definitions supports a finding that the term ‘on a fulltime basis’ ordinarily means during all normal working hours, while the term ‘as part of their core duties’ ordinarily means as part of the central activities of the employee’s job/role. In that regard I note that the Role Scope Team Member Air Security Program, Air Security Officer44 (see paragraph [32] above) sets out the Role Scope as “predominantly provides a discreet in flight policing capability”. The use of the word ‘predominantly’ points to the ‘discreet in flight policing capability’ being a core duty if not the core duty of an ASO. [43] The Applicant in its submissions referred to the High Court’s decision in Kelly. In that case Justice McHugh considered the function of a legislative definition, stating as follows: “However, a legislative definition is not or, at all events, should not be framed as a substantive enactment. In Gibb v Federal Commissioner of Taxation, Barwick CJ, McTiernan and Taylor JJ stated: “The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense — or are to be taken to include certain things which, but for the definition, they would not include … [Definition] clauses are … no more than an aid to the construction of the statute and do not operate in any other way. (Italics added.)” … As I earlier pointed out, the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of -- 20 of 25 -- [2020] FWC 71 21 the substantive enactment invites error as to the meaning of the substantive enactment.”45 (Footnotes not included) [44] While the decision in Kelly deals with the interpretation of legislation, the approach reflected in the decision is, consistent with principle 6 in Berri, equally applicable to the interpretation of an enterprise agreement. I will therefore apply the apply the approach reflected in Kelly in this case. To that end, I note that there is nothing in the Agreement suggesting that the definition of an ASO at clause 8VI is either “expressly or impliedly excluded”. Applying the approach in Kelly, i.e. inserting the words of the definition into the substantive provision, in this case results in clause 35(1) of the Agreement reading as follows: Employees performing the role of an Air Security Officer, i.e. an Employee who has a current Air Security Officer qualification and is required to undertake Air Security Officer duties on board an aircraft on a fulltime basis, who are required to undertake duties on board an aircraft as part of their core duties will receive a flight operations allowance. [45] The above extrapolation clearly results in some repetition with the words ‘on board an aircraft’ appearing twice. That repetition of itself is not necessarily problematic. More significant however is the ambiguity that arises from the interaction of terms ‘on a fulltime basis’ and ‘as part of their core duties’. Having regard to the abovementioned ordinary meaning of the terms ‘fulltime’ and ‘core duties’, inserting the definition of an ASO into clause 35(1) of the Agreement has the practical effect of the definition imposing a higher threshold to be entitled to receive payment of the ASO Allowance than the substantive provision, i.e. clause 35(1). This is because for an employee to satisfy the definition of an ASO in clause 8VI he/she must be hold a current ASO qualification and be required to undertake ASO duties on board an aircraft on a fulltime basis, i.e. during all normal working hours. As noted by Justice McHugh in Kelly, the “function of a definition is not to enact substantive law” but “to provide aid in construing the statute.” Further, as stated in WorkPac “a purposive approach to interpretation is appropriate”, with the purpose of the ASO Allowance, as previously discussed, set out in clause 35(2) of the Agreement. In this case, adopting a purposive approach to the interpretation of the Agreement in a way that is consistent with the decision in Kelly involves giving primacy to the terms of the substantive provision of the Agreement, i.e. clause 35(1), where an inconsistency exists between it and the definition of an ASO in clause 8VI. However, doing so does not involve as proposed by the Applicant the Commission completely disregarding clause 8VI as this would have the effect of ignoring the requirement for an employee to have a current ASO qualification to come within the definition of ASO. Adopting such a purposive approach results in the above extrapolation reading as follows: Employees performing the role of an Air Security Officer, i.e. an Employee who has a current Air Security Officer qualification, who are required to undertake duties on board an aircraft as part of their core duties will receive a flight operations allowance. [46] Such an interpretation is consistent with:  the document produced by the Respondent titled What has changed between the current EA, the voted down EA and the proposed EA 2017 – 2020?46 which describes the ASO Allowance provisions in the Agreement as: -- 21 of 25 -- [2020] FWC 71 22 “Removal of requirement for employees to be assigned to the role of an ASO on a full time basis to receive the ASO allowance An employee needs to be performing the role of an ASO who is required to undertake duties on board an aircraft as part of their core duties to receive the ASO allowance”; and  Ms Hardy’s oral evidence that:  she did not believe that the clause relating to the ASO Allowance in the Agreement was to be applied any differently to the equivalent clause in the 2012 Agreement,  her understanding was that nothing had changed as to how the provision in the Agreement relating to the ASO Allowance would be applied as a result of the changed definition of an ASO in the Agreement when compared to the 2012 Agreement, and  the difference in wording between the definition of an ASO in the Agreement and equivalent definition in the 2012 Agreement had no practical effect. [47] With regard to the document referred to above, I note that:  principle 13 in Berri states inter alia that “[e]vidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement”; and  the document is generic in that it does not refer to or differentiate between clauses 35 and 8VI as they relate to the ASO Allowance. [48] Ms Hardy’s evidence in my view carries considerable weight given that she was the leader of the Respondent’s Bargaining Team for the Agreement. [49] While it is disputed that the divergence of language in clauses 8VI and 35(1) was an error, in circumstances where the definition of an ASO does not appear to have been discussed in bargaining I am more inclined to the view that it was an oversight. Mr Smith’s evidence that he did not recall turning his mind to the definition of ASO in clause 8VI is consistent with that view. However, in terms of construing the Agreement in respect of the ASO Allowance nothing swings on the reason for the inconsistent terminology. [50] Drawing on the above analysis supports a finding that to be eligible to be paid the ASO Allowance an employee must satisfy each of the following requirements: (i) he/she must work in SRG-DO [clause 35(3)]; (ii) he/she must have an ASO qualification [clause 8VI(i)]; (iii) he/she must be performing the role of an ASO [clause 35(1)]; -- 22 of 25 -- [2020] FWC 71 23 (iv) he/she must be required to undertake duties on board an aircraft as part of his/her core duties [clause 35(1)], with core duties meaning the central activities of the employee’s job/role, as opposed to from time to time when travelling operationally [clause 35(3)(b)]; and (v) he/she must not be in receipt of another allowance to compensate for the inconvenience set out in clause 35(2) [clause 35(3)(c)]. [51] The Applicant’s evidence was that since joining SRG-DO he he had been required to perform ASO duties as part of his core duties. To that end, I note that the data annexed to Ms Linabury’s witness statement (see paragraph [26] above) indicates that over the period 1 September to 30 November 2018 the Applicant had completed two ASO occurrences (one domestic and one international). This suggests that the Applicant was only required to perform the role of an ASO ‘from time to time when travelling operationally’ as per clause 35(3)(b) of the Agreement and was not required to undertake duties on board an aircraft as part of his core duties. Also relevant in this regard is Ms Barrett’s email of 9 October 2017 (see paragraph [31] above) in which she expressed the expectation that “an employee in receipt of the allowance would be undertaking ASO flight duties on a somewhat regular basis.”47 [52] While the material before the Commission indicates that the Applicant satisfies the requirements at (i)-(iii) and (v) above, it does not support a finding he is required to undertake duties on board an aircraft as part of his core duties, i.e. as part of the central activities of the his job/role, or other than from time to time. As such, the Applicant is not entitled to be paid the ASO Allowance. [53] Finally, I would point out that while I note Ms Hardy’s email of 11 December 2017 (on behalf of Ms Barrett) to Superintendent Breiner (see paragraph [31] above) in which she refers to the intent of the wording of the proposed agreement, based on the above analysis the wording of the Agreement does not reflect that intent. Further, principle 2 in Berri states that “[t]he task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.” In this case, the agreement produced by the parties does not reflect the intent set out in Ms Hardy’s email. For that reason, I have attached no weight to the views reflected in the email. -- 23 of 25 -- [2020] FWC 71 24 Conclusion [54] For all the above reasons, I find that the Applicant is not entitled to be paid the ASO Allowance. However, this is not to say that the Applicant may not become entitled to be paid the Allowance in future should in performing the role of an ASO he be required to undertake duties on board an aircraft as part of his/her core duties as opposed to performing those duties from time to time when travelling operationally. Appearances: M. Chilcott for the Applicant. M. Seck of Counsel for the Respondent. Hearing details: Canberra. 2019 February 28. The Respondent’s written closing submission in reply regarding Exhibit 5 was received on 2 April 2019. Printed by authority of the Commonwealth Government Printer <PR715752> 1 AE428393 2 PR705948 3 PR705952 4 [2019] FWC 4646 5 Ibid at [7] 6 [2018] FCAFC 131 7 [2017] FWCFB 3005 8 AE891991 9 [2004] HCA 12 10 Exhibit 4 at Annexure RB-2 11 Ibid at Annexure AS19 12 Exhibit 2 at Annexure AS18 -- 24 of 25 -- [2020] FWC 71 25 13 Exhibit 5 is a copy of various email correspondence over the period 9 May to 29 June 2018 between some members of the SRG-DO and the Respondent’s Industrial Relations and Payroll Teams regarding payment of the ASO Allowance under the Agreement 14 Exhibit 5 15 Exhibit 1 16 Ibid at Annexure 2 17 Exhibit 2 18 Ibid at Annexure AS18 19 Ibid at Annexure AS19 20 Exhibit 3 21 Ibid at Annexure VL8 22 Ibid 23 (1989) 87 ALR 30 24 Exhibit 4 at Annexure RB-1 25 Ibid at Annexure RB-2 26 Exhibit 2 at Annexure AS18 27 Exhibit 4 at Annexure RB-1 28 Ibid 29 Ibid at Annexure RB-3 30 Ibid 31 Ibid at Annexure RB-4 32 Ibid 33 Ibid at Annexure RB-5 34 Ibid 35 Ibid at Annexure RB-1 36 Ibid at Annexure RB-2 37 Ibid 38 Ibid 39 Exhibit 5 40 Exhibit 7 41 Ibid at paragraph 14 42 [2018] FCAFC 131 at [197] 43 [2017] FWCFB 3005 at [114] 44 Exhibit 4 at Annexure RB-1 45 [2004] HCA 12 at [84] and [103] 46 Ibid at Annexure AS18 47 Ibid -- 25 of 25 --