Australian Nursing and Midwifery Federation v ACT Government
[2019] FWC 3748
•5 JUNE 2019
| [2019] FWC 3748 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Nursing and Midwifery Federation
v
ACT Government
(C2018/5994)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 5 JUNE 2019 |
Application to deal with dispute concerning interpretation of clauses 117.42 and 117.57 of the ACT Public Service Nursing and Midwifery Enterprise Agreement 2013-2017 – determined that annual leave and long service leave granted under clause 117.57 of the Agreement does count towards and form part of the maximum continuous period of 78 weeks specified in clause 117.42 of the Agreement.
[1] On 25 October 2019 the Australian Nursing and Midwifery Federation (ANMF the Applicant) lodged an application made under s.739 of the Fair Work Act 2009 (the Act) and in accordance with the dispute resolution process of the ACT Public Service Nursing and Midwifery Enterprise Agreement 2013-2017 1 (the Agreement). The dispute concerned the interpretation of aspects clause 117 of the Agreement which deals with personal leave and in particular clauses 117.42 and 117.57 of the Agreement.
[2] The dispute was the subject of a conference convened by the Fair Work Commission (the Commission) on 8 November 2018 which failed to resolve the dispute. Directions were issued later that day which not only set out a timetable for the provision of written submissions but also required the Applicant and the ACT Government (the Respondent) to confer on and advise the Commission of the issue(s) to be determined by the Commission.
[3] Consistent with those Directions, on 9 November 2018 the Respondent’s representative advised the Commission by email that the parties requested that the Commission determine the following issue:
“Does annual leave or long service leave granted under clause 117.57 of the ACT Public Service Nursing and Midwifery Enterprise Agreement 2013-2017 count towards, and form part of, the maximum continuous period of 78 weeks under clause 117.42 of the Agreement?”
[4] For the reasons outlined below, I have determined that annual leave and long service leave granted under clause 117.57 of the Agreement by virtue of not breaking the continuity of the maximum continuous period of 78 weeks specified in clause 117.42 of the Agreement does count towards and form part of that maximum continuous period of 78 weeks.
The Agreement provisions
[5] Clauses 117.42 and 117.57 of the Agreement provide as follows:
“117.42 Subject to the production of documentary evidence, a head of service may grant an employee further absence for personal illness or injury provided the additional period of personal leave is granted without pay. However any such leave without pay that goes beyond a maximum continuous period of combined paid and unpaid personal leave of 78 weeks will not count as service for any purpose.
117.57 If an ill or injured employee exhausts the employee’s paid personal leave entitlement and produces documentary evidence, as per subclause 117.37, as evidence of continuing personal illness or injury, the employee may apply to the head of service for approval to take annual leave or long service leave. If approved, this leave will not break the continuity of the seventy eight weeks under subclause 117.42.”
[6] Set out below are other elements of clause 117 of the Agreement which cross-reference either clause 117.42 or clause 117.57 of the Agreement:
“When Personal Leave Credits Have Been Exhausted
117.27 Where credits have been exhausted, the head of service may grant an employee a period of unpaid personal leave for personal illness or injury or for the care of a member of the employee’s immediate family or household who is sick.
Note: In such circumstances, alternative arrangements are provided for at subclause 117.57.
Rate of Payment
117.47 Personal leave will be granted with pay except where it is granted without pay under subclauses:
(a) 117.27;
(b) 117.29; or
(c) 117.42
Effect on Other Entitlements
117.51 Personal leave without pay, other than provided for at subclause 117.42, will count as service for all purposes.”
[7] I note also that clause 117.42 appears in a section of clause 117 which is headed “Evidence and Conditions” while clause 117.57 appears in a section headed “Access to Other Leave Entitlements”.
The Applicant’s case
[8] The Applicant submitted that the correct interpretation of the relevant clauses provides that annual leave or long service leave does not count towards nor form part of the maximum continuous period of 78 weeks. The Applicant further submitted that having regard to the principles to be applied to the construction of enterprise agreements as outlined in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri) 2 its interpretation was preferred because:
• the clauses clearly have a plain meaning; and
• that plain meaning might only be contradicted if the clauses were read in conjunction with extrinsic material and this was not consistent with the principles outlined in Berri.
[9] In particular, the Applicant in its submissions referred to principles 3, 7, 9 and 14 from Berri.
[10] Beyond this, the Applicant:
• posited that clause 117.42 of the Agreement clearly pertained only to personal leave as the clause refers to “a maximum continuous period of combined paid and unpaid personal leave”;
• contended that the plain meaning of clause 117.42 was that only personal leave and not annual or long service leave counted towards the maximum continuous period of 78 weeks;
• acknowledged that annual or long service leave granted in accordance with clause 117.57 of the Agreement would not reset the calculation of the maximum continuous period of 78 weeks, adding that this was because the plain meaning of the words “will not break the continuity” in clause 117.52 was consistent with the well understood principle of industrial relations such as that expressed in s.22(3) of the Act that a type of service is not broken or reset solely because of an intervening act;
• submitted that if necessary it would also seek to rely on email of 7 September 2018 from Mr Justin Wunsch, a Senior Employee Relations Adviser with the Respondent, who initially agreed with the Applicant’s interpretation of the relevant clause;
• indicated that it would also seek to rely on an email of 4 October 2018 from the Respondent which indicated that “a literal interpretation” of the relevant clauses provided that “the 78 week cap on “counts as service” only relates to personal leave”; and
• contended that consistent with principle 9 and/or principle 14 in Berri, evidence of surrounding circumstances must not be used to contradict the plain language of the clauses and/or extrinsic material that may be used to aid interpretation could not be used to disregard or rewrite the relevant provisions.
[11] In its reply submissions the Applicant disputed a number of aspects of the Respondent’s submissions, rejecting inter alia the Respondent’s contentions that the Applicant’s interpretation could allow for the 78 week period to potentially be doubled to three years in an extreme case and that Mr Wunsch was expressing a personal view regarding the disputed provisions. With regard to the reference in the Respondent’s submissions to the APS Pay and Conditions Guide, the Applicant submitted that consideration of the origins of the provisions would not be consistent with the principles set out in Berri because the disputed clauses have a plain meaning.
The Respondent’s case
[12] The Respondent submitted that clause 117.57 of the Agreement necessitated a positive answer to the question to be determined by the Commission because a negative answer would mean that leave granted under the provision would break the continuity of the 78 weeks. The Respondent further submitted that clause 117.57 imposed a clear outer limit to a very generous allowance of up to 78 weeks’ absence from the workplace due to illness or injury before an employee’s continuous service was broken, adding that the intent of the provision was that its (i.e. the Respondent’s) entitlement to rely upon the 78 week cap must not be prejudiced were it decided to grant long service leave or annual leave to an employee under the provision.
[13] The Respondent also:
• noted that on the Applicant’s interpretation where employees had accrued large amounts of annual and/or long service leave, the 78 week period could potentially be doubled to three years in an extreme case with employees continuing to accrue leave entitlements throughout that period;
• acknowledged that clause 117.42 used the phrase “combined paid and unpaid personal leave” as opposed to stating “combined paid and unpaid personal leave or annual or long service leave granted under clause 117.57”;
• submitted that any ambiguity in the operation of clause 117.42 should be resolved consistently with the clear meaning of and policy intent behind clause 117.57;
• contended that the Applicant’s reliance upon the principles enunciated in Berri was misplaced as those principles supported an affirmative answer to the question to be determined by the Commission;
• opined that the email sent by Mr Wunsch to the ANMF on 7 September 2018 expressed his personal view and did not and does not represent the Respondent’s position; and
• submitted that it rejected the analogy drawn by the Applicant between the notion of “continuity of service” in s.22(3) of the Act and the references to continuous service in clauses 117.42 and 117.57 on the basis that the clauses were not dealing with the calculation of a period of continuous service and clause 117.57, unlike s.22(3) of the Act which provided that an excluded period “does not count towards the length of the employee’s continuous service”, did not state that annual leave or long service leave granted “does not count towards” the 78 week limit imposed by clause 117.42 of the Agreement.
[14] The Respondent also noted in its submissions that clauses 117.42 and 117.57 stemmed from similar provisions which previously applied under a range of industrial instruments in the Commonwealth public sector. Against that background, the Respondent referred to the following extract from the APS Pay and Conditions Guide issued in February 1998:
“An employee who is absent from work because of illness is not normally able to use of leave other than Sick Leave to cover the absence. However, Annual Leave or Long Service Leave may be used at the employee’s request … Any grant of paid leave on account of illness, including periods of Annual or Long Service Leave, cannot exceed 52 weeks. In other words, when Annual or Long Service Leave is granted for long-term illness, this does not break the period of continuous absence due to illness which is calculated to determine the maximum period is allowable.” 3
Consideration of the issues
[15] The principles relating to the interpretation of enterprise agreements were set out in Berri as follows:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
[16] I adopt those principles in this case.
[17] Drawing on principles 1 and 7 in Berri, the Commission needs to consider “the ordinary meaning of the relevant words” and determine “whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.”
[18] With regard to the ordinary meaning of the words “not break the continuity of” in clause 117.57, I note that the definition of the word “break” in the Macquarie Dictionary includes the following:
“2. to separate into parts or pieces …
3. to detach from a larger object …
7. to separate into components …
9. to dissolve or annul …
10. to discontinue abruptly; interrupt; suspend …
12. to put an end to; overcome.”
[19] Further, the Macquarie Dictionary defines “continuity” as follows:
“1. the state or quality of being continuous.
2. a continuous or connected whole.”
[20] Drawing on the above definitions supports a finding that the ordinary meaning of the words “not break the continuity of” in the context of clause 117.57 is that the taking of annual leave or long service leave under the clause will not interrupt the continuous quality of the 78 week period specified in clause 117.42. Put colloquially, the clock keeps ticking.
[21] As previously mentioned, the Applicant posited that the plain meaning of clause 117.42 of the Agreement was that only personal leave and not annual or long service leave count towards the maximum continuous period of 78 weeks. The underlying thrust of that submission is that clause 117.42 overrides clause 117.57 in terms of what forms of leave are taken into account in determining the 78 week period specified in clause 117.42. I turn now to explore that contention having regard to principle 1 in Berri. To that end I note that:
• clause 117.27 provides that in circumstances where an employee has exhausted their personal leave credits the head of service may grant an employee a period of unpaid personal leave for personal illness or injury or for the care of a member of the employee’s immediate family or household who is sick;
• the note at clause 117.27 points to clause 117.57 providing alternative arrangements to the grant of personal leave without pay;
• clause 117.42 appears in a section of the Agreement’s personal leave clause headed “Evidence and Conditions”, with the preceding clause (i.e. clause 117.41) providing that “Paid personal leave may be granted up to an employee’s available personal leave credit”;
• clause 117.42 only refers to personal leave, i.e. the clause does not refer to any other form of leave:
• clause 117.51 provides that personal leave without pay will count as service for all purposes other than the circumstances provided for in clause 117.42; and
• clause 117.57 appears in a section of the Agreement’s personal leave clause headed “Access to Other Leave Entitlements” which is the only section/part of clause 117 which refers to other forms of leave;
• clause 117.57 only allows an ill or injured employee to apply for annual or long service leave (as opposed to personal leave without pay in accordance with clause 117.27 or 117.42) in circumstances where the employee has exhausted their paid personal leave entitlement and provides evidence of continuing personal illness or injury; and
• clauses 117.42 and 117.57 both only apply in circumstances involving of “personal illness or injury”.
[22] The reference in the note to clause 117.27 to clause 117.57 providing alternative arrangements to the grant of unpaid personal leave under clause 117.27 which provides for the together with the fact that clause 117.42 deals solely with personal leave and that clause 117.57 appears in a section of clause 117 that deals exclusively with “Access to Other Leave Entitlements” all point to clause 117.57 being a standalone provision which operates subject to its terms. More particularly, having regard to the text of the Agreement as a whole and the place and arrangement of the disputed provisions in the Agreement as per principle 1 in Berri, supports a finding that clause 117.57 sets out how annual or long service leave is to be treated for the purposes of the 78 weeks referred to in clause 117.42 while clause 117.42 sets outs how paid and unpaid personal leave is to be treated for the purpose of the 78 week period. With regard to how annual leave and long service leave are to be treated for the purposes of the 78 weeks period, as previously determined the clock does not stop ticking as a result of either form of leave being granted in accordance with clause 117.57. The practical effect of this is that annual leave and long service leave granted under clause 117.57 of the Agreement do count towards and form part of the maximum continuous period of 78 weeks specified in clause 117.42 of the Agreement. This does not support the Applicant’s submission that the plain meaning of clause 117.42 of the Agreement is that only personal leave and not annual or long service leave count towards the maximum continuous period of 78 weeks.
[23] Against that background, I consider that the Agreement has a plain meaning as to what periods of leave counts towards the maximum continuous period of 78 weeks specified in clause 117.42. More specifically, the above analysis supports a finding that the plain meaning of the Agreement is that periods of paid and unpaid personal leave and by virtue of not breaking the continuity of the maximum continuous period of 78 weeks specified in clause 117.42 of the Agreement, periods of annual and long service leave approved under clause 117.57 all count towards the 78 week period.
[24] Finally, in circumstances where I have found that the Agreement has a plain meaning as to what periods of leave counts towards the maximum continuous period of 78 weeks specified in clause 117.42 it is not necessary for the Commission to have regard to extrinsic material such as Mr Wunsch’s letter of 7 September 2018 or the extract from the APS Pay and Conditions Guide referred to in the Respondent’s submission.
Conclusion
[25] For all the above reasons, I have determined that the answer to the issue to be determined by the Commission is that annual leave and long service leave granted under clause 117.57 of the Agreement by virtue of not breaking the continuity of the maximum continuous period of 78 weeks specified in clause 117.42 of the Agreement does count towards and form part of that maximum continuous period of 78 weeks.
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1 AE407324
2 [2017] FWCFB 3005
3 Respondent's Outline of Submissions at Attachment A
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