Australian Federal Police
[2018] FWCA 2776
•17 MAY 2018
| [2018] FWCA 2776 [Note: An appeal pursuant to s.604 (C2018/2950) was lodged against this decision - refer to Full Bench decisions dated 5 October 2018 [[2018] FWCFB 6095] and 13 November 2018 [[2018] FWCFB 6948] respectively for result of appeal.] |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Australian Federal Police
(AG2017/6432)
AUSTRALIAN FEDERAL POLICE ENTERPRISE AGREEMENT 2017-2020
| Australian Capital Territory | |
| Deputy President Kovacic | CANBERRA, 17 MAY 2018 |
Application for approval of the Australian Federal Police Enterprise Agreement 2017 - 2020.
An application has been made for approval of an enterprise agreement known as the Australian Federal Police Enterprise Agreement 2017-2020 (the Agreement). The application was received by the Fair Work Commission (the Commission) on 19 December 2017 and made pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The application was made by the Australian Federal Police (AFP – the Applicant). The Agreement is a single enterprise agreement.
The Community and Public Sector Union (CPSU) and the Australian Federal Police Association (AFPA) both lodged a Form F18 – Statutory Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement). In their respective Form F18’s both unions indicated that they supported approval of the Agreement, though the CPSU identified a number of answers given to questions in the AFP’s Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) with which it disagreed.
In addition, five employee bargaining representatives filed a Form F18A – Statutory Declaration of employee representative in relation to an application for approval of an enterprise agreement (other than a greenfields agreement). Whilst two of the employee representatives (Messrs Andrew Marsh and Christopher Dudfield) in their Form F18A’s supported approval of the Agreement, they both identified a number of answers given to questions in the AFP’s Form F17 with which they disagreed. Two of the employee representatives (Messrs Glen McDonald and Christopher Budd) declared in their Form F18A’s that they did not support approval of the Agreement. The fifth employee representative (Mr Michael Bilic) did not indicate whether or not he supported approval of the Agreement.
The issues raised in the various Form F18A’s can be summarised as follows:
· the longer qualifying period (when compared to the underpinning modern enterprise award, i.e. the Australian Federal Police Enterprise Award 2016[1]) before higher duties allowance is payable and the lower amount of annual leave which needs to be accrued before an employee can be directed to take annual leave (Mr Dudfield);
· issues relating to the Operations High Volume Composite and Additional Composite Allowance and associated working patterns (Messrs Bilic, Marsh and McDonald);
· whether the provision of an additional four weeks paid maternity leave is an unlawful term on the basis that it is a discriminatory and/or objectionable term (Mr Budd);
· the requirement to have taken a prescribed amount of annual leave in the previous 12 months prior to making a request to cash out annual leave (Mr Dudfield); and
· the definition of “Satisfactory Evidence”, i.e. a medical certificate provided by a health practitioner, which is required to support an application for personal/carers leave in specified circumstances (Mr Dudfield).
On 8 March 2018 the Commission’s Member Support Research Team sent an email to the Applicant setting out the Commission’s preliminary views regarding the Agreement. The email read as follows:
“I write in relation to the abovementioned application … Upon review of the application documentation, the following matters have been identified:
Can you please provide a response to the matters raised in the “Response” column below.
Issue Raised Response 1. F17: The Form F17 appears to have been witnessed by an ‘executive assistant’. As you may be aware, the statutory declaration must be witnessed by an authorised witness in accordance with the Statutory Declarations Act 1959.
2. F18A submitted by Dudfield: The Form F18 submitted appears to have been witnessed by a ‘public servant’. It is unclear whether the public servant has 5 years or more continuous service to qualify as an authorised witness pursuant to the Statutory Declarations Act 1959.
You may wish to provide a revised Form F17 and F18A ensuring it is signed by an authorised witness in accordance with the Statutory Declarations Act 1959.
3. F18: The Australian Federal Police Association Branch are listed on the form F16 as a Union bargaining representative but have not provided a form F18.
If the Union intend on being covered by the agreement, they are invited to provide a form F18 in relation to the matter.
4. Explanation of agreement: The response to Q2.6 F17 indicates that employees received updates following a number of bargaining meetings. However it is unclear what these updates involved, and whether employees were explained the terms and the effect of terms of the agreement after the final bargaining meeting but prior to voting.
You may wish to provide more information on whether employees were explained the terms and the effect of the terms of the agreement.
5. Unpaid carer’s leave/unpaid parental leave: Clause 12.6 of the agreement outlines the clauses of the agreement that apply to casual employees and does not include the relevant clauses relating to unpaid carer’s leave (clause 38) and unpaid parental leave (clause 45) of the agreement.
s. 102 of the Fair Work Act 2009 (the Act) does not exclude casual employees from unpaid carer’s leave.
s 67(2) of the Act offers unpaid parental leave to a casual employee who is a long term casual employee.
You are invited to provide an undertaking addressing this issue.
6. Compassionate leave: Clause 43 does not state that the entitlement to compassionate leave is for each permissible occasion as specified in s.104 of the Act.
You are invited to provide an undertaking addressing this matter.
7. Termination: Clause 57.3(c) allows the employer to release an employee prior to the expiry of the notice period with payment of wages/salary to the date of termination only.
The Deputy President seeks clarification on the intended meaning of clause 57.3(c) and how it operates. The Deputy President also requests information on how clause 57.3(c) differs from 57.2(a) of the agreement.
8. Remote Localities Allowance: Clause 34 of the agreement offers employees a remote localities allowance however states that the Commissioner may vary the allowance payable during the life of agreement. Clause 34 does not otherwise provide a value of the allowance however determination no. 4 provides the allowance amount.
The Deputy President seeks submissions in relation to the following:
· Given the Australian Federal Police Enterprise Award 2016 includes remote localities assistance, whether the agreement offers employees rates of pay or other benefits sufficient to overtime the setting of the allowance via an external determination.
· Whether the determination could be changed unilaterally to the disadvantage of employees.
9. Objections raised by bargaining representatives:
The Deputy President invites the various bargaining representatives whether they wish to be heard regarding the issues raised in their forms F18 and F18As’ or if the representatives are content on relying on the declarations made in their respective F18 and F18As’.
If you are attaching additional documents or information to support your response, please attach them to your reply email and indicate this in the ‘response’ column.
Undertakings
If undertakings are to be provided, please ensure they are signed by the employer and please ensure you seek the views of any bargaining representatives in relation to the issues raised. Any objections to the proposed undertakings should be raised with the Commission prior to the approval of the agreement. Undertakings are to be provided in a separate document.”
In response to the above email a number of the employee bargaining representatives advised the Commission that they wished to be heard in respect of the issues raised in their respective Form F18A’s. To that end, the application was listed for a telephone conference on 18 April 2018.
On 22 March 2018 the AFP responded to those issues raised by the Commission in the abovementioned email which related to it, indicating a willingness to proffer undertakings in respect of items 6 and 7 in the Commission’s email. Beyond that, the AFP’s response satisfactorily addressed the other issues relevant to it which were raised by the Commission. Acceptable undertakings were subsequently provided by the AFP on 17 April 2018. In its response the AFP also stated that it wished to be heard with respect to each of the issues raised in the Form F18s and F18As filed by bargaining representatives.
Appearing at the telephone conference on 18 April 2018 were Mr Peter McNulty, who appeared with permission for the Applicant, Mr Michael Chilcott for the AFPA, Mr Ron Johnson for the CPSU, Messrs Bilic, Budd, Dudfield, Marsh and two other employee bargaining representatives, Mr Ivan Turnbull and Mr Simon Canfield. Both Mr Turnbull and Mr Canfield indicated that they had no objection to the Agreement being approved. Mr McDonald who had filed a Form F18A not supporting approval of the Agreement was unable to attend the conference as he was overseas.
The issues raised in the various Form F18A’s filed by employee bargaining representatives were canvassed at the conference. With regard to the concerns relating to the Operations High Volume Composite and Additional Composite Allowance and associated working patterns, the Commission acknowledged at the conference that these issues were significant issues in bargaining for the Agreement but indicated that the issues raised appeared to reflect dissatisfaction with the outcomes of bargaining as opposed to issues which could be addressed by way of undertakings. Also at the conference the bargaining representatives advised that they had no issues regarding the undertakings proffered by the Applicant. The conference concluded with only Mr Budd pressing his objections. Accordingly, a timetable was set for the provision of submissions with the parties agreeing that Mr Budd’s objections could be dealt with on the papers. The timetable required Mr Budd to file his further written submissions with the Commission by close of business on 24 April 2018 with the Applicant’s submissions in reply due by no later than close of business on 1 May 2018.
In subsequent developments, on 2 May 2018 the CPSU sent an email to the AFP which was copied to the Commission in which it expressed the view that it was appropriate for the AFP to respond to the issues raised in its Form F18 and for that response to be provided to the Commission and other bargaining representatives. On 10 May 2018 the AFP, at the Commission’s request, filed a revised Form F17 which addressed the issues raised by the CPSU in its Form F18.
The Agreement provision which Budd contends is unlawful
Clause 46(2) of the Agreement provides as follows:
“46 Maternity Leave
(2)An Employee with 12 months continuous service in the AFP, or a qualifying agency under the provisions of the Maternity Leave Act [sic](Commonwealth Employees) Act 1973, and is eligible to access leave under this Act, is entitled to be paid for an additional four weeks’ maternity leave in excess of that provided by the Maternity Leave Act (Commonwealth Employees) Act 1973.”
The statutory framework
The relevant provisions of the FW Act are set out below.
12 The Dictionary
objectionable term means a term that:
(a) requires, has the effect of requiring, or purports to require or have the effect of requiring; or
(b) permits, has the effect of permitting, or purports to permit or have the effect of permitting;
either of the following:
(c) a contravention of Part 3‑1 (which deals with general protections);
(d) the payment of a bargaining services fee.
186 When the FWC must approve an enterprise agreement—general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).
…Requirement that there be no unlawful terms
(4) The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).
194 Meaning of unlawful term
A term of an enterprise agreement is an unlawful term if it is:
(a) a discriminatory term; or
(b) an objectionable term; or
…
195 Meaning of discriminatory term
Discriminatory term
(1) A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Certain terms are not discriminatory terms
(2) A term of an enterprise agreement does not discriminate against an employee:
(a) if the reason for the discrimination is the inherent requirements of the particular position concerned; or
(b) merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) A term of an enterprise agreement does not discriminate against an employee merely because it provides for wages for:
(a) all junior employees, or a class of junior employees; or
(b) all employees with a disability, or a class of employees with a disability; or
(c) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.
342 Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by ...Column 2
if ...1 an employer against an employee the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
(2) …
(3) Adverse action does not include action that is authorised by or under:
(a)this Act or any other law of the Commonwealth; or
(b)a law of a State or Territory prescribed by the regulations.
(4) …
351 Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i)in good faith; and
(ii)to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti‑discrimination law:
(aa) …
(ad) the Sex Discrimination Act 1984; …” (Underlining added)
The relevant provisions of the Sex Discrimination Act 1984 (the SD Act) are set out below:
5 Sex discrimination
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.
7A Discrimination on the ground of family responsibilities
For the purposes of this Act, an employer discriminates against an employee on the ground of the employee’s family responsibilities if:
(a) the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and
(b) the less favourable treatment is by reason of:
(i)the family responsibilities of the employee; or
(ii)a characteristic that appertains generally to persons with family responsibilities; or
(iii)a characteristic that is generally imputed to persons with family responsibilities.
7B Indirect discrimination: reasonableness test
(1) A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 5A(2), 5B(2), 5C(2), 6(2), 7(2) or 7AA(2) if the condition, requirement or practice is reasonable in the circumstances.
(2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:
(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.
PART II – PROHIBITION OF DISCRIMINATION
DIVISION 1 – DISCRIMINATION IN WORK14 Discrimination in employment or in superannuation
(1) …
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(a)in the terms or conditions of employment that the employer affords the employee;
(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
(3) …
31 Pregnancy, childbirth or breastfeeding
Nothing in Division 1 or 2 renders it unlawful for a person to discriminate against a man on the ground of his sex by reason only of the fact that the first-mentioned person grants to a woman rights or privileges in connection with pregnancy, childbirth or breastfeeding.” (Underlining added)
Budd’s case
In his submissions Mr Budd characterised the additional four weeks maternity leave provided for in cl.46(2) of the Agreement as “primary caregiver leave”. Further Mr Budd posited that he considered the claim made by the AFP during bargaining that the additional maternity leave was merely an extension of the entitlement granted to birth mothers under the Maternity Leave (Commonwealth Employees) Act 1973 (the ML Act) was based on a false premise as the AFP had no power to extend the ML Act.
Mr Budd contended that the FW Act did not define discrimination and that the Commission had previously determined that the definition of discrimination in s.195 of the FW Act should be consistent with other legislation. More specifically, Mr Budd submitted that the FW Act provides that all discrimination is unlawful and then requires an assessment of whether or not the particular term is discriminatory, contending that Part II of the SD Act was wholly irrelevant to the definition of discrimination in s.195 of the FW Act. Mr Budd further submitted that even if Part II of the SD Act was found to be relevant the additional maternity leave did not come within the exemptions set out in ss.30 and 31 of the SD Act. With regard to s.31 of the SD Act, Mr Budd expressed the view that additional maternity leave had nothing to do with pregnancy or childbirth, but conceded that a “very strained argument could be made” that it related to breastfeeding.
As to why cl.46(2) of the Agreement contravened s.5(1) of the SD Act, Mr Budd submitted that by granting women and not men additional maternity leave the provision directly discriminated against men because they did not give birth. Mr Budd posited inter alia that the sole newborn related activity of additional maternity leave was the primary care of the newborn child and that the provision rested entirely on the sexist premise that men cannot or should not be primary carers. Mr Budd also contended that the provision was discriminatory on the basis of sexual orientation as the only AFP employees not entitled to some form of primary caregiver leave were “straight men”. While Mr Budd’s primary submission was that s.14 of the SD Act was irrelevant, he contended that even if cl.46(2) was found not to contravene s.14(2)(a) of the SD Act it contravened s.14(2)(d) of the SD Act as access to additional maternity leave constituted “any other detriment”.
In the alternative, Mr Budd submitted that should the Commission not find cl.46(2) of the Agreement to be directly discriminatory that the provision was indirectly discriminatory, adding that the indirect discrimination was not “reasonable in the circumstances” as per s.7B(2) of the SD Act.
As to whether the provision was an objectionable term as per s.12 of the FW Act, Mr Budd submitted that adverse action included where the AFP discriminated between an employee and other employees and that in this case the adverse action inherent in cl.46(2) of the Agreement was the denial of additional maternity leave to men on the basis of their sex. Mr Budd also contended, among other things, that none of the anti-discrimination laws specified in s.351(3) of the FW Act rendered the adverse action lawful.
Mr Budd concluded that as cl.46(2) of the Agreement was an unlawful term the Commission could not approve the Agreement without undertakings. Mr Budd submitted that undertakings which had the effect of making additional maternity leave available to men would be acceptable.
While not addressed in Mr Budd’s further submissions, in his Form F18A he also contended that cl.46(2)(a) of the Agreement discriminated on the basis of family responsibilities. Mr Budd also stated that by refusing to grant fathers who are primary caregivers additional maternity leave or some other type of equivalent leave the AFP was also taking adverse action against those employees on the basis of their family responsibilities.
The Applicant’s case
The Applicant submitted that cl.46(2) of the Agreement was not an unlawful term as it was neither a discriminatory nor an objectionable term. The Applicant contended that Mr Budd’s submissions proceeded on the incorrect premise that the intention of the provision was to provide leave to the primary caregiver of a child but only in circumstances where the primary caregiver was a woman. The Applicant contended that the clear purpose of the leave was to provide additional leave to birth mothers in recognition of the fact of childbirth, adding that this was because to be eligible for additional maternity leave an employee must be entitled to leave under the ML Act.
The Applicant submitted that the clause does not have a discriminatory effect as it did not result in a man being treated less favourably than a woman in the same circumstances. To support that submission the Applicant noted that a woman who was the primary caregiver of the child but who was not the birth mother of the child would not be entitled to additional maternity leave, adding that this was the same position that a man who was the primary caregiver of the child would be in. The Applicant also submitted that the clause did not result in persons being treated less favourably because they are of a particular sexual orientation nor did it discriminate against persons with family responsibilities. Specifically, the Applicant submitted that if a person is not a birth mother, the person will not be entitled to additional maternity leave irrespective of their sexual orientation and that a person with family responsibilities who is not a birth mother is in the same position as a person without family responsibilities who is not a birth mother, i.e. neither person is entitled to additional maternity leave.
As to the issue of indirect discrimination, the Applicant submitted that the question of whether the reference to discrimination in s.195 of the FW Act incorporated both direct and indirect discrimination was unsettled, adding that there was no clear line of authority on the issue and that the matter was currently being considered by the Commission in respect of an application for approval of the Metropolitan Fire and Emergencies Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2016[2]. More specifically, the Applicant referred to ss.5(3) and 7B of the SD Act which provided that a person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantage in effect mentioned in s.5(2) of the SD Act if the condition, requirement or practice is reasonable in the circumstances. Given that the intention of cl.46(2) was to provide birth mothers with an additional four weeks of maternity leave to recover from giving birth, the Applicant contended that it was reasonable in all the circumstances to require the person accessing the leave to have given birth, adding that a person who had not given birth had no need to recover from the birth. The Applicant posited that the issue to be determined in this regard by the Commission was whether it is reasonable in the circumstances for additional maternity leave to only be provided to birth mothers and not whether it was unreasonable that fathers and primary caregivers were not entitled to some other form of leave.
With regard to the issue of unlawful discrimination, the Applicant noted that in The University of Melbourne[3] (Melbourne University) Commissioner Bissett had regard to the definition of discrimination in the SD Act in determining whether clauses in the relevant agreement were discriminatory under s.195 of the FW Act. The Applicant submitted that to the extent that the Commission considered it necessary to consider the definition of discrimination in the SD Act that it should also have regard to ss.14 and 31 of the SD Act. The Applicant further submitted that taking into account the provisions of the SD Act the provision of additional maternity leave to birth mothers would not be unlawfully discriminatory under the SD Act.
As to whether cl.46(2) of the Agreement was an objectionable term, the Applicant posited that it was not as it did not require the AFP to take adverse action against an employee because of their sex. The Applicant also relied on s.351(2)(a) of the FW Act which provides that s.351(1) does not apply to action that was not unlawful under any anti-discrimination law in force in the place where the action is taken, contending that the SD Act was a relevant anti-discrimination law for the purposes of s.351 of the FW Act. As such, the Applicant submitted s.351 had no application in the current circumstances.
In summary, the Applicant submitted that as cl.46(2) of the Agreement was not an unlawful term undertakings were not necessary. With regard to Mr Budd’s proposed undertakings, the Applicant contended that undertakings proposed by Mr Budd sought to fundamentally change the character of the Agreement. Finally, the Applicant indicated that should the Commission find that cl.46(2) was an unlawful term that it wished to be heard on the terms of any undertaking.
Consideration of the issues
Initially I would indicate that I do not accept Mr Budd’s characterisation of the additional four weeks maternity leave provided for in cl.46(2) of the Agreement as “primary caregiver leave”. This is because eligibility for additional leave is determined with regard to an employee’s length of service with the AFP, or a qualifying agency under the provisions of the ML Act, and eligibility to access leave under the ML Act. In that regard I note that s.6 of the ML Act deals with absence from duty in relation to childbirth, with s.6(1) providing “A female employee who has become pregnant …” with an entitlement to be absent from duty for a period not exceeding 52 weeks. An employee who has been confined is not entitled to 12 weeks’ paid maternity leave under the ML Act unless covered by the Act for a continuous period exceeding 12 months [s.6(3)]. This favours the Applicant’s contention that the purpose of additional maternity leave is to provide additional leave to birth mothers to recover from giving birth. Significantly, the ML Act does not provide leave, either unpaid or paid, to males to whom the Act applies.
The practical effect of the operation of cl.46(2) of the Agreement is that an employee who is not eligible to access leave under the ML Act, irrespective of their sex, is not entitled to the additional four weeks maternity leave provided for in cl.46(2). More specifically, a female employee who does not have 12 months continuous service in the AFP, or a qualifying agency under the provisions of the ML Act, and is not eligible to access leave under the ML Act would not be entitled to the additional four weeks maternity leave provided for in cl.46(2) of the Agreement. In other words, it is these criteria rather than the sex of the employee which determine an employee’s eligibility for additional maternity leave. This does not support a finding that the term is discriminatory on the basis of sex. For the same reason, I do not consider that cl.46(2) of the Agreement discriminates on the basis of sexual orientation, particularly in circumstances where I do not accept Mr Budd’s characterisation of additional maternity leave as “primary caregiver leave”, or family responsibilities.
Beyond this, I note that Mr Budd provided no evidence to support his assertion that cl.46(2) of the Agreement rested entirely on the sexist premise that men cannot or should not be primary carers.
With regard to the issue of indirect discrimination, as noted by Commissioner Bissett in Melbourne University there is some debate as to whether or not indirect discrimination is encapsulated by s.195 of the FW Act[4]. This point was reiterated by the Applicant in its submissions which also highlighted that the matter was currently being considered by the Commission. Without expressing a view on that issue, I consider that cl.46(2) of the Agreement does not entail indirect discrimination for the following reasons. As noted by Vice President Lawler in Australian Catholic University Limited T/A Australian Catholic University[5] reasonableness is a factor in determining whether a clause is indirectly discriminatory[6]. As can be seen from above s.5 of the SD Act has effect to s.7B of that Act which provides a reasonable test in respect of indirect discrimination. The Applicant contended that as the intention of cl.46(2) was to provide birth mothers with an additional four weeks of maternity leave to recover from giving birth, it was reasonable in all the circumstances to require the person accessing the leave to have given birth. I consider that contention compelling in circumstances where:
· eligibility for additional maternity leave is limited to those AFP employees who have 12 months continuous service in the AFP, or a qualifying agency under the provisions of the ML Act, and are eligible to access leave under the ML Act (which as previously noted is by virtue of s.6 of the ML Act limited to a female employee who becomes pregnant); and
· for the reasons previously outlined, I do not accept Mr Budd’s characterisation of additional maternity leave as “primary caregiver leave”.
The reasonableness of the provision of additional maternity leave as per cl.46(2) of the Agreement is reinforced in my view by the Productivity Commission’s findings in its report Paid Parental Leave: Support for Parents with Newborn Children[7] which on the issue of child and maternal welfare included the following:
“• There is compelling evidence of child and maternal health and welfare benefits from a period of absence from work for the primary caregiver of around six months and a reasonable prospect that longer periods (nine to twelve months) are beneficial.
…
· Maternal recovery can be prolonged and an early return to work may increase the risk of depression and anxiety. On maternal recovery grounds, the length of absence from work should be no less than 12 weeks and potentially up to six months with wellbeing after that time dependent more on women’s preferences than recovery.”[8]
I turn now to deal with Mr Budd’s contention that cl.46(2) is an objectionable term as defined in s.12 of the FW Act. While s.351(1) of the FW Act provides that an employer must not take adverse action against an employee on the basis of the employee’s sex or family or carer’s responsibilities (among other grounds), s.351(2) of the FW Act provides that subsection (1) does not apply to action that is not unlawful under any anti‑discrimination law in force in the place where the action is taken. Section 351(3)(ad) of the FW Act specifies that the SD Act is such an anti-discrimination law. Beyond this, Item 1(d) of s.341(1) of the FW Act provides that an employer takes adverse action against an employee if the employer “discriminates between the employee and other employees of the employer”. I note also that s.342(3)(a) of the FW Act provides that adverse action “does not include action that is authorised by or under this Act or any other law of the Commonwealth”.
As can be seen from the provisions of the SD Act set out above, s.5 of the SD Act in essence defines sex discrimination while s.14(2)(a) of the SD Act makes it “unlawful for an employer to discriminate against an employee on the basis of the employee’s sex … in the terms and conditions of employment that the employer affords the employee”. Section 14 of the SD Act appears in Division 1 of Part II of the SD Act. Finally, s.31 of the SD Act provides that “Nothing in Division 1 or 2 renders it unlawful for a person to discriminate against a man on the ground of his sex by reason only of the fact that the first-mentioned person grants to a woman rights or privileges in connection with pregnancy, childbirth or breastfeeding.” In circumstances where I accept the Applicant’s submission that the purpose of additional maternity leave is provide additional leave to birth mothers to recover from giving birth and do not consider that cl.46(2) discriminates on the basis of sex, I consider it unlikely that cl.46(2) of the Agreement would be found to constitute unlawful discrimination on the basis of sex as a result of s.31 of the SD Act.
Against that background, to the extent that cl.46(2) entails adverse action against male AFP employees on the basis that it discriminates between those employees and other employees, it is not adverse action within the terms of s.351(1) of the FW Act because the adverse action would by virtue of s.351(2)(a) of the FW Act not be unlawful under any anti‑discrimination law in force in the place where the action is taken, i.e. the SD Act which is specified at s.351(2)(ad) of the FW Act.
As to Mr Budd’s contention that by refusing to grant fathers who are primary caregivers additional maternity leave or some other type of equivalent leave the AFP is also taking adverse action against those employees on the basis of their family or carer’s responsibilities, that contention is not sustained when regard is had to s.7A of the SD Act which defines discrimination on the ground of family responsibilities. More specifically and with particular regard to s.7A(a) of the SD Act, fathers who are primary caregivers are treated no different from other employees, whether male or female, without family responsibilities as neither is entitled to additional maternity leave under cl.46(2) of the Agreement.
The above analysis does not support a finding that cl.46(2) of the Agreement requires or permits, or has the effect of requiring or permitting, or purports to require or permit or has the effect of requiring or permitting a contravention of Part 3‑1 of the Act which deals with general protections. This in turn does not support a finding that cl.46(2) of the Agreement is an objectionable term as per s.12 of the FW Act.
Conclusion
For all the above reasons, I do not consider that cl.46(2) of the Agreement is either a discriminatory or objectionable term. As a result, the provision is therefore also not an unlawful term.
Against that background, subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the FW Act as are relevant to this application for approval have been met.
As noted, pursuant to s.190(3) of the FW Act, I have accepted undertakings from the Australian Federal Police. I do not consider that the undertakings proffered cause or will cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. In accordance with s.191(1) of the FW Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to this decision.
The Community and Public Sector Union and Australian Federal Police Association, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the FW Act I note that the Agreement covers the organisations.
The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 24 May 2018. The nominal expiry date of the Agreement is 24 May 2021.
DEPUTY PRESIDENT
[1] MA000142
[2] AG2018/1278
[3] [2014] FWCA 1133
[4] Ibid at [51]-[54]
[5] [2011] FWA 3693
[6] Ibid at [14]
[7] Productivity Commission Report No.47, 28 February 2009
[8] Ibid at page 4.1
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