2025 WAIRC 00699
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00699



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
ON THE PAPERS



DELIVERED
:
FRIDAY, 15 AUGUST 2025



FILE NO.
:
M 15 OF 2025



BETWEEN
:
CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION


CLAIMANT





AND





JETWAVE MARINE SERVICES PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – Construction of a term of an enterprise agreement –– Payment of applicable day rate under cl 10.6 of Jetwave Marine and Maritime Union North West Inshore Agreement (2022) for work undertaken on an off-duty day on an even time roster – Meaning of applicable day rate
Legislation : Fair Work Act 2009 (Cth)
Instrument : Jetwave Marine and Maritime Union North West Inshore Agreement (2022)
Cases referred
to in reasons: : City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 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
Mildren v Gabbusch [2014] SAIRC 15
Miller v Minister of Pensions [1947] 2 All ER 372
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638
Result : Claim proven as it relates to cl 10.6 of Jetwave Marine and Maritime Union North West Inshore Agreement (2022)
Representation:
Claimant : Mr K. Sneddon (of counsel)
Respondent : Mr M. Diamond (of counsel)



REASONS FOR DECISION
The Claim
1 On 14 February 2025, the Construction, Forestry and Maritime Employees Union (the claimant) lodged a claim alleging that Jetwave Marine Services Pty Ltd (Jetwave) failed to pay Leon Goldsword (Mr Goldsword) in accordance with cl 10.6 of the Jetwave Marine and Maritime Union North West Inshore Agreement (2022) (the Jetwave Agreement) and failed to pay the associated contribution to a superannuation fund in accordance with cl 29.4 (the Claim).
2 The claimant says cl 10.6 of the Jetwave Agreement requires full-time employees who work on an off-duty day to be paid the relevant casual employee date rate set out in Schedule 2 of the Jetwave Agreement in addition to their annual salary. The claimant identifies a number of dates where it says Mr Goldsword worked on off-duty days and was not paid the full day rate applicable, the total amount alleged being $3,259.14 (the underpayment and contribution to a superannuation fund).
3 The claimant alleges that in failing to pay the entitlements alleged in the Claim, the respondent has contravened s 50 and s 323(1) of the Fair Work Act 2009 (Cth) (FWA).
4 The claimant seeks orders that the respondent pay:
(1) the alleged underpayments to Mr Goldsword;
(2) interest on the claimed amount; and
(3) a civil penalty for the alleged contraventions with any penalty imposed be paid to the claimant.
5 Jetwave denies it breached the Jetwave Agreement where it says the words of cl 10.6 when read with Schedule 2 of the Jetwave Agreement do not have the meaning or effect claimed by the claimant.
6 Jetwave says Mr Goldsword was paid in accordance with the casual day rates of pay calculated on an hourly basis as provided in Schedule 2 of the Jetwave Agreements, and had the relevant contributions paid to a superannuation fund.
7 Jetwave denies the Claim and denies it has contravened the Jetwave Agreement or the FWA.
8 Schedule I to these reasons outlines the jurisdiction, standard of proof and practice and procedure of the Industrial Magistrates Court (IMC or, the Court).
9 Schedule II to these reasons outlines the principles applicable to the construction of an industrial agreement.
10 As the parties agreed all of the facts and lodged written submissions, and where the issue for the Court to determine is the proper construction of a term of an enterprise agreement, the parties also agreed the Claim be determined on the papers.
Agreed Facts
11 In summary, the claimant is an employee organisation with standing to commence the Claim, and the respondent is a national system employer and constitutional corporation and is engaged in the provision of marine services.
12 The Jetwave Agreement was approved by the Fair Work Commission on 2 September 2022 and operated from 9 September 2022 with a nominal expiry date of 1 June 2026.
13 The Jetwave Agreement applies to marine service The Agreed Facts refer to the Jetwave Agreement applying to ‘stevedoring’ employees but this does not accord with the employee classifications or the agreement more broadly.
employees engaged in the classifications in cl 11.1 and Schedule 2 and who are employed by the respondent at the Port of Exmouth The Agreed Facts referred to employees employed at the Port of Bunbury, but the parties clarified in later correspondence the relevant port is the Port of Exmouth.
from 9 February 2021.
14 Mr Goldsword was employed on a permanent full-time basis as a coxswain at the Port of Exmouth and is a national systems employee and entitled to the terms of the Jetwave Agreement.
15 Mr Goldsword worked on an off-duty day on the following dates:
(a) 5 December 2022;
(b) 12 July 2023;
(c) 13 November 2023;
(d) 14 November 2023;
(e) 19 December 2023;
(f) 20 December 2023; and
(g) 21 December 2023.
16 Mr Goldsword was paid 50% of the casual day rate, as defined in the Jetwave Agreement, for each of the above dates and a superannuation contribution was paid on this amount.
Submissions
17 Both parties refer to the general principles relevant to the interpretation of terms of an enterprise agreements. 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; (2006) 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 [2005] HCA 10; (2005) 222 CLR 241.

Claimant’s submissions
18 The claimant submits that enterprise agreements need to be easily understood by both employers and employees so they can be applied properly and consistently. Accordingly, the text of the enterprise agreement must be given their ordinary meaning so as to have certainty. It is only where there is ambiguity in the words that work needs to be done to resolve the ambiguity.
19 The relevant day rate in Schedule 2 of the Jetwave Agreements is a fixed amount, which is referable to cl 10.6 and payable when a full-time employee works on an off-duty day. Clause 10.6 of the Jetwave Agreement does not require the importation of additional words or the resolution of any ambiguity. The words in cl 10.6 are easily understood.
20 For a full-time employee to be paid anything other than the relevant full day rate, additional wording is required to be read into cl 10.6 of the Jetwave Agreement. For example, if the intention was for a full-time employee to be paid a ‘pro rata’ amount for hours worked, then it was open for the clause to have said that. To find otherwise is to import words into the clause.
21 The claimant submits its interpretation makes industrial sense to pay a full-time employee an amount that encourages them to agree to work an off-duty day if requested. It is not relevant for the purposes of cl 10.6 that a casual employee’s hourly rate can be calculated by dividing the day rate by 12.
Jetwave’s submissions
22 Jetwave submits the claimant’s interpretation of ‘fixed amount’ is erroneous because it omits the following words at the end of Schedule 2 of the Jetwave Agreement (in a box at the end of the wage table):
The casual employee’s working hourly rate is equal to the Day Rate divided by 12.
For example – Hourly Rate for an AB = $800.30 ÷ 12 = $66.69
23 Clause 10.6 of the Jetwave Agreement refers to the ‘relevant’ day rate set out in the casual employee rates of pay in Schedule 2. The hourly calculations found in the box at the foot of the Casual Employee’s Rates of Pay in Schedule 2 (referred to above) are there for a reason. If the day rate was always a ‘fixed amount’, the hourly calculations would have no role to play in relation to cl 10.6.
24 Jetwave submits there is no reason to ignore the hourly rates of pay found in Schedule 2 referrable to cl 10.6 of the Jetwave Agreement.
25 Jetwave further submits it makes no industrial sense to guarantee the payment of a full day’s pay to an employee to work on an off-duty day, but it does make sense for the employee to be paid for the hours worked on an off-duty day. That is, cl 10.6 of the Jetwave Agreement is not intended to guarantee eight hours of payment when less than eight hours are worked.
26 Jetwave contends that its interpretation of cl 10.6 of the Jetwave Agreement is straightforward and unambiguous. That is, the entitlement when working an off-duty day is to be paid at the relevant day rate set out in the casual rates of pay in Schedule 2 and the casual rates of pay contain an hourly calculation to be used and not ignored.
27 Accordingly, Jetwave has paid Mr Goldsword correctly for the hours he worked on the off-duty days identified.
Jetwave Agreement
Clause 10.6 of the Jetwave Agreement
28 Clause 10.6 provides:
Where a Full-time Employee works on an off-duty day, they will be paid the relevant Day Rate set out in the Casual Employee Rates of Pay as per Schedule 2 in addition to their Annual Salary.
29 The starting point in the Jetwave Agreement is the text. Clause 10.6 provides for the payment to be made to a full-time employee when they work on an off-duty day. The parties’ submissions indicate they agree the payment is in accordance with Schedule 2 of the Jetwave Agreement. The dispute arises in the interpretation of the relevant Day Rate and its application particularly where a full-time employee works less than a whole day on an off-duty day.
Context and Purpose
30 Clause 10.6 of the Jetwave Agreement is not an isolated entitlement. The whole of the agreement should be read so as to make its various parts harmonious.
31 The Jetwave Agreement provides for two main categories of employment, full-time and casual. The Jetwave Agreement, cl 7.3 and cl 7.8.
There is a third category of employee, a trainee who is not part of operational manning but is on board a vessel for training purposes only. The Jetwave Agreement, cl 7.13 to cl 7.16.

32 The trainee employee is paid at 60% of the Day Rate in Schedule 1 of the Jetwave Agreement. The Jetwave Agreement, cl 7.21.

33 Clause 10 of the Jetwave Agreement provides for the hours of work for full-time and casual employees.
Full-time Employees
34 Clause 10.1 and cl 10.2 of the Jetwave Agreement provides that full-time employees’ ordinary hours are an average of 38 hours per week over a 26-week period on an equal time roster of 28 days on and 28 days off.
35 Pursuant to cl 10.4 of the Jetwave Agreement, full-time employees may be required to work reasonable additional hours over and above the ordinary hours. Any hours worked in excess of 12 hours will be paid at double the rate of the base hourly rate for that classification. Pursuant to cl 10.5 of the Jetwave Agreement, a full-time employee may be required to work up to a maximum of 12 ordinary hours per day. If they are required to remain on duty after the completion of their rostered hours, Jetwave may request a further two hours work unless there is an emergency.
Casual Employees
36 Pursuant to cl 10.8 of the Jetwave Agreement, when a casual employee is engaged, it will be for a minimum of six hours per day. If the casual employee is engaged for six hours or less per day, they are to be paid the applicable casual hourly rate for their classification, whereas if they are engaged for more than six hours per day, they will be paid the applicable casual day rate for their classification. The Jetwave Agreement, cl 10.9 and cl 10.10.

Rates of Pay
37 Clause 17 of the Jetwave Agreement outlines the various rates of pay with Schedule 1 setting out the relevant rates of pay for the classifications of full-time employees. Schedules 2 and 3 sets out the relevant wage rates for the classification of casual employees. The Jetwave Agreement, cl 17.1 and cl 17.2.

38 Clause 17.3 of the Jetwave Agreement provides that full-time employees will be paid ‘at least the Day Rate for each day worked’. Clause 17.4 similarly provides that all casual employees will be paid at the least the ‘Day Rate (inclusive of casual loading) for each day worked’.
Other Terms
39 Off-duty day is not defined under the Jetwave Agreement, but where a full-time employee is employed to work on an equal time roster of 28 days on and 28 days off, logically the reference to off-duty day is a reference to the ‘28 days off’ part of the equal time roster. This also corresponds to the definition of Even Time Roster in cl 4 of the Jetwave Agreement to mean ‘an even working roster arrangement where the time working on duty is equal to the time not working off duty’, albeit the term ‘equal time roster’ is used in cl 10.2. This is also consistent with cl 13.1, which provides for the normal working arrangement for a full-time permanent employee, being 28 days on and 28 days off.
40 Day Rate is defined in cl 4 to mean ‘a Full-Time Employees Annual salary as prescribed in Schedule 1, divided by 182; or a Casual Employees relevant Day rate as prescribed in Schedule 2’.
41 Hourly Rate is defined in cl 4 to mean ‘a Full-Time Employees relevant Day Rate, divided by 12; or a Casual Employees relevant Day rate as prescribed in Schedule 2 divided by 12’.
42 Clause 10.6 of the Jetwave Agreement is directed towards the pay entitlement for a full-time employee who works on one or more of their 28 days off in the roster cycle, rather than a full-time employee who is working on one or more of the 28 days on in the roster cycle but working either reasonable additional hours over and above the ordinary hours or working in excess of 12 hours.
43 Therefore, cl 10.6 of the Jetwave Agreement provides for an entitlement to compensate a full-time employee who works on their day or days off in the roster cycle.
Determination on Preferred Construction
44 Consistent with the definition of ‘Day Rate’ in cl 4, for full-time employees the example day rate and example hourly rate provided at the end of Schedule 1 outlines how the relevant day and hourly rates are to be calculated. Schedule 2 is a table of applicable day rates for casual employees. The example at the end of Schedule 2 breaks down the casual hourly rate.
45 The applicable Day Rate in cl 10.6 of the Jetwave Agreement is that provided in Schedule 2.
46 Jetwave’s suggested construction of Day Rate applicable to full-time employees is not consistent with the words used in cl 10.6, which are, of themselves, straightforward and unambiguous. In addition, Jetwave’s suggested construction is inconsistent with the words used in cl 10.9 and cl 10.10 of the Jetwave Agreement as it relates to casual employees.
47 If Jetwave’s suggested construction turns on the word relevant before Day Rate, which was not necessarily apparent from their submissions, then I do not accept that the word relevant recasts Day Rate to mean Hourly Rate.
48 The respondent’s suggested construction requires the Court to import words into cl 10.6 of the Jetwave Agreement, which was open to the parties to insert during the bargaining process.
49 When the words in cl 10.6 of the Jetwave Agreement are read in the context of the whole of the agreement, and in the absence of any other evidence of intention to the contrary, then the inferred intention of the parties to the Jetwave Agreement was that where a full-time employee works on an off-duty day (that is, one or more of the 28 days off duty), they will be compensated for doing so at a Day Rate higher than that ordinarily attributable to full-time employees.
50 There is no limitation on time. That is, a full-time employee will be paid the relevant Day Rate irrespective of whether they work a full ordinary day or part thereof. It was open to the parties to impose a time limit upon the hours of work and pay to accommodate working either a full day or part day, in the same way that cl 10.9 and cl 10.10 of the Jetwave Agreement provides for casual employees. It does not do so.
51 This again is consistent with the words used, or not used, in cl 10.6 of the Jetwave Agreement. That is, cl 10.6 could have also referred to full-time employees being paid at a relevant Hourly Rate for any time worked on an off-duty day. It does not do so.
52 The claimant’s suggested construction is consistent with the inferred purpose of cl 10.6 of the Jetwave Agreement and is also consistent with other terms in the agreement relating to pay.
53 That is, there remains ‘work to do’ for the words Day Rate and Hourly Rate as it relates to full-time employees.
54 For example, in cl 10.4 of the Jetwave Agreement if a full-time employee works in excess of 12 hours they are paid double the rate of the base hourly rate for that classification. The base hourly rate is determined from the table in Schedule 1, the calculation of which is set out in the example provided in the two boxes at the end of the table.
55 In cl 10.12 of the Jetwave Agreement where an Employee Employee is defined in cl 4 of the Jetwave Agreement to mean a person employed by Jetwave in any of the classifications set out in Schedules 1, 2 and 3, so includes a full-time employee.
is engaged to work away from their normal residence, they will be paid a minimum of the Day Rate (being 12 hours) for each day.
56 Similarly, there remains ‘work to do’ for the terms Day Rate and Hourly Rate as it relates to casual employees.
57 For example, as already stated, pursuant to cl 10.9 of the Jetwave Agreement the payment for a casual employee who works six or less hours is the casual Hourly Rate for the relevant classification. Clause 10.11 of the Jetwave Agreement provides that any hours worked in excess of 12 hours will be paid at double the rate of the Hourly Rate for that classification. The applicable Hourly Rate is determined from the table in Schedule 2, the calculation of which is set out in the example provided in the box at the end of the table.
58 Ultimately, not only are the words themselves important, but the context in which the words Day Rate are used is also important.
59 To the extent that Jetwave sought to imbue the notion of hourly rates into cl 10.6 of the Jetwave Agreement by reference to the way in which Day Rate and Hourly Rate are computed at the end of the tables in Schedules 1 and 2, that, in my view, cannot be accepted.
60 The boxes at the end of Schedules 1 and 2 do no more than clarify how full-time and casual employee Day Rates and Hourly Rates are calculated. The application of that computation is then determined by the terms of the Jetwave Agreement.
61 The claimant’s suggested construction of the payment for working on an off-duty day in cl 10.6 of the Jetwave Agreement does not make industrial nonsense. How Jetwave uses its employees to the best economical effect is a matter for it. If Jetwave choses to engage a full-time employee to work on an off-duty day, then it will pay the price of the employee working on their leisure time. This may inform it of whether the price is too high to pay or the number of hours they engage the employee. What it does not do is alter what the term says in the context of, and when read with, the whole of the enterprise agreement.
62 For the avoidance of any doubt, I did not understand the claimant’s case to be that a full-time employee who works on an off-duty day is entitled to more than the relevant Day Rate set out in the Casual Employee Rates of Pay in Schedule 2 because of the words in addition to their Annual Salary at the end of cl 10.6 of the Jetwave Agreement. In my view, the inclusion of these words merely serves to clarify the payment is something other than the annual salary paid pursuant to cl 17.1 of the Jetwave Agreement when read with Schedule 1.
Superannuation
63 Clause 29.2 of the Jetwave Agreement provides that company superannuation contributions for full-time and casual employees will be calculated on the employee’s gross earnings for actual hours worked.
64 It was not argued, possibly because the parties may not have contemplated the issue arising and superannuation was a consequential issue in the Claim, whether the words used in cl 29.2 mean contribution on account of superannuation is limited to the hours worked by Mr Goldsword on the off-duty days, even though he is or should be paid the applicable Day Rate. That is, the payment of the superannuation guarantee is not attributable to the whole of the Day Rate payable but to hours worked if it is something less than the whole day.
65 Given the outcome on the central issue, the preference is for the parties to have an opportunity to be heard further on the Claim as it relates to superannuation, particularly as further orders will be made in respect of the imposition of a civil penalty in any event.
Conclusion
66 I am satisfied that the preferred construction for the amount payable under cl 10.6 of the Jetwave Agreement where a full-time employee works on an off-duty day (of whatever length) is that suggested by the claimant.
67 That is, the amount payable under cl 10.6 of the Jetwave Agreement is the whole of the applicable Day Rate in ‘Casual Employee Rates of Pay as per Schedule 2’ or Schedule 2 – Casual Employee – Day Rate.
68 As agreed between the parties, Mr Goldsword was paid 50% of the applicable casual day rate. Therefore, I find Mr Goldsword has not been paid the whole of the applicable Day Rate referred to in cl 10.6 when read with Schedule 2, and in those circumstances Jetwave has contravened cl 10.6 of the Jetwave Agreement.
69 In contravening cl 10.6 of the Jetwave Agreement in the manner described, I find Jetwave has contravened s 50 of the FWA by contravening a term of the Jetwave Agreement. A contravention of s 50 of the FWA is a contravention of a civil penalty provision.
70 Further, I find that in failing to pay Mr Goldsword the whole of the relevant Day Rate applicable in Schedule 2, Jetwave has failed to pay him in full in relation to the performance of work contrary to s 323(1) of the FWA. A contravention of s 323(1) of the FWA is a contravention of a civil penalty provision.
71 Pursuant to s 545(3), I am satisfied the Court may order Jetwave to pay an amount to Mr Goldsword where I am satisfied Jetwave was required to pay an amount under cl 10.6 of the Jetwave Agreement and the whole of that amount has not been paid, and Jetwave contravened s 50 and s 323 of the FWA in failing to do so.
72 I will hear from the parties regarding final orders in terms of the amount sought by the claimant on behalf of the Mr Goldsword relevant to cl 10.6 of the Jetwave Agreement and pre-judgment interest on any amount.
73 I will also hear from the parties regarding programming orders in respect of the imposition of a civil penalty and the issue identified with respect to superannuation.



D. SCADDAN
INDUSTRIAL MAGISTRATE


SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (WA)
Jurisdiction
[1] An employee, an employee organisation 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 an enterprise agreement: 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.
· Failure to pay in full an amount payable in relation to the performance of work: FWA, s 323(1).
[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 and Family Court of Australia, 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; (1938) 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 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; (2017) 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).