2026 WAIRC 00110
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00110



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
THURSDAY, 16 OCTOBER 2025 & FRIDAY, 17 OCTOBER 2025



DELIVERED
:
THURSDAY, 26 FEBRUARY 2026



FILE NO.
:
M 134 OF 2024



BETWEEN
:
VINCENZO CREA


CLAIMANT





AND





EDITH COWAN UNIVERSITY


RESPONDENT

CatchWords : INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – Alleged contravention of terms of enterprise agreements – Interpretation of agreement clauses
Legislation : Fair Work Act 2009 (Cth)

Instrument : Edith Cowan University Academic Staff Union Collective Agreement 2009
Edith Cowan University Academic Staff Union Collective Agreement 2013
Edith Cowan University Enterprise Agreement 2017
Edith Cowan University Enterprise Agreement 2022
Edith Cowan University General Staff Certified Union Collective Agreement 2009
Cases referred
to in reasons: : Director General, Department of Education v United Voice WA [2013] WASCA 287
WA Prison Officers’ Union of Workers v Minister for Corrective Services [2025] WASCA 177
City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
NTEU v Australian Higher Education Industrial Association, The University of Melbourne [2001] AIRC 121
NTEU v Australian Higher Education Industrial Association, The University of Melbourne and others [2001] AIRC 1163
4 Yearly Review of Modern Awards – Education Group [2018] FWCFB 1087
Miller v Minister of Pensions [1947] 2 All ER 372
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Gayle Balding, Workplace Ombudsman v Liquid Engineering 2003 Pty Ltd [2008] WAIRC 00350; (2008) 88 WAIG 626
Cuzzin Pty Ltd v Grnja [2014] SAIRC 36
Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72
Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 00886; (2018) 98 WAIG 1410
Fedec v The Minister for Corrective Services [2017] WAIRC 00828; 97 WAIG 1595
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638
Dr Jianyu Lin v Curtin University [2013] FWC 3223
Result : The claim is dismissed
Representation:
Claimant : Mr J. Nicholas (of counsel)
Respondent : Ms J. McKenzie (of counsel) and with her Ms Z. Amanyar (instructing counsel)



REASONS FOR DECISION
The Claim
1 Vincenzo Crea (the claimant or Mr Crea) is a lecturer and professional musician. Since 1997, he has been employed by Edith Cowan University (the respondent or ECU) in teaching positions within the Western Australian Academy of Performance Acts (WAAPA).
2 On 18 September 2024, the claimant lodged an originating claim alleging ECU failed to comply with the Edith Cowan University Enterprise Agreement 2017 (ECU 2017) and the Edith Cowan University Enterprise Agreement 2022 (ECU 2022) (collectively referred to as the Agreements) by failing to pay amounts owed under the Agreements for:
(a) ordinary hours worked;
(b) annual leave;
(c) personal leave;
(d) long service leave; and
(e) superannuation.
3 In allegedly contravening the Agreements, the claimant further alleges ECU breached s 44, s 50, s 90, s 99 and s 323 of the Fair Work Act 2009 (Cth) (FWA).
4 The claimant seeks orders for payment of the amounts allegedly owed, pre-judgment interest, and payment of civil pecuniary penalties for the breaches.
5 On 13 January 2025, Mr Crea lodged an amended statement of claim (the Amended Claim) and at the hearing handed to the Industrial Magistrates Court of Western Australia (IMC or Court) a further amended statement of claim revising the amounts sought in the Amended Claim.
6 The primary basis for the Amended Claim is that in March or April 2012, when the claimant was appointed to a part-time position as a Lecturer Level A (LLA), he was incorrectly classified, and his position should have been classified as a Lecturer Level C (LLC) in accordance with cl 11.3 of the Edith Cowan University Academic Staff Union Collective Agreement 2009 (ECU 2009). Alternatively, the claimant says his position should have been classified as a Lecturer Level B (LLB) from the same date under the same clause.
7 The claimant alleges ECU breached cl 11.3 of ECU 2009 in incorrectly classifying his position as LLA when his position ought to have been classified as LLC or alternatively, LLB.
8 Mr Crea also relies on a series of alternative dates including 17 September 2012, 1 January 2013 or 1 January 2014, coinciding with the signing of various contracts of employment appointing him to either lecturer positions or altering his hours of employment.
9 These alternative dates form a further alternative basis for the Amended Claim. That is, if the Court does not accept that the claimant’s position should have been classified at LLC or LLB in March or April 2012, then the following applies where the claimant alleges he was incorrectly classified (each in the alternative):
(a) 17 September 2012, the claimant’s position should have been classified LLC or LLB in accordance with cl 11.3 of ECU 2009;
(b) 1 January 2013, the claimant’s position should have been classified LLC or LLB in accordance with cl 11.3 of ECU 2009;
(c) 1 January 2014, the claimant’s position should have been classified LLC or LLB in accordance with cl 9.3 of Edith Cowan University Academic Staff Union Collective Agreement 2013 (ECU 2013); or
(d) 28 February 2018, the claimant’s position should have been classified LLC or LLB in accordance with cl 7.2 ECU 2017.
10 In each case, the claimant alleges there has been an ongoing breach of the Agreements, including cl 7.2 of ECU 2022, as a result of ECU’s failure to correctly classify him as LLC or, alternatively, LLB under the identified clauses of the Agreements, which commences from the various dates relied upon, depending on what date the Court accepts as the date the claimant ought to have been ‘correctly classified’ from.
11 This alleged ongoing failure to correctly classify the claimant as LLC, or alternatively LLB gives rise to underpayments of entitlements under the Agreements, limited by s 545 of the FWA.
12 In terms of the amounts sought by the claimant, outlined below are the maximum amounts sought based on the claimant’s primary case that he should have been classified as LLC and the alternate case that he should have been classified as LLB, both from March or April 2012 (noting the claimant also claims the amounts are ongoing). The claimant also provided amounts for the alternative dates for LLC and LLB:
(a) ordinary hours worked - $225,391.03 (LLC) or $102,867.93 (LLB);
(b) annual leave - $23,312.51 (LLC) or $10,305.68 (LLB);
(c) personal leave - $2,762.59 (LLC) or $1,286.84 (LLB);
(d) long service leave - $3,376.68 (LLC) or $1,713.50 (LLB); and
(e) superannuation - $43,388.41 (LLC) or $20,258.82 (LLB).
13 The claimant goes into considerable detail in the Amended Claim explaining why he considers he meets the requirements to be classified as LLC, or alternatively LLB. However, as will be explained, the primary issue to be resolved is not whether the claimant’s qualifications, industry experience, or academic duties satisfy particular classification standards. Accordingly, the Court does not intend on outlining those portions of the Amended Claim.
14 However, because the claimant did go into considerable detail, this informed ECU’s response, including amended responses, which the Court also does not intend on outlining in detail.
15 Suffice to say, ECU denies the Amended Claim and also refers to the limitation period under s 545(5) of the FWA prohibiting a claim for any alleged underpayment prior to the lodgement of the originating claim on 18 September 2024.
16 In summary, ECU says the claimant was correctly classified at LLA during his employment periods. As a result, ECU says the claimant was paid the correct entitlements at all times during his employment.
17 ECU further says its academic promotion process is an internal process which is not a dispute arising under ECU 2017 or ECU 2022, and the Court does not have jurisdiction to deal with the substance of the dispute. The claimant’s eligibility for promotion is subject to these internal processes and the Amended Claim is really an attempt by the claimant to have his position reclassified retrospectively, where the Agreements and ECU policies do not provide any pathway for the ‘reclassification’ of academic staff.
18 Schedule 1 to these reasons outlines the jurisdiction, practice and procedure of the IMC.
Issue for Determination
19 The claimant submitted the issue for determination is the claimant’s correct classification for the period in which the underpayment of entitlements is alleged to have occurred. Following lengthy discussions with the claimant’s counsel, the Court identified, from the Court’s perspective, the primary issue for determination.
20 That is, the proper construction, and application, of cl 11.3 of ECU 2009, and its subsequent iterations thereafter.
21 There was confusion surrounding the terminology used in the Amended Claim and in the claimant’s evidence. That is, the claimant referred to being appointed as course coordinator, or appointed as LLA, or academic appointment or that he should have been classified as LLC or LLB when appointed or classified as LLA. In these reasons, I have used, or attempted to use, the terms consistent with the Agreements.
22 If the Court accepts the claimant’s proposed construction and application of cl 11.3 of ECU 2009, and its subsequent iterations, the claimant clears the first hurdle in establishing that the relevant clauses are capable of ‘correctly classifying’ the claimant’s position at the times he alleges.
23 It is at that point the claimant’s qualifications, industry experience and academic duties may be relevant, noting there are facts in dispute upon which the Court must make findings. There are also facts upon which the Court can accept based on reliable or uncontroversial evidence.
24 One of the primary facts in dispute is whether the claimant was directed by the respondent to initiate, design, develop and coordinate the Diploma of Music (Music Artist) course anticipated to start in Semester 1 of 2013 and the Advanced Diploma of Music (Music Artist) course anticipated to start in Semester 1 of 2014. This fact in dispute is the lynch pin upon which the claimant grounds the Amended Claim.
25 If the Court does not accept the claimant’s suggested construction and application of cl 11.3 of ECU 2009, and its subsequent iterations, the Amended Claim fails.
Evidence and Agreed Facts
26 The claimant relied upon his witness statement signed on 18 July 2025 with annexures attached to the witness statement. He also relies upon a witness statement of Michael Eastman (Mr Eastman) signed on 18 July 2025 with annexures attached to the witness statement. The claimant and Mr Eastman also gave oral evidence.
27 The respondent relied upon a witness statement of Jonathan McIntosh (Dr McIntosh) signed on 14 August 2025 with annexures attached to the witness statement and a witness statement of Donna Cuthbert (Ms Cuthbert) signed on 19 August 2025 with annexures attached to the witness statement. Both also gave oral evidence.
28 The parties also relied upon numerous documents.
29 The parties lodged an agreed statement of facts in which they agreed that:
(a) Mr Crea is a national system employee employed by ECU. ECU is a national system employer.
(b) Mr Crea has the following qualifications:
(i) Advanced Certificate of Commercial Music, ECU, 1996;
(ii) Certificate IV in Assessment and Workplace Training, TAFE WA, 2004;
(iii) Advanced Diploma of Music (Contemporary), ECU, 2010; and
(iv) Certificate IV in Training and Assessment, ECU, 2014.
(c) ECU 2009 was in operation from 3 March 2010 to 8 August 2013 and applied to and covered Mr Crea and ECU.
(d) ECU 2013 was in operation from 9 August 2013 to 27 February 2018 and applied to and covered Mr Crea and ECU.
(e) ECU 2017 was in operation from 28 February 2018 to 4 October 2023 and applied to and covered Mr Crea and ECU.
(f) ECU 2022 has been in operation from 5 October 2023 and applies to and covers Mr Crea and ECU.
(g) ECU made academic appointments regarding Mr Crea:
(i) for the purposes of cl 11.3 of ECU 2009 on or around March or April 2012, on or around 17 September 2012 and on or around 1 January 2013; and
(ii) for the purposes of cl 9.3 of ECU 2013 on or around 1 January 2014.
(e) The ECU Academic Staff Performance Expectations and Outcomes Framework:
(i) April 2012 began in April 2012;
(ii) April 2014 began in April 2014 Form 29 - Claimant’s Copies of Records filed 14 April 2025 (Claimant’s Copies of Records), Document 21.
; and
(iii) 2018 began in May 2018 which is the latest version of this document.
Undisputed Facts
30 Between approximately August 1997 and December 2004, Mr Crea was employed by ECU as a casual tutor or in other casual positions within WAAPA.
31 From 1 January 2005, Mr Crea was employed by ECU pursuant to a series of fixed term contracts appointing him to 50% of the ordinary hours of a full-time employee as follows Claimant’s Copies of Records, Documents 5  11.
:
Date
Position
Level
Step
Other
1/1/05 – 31/12/05
Lecturer
Level A (LA)
S1
Work function – Teaching & Research
New position
1/1/06 – 31/12/06
Lecturer
LA
S2
Teaching & Research
Reorganisation
1/1/07 – 31/12/07
Lecturer
LA
S3
Teaching & Research
Reorganisation
1/1/08 – 31/12/08
Lecturer
LA
S4
Teaching & Research
Reorganisation
Not a new starter
1/1/09 – 31/12/09
Lecturer
LA
S5
Teaching & Research
Recent Professional Practice
Not a new starter
1/1/10 – 31/12/10
Lecturer
LA
Next (S6)
Teaching & Research
Recent Professional Practice
Not a new starter
1/1/11 – 31/1/11
Lecturer
LA
S7
Teaching & Research
Specified Task or Project
Not a new starter

32 On 10 January 2011, Mr Crea signed a contract of employment appointing him to an ongoing academic position of LLA for a fractional-time (50%) commencing on 1 February 2011 (the February 2011 Contract). Claimant’s Copies of Records, Document 12.

33 Relevant to the Amended Claim, Mr Crea was required to carry out such duties as were required for his position. In addition, he was required to abide by the statutes, policies and procedures in place at ECU as amended from time to time.
34 The February 2011 Contract was varied in or around September 2012 for a change of hours from 50% to full-time from 17 September 2012 to 31 December 2012. Claimant’s Copies of Records, Document 13.

35 From 1 January 2013 to 31 December 2013, the February 2011 Contract was further varied to full-time employment at ECU as LLA, S8 (the January 2013 Contract). Claimant’s Copies of Records, Document 14.

36 On 25 November 2013, Mr Crea signed a contract of employment appointing him to an ongoing academic position of LLA, S8 on a full-time basis commencing on 1 January 2014 (the January 2014 Contract). Claimant’s Copies of Records, Documents 15.A and 15.B.

37 Relevant to the Amended Claim, Mr Crea was required to carry out such duties as were required for his position. In addition, he was required to abide by the statutes, policies and procedures in place at ECU as amended from time to time.
38 In or around April 2020, Mr Crea applied for promotion to LLB but was unsuccessful.
39 In or around April 2021, Mr Crea applied for promotion to LLB and was successful, being promoted to the position on 29 June 2021. Claimant’s Copies of Records, Document 16.

Evidence
40 I do not intend on reciting all of the evidence given during the hearing. I have tried to distil and summarise the relevant or critical evidence, particularly as it relates to key dates and events.
The Claimant’s Evidence
41 The claimant details his professional publications, professional experience and academic experience. The claimant’s characterisation of his academic and some of his professional experience is disputed by the respondent.
42 For my part, I found the claimant’s characterisation of some of his achievements as overstated. By way of example, between 2001 and 2003, the claimant authored four articles published in DRUMscene: The Drummer’s Magazine, a magazine published by a Melbourne drumming store, which he describes as ‘prominent’ Exhibit 1 – Witness Statement of Vincenzo Crea signed on 18 July 2025 at [6] and [7].
.
43 The claimant describes these four articles as ‘educational’ and in the Amended Claim claims these articles are based on ‘professional research’, albeit not his because he admitted he has never undertaken academic research or published research or articles in academic journals.
44 A review of these articles reveals they are short, practical tips for drummers published in a trade magazine, which even in its contents the claimant describes the concepts as simple or basic. The Court’s review of these articles accords with Dr McIntosh’s evidence of the articles’ scholarly merit. Refer to [105] below.

45 Mr Crea details his experience as a professional musician and in the music industry from 1978. In summary, Mr Crea has performed as a professional drummer in the Australian music industry, in licensed premises, on television, touring with well-known solo music artists and other local bands. In 1997, he co-wrote, co-arranged and performed as the drummer on a five song EP. He has attended national professional organisations. He continues to play drums professionally, although as borne out in cross-examination, not as frequently as his evidence-in-chief suggested. His continuing performances are periodic. Exhibit 1 at [8] and ts 69  75.

46 Contrast this with the claimant’s witness, Mr Eastman. Mr Eastman is an internationally recognised and accomplished musician who has composed, arranged and produced numerous musical works for radio, television and musical theatre. His original works have been performed in Western Australia and internationally. He has been a member of various advisory groups for State government departments and coordinated the Contemporary Music Department at WAAPA. ts 83 - 85 – cross-examination of Mr Eastman.

47 Further, Dr McIntosh’s evidence regarding his qualifications, experience, and published academic work stands in distinction to the claimant’s experience. Exhibit 5 – Witness Statement of Jonathan McIntosh dated 14 August 2025 at JM1.

48 The purpose of this is not to undermine the claimant’s achievements or his reputation in the music industry but a necessary aspect of the Court’s role in hearings is to assess the credibility and reliability of witness evidence. In part, the claimant’s evidence reads similar to a curriculum vitae and his application for academic promotion in 2020 Exhibit 3 and Form 29 - Respondent’s Copies of Records filed 28 April 2025 (Respondent’s Copies of Records), Document 18.
. The effect of this is that some care is taken when considering his evidence as it relates to his experience as an academic and the descriptors he uses to characterise his role and the work he undertook. That is, at times, the claimant overstated the nature of his academic work and role, rendering aspects of his evidence less reliable.
49 The claimant details his experience as an academic staff member.
1997 - 2005
50 The claimant described his role as a casual lecturer, lecturing in Contemporary Music in the Music History, Media Performance and Small Ensemble units. He says he designed a ‘private pre-audition course’ for drummers wanting to apply to WAAPA, which in cross-examination he admitted was not a course administered through WAAPA but carried out privately Exhibit 1 at [10].
.
51 The respondent says the claimant was employed as a casual tutor and repetiteur/accompanist or as general staff.
52 The courses taught by the claimant were Vocational Education and Training (VET) courses, which included Certificate IV courses, Diploma courses or Advanced Diploma courses.
2005 - 2012
53 The claimant states he lectured part-time in existing units in the Advanced Diploma of Music (Contemporary) course, and undertook tutorials, practical classes, workshops, field excursions and studio sessions. Exhibit 1 at [11].

54 The Advanced Diploma of Music (Contemporary) (A68 and A94) is contained in the ECU Handbook 2010 (A68) and Handbook 2011 (A94) and Handbook 2012 (A94) and the claimant taught within this course ts 48  50.
.
55 The Advanced Diploma of Music (Contemporary) (A94) was originally a two-year course requiring the study of core or compulsory units and elective units. ts 49.

56 During this time, the claimant did not undertake nor was involved in any academic research, did not supervise post-graduate or honours students and did not publish articles in any journals. He participated in meetings but whether they were committee meetings is unclear ts 43.
.
2011 - 2013
57 The claimant states following Mr Eastman’s brother, Ric Eastman’s, return from Queensland in 2011, the Eastman brothers proposed a new VET course at WAAPA based on the Queensland VET course observed by Ric Eastman. Mr Crea says Mr Eastman told him he would be ‘perfect for the job as Coordinator because of [his] teaching and performance experience’. Exhibit 1 at [12].

58 The claimant further states that discussions about the course continued throughout March and April 2012 with Mr Eastman informing him that he ‘would have full control and ownership of all aspects of the course, including creating the curriculum, the VET documents and compliance requirements, direction and graduate outcomes’. Exhibit 1 at [13].

59 Sometime in 2013, Graham Wood (Mr Wood), ECU Program Director – Music, discussed the new course with him, and the claimant says he was given the ‘mandate to design, develop and coordinate’ a new Advanced Diploma course to commence in 2013. Exhibit 1 at [14].

60 The claimant refers to his March 2012 ‘My Work Plan’, which he says he wrote at the beginning of 2012 and was signed by Mr Wood on 13 March 2012 prior to any discussions in 2013. The claimant says the handwritten notes were made in 2013. Exhibit 1 at [15] and Claimant’s Copy of Records, Document 27.

61 The March 2012 ‘My Work Plan’ document is not particularly supportive of the claimant’s evidence of his purported conversations with Mr Eastman, nor is it consistent with a ‘direction’ given by Mr Wood or Mr Eastman or any other person at ECU. The typed notation states:
I have been asked to consider taking on the role as Cert IV Unit Coordinator as well as more teaching/ensemble hours, assisting with VET documentation and more involvement in the new courses that will hopefully start next year with the expectation of earning a full time position (emphasis added).
62 At some unknown time apparently in 2013 someone has added in handwriting:
Now co-ordinator of Adv Dip Music (Music Artist) have writen [sic] the complete course, employed staff & updated VET documents.
63 Further, the March 2012 ‘My Work Plan’ does not wholly accord with Mr Eastman’s evidence. See [83]  [97] below.

64 The claimant says between April 2012 to December 2012 he carried out various steps to design the ‘new course’, including familiarising himself with the current Diploma and Advanced Diploma of Music VET training, redesigning the audition process, preparing promotional information, looking for sessional teachers (past students and associates), looking for rehearsal space and securing sponsorship for performance equipment Exhibit 1 at [17].
. Notably, this sponsorship agreement was referred to in the March 2012 ‘My Work Plan’ with the claimant stating, ‘hope to discuss increasing the equipment supply to include new P.A. sound equipment in the near future’.
65 During this time, the February 2011 Contract was varied from part-time to a full-time position. The claimant continued to lecture in various units in the existing Advanced Diploma of Music (Contemporary) course. Exhibit 1 at [23] and ts 50.

66 The claimant states he wrote the curriculum, lesson plans and assessment tools for the course ensuring compliance with the ECU Training and Assessment Strategy so as to meet Government VET requirements. He worked closely with others to ensure compliance. The claimant acknowledges that three of the 16 first year units and three of the 15 second year units are core units for all VET music students Exhibit 1 at [17] and VC2.
.
67 In October 2012, the January 2013 Contract was signed.
68 I pause to note that the Diploma and Advanced Diploma of Music (Contemporary) are two VET courses or streams within the Contemporary Music Department at WAAPA. There are other courses within other music departments or streams (such as Classical, Jazz etc). The popularity and refinement of these courses have increased over time. Dr McIntosh explains this further in his evidence. See paragraph [102] below.

69 In 2013, the claimant states he implemented and coordinated the first iteration of the Diploma of Music (Contemporary) (C44), which is contained in the ECU Handbook 2013. This is the course the claimant says he devised and was responsible for as the course co-ordinator, which he refers to as the ‘Music Artist Course’ Exhibit 1 at [25].
. This course split the previous Advanced Diploma of Music (Contemporary) into two courses; the Diploma of Music (Contemporary) (C44), a one year course, and Advanced Diploma of Music (Contemporary) (C45), a two year course, with students electing to end upon completing the Diploma or continuing to complete the Advanced Diploma. Exhibit 1 at [29] and ts 51.

70 While the claimant agreed the units of competency for the Advanced Diploma of Music (Contemporary) (A94) was the same as Diploma of Music (Contemporary) (C44), he said the class content was ‘vastly different’. ts 51.

71 He lectured in units in both courses.
72 The first cohort students who commenced the Diploma of Music (Contemporary) (C44) in 2013 could only complete the one year course because the second year encompassing the Advanced Diploma of Music (Contemporary) (C45) had not been written. Therefore, the previous Advanced Diploma of Music (Contemporary) (A94) continued to be taught in 2013. ts 53.

73 Notwithstanding the claimant’s evidence that the curriculum content was different, there is significant overlap between the units forming the Advanced Diploma of Music (Contemporary) (A94) and the Diploma of Music (Contemporary) (C44). In addition, the course information for both courses in the ECU Handbook 2010, 2011, 2012 and 2013 is very similar.
2014-2015
74 In 2014, Mr Crea states he implemented and coordinated the first iteration of the Advanced Diploma of Music (Contemporary) (C45). Exhibit 1 at [31] and ts 55.

2015 Onwards
75 The claimant states that between 2015 and 2025 he has continued as the coordinator and sole full-time lecturer for the Music Artist program. He also lectured in various Diploma and Advanced Diploma units. Exhibit 1 at [34].

76 From 2020, another staff member took over the responsibility of coordinating all of the Diploma music courses. The claimant remains the coordinator of the Advanced Diploma course.
77 Mr Crea did not apply for academic promotion until 2020.
78 In or around April 2020, the claimant applied for academic promotion for LLB and was unsuccessful. The claimant appealed the decision and the appeal was unsuccessful. Exhibit 1 at [54] – [55].

79 Following the claimant’s unsuccessful promotion application, the Associate Dean of Music suggested the claimant apply for a coordinator’s allowance, which was granted from November 2020 and back paid to the beginning of 2020. Exhibit 1 at [56].

80 In or around early 2021, the claimant applied for academic promotion for LLB and was successful and was promoted to LLB on 29 June 2021. Exhibit 1 at [57].

81 The claimant has never applied for academic promotion for LLC.
82 In or around October 2022, the claimant requested ECU to review his classification prior to promotion, which was rejected. Exhibit 1 at [58].

83 In July 2023, the claimant lodged a grievance about his classification, which was also rejected. Exhibit 1 at [59].

Mr Eastman
84 Mr Eastman is the Director of Great Southern University Centre. He details his qualifications.
85 Mr Eastman commenced lecturing at ECU at WAAPA in 2001. In 2012, he was the course coordinator of the Contemporary Music department, which required him to coordinate each of the Contemporary Music Courses run at WAAPA. He details three other music departments with coordinators including Classical, Composition, and Jazz. Exhibit 2 – Witness Statement of Michael Eastman signed 18 July 2025 at [3]-[7].

86 In 2011 or 2012, his brother, Ric Eastman, discussed with him the creation of a separate course to accommodate aspiring singer-songwriters, following Ric Eastman’s travel to Queensland to meet another university’s music department. Exhibit 2 at [8].

87 At the time, Mr Eastman was unable to take on the additional workload of designing and coordinating a new singer-songwriter course and thought another Contemporary Music staff member could take over the responsibility to ‘build and coordinate it’. Exhibit 2 at [9].

88 Mr Eastman thought Ric Eastman may have suggested the claimant as being ‘ideally suited to take on the new course’. Exhibit 2 at [10].

89 Mr Eastman stated that, administratively, the same units of competency from the existing Diploma and Advanced Diploma course would form the basis of the new course but the content would need to redesigned and rewritten. Exhibit 2 at [11].

90 Mr Eastman did not have a clear recollection of events but said he and Ric Eastman would have met with Mr Wood to propose the new course and seek his approval to commence it. There was no application process to ‘appoint’ the claimant to the Music Artist coordinator position. Exhibit 2 at [12].

91 Mr Eastman referred to an email chain with Lynne Cohen, Executive Dean, Faculty of Education and Arts, dated 4 June 2012, discussing a proposal to change the claimant’s hours of work and position for the new course. Mr Eastman did not recall exactly what was said at the meeting referred to in the email, he says that he and Mr Wood were informing her of the proposed changes being made to the courses and for the claimant to coordinate it. Exhibit 2 at [13] and annexure ME1.

92 The relevant part of the email dated 4 June 2012 is from Lynne Cohen to Mr Eastman and copied to Mr Wood in response to an email sent on the same day by Mr Eastman referring to a meeting ‘regarding the changes to the Contemporary Music course or [the claimant’s] position’:
Thank you for the email and meeting with me. Currently we are in the process of doing the load planning for 2013. I have asked Barry Riemer to factor in the issue of [the claimant’s] increase in hours. We cannot do anything further until we have all the load information which will take a few more weeks. As soon as I have a better picture of WAAPA’s position for 2013, I will contact you again to discuss further. I have spoken to Julie Warn so she is also aware of our position.
93 Mr Eastman also refers to minutes from a Contemporary Music staff meeting on 7 June 2012 outlining the overall changes to the contemporary music department for the introduction of the new course Claimant’s Copies of Records, Document 19.
. According to Mr Eastman, the existing course would continue to be taught until the new course was introduced. Mr Eastman said he would remain the coordinator for the existing Advanced Diploma cohort in 2013 and the claimant would be the coordinator for the Diploma cohort with Mr Eastman being the claimant’s line manager. Exhibit 2 at [14].

94 Mr Eastman refers to an email dated 22 November 2012 about the claimant attending a Board of Examiners meeting. Mr Eastman states he invited the claimant in preparation for the claimant attending on behalf of his students in subsequent years. Exhibit 2 at [16] and annexure ME2.

95 In response to a request for the relevant course coordinators to be available for the Board of Examiners, Mr Eastman informs the claimant:
Vin, this would be a good thing for you to attend to see how it works (I can do the talking :).
96 Relevantly, in cross-examination, Mr Eastman said neither he, nor Ric Eastman or Mr Wood had authority to promote the claimant. ts 99.

97 Mr Eastman had never seen any other way of academic promotion other than via the academic promotion process, particularly if they remained in their current position (cf. if the person applied for another position attributed with a higher level). ts 99.
At the time Mr Eastman’s position was LLB, and Mr Eastman was unsuccessful in being promoted to LLC.
98 Mr Eastman had designed or redesigned courses on many occasions. ts 98.
The Music Artist course was one course within the Contemporary Music department and Mr Eastman supervised the claimant in designing the course due to the fact that he had more experience and training. ts 98.

99 Mr Eastman agreed that in about 2013 the Certificate IV course ceased and was replaced with the Diploma and Advanced Diploma courses. ts 89  90.
Mr Eastman was the course coordinator for the Diploma and Advanced Diploma courses in 2012. Mr Eastman agreed there were subjects that transferred across from the Certificate IV course to the Diploma and Advanced Diploma courses. ts 103.

100 Mr Eastman’s evidence was truthfully given, albeit given the effluxion of time, he was unable to recall some details. There were aspects of his evidence that did not wholly accord with contemporaneous records.
Dr McIntosh
101 Dr McIntosh is the Associate Dean (Teaching and Learning) of WAAPA at ECU and has held this role since 2019. Dr McIntosh outlines his responsibilities within ECU and his reporting lines, and his qualifications. Exhibit 5 – Witness Statement of Dr Jonathan McIntosh signed 14 August 2025 at [1]  [5] and annexure JM1.

102 Amongst other qualifications, Dr McIntosh obtained a PhD in 2007.
103 Dr McIntosh outlines the expectations of an academic teaching students, which, in general terms, is to hold a qualification one level higher in terms of the Australian Qualifications Framework (AQF) than the course being taught (that is, AQF level plus one). Dr McIntosh states WAAPA has a strong industry focus and staff are expected to keep up their industry practice. Exhibit 5 at [6] and [7].

104 Advancement from LLA to LLB as provided in the Academic Employee Classification Standards in ECU 2017 and ECU 2022 is decided within WAAPA in accordance with the ECU Academic Staff Promotions Guidelines (Promotion to Level B) Respondent’s Copies of Records, Document 17.
and the ECU Academic Staff Promotion policy Respondent’s Copies of Records, Document 15.
.
105 According to Dr McIntosh, within the Diploma of Music, the Music Artist stream is not a course, it is one of seven streams, The Advanced Diploma of Music has only one stream being the Music Artist stream. In terms of putting together units and delivering units of competency with the Music Artist stream, the work undertaken by the claimant is similar to other staff at the level of LLA and LLB in other courses. The claimant is the coordinator of the Advanced Diploma of Music but runs classes and delivers one to one lessons in the Diploma of Music and Advanced Diploma of Music. Exhibit 5 at [12] to [15].

106 Dr McIntosh discusses the promotion process from LLA to LLB and LLB to LLC Exhibit 5 at [18] to [20].
. An applicant can apply at any time in the year to be considered for promotion from LLA to LLB but there is only one round of promotion each year for promotion from LLB to LLC and above. Exhibit 5 at [17].

107 Dr McIntosh gives two examples of academics being promoted from LLA to LLB and compares these two academics to the claimant’s application for promotion in 2020.
108 Dr McIntosh refers to the four articles contained in the claimant’s application for promotion in 2020 (the same articles relied upon by the claimant as part of the Amended Claim). He says these articles do not meet the criteria of what ECU considers quality scholarly articles and explains why he says they do not meet the criteria. Exhibit 5 at [24].

109 Dr McIntosh explains why the claimant was unsuccessful for promotion to LLB in 2020, and why the claimant’s application was successful in 2021. Exhibit 5 at [25] to [34].

110 Dr McIntosh also explains that it would be unusual to be LLC without a PhD qualification, although it is possible. He refers to one person who does not have a PhD qualification but notes that person also has significant national experience as a performer, director and teacher and they hold a bachelor’s degree. Exhibit 5 at [35].

111 Dr McIntosh states the claimant would not meet the criteria of what was expected of a LLC staff member. Exhibit 5 at [36].

112 Dr McIntosh’s evidence was honestly given and was consistent with documents he was asked to comment on.
Ms Cuthbert
113 Ms Cuthbert is the Senior Employment Relations Specialist within the People and Culture Team at ECU. Exhibit 6 - Witness Statement of Donna Cuthbert signed 19 August 2025 at [1].

114 Ms Cuthbert’s evidence thereafter is consistent with the claimant’s evidence of his applications for promotion in 2020 and 2021, his appeal of the decision to refuse his application for promotion, the lodgement of the grievance in 2023 and the payment of the course coordinator’s allowance in 2020.
115 Ms Cuthbert also explains the academic promotion process, similar to the evidence of Dr McIntosh.
116 To the extent that the claimant objected to significant parts of Ms Cuthbert’s evidence, and with respect to Ms Cuthbert, much of this evidence was either referred to by the claimant and by Dr McIntosh. However, given the way the Amended Claim was pleaded and the content of the claimant’s witness statement, it was not surprising ECU sought to respond as it did.
Findings of Disputed Facts
117 As indicated at the outset, one of the key facts in dispute was whether the claimant was directed by the respondent to initiate, design, develop and coordinate the Diploma of Music (Music Artist) course anticipated to start Semester 1 in 2013 and the Advanced Diploma of Music (Music Artist) course anticipated to start in Semester 1 in 2014.
118 The claimant alleges Mr Eastman and Mr Wood gave him a direction to initiate, design, develop and coordinate these courses.
119 I do not accept any such direction was given for the following reasons.
120 Mr Eastman’s evidence never rose to the level of giving the claimant a direction to initiate, design, develop and coordinate any course. At best, Mr Eastman, along with Ric Eastman, identified the claimant as ‘ideally suited’ to design and run a new singer-songwriter course, where Mr Eastman was unable to take on the additional workload.
121 Consistent with what the claimant and Mr Wood identified in the March 2012 ‘My Work Plan’, the claimant was given an opportunity to increase his responsibilities in relation to what was then Cert IV Unit Coordinator with a view to increasing his work hours, which did happen in September 2012.
122 Notably, in the March 2012 ‘My Work Plan’ there is no reference by Mr Wood to directing the claimant to do anything.
123 Thereafter, in June 2012, there was what can only be described as a vague reference in an email from Mr Eastman to Lynne Cohen, copied to Mr Wood, about changes to the Contemporary Music course and the claimant’s position, to which Lynne Cohen replies referring to the issue of the claimant’s increase in hours.
124 Therefore, the issue is the claimant’s hours and not the title of any position that he may or may not have held.
125 Mr Eastman’s oral evidence was vague on the content of any conversation with Mr Wood about the claimant and the running of the new course. However, the claimant’s contemporaneous evidence, in the form of the March 2012 ‘My Work Plan’, does not support any direction given by Mr Wood, nor does any subsequent correspondence indicate a direction was given by Mr Wood or any other person on behalf of the respondent.
126 The handwritten notation on the March 2012 ‘My Work Plan’ does not assist the claimant, where it is not only undated and unsigned but refers to the writing of the Advanced Diploma of Music (Music Artist), which on the claimant’s case was anticipated to start in Semester 1, 2014.
127 Further, the claimant was unlikely to be a course coordinator of the Diploma of Music (Music Artist) or Advanced Diploma of Music (Music Artist) in March or April 2012 because at that time there was no course to coordinate. Any such course was in its infancy with the Certificate IV course continuing in 2012 and on Mr Eastman’s evidence he remained the course coordinator for the existing Advanced Diploma of Music.
Preferred Construction of cl 11.3 of ECU 2009, cl 9.3 of ECU 2013 and cl 7.2 of ECU 2017 and ECU 2022
128 The claimant disavowed that the Amended Claim is an attempt to reclassify his position, which he accepts is not possible under the Agreements, notwithstanding he submits that the issue for determination is what is his correct classification (and step level) during the Claim Period.
129 He submits that since March or April 2012 he should have been classified under the LLC classification, when ECU appointed him to write and coordinate two new courses, the Diploma of Music (Music Artist) to commence in 2013 and the Advanced Diploma of Music (Music Artist) to commence in 2014, and that ECU contravened cl 11.3 (and its subsequent iterations) by classifying him at LLA in March or April 2012.
130 In the alternative, he says he should have been classified under the LLB classification, and that ECU contravened cl 11.3 (and its subsequent iterations) in March 2012.
131 In the further alternative, Mr Crea says that if the date of appointment in March or April 2012 is not accepted, the same appointment as LLC (or alternatively LLB) should have occurred on or around 17 September 2012, 1 January 2013, 1 January 2014 or 28 February 2018.
132 The claimant relies on the 2012, 2013 and 2014 dates for the purposes of alleging that he ought to have been classified as LLC or LLB from those alternate dates, which then impact his entitlements in the Claim Period as limited by s 544 of the FWA.
133 In his opening, the claimant submitted the proper construction of cl 11.3 of ECU 2009 (and its subsequent iterations) is based on the plain meaning of the words that it is the correct classification under the classification structure ECU Position Classification Standards (PCS), which means it is not the respondent’s decision to offer a position at a particular level and determine what the correct classification is.
134 The claimant says the purpose of cl 11.3 of ECU 2009 is to ensure that lecturers are classified by refence to the PCS, and what fundamentally goes with that is that they are paid by reference to the pay schedule that is set out in the Agreements.
135 In closing submissions, the claimant contends:
that the plain meaning of cl. 11.3 of [ECU 2009], cl. 9.3 of [ECU 2012] and cl. 7.2 of [ECU 2017] and [ECU 2022] is that an employee’s correct classification is determined by operation of the classification standards in the relevant schedule of each enterprise agreement, rather than by any contract (or instrument of appointment). That construction is supported by the evident purpose of the clause, which is plainly to ensure that Lecturers are classified and paid by reference to the relevant schedule (and the relevant context clearly includes those schedules). That construction is also supported by the principle that a generous interpretation is preferred over a strictly literal or pedantic approach. It makes industrial sense that the enterprise agreement would deem a classification by reference to the certain standards that it provides in the schedules, rather than leave that up to the employer to arbitrarily determine by the terms of the contract it offers.
136 The claimant’s submissions are otherwise detailed about why he says he meets the minimum criteria for LLC or LLB under the relevant PCS contained in ECU 2009 and ECU 2013. A similar submission is made with respect to similar classification standards in ECU 2017 and in ECU 2022.
137 Simply put, the claimant submits he ought to have been appointed as LLC or alternatively LLB from March or April 2012 because he met the corresponding classification in the relevant PCS.
The Relevant Agreement Clauses
ECU 2009 – Clause 11.3 – Appointment to an Academic Role
138 Clause 11.3 states:
Except as provided for in subclauses 11.4 and 11.9 all academic appointments will be made at levels A-E in accordance with the Edith Cowan University Position Classification Standards set out in Schedule 3 of this Agreement.
ECU 2013 – Clause 9.3 – Academic Roles
139 Clause 9.3 states:
The University recognises that academic appointments play diverse roles in the provision of academic services. All academic appointments will be made at levels A-E in accordance with the Academic Staff Classification Standards set out in Schedule 2, Part 2, and the Academic Staff Performance Expectations and Outcomes Framework.
ECU 2017 – Clause 9.3 – Academic Roles
140 Clause 9.3 states:
All academic appointments will be made at levels A-E in accordance with the Academic Employee Classification Standards set out in Schedule 2, Part 2 of this Agreement.
ECU 2022 – Clause 9.3 – Academic Roles
141 Clause 9.3 states:
All academic appointments will be made at levels A-E in accordance with the Academic Employee Classification Standards set out in Schedule 2, Part 2 of this Agreement.
General Principles Concerning the Construction of Industrial Agreements
142 Schedule II to these reasons outlines general principles relevant to the construction of industrial agreements.
143 The general principles concerning the construction of industrial agreements are well settled. There are many authorities, both State and Federal, reciting the general principles. I refer to the summary by Buss J in Director General, Department of Education v United Voice WA [2013] WASCA 287 at [81] to [83]: Schedule II to these reasons provides more detail on the general principles. These principles were also cited and applied in (WA Prison Officers).

81 The construction of an industrial agreement involves ascertaining what a reasonable person would have understood the parties to the agreement to mean. The language of the agreement should be understood in the light of its industrial context and purpose. See Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 [2] (Gleeson CJ & McHugh J).
82 In Kucks v CSR Ltd (1996) 66 IR 182, Madgwick J observed:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand (184). (emphasis added)
See also City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362, 378 - 379 (French J) (City of Wanneroo); Amcor [96] (Kirby J), [129] - [130] (Callinan J).
83 The words of a clause in a written agreement are to be given the most appropriate meaning which they can legitimately bear. A court must have regard to all of the provisions of the agreement with a view to achieving harmony among them. See Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109 - 110 (Gibbs J). These propositions are applicable to instruments generally, subject to any particular rules of construction which have been developed in relation to a particular kind of provision or instrument.
144 In WA Prison Officers’ Union of Workers v Minister for Corrective Services [2025] WASCA 177 (WA Prison Officers), Smith AUJ, at [46] to [59], outlines further guiding principles (citations omitted). In summary:
(a) the role of the Court in construing industrial agreements is to give effect to the objective common intention of the parties;
(b) determination of the meaning of the words of an industrial agreement is by reference to its text, context and purpose. If the words used are unambiguous the Court must give effect to them;
(c) the industrial agreement is to be read as a whole for a preferable harmonious construction;
(d) [E]vidence of surrounding circumstances is admissible to assist in the interpretation of the [industrial agreement] if the language is ambiguous or susceptible of more than one meaning Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352.
;
(e) instruments are usually read from the beginning to the end;
(f) apparent inconsistency between two clauses should be resolved so as one provision qualifies the other and both given meaning and effect. That said, specific provisions prevail over inconsistent general provisions about the same subject matter;
(g) where ambiguity exists, recourse may be had to the history of a particular clause although the use of history is not unlimited and care needs to be taken having regard to any differences in the words used or the form of any clause, including its omission, or the scheme provided by the instrument; and
(h) where an instrument is part of an interconnected series of industrial agreements or arrangements, the industrial agreements or arrangements can be construed as a whole. However, as will be seen, each of the ECU Agreements replaced all preceding industrial agreements and other arrangements.
Clause 11.3 of ECU 2009
145 One of the difficulties with the claimant’s submissions is that he seeks to isolate the construction of the relevant subclauses in the ECU Agreements, rather than have regard to the whole of each ECU Agreement to ascertain the meaning and application of the clauses.
146 Even if, relevant to ECU 2009, the construction was limited to consideration of the subclause, arguably, the construction suggested by the claimant is not the only meaning open (if, in fact, it is one of the meanings open).
147 ECU 2009 commenced its operation on 5 December 2009 with a notional expiry date of 30 June 2012. However, it continued its operation until 9 August 2013 when ECU 2013 commenced. The parties to ECU 2009 included ECU and the National Tertiary Education Industry Union (NTEU) Clause 1.4 of ECU 2009.
. ECU 2009 applied to all academic employees employed by ECU. Clause 1.2 of ECU 2009.

148 ECU 2009 did not apply to ECU’s general staff who were covered by the Edith Cowan University General Staff Certified Union Collective Agreement 2009 Clause 1.3 of ECU 2009.
(General Staff Agreement). This is relevant because in ECU 2013 both the academic staff and general staff were joined under the one industrial agreement, but ECU 2013 retained many of the same clauses in almost identical terms.
149 ECU 2009 replaced any previous agreements covering employment by ECU and operated to the exclusion of any existing award and any other industrial agreement that may have applied but for cl 4. Clause 4.1 and cl 4.2 of ECU 2009.
In addition, any policies named and referred to in ECU 2009 were not incorporated into the agreement and did not form part of the agreement. Clause 4.3 of ECU 2009.

150 Pursuant to cl 8.1.1 of ECU 2009 there are three types of academic engagement: ongoing, fixed term and casual.
151 Pursuant to cl 8.1.2 of ECU 2009, upon engagement, ECU was required to provide the employee with an instrument of appointment which, relevant to the Amended Claim, stipulated the type of employment and informed the employee of the terms of the engagement at the time of the appointment in relation to the classification level, salary and fraction of full-time worked of non-casual employees on commencement of the employment and for a fixed term employee, the term of employment.
152 Clause 8.5 of ECU 2009 defines ‘fixed term employment’ to mean employment for a specified term or ascertainable period and is to specify the circumstances of the employment and is limited to employees engaged in certain work activities, including, relevant to the Amended Claim, specified task or project, recent professional practice or reorganisation. Clause 8.5.3(a), (d) and (g) of ECU 2009.

153 Upon the expiry of a fixed term contract, ECU was required to provide written notice that it intends to continue the position on a fixed term basis, continue the position on an ongoing basis, or discontinue the position. Clause 8.5.5 of ECU 2009.

154 Where ECU determined the incumbent would be offered further employment in the position on a fixed term basis or ongoing basis provided, relevantly, the incumbent was employed through a competitive and open selection process and has demonstrated the capacity to meet the future expectations of the position, including any new duties or competencies that may be required. Clause 8.5.6(a) and (c) of ECU 2009.

155 In addition to cl 11.3, cl 11 of ECU 2009, relevant to the Amended Claim, states:
11.1 Intent
The University recognises that academic employees play diverse roles in the provision of academic services.
11.2 Types of Academic Roles
Provision is made for a total of four academic roles:
(a) Teaching and Research Scholar
(b) Teaching Scholar
(c) Research Scholar
(d) Practitioner Scholar
…
11.4 Appointments of new employees to the role of Teaching Scholar may be made at WAAPA.
11.5 Academic Roles
11.5.1 The standard academic role will be that of a Teaching and Research Scholar…
…
11.6 Teaching and Research Scholar
Expectations of the various levels of the Teaching and Research Scholar role are as described in the Edith Cowan University Position Classification Standards described in Schedule 3 of this Agreement.
156 Other relevant terms of ECU 2009, include:
17 PERFORMANCE OF DUTIES
17.1 The Vice-Chancellor may direct an employee to carry out such duties as are reasonable and within the limits of the employee's skill, competence and training.
17.2 Duties of academic employees shall be guided by the Edith Cown University Position Classification Standards, as outlined in Schedule 3.
…
27 INCREMENTAL PROGRESSION
27.1 Eligibility for incremental progression shall be based on the satisfactory performance of duty by the employee.
27.2 The date of incremental adjustment of salaries shall be:
(a) the anniversary of the appointment of an employee; or
(b) the anniversary of the date of promotion; or
(c) an alternative date as agreed between the employee and the University.
…
60 ACADEMIC PROMOTION
Academic Promotions will be based on the following principles:
i) that there shall be an annual academic promotions round;
ii) that promotion will be based solely on merit;
iii) …
iv) that the position classifications standards in the Collective Agreement will form the basis of the criteria for promotion;
v) standards will be comparable with sector norms;
vi) …
vii) that promotion will be in accordance with established procedures.
157 Schedule 3 to ECU 2009 contains the PCS, which refers to five levels, A to E, in increasing hierarchy of position and responsibilities. There are three indicia within each level : general standard, skill base and specific duties.
158 Relevant to LLA (or Associate Lecturers), under skill base:
Associate Lecturers (Level A) will normally have completed four years of tertiary study in the relevant discipline and/or have relevant qualifications and/or professional, performance or creative experience. Preferably, they will have at least a Masters qualification and be studying for a PhD. Associate Lecturers typically work with the support and direction of more senior employees, but will show increasing independence in their academic work when they are considered for promotion to Lecturer. They are expected to participate in academic unit administrative activities, but are not expected to take a major role.
Position Classification Standards
159 Contextually, it is helpful to understand the background to, and purpose of, the PCS generally.
160 In NTEU v Australian Higher Education Industrial Association, The University of Melbourne [2001] AIRC 121 (NTEU v AHEIA), Senior Deputy President Duncan broadly discussed the background to the PCS as part of an application by the NTEU (the same party to the ECU 2009 and other similar agreements) to insert the PCS into a consolidated award replacing the Australian Universities Academic and Related Staff (Salaries) Award 1987 and the Australian Post Compulsory and Higher Education Academic Salaries (Consolidated) Award 1989.
161 Obviously, there are limitations with respect to this decision, however, it is apparent the PCS is similar to, if not the same as, the ECU PCS, and reference is made in the decision to tertiary facilities incorporating the PCS into their respective certified agreements.
162 The PCS was noted to be a document settled in 1991 where it was composed of:
…three elements; general standards, specific duties and skill base and [reflected] the work value attached to the 5 level salary structure, in ascending order of expertise and skill. They reflect a balance between the different duties and performance of academics in the traditional universities on one hand and the academics in former colleges of advanced education by encompassing both elements of excellence and research intensity and duties based functions. NTEU v AHEIA at [4], adopting the submissions made by NTEU.

163 One of the concerns raised by the respondents was a reduction in merit based promotion effecting the standing of Australian universities internationally. At [44], Senior Deputy President Duncan stated:
I find that there is a tension between the roles of the PCS and merit promotion. It may be absent on appointment where the duties assigned the new employee must be assessed on what is to be done not on how it is done. However, when promotion is the question one can see the potential for confusion and dispute. One academic may be recognised for promotion on the merit/peer review system. Another may not but both are performing to meet the requirements of the same PCS. There would be an alternative process open to the disappointed academic if PCS in their present form were available. The union makes this clear. It does not seek to alter the merit-based promotion system. There will therefore, if the application is successful, be two ways in which an academic can move from one level to another: promotion, based on merit, reclassification based on application of the PCS. This comment is not resiling from the views expressed earlier on claims for reclassification but rather acceptance of the employer's position that inclusion of the PCS would have an effect on the culture of the promotion by merit. I accept the evidence that this would have an effect on the standing of Australian universities
164 While the PCS proposed by the NTEU was not inserted into the collective academic award, the Australian Industrial Relations Commission (AIRC) determined that a PCS was required with the parties to develop their own PCS. This then formed the basis for the decision in NTEU v Australian Higher Education Industrial Association, The University of Melbourne and Others [2001] AIRC 1163 (NTEU v AHEIA No 2), referred to in the 4 Yearly Review of Modern Awards – Education Group [2018] FWCFB 1087 (4 Yearly Review), at [244] to [257].
165 By agreement the parties had by then dispensed with the words Professional Classification Standards for Minimum Standards for Academic Levels (MSAL), which is relevant for the purposes of ECU 2022 which adopted the same format. What is significant, however, is that it was accepted the AIRC intended that nothing be done which encouraged or permitted competition between merit promotion and the MSAL, which was the parties’ agreed position NTEU v AHEIA No 2 at [10] and [11].
. It was further observed that ‘if MSAL are not to be used as a basis for claims for reclassification then claims on the basis of MSAL cannot result in reclassification.’ NTEU v AHEIA No 2 at [12].
Finally, a dispute on the wording of preamble to the MSAL was noted to have ‘arose out of the parties’ agreement that there should not be two methods of promotion and that tension between the MSAL and merit based promotion should be reduced.’ NTEU v AHEIA No 2 at [19].

166 The relevance of this is that it was well understood by the NTEU, the Australian Higher Education Industrial Association and the Group of 8 Universities that the MSAL (and the previous PCS) did not form a basis for reclassifying academic staff and the primary pathway, if not the only pathway, for academic advancement through the classification levels was merit promotion. As identified the MSAL was inserted into ECU 2022 including the preamble.
Edith Cowan University General Staff Certified Union Collective Agreement 2009
167 As referred to above, ECU 2013 joined academic and general staff under the one agreement. As will be discussed shortly, there are distinct differences in ECU 2013 as it relates to the employment of academic and general staff that carried through from the General Staff Agreement and ECU 2009 to ECU 2013.
168 The same parties were bound by the General Staff Agreement although the General Staff Agreement did not apply to academic staff. Many of the clauses in ECU 2009 and the General Staff Agreement are identical. However, there is a significant departure in relation to how the General Staff Agreement treats the salary and classification structure of general staff. The following clauses are set out in the General Staff Agreement.
26 SALARY AND CLASSIFICATION STRUCTURE
26.1 The HEW Level (1-10) salary and classification structure shown at Schedule 1 – Salary Scales shall apply.
…
26.3 The descriptors at Schedule 2 shall be the University’s primary classification system.
26.4 The Hay job evaluation methodology shall be the University’s second classification system.
27 RECLASSIFICATION AND APPEAL PROCEDURES
27.1 General staff positions shall be classified in accordance with the General Staff Classification descriptors set out in schedule 2 of this agreement. Positions will be classified at the level which most accurately reflects the work to be performed, taking into account the duties and responsibilities of the position.
27.2 The University will have a Reclassification Committee.
…
27.5 The Reclassification Committee shall meet four times per year at regular intervals from February to November.
…
27.14 27.14 The University shall retain the right to determine:
(a) the title or classification of any new or vacant position;
(b) the title or organisational structure for any current position or groups of positions; and
(c) the criteria for appointment or promotion to any position or groups of positions.
Determination on Preferred Construction of cl 11.3 of ECU 2009
169 The claimant seems to suggest that the classification of academic staff under cl 11.3 of ECU 2009 is a continuing process and a standalone clause by which, similar to the classification of general staff positions, academic staff are to be ‘correctly classified’. That is, based on the claimant’s case, if an academic staff member’s duties and responsibilities change during an appointment term, ECU is required to either review and correctly classify the position occupied by the academic staff member or the academic staff member themselves.
170 Alternatively, the claimant may be suggesting cl 11.3 of ECU 2009 requires ECU at the commencement of any new contract of employment for an existing employee, to similarly review and vary the classification level if the academic staff member’s duties change.
171 It is not clear the mechanism the claimant proposes for this beyond by reference to the plain words in cl 11.3 of ECU 2009.
172 It is also unclear whether the claimant appreciated that his proposed construction may result in the ‘correct classification’ falling at a lower level than that referred to in the PCS.
173 Clause 11.3 of ECU 2009 is not an isolated clause. When read in context with the whole of ECU 2009, it is not intended that cl 11.3 operate on a continuing or rolling basis whereby if an existing academic staff member’s duties change during the course of an appointment, ECU is required to monitor, review, assess and in some unknown or unspecified way, that does not equate with reclassification, vary the classification level.
174 The starting point for an academic staff member’s engagement at ECU is cl 8 of ECU 2009, which is the contractual framework of the employment. This clause sets out what ECU is required to provide to an employee, depending on their employment type.
175 Ongoing and fixed-term employees are informed of the classification level at the time of appointment upon the commencement of the employment.
176 Where an employee is engaged on a fixed-term contract, upon expiry of the fixed-term contract, ECU has a further requirement under cl 8.5.5, which is to continue the position on a fixed or ongoing basis and to offer employment in the position provided, inter alia, the employee matches expectations set and adopted and demonstrates the capacity to meet future expectations, including any new duties or competencies that may be required.
177 The reference to the position in cl 8.5.5 can only be in reference to the position in which the academic staff member currently occupies, and the offer of further employment is predicated on, amongst other things, the possibility of new duties. There is no requirement in cl 8 of ECU 2009, or in any other clause of ECU 2009, for ECU to review the academic staff member’s current classification and make sure it matches an academic staff member’s duties.
178 This is consistent with the commonly understood merit based promotion process applicable to academic staff, which is substantially different to the ‘promotion’ of general staff via the reclassification process under the General Staff Agreement. Clause 60 of ECU 2009 is drafted in general terms, but expressly, promotion is based solely on merit and the PCS form the basis of the criteria for promotion. This is consistent with cl 17.2 of ECU 2009, which provides the duties of academic employees shall be guided by the PCS.
179 It is apparent the PCS is not a duties based document but is a framework for the appointment and promotion of academic staff, quite unlike Schedule 2 of the General Staff Agreement, which clearly benchmarks the various levels against occupations or positions and classifies the positions accordingly.
180 This commonly understood merit based promotion for academic staff was also well understood by one of the main bargaining parties to ECU 2009, the NTEU.
181 It was open to the drafters of ECU 2009 to include a clause similar to cl 27.1 of the General Staff Agreement, particularly where the same bargaining parties at about the same time agreed the two agreements which appear to operate as companions. They did not do so.
182 It was also open to the drafters of ECU 2009 to include a clause similar to cl 27.6 of the General Staff Agreement or, alternatively, expressly provide for ECU to continually assess classifications of academic staff. They did not do so.
183 Consistent with the observations made in NTEU v AHEIA No 2 and 4 Yearly Review, in my view, the intention of the parties was to retain the merit based promotion as the primary, if not only, pathway for progression through the classification levels in the PCS, and to avoid a conflict between merit based promotion and some other form of classification or reclassification process.
184 This intention then manifests in cl 60 of ECU 2009, where the agreement provides that promotion is solely on merit. Further, under cl 60, the standards for academic promotion will be comparable with sector norms, consistent with an intention of retaining the standing of Australian universities generally. Clause 60(v) of ECU 2009.

185 Within this context, the purpose of cl 11.3 of ECU 2009, as part of cl 11 more generally, is to identify four types of academic roles, provide for academic staff members to be appointed to one of the four academic roles at a particular level contained in the PCS where the PCS forms the expectations of the various levels Clause 11.6 of ECU 2009.
.
186 When viewed in this way, the process for new or existing academic staff is the same. That is, upon commencement of employment, the academic staff member is appointed to a level contained within the PCS. Thereafter, in order to be considered for the next level within the PCS, the new or existing staff member must undertake the merit promotion process in cl 60 of ECU 2009.
187 The claimant’s suggested construction of cl 11.3 of ECU 2009 introduces an alternative to merit based academic promotion, which is not only not supported by any other clause of ECU 2009 but is also inconsistent with the common understanding and intention of the bargaining parties. The claimant’s suggested construction is also unsupported by any mechanism upon which such a process might take place, unlike under the General Staff Agreement which provides for a mechanism to ‘correctly classify’ general staff.
188 Therefore, I do not accept the claimant’s submission or suggested construction that cl 11.3 of ECU 2009 was intended to operate as a basis for ‘correctly classifying’ the claimant in March or April 2012 as LLC or LLB, when he was appointed an LLA. For the avoidance of doubt, I do not accept that ECU were required to appoint or classify the claimant as LLC or LLB in March or April 2012 under cl 11.3 of ECU 2009.
189 I do not accept this primarily because I do not accept that this is what cl 11.3 of ECU 2009 requires or was its purpose. Further to this, I do not accept that cl 11.3 of ECU 2009 is a clause of an agreement capable of contravention.
190 When read with cl 11.2 of ECU 2009, cl 11.3 of ECU 2009 merely informs the appointee upon the commencement of their employment of their level of appointment within one of four academic roles. The level of appointment is to be one of the five levels contained in the PCS in Schedule 3.
Additional Reasons
191 Further to the determination on both the preferred construction and operation of cl 11.3 of ECU 2009, the facts do not support the claimant’s claim for appointment to LLC or LLB in March or April 2012. To be clear, the facts referred to do not require the Court to undertake an analysis of the claimant’s position as LLA and determine whether he meets the requirements of LLC or LLB under the PCS.
192 An analysis of that type is part of the academic promotion process under cl 60 of ECU 2009 for which ECU has a policy which does not form part of ECU 2009. Clause 4.3 of ECU 2009, when read with cl 60.

193 Leaving aside that the claimant was first employed by ECU in 1997 as a casual employee, the claimant commenced employment by appointment as LLA on 1 January 2005 when he was appointed for a new position.
194 Thereafter, annually and consistent with cl 27.2(a) of ECU 2009 (and subsequent iterations of the agreement), the claimant’s incremental progression was recognised and applied. Therefore, it is fair to say, that each year the claimant was not treated as an employee for a new position but as occupying the same position, consistent with cl 8.5.5 of ECU 2009. The position, and therefore his employment, continued on a fixed-term basis up to 31 January 2011.
195 The February 2011 Contract commenced on 1 February 2011, which provided for on-going employment as an LLA.
196 The claimant’s primary case is that he ought to have been classified by ECU in March or April 2012 as LLC or LLB based on having written and coordinated the Diploma of Music (Contemporary) (C44). However, as the found facts demonstrate in March or April 2012, the claimant at best had been given an opportunity to consider being more involved in what was then the Certificate IV course with a view to increasing his hours. At some later point, there is a notation indicating the claimant wrote and coordinated the Advanced Diploma of Music (Music Artist) course but, on the claimant’s evidence, this cannot have been in March or April 2012.
197 The claimant alleges he was not correctly classified during the February 2011 Contract to LLA, noting this was an ongoing contract continuing the [LLA] position where cl 8.5.5(ii) of ECU 2009 applied to what was previously a series of fixed-term contracts.
198 The claimant relies on ECU appointing him in March or April 2012, made by direction, to write and coordinate two new courses: the Diploma of Music (Music Artist) to commence in 2013 and the Advanced Diploma of Music (Music Artist) to commence in 2014. With respect to the claimant, ECU did no such thing. The claimant was appointed by the February 2011 Contract to an ongoing LLA position, consistent with the requirement in cl 8.5.5 of ECU 2009. Further, no direction was given to the claimant, then or otherwise.
199 It was open to the claimant to apply for promotion in accordance with cl 60 of ECU 2009 from March or April 2012 if he considered that, along with his preceding professional achievements, he had written and coordinated the Diploma of Music (Contemporary) (C44), and this warranted merit promotion to LLC or LLB. He did not do so.
200 The only change in circumstances was from 17 September 2012 where for, initially, three months but then for a further 12 months, the February 2011 Contract was varied from part-time to full-time employment. However, the claimant was still subject to the terms of ECU 2009, until ECU 2013 commenced on 9 August 2013, and beyond an increase in hours, the position the claimant was appointed to did not change. This includes his employment on or from 1 January 2013.
201 In respect of this increase in hours from part-time to full-time employment, the claimant’s comments in the March 2012 ‘My Work Plan’ are instructive. Not only does the claimant refer to being asked ‘to consider taking on the role as Cert IV unit co-ordinator’, rather than being ‘directed’ to undertake the role, but he does not refer to any expectation of being appointed to a higher position, but of ‘earning a full-time position’, which he did.
202 Further, in accordance with cl 17.1 of ECU 2009, there is no evidence ‘the Vice-Chancellor’ or any person on behalf of the Vice-Chancellor directed the claimant to write and coordinate the Diploma of Music (Contemporary) (C44) or the Advanced Diploma of Music (Contemporary) (C45) or directed any other staff member to direct the claimant.
203 In any event, the remainder of cl 17.1 of ECU 2009, when read with cl 17.2, gives the Vice-Chancellor a general power to direct an employee to carry out reasonable duties within the limits of an employee’s skill, competence and training with the duties being guided by the PCS. It was, arguably, open to give the claimant a direction to write and coordinate the Diploma of Music (Contemporary) (C44), but I do not accept, and did not find, that any such direction was given.
204 Consistent with the March 2012 ‘My Work Plan’, the claimant was given an opportunity by Mr Eastman and his brother to extend his academic career. He could either take up this opportunity or not. If he chose to do so, it may have led to full-time employment, which it ultimately did, and it may have advanced him through the academic levels via the merit promotion process, which he did not apply for until 2020.
Determination on Preferred Construction of cl 9.3 of ECU 2013
205 ECU 2013 commenced its operation on 8 August 2013 with a notional expiry date of 30 June 2016. However, it continued its operation until 28 February 2018 when ECU 2017 commenced. The parties to ECU 2013 included ECU and the NTEU Clause 1.1 of ECU 2013.
.
206 However, ECU 2013 applied to all employees employed by ECU. Clause 1.2 of ECU 2013.
In effect, it joined ECU 2009 and the General Staff Agreement.
207 ECU 2013 replaced any previous agreements covering employment by ECU and operated to the exclusion of any existing award and any other industrial agreement that may have applied but for cl 2. Clause 2.1 and cl 2.2 of ECU 2013.
In addition, any policies named and referred to in ECU 2013 were not incorporated into the agreement and did not form part of the agreement. Clause 2.4 of ECU 2013.

208 In merging ECU 2009 and the General Staff Agreement into the one document, the difference between the promotion pathway for academic staff and the classification process for general staff was retained. That is, the different processes between the employment types supports merit promotion as the only pathway for academic progression.
209 Clause 33 of ECU 2013, as it relates to professional staff only, provides:
33.1 Professional staff positions shall be classified in accordance with Schedule 2, Part 1 – Professional Staff Classification Structure. Positions will be classified at the level which most accurately reflects the work to be performed, taking into account the duties and responsibilities of the position.
33.2 The University will have a Reclassification Review Committee.
…
33.5 The Reclassification Review Committee shall meet four times per year at regular intervals from February to November.
33.6 An employee’s reclassification application shall be submitted by the employee or the supervisor to the Human Resources Service Centre (HRSC) for assessment which may include HAY evaluation. A full reclassification report including recommendations will be compiled by the HRSC.
…
33.15 The University shall retain the right to determine:
a. the title or classification of any new or vacant position;
b. the title or organisational structure for any current position or groups of positions; and
c. the criteria for appointment or promotion to any position or groups of positions.
210 Clause 68 of ECU 2013, as it relates to academic promotion, provides:
68.1 Academic Promotions will be based on the following principles:
· That there shall be an annual academic promotions round;
· That promotion will be based solely on merit;
…
· That the position classifications standards in the Collective Agreement and the ASPEO will form the basis of the criteria for promotion;
· Standards will be comparable with sector norms;
…
· That promotion will be in accordance with established procedures.
211 Notwithstanding the joining of ECU 2009 and the General Staff Agreement, many of the same key or relevant clauses in ECU 2009 were otherwise retained in almost identical terms in ECU 2013.
212 Another key difference between academic staff and general staff is performance management of staff, where cl 70.3 of ECU 2013 states:
Academic Staff only - The University requires academic staff to utilise the Academic Staff Performance Expectations and Outcomes Framework (ASPEO) for setting work objectives, clarifying role and performance expectations and reviewing performance outcomes.
213 Contrast this with cl 70.4 of ECU 2013 for general staff, which states:
Professional Staff only - the Management for Performance System will include a regular review of the position description of each Professional staff employee by the employee and the supervisor to ensure that the description remains current.
214 Without revisiting the various and identical clauses in ECU 2013, nothing in ECU 2013 gives rise to any indication that cl 9.3 of ECU 2013 was intended to operate differently to cl 11.3 of ECU 2009.
215 That is, cl 9.3 of ECU 2013 was intended to operate in the exact same way as cl 11.3 of ECU 2009 where upon appointment to a classification level, a new or existing academic staff member was required to advance through the academic levels in the PCS (now referred to as the Academic Staff Classification Standards) by merit promotion under cl 68 of ECU 2013.
Additional Reasons
216 Further to the determination on both the preferred construction and operation of cl 9.3 of ECU 2013, the facts do not support the claimant’s claim for classification to LLC or LLB on 1 January 2013 and 1 January 2014.
217 On 1 January 2013, the claimant’s employment was subject to the terms of ECU 2009, and the merit promotion process under cl 60. The January 2013 Contract varied the February 2011 Contract by increasing the claimant’s hours and the claimant’s employment continued as ongoing and the position progressed to the next incremental step (S 8). There was no new position or appointment but a change of appointment status in relation to the claimant’s hours. Claimant’s Copies of Records, Document 14.

218 Upon the expiry of the January 2013 Contract on 31 December 2013, as it related to hours, where the claimant was an ongoing employee, cl 6F of ECU 2013 applied to the claimant whereby ECU continued the position, now full-time, on an ongoing basis. The position was LLA S 8 as provided in the January 2014 Contract.
219 From 9 August 2013 to 27 February 2018, the claimant’s employment was subject to the terms of ECU 2013, and the merit promotion process under cl 68. The claimant did not apply for promotion during the operation of ECU 2013.
220 In continuing the LLA position from 1 January 2014, ECU was not required to revisit the claimant’s classification, nor was there a mechanism for ECU to do so. It was open for the claimant to apply for promotion on the basis that he wrote, designed and, on his evidence, coordinated the Diploma of Music (Contemporary) (C44) and the Advanced Diploma of Music (Contemporary) (C45), but he did not do so.
221 To the extent the NTEU raised criticisms of the merit promotion process in the 4 Yearly Review, at [247], alleging the exclusion of some classes of employees such as fixed-term employees, these criticisms do not apply to the claimant where on the facts he was appointed an ongoing employee from February 2011, and on his case he ought to have been classified as LLC or LLB from March or April 2012. That is, the claimant was not ‘locked out’ of the merit promotion process by virtue of his employment status in March or April 2012, even if cl 60 of ECU 2009 (or subsequent iterations) was interpreted to be unavailable to a fixed-term employee.
Determination on Preferred Construction of cl 7.2 of ECU 2017
222 ECU 2017 commenced its operation on 28 February 2018 with a notional expiry date of 30 June 2021. However, it continued its operation until 5 October 2023 when ECU 2022 commenced. The parties to ECU 2017 included ECU and the NTEU Clause 2 of ECU 2017.
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223 ECU 2017 applied to all employees employed by ECU, in the same way as ECU 2013. Clause 2.1 of ECU 2017.

224 ECU 2017 replaced any previous agreements covering employment by ECU and operated to the exclusion of any existing award and any other industrial agreement that may have applied but for cl 2. Clause 3.1 of ECU 2017.
In addition, any policies named and referred to in ECU 2013 were not incorporated into the agreement and did not form part of the agreement. Clause 3.2 of ECU 2017.

225 ECU 2017 retained the same key or relevant clauses in ECU 2013, which had been carried over from ECU 2009 and the General Staff Agreement. This included the equivalent of cl 33 of ECU 2013 at cl 25 of ECU 2017 and cl 68 of ECU 2013 at cl 54 of ECU 2017.
226 Without revisiting the various and identical clauses in ECU 2017, for the same reasons as applied to ECU 2013, nothing in ECU 2017 gives rise to any indication that cl 7.2 of ECU 2017 was intended to operate differently to cl 11.3 of ECU 2009 and cl 9.3 of ECU 2013.
227 That is, cl 7.2 of ECU 2017 was intended to operate in the exact same way as cl 11.3 of ECU 2009 and cl 9.3 of ECU 2013 where upon appointment to a classification level, a new or existing academic staff member was required to advance through the academic levels by merit promotion under cl 54 of ECU 2017.
Additional Reasons
228 The claimant’s reference in the Amended Claim to an alternate date of 28 February 2018 appears to be on the basis that this date coincides with the commencement of ECU 2017.
229 The claimant was subject to the terms of ECU 2013 until 28 February 2018, and thus subject to the merit promotion process under cl 68 of ECU 2013. He made no application for promotion during this time.
230 The Amended Claim is predicated on the claimant being incorrectly classified in March 2012 or April 2012, on 1 January 2013 or on 1 January 2014, based on the terms of cl 11.3 of ECU 2009 and cl 9.3 of ECU 2013.
231 The Court does not accept the claimant’s construction of those terms. Where the Court does not accept the claimant’s construction of those terms, it also does not accept the claimant was incorrectly classified by ECU under those terms.
232 The claimant’s reference to a further alternative date does not assist him because cl 7.2 of ECU 2017 does not obviate the requirement for the claimant to be merit promoted consistent with cl 54 of ECU 2017 and the agreement more generally.
233 That is, the process by which the claimant is to state his case regarding classification is via the merit promotion process, unlike the process for general staff, which provides for reclassification. Notably, the claimant disavows the Amended Claim is based on his position being reclassified.
234 ECU 2017, like ECU 2009 and ECU 2013, does not provide a mechanism, nor is it intended that cl 7.2 of ECU 2017 operate as such a mechanism, to ‘correctly classify’ the claimant or any other academic staff member.
235 The claimant was appointed to LLA and incrementally progressed through the various step levels. At any time, if not before February 2011, then certainly after February 2011, he could have applied for academic promotion under the relevant term of the agreement and in accordance with ECU’s academic promotion policies.
236 In or around April 2020, the claimant applied for academic promotion in accordance with cl 54 of ECU 2017, and his application for promotion was unsuccessful.
237 In 2021, the claimant applied for academic promotion in accordance with cl 54 of ECU 2017, and his application for promotion was successful where he was promoted to LLB on 29 June 2021.
Determination on Preferred Construction of cl 7.2 of ECU 2022
238 ECU 2022 commenced its operation on 5 October 2023 with a notional expiry date of 30 June 2026 and is currently in operation. The parties to ECU 2022 include ECU and the NTEU. Clause 2 of ECU 2022.

239 ECU 2022 applies to all employees employed by ECU, in the same way as ECU 2013 and ECU 2017. Clause 2.1 of ECU 2022.

240 ECU 2022 replaced any previous agreements covering employment by ECU and operated to the exclusion of any existing award and any other industrial agreement that may have applied but for cl 3. Clause3.1 of ECU 2022.
In addition, any policies named and referred to in ECU 2022 were not incorporated into the agreement and did not form part of the agreement. Clause 3.2 of ECU 2022.

241 ECU 2022 retained the same key or relevant clauses in ECU 2013 and ECU 2017, which had been carried over from ECU 2009 and the General Staff Agreement. This included the equivalent of cl 33 of ECU 2013 and cl 25 of ECU 2017 at cl 25 of ECU 2022, and cl 68 of ECU 2013 and cl 54 of ECU 2017 at cl 54 of ECU 2022.
242 However, ECU 2022 introduced the MSAL in place of the PCS ECU 2022, Schedule 2 at Part 2 (see page 90).
. The MSAL appear to have done no more than bring ECU into line with other universities in Australia as set out in the 4 Yearly Review. Notably, the 4 Yearly Review prior to or around 2018 when ECU 2017 was operative.

243 The MSAL introduction in ECU 2022 is consistent with the MSAL introduction in cl 18 of the Academic Staff Award under review in the 4 Yearly Review, where it was observed that it was not the intention of the MSALs to operate as an alternative classification process. 4 Yearly Review at [256].
Further, it was acknowledged that the academic promotion should be the primary means by which academic employees move to higher classification level.
244 Therefore, the introduction of the MSAL in ECU 2022 does not change the proper construction of cl 7.2 of ECU 2022.
245 Without revisiting the various and identical clauses in ECU 2022, for the same reasons as applied to ECU 2009, ECU 2013 and ECU 2017, nothing in ECU 2022 gives rise to any indication that cl 7.2 of ECU 2022 was intended to operate differently to cl 11.3 of ECU 2009, cl 9.3 of ECU 2013 and cl 7.2 of ECU 2017.
246 That is, cl 7.2 of ECU 2022 is intended to operate in the exact same way as cl 11.3 of ECU 2009, cl 9.3 of ECU 2013 and cl 7.2 of ECU 2017 where upon appointment to a classification level, a new or existing academic staff member is required to advance by merit promotion under cl 54 of ECU 2022.
247 That is, the claimant was promoted to LLB on 29 June 2021 in accordance with cl 54 of ECU 2017. The same process applies for promotion to levels beyond that pursuant to cl 54 of ECU 2022.
Determination of the Amended Claim
248 The Court’s determination of the preferred construction of cl 11.3 of ECU 2009, cl 9.3 of ECU 2013, cl 7.2 of ECU 2017 and cl 7.2 of ECU 2022, does not accord with the claimant’s suggested construction and application of those clauses.
249 That is, on the preferred construction the claimant was not ‘incorrectly classified’ in breach of cl 11.3 of ECU 2009 in March or April 2012, nor was cl 11.3 of ECU 2009 intended to operate as a basis for ‘correctly classifying’ the claimant in March or April 2012 as LLC or LLB, when he was appointed an LLA.
250 From February 2011, if not before, the only pathway for the claimant to be appointed to, or ‘classified’ as, LLC or LLB was by academic promotion pursuant to cl 60 of ECU 2009.
251 This preferred construction extends through ECU 2013, ECU 2017 and ECU 2022. That is, at all times the claimant was not ‘incorrectly classified’ in breach of the Agreements and for the claimant to be appointed to, or ‘classified’ as, LLC or LLB it was by academic promotion pursuant to the relevant academic promotion clause under the Agreements.
252 The claimant was promoted to LLB via cl 54 of ECU 2017 in June 2021, having been unsuccessful in his application for promotion in 2020.
253 Each relevant academic promotion clause in each of the Agreements required ECU to have an academic promotion based on ECU procedures and based solely on merit.
254 The Amended Claim did not allege that in some way ECU’s academic promotion process was contrary to the relevant academic promotion clause of the Agreements, even if such a claim was justiciable. Dr Jianyu Lin v Curtin University [2013] FWC 3223 at [63], noting that it may depend on how any claim is framed.

255 The Amended Claim was predicated on the claimant being ‘properly been classified as a [LLC] since on or around March or April 2012’ (or on the alternative dates) and the remedies he says flows from that ‘in relation to underpayments etc for the 6 years prior to this application by reference to the correct rates for that classification under [ECU 2017 and ECU 2022].’ The alternate case is that the claimant ‘should have been classified as [an LLB]’ from the same or alternative dates and the same remedies are sought for LLB. Amended Claim at 2.

256 The Amended Claim relied upon cl 11.3 of ECU 2009 as the basis for the claimant’s ‘correct classification’ for which he says ECU contravened. Alternatively, the claimant relies upon cl 9.3 of ECU 2013, or cl 7.2 of ECU 2017 or cl 7.2 of ECU 2022.
257 Having regard to the determinations made by the Court, ECU did not ‘incorrectly classify’ the claimant as LLA under cl 11.3 of ECU 2009 or cl 9.3 of ECU 2013 and did not ‘incorrectly classify’ the claimant as LLA or LLB under cl 7.2 of ECU 2017 or LLB under cl 7.2 of ECU 2022. The claimant was appointed to the position of LLA following which he was promoted to the position of LLB.
258 Therefore, ECU did not contravene cl 11.3 of ECU 2009; cl 9.3 of ECU 2013; cl 7.2 of ECU 2017 or cl 7.2 of ECU 2022.
259 Accordingly, there is no amount required to be paid to the claimant by ECU under ECU 2017 or ECU 2022 in relation to:
(a) ordinary hours worked;
(b) annual leave;
(c) personal leave;
(d) long service leave; and
(e) superannuation.
Outcome
260 The claimant has failed to prove the Amended Claim to the required standard.
261 The Amended Claim is dismissed.



D. SCADDAN
INDUSTRIAL MAGISTRATE

SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Fair Work Act 2009 (Cth)
Jurisdiction
[1] An employee, an employee organization or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA. The IMC, being a court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: s 12 of the FWA (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA) s 81, s 81B.
[2] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: s 544 of the FWA.
[3] The jurisdiction of the IMC under the FWA is primarily defined by three provisions:
(1) Section 539 of the FWA identifies the civil remedy provisions of the FWA which may be the subject of an application to an eligible state or territory court;
(2) Section 545(3) of the FWA describe the criteria for an eligible state or territory court to make an order for an employer to pay an amount to an employee upon the contravention of a civil remedy provision; and
(3) Section 546(1) of the FWA provides for the making of a pecuniary penalty order upon the court being satisfied of a contravention of a civil remedy provision.
[4] Section 539 of the FWA identifies, from among the several civil remedy provisions of the FWA, the particular civil remedy provisions for which application may be made to an eligible state or territory court ‘for orders in relation to a contravention or proposed contravention of the provision’. The provision also identifies, for each civil remedy provision, the person with standing to make application to the relevant court and, expressed in penalty units, the maximum penalty for a contravention.
[5] The civil penalty provisions identified in s 539 of the FWA include:
· Section 44 – contravening a provision of the National Employment Standards (NES);
· Section 50 – contravening a term of an enterprise agreement; and
· Section 323 – failing to pay in full an amount for the performance of work.
[6] Section 90 of the FWA (failing to pay annual leave at the base rate of pay) and s 99 of the FWA (failing to pay personal leave at the base rate of pay) are not, of themselves, civil penalty provisions.
[7] Section 545(3) of the FWA provides that an eligible state or territory court ‘may order an employer to pay an amount to … an employee … if the court is satisfied’ of two criteria. First, the failure to pay the relevant amount must be a contravention of a civil remedy provision. Secondly, the employer must have an obligation, ‘under this Act [for example, an NES] or a fair work instrument’ (for example, a modern award or an enterprise agreement) to pay the relevant amount.
[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’: s 14 and s 12 of the FWA. 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’: s 13 of the FWA.
Burden and Standard of Proof
[9] In an application under the FWA, the claimant carries the burden of proving the claim. 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.
[10] In the context of an allegation of the breach of a civil penalty provision of the Act it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences (362).
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[11] Section 551 of the FWA provides that ‘a court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention’. It has been held that the effect of the provision is that an ‘eligible State or Territory court’ is required to apply the rules of evidence found in the common law and relevant state legislation when a claim concerns the contravention of a civil remedy provision of the FWA: Gayle Balding, Workplace Ombudsman v Liquid Engineering 2003 Pty Ltd [2008] WAIRC 350; (2008) 88 WAIG 626; Cuzzin Pty Ltd v Grnja [2014] SAIRC 36, [14]. In Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72, [94] - [108] White J (with whom Mortimer and Bromwich JJ agreed) undertook a comprehensive analysis of the issue in the context of contravention proceedings before a state court of South Australia, the former Industrial Relations Court of South Australia.
[12] In a schedule to the judgment in Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 886; (2018) 98 WAIG 1410, the IMC gave reasons for concluding that the law of evidence applied by a state court of general jurisdiction when exercising jurisdiction in non-criminal matters, including the Evidence Act 1906 (WA), was to be applied by the IMC when determining a claim alleging the contravention of a civil remedy provision of the FWA and seeking the imposition of a penalty.


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