Australian Nursing and Midwifery Federation v Eastern Health T/A Eastern Health
[2024] FWC 13
•24 MAY 2024
| [2024] FWC 13 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Nursing and Midwifery Federation
v
Eastern Health T/A Eastern Health
(C2023/4445)
| COMMISSIONER JOHNS | MELBOURNE, 24 MAY 2024 |
Alleged dispute about any matters arising under the enterprise agreement – paid parental leave.
Introduction
In January 2023 Melissa Tunney gave birth to twins. In advance of doing so, Ms Tunney applied for paid parental leave. Her employer, Eastern Health (Respondent), declined her application. This decision is about whether Eastern Health should have granted Ms Tunney paid parental leave.
In support of its member, Ms Tunney, the Australian Nursing and Midwifery Federation (ANMF/Applicant) applied to the Fair Work Commission (Commission) to deal with a dispute about the application of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 (Agreement) under s.739 of the Fair Work Act 2009 (Cth) (FW Act).
In order to resolve the dispute, the parties agreed that I should answer the following questions:
a) Was Ms Tunney an ‘Eligible Casual Employee’ in December 2022 pursuant to clause 68.2(c) of the Agreement insofar as whether Ms Tunney had ‘but for the birth or expected birth of a Child or the decision to adopt a Child, a reasonable expectation of continuing engagement by the Employer on a regular and systematic basis’?
b) If so, how should Ms Tunney’s paid parental leave entitlement for the purposes of clause 68.5(a)(ii)(A) of the Enterprise Agreement be calculated?
In relation to the first question, the:
a) Applicant advanced an affirmative answer; and
b) Respondent contended that the question should be answered in the negative.
In relation to the second question, the:
c) Applicant contended that Ms Tunney was entitled to 14 weeks paid parental leave at a rate of $800 per week (i.e. a total of $11,200); and
d) Respondent says the matter does not arise because there is no entitlement.
As a twin, who grew up in a household with two sets of twins (an amazing effort by my mother) and noting the current cost of living pressures that many Australians are facing, it is evident to me that Ms Tunney would greatly benefit from paid parental leave. $11,200 would go a long way to support Ms Tunney as a parent.
It therefore pains me that, for the reasons set out below, I have decided the interpretation of the Agreement advanced by the Respondent is to be preferred.
History of the matter
On 27 July 2023, the Applicant filed the current application. The application was allocated to Commissioner Allison.
On 14 August 2023 Commissioner Allison conducted a conciliation conference pursuant to clause 13.7(b) of the Agreement. The matter remained unresolved. At the end of the conference the parties agreed to confer to provide an agreed question for determination, and that the matter to be listed for hearing in September. The agreed question was provided later that day and directions were issued.
On 8 September 2023, the Respondent objected to Commissioner Allison hearing the matter because she had conducted the conciliation conference.
On 8 November 2023 the application was re-allocated to me.
On 13 November 2023, I held a mention/directions hearing. In line with consent orders of the parties, directions were issued which required the filing of a Detailed Agreed Statement of Facts and any other submissions by 8 December 2023.
On 13 December 2023, in line with consent orders of the parties, further directions were issued which required the filing of any reply material by 22 December 2023. The parties also jointly agreed that the matter be determined ‘on the papers’.
The filed materials were compiled in a Digital Tribunal Book (DTB). For completeness I set out below the documents relied upon by the parties:
| Exhibit | Document title | Date |
| 1 | Form F10 | 26-07-2023 |
| 2 | The Applicant's submissions | 11-12-2023 |
| 2.1 | Witness statement - Melissa Tunney | 11-12-2023 |
| 3 | The Respondent's submissions | 11-12-2023 |
| 4 | Combined statement of agreed facts | 11-12-2023 |
| 5 | The Applicant's reply submissions | 22-12-2023 |
| 6 | The Respondent's reply submissions | 22-12-2023 |
On 22 December 2023, the DTB was sent out to both the Applicant and the Respondent seeking their confirmation of its completeness. On the same day, the Respondent confirmed that there is nothing missing from the DTB. On 10 January 2024, the Applicant confirmed the same.
Background
The statement of agreed facts[1] was jointly filed by the parties. Consequently, I make the following factual findings:
‘1. Melissa Tunney commenced employment with Eastern Health as a fulltime graduate nurse on 31 January 2011, then subsequently worked the following periods:
a. 20/2/12 -18/2/18: part time employment (annual leave paid out on completion)
b. 19/2/18-27/12/20: casual employment
c. 28/12/20- 28/2/21: part time employment
d. 1/3/21 onwards: casual employment
2. Since August 2021, Ms Tunney has had no capacity for work because of an injury arising out of or in the course of her employment and has been receiving weekly payments under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) and those weekly payments have since ceased on or about 7 December 2023.
3. The pre-injury average weekly earnings (PIAWE) is a notional figure, calculated for the purposes of Ms Tunney's workers' compensation payments and has been calculated as $800 per week.
4. The amount paid to Ms Tunney is an insurance payment and not a wage.
5. In mid-late 2022, Ms Tunney made enquiries with Eastern Health in respect of her entitlement to parental leave while on WorkCover and submitted an application for 14 weeks paid parental leave commencing 15 December 2022 and ending on 24 March 2023, when she was due to return to work.
6. On or around 6 October 2022, Eastern Health advised Ms Tunney that she should apply for parental leave without pay.
7. On 6 October 2022, Ms Melissa Tunney applied for unpaid parental leave commencing 15 December 2022. The application was granted by Eastern Health.
8. At the time Ms Tunney made the application for parental leave, her then current and a number of past certificates of capacity stated that she had no capacity for work because of an injury arising out of her employment.
9. On 15 December 2022, Ms Tunney commenced unpaid parental leave from Eastern Health and on 4 January 2023, Ms Tunney gave birth to twins.
10. Between January and April 2023, Ms Tunney was in receipt of parental leave pay pursuant to the Paid Parental Leave Act 2010 (Cth), being 18 weeks' pay at the Federal minimum wage.
11. In March 2023, Ms Tunney made further inquiries with Eastern Health about her entitlement to paid parental leave under the Agreement.
12. In April 2023, Ms Tunney approached Eastern Health requesting that she receive paid parental leave pursuant to Agreement. This request was denied.
13. On 14 April 2023, the ANMF emailed Eastern Health and sought that Ms Tunney be paid parental leave under the Enterprise Agreement, and if Eastern Health would not, to provide its rationale as to why it would not do so. Eastern Health on the same day advised ANMF that Ms Tunney was not an eligible employee for the purposes of the paid parental leave entitlements under the Enterprise Agreement as she (as were the facts):
·was not working but in receipt of WorkCover payments.
·had no capacity to work; and
·had not worked for Eastern Health for over 12 months prior to making the request.
14. On 5 May 2023, the ANMF again wrote more detailed correspondence to Eastern Health, requesting that Ms Tunney receive paid parental leave.
15. On 11 May 2023, a meeting was held between the ANMF and representatives of Eastern Health management, being the Director of Workplace Relations, the Deputy Chief Nursing and Midwifery Officer and the Director of Nursing and Midwifery Workforce. In this meeting, discussions were held, in which Eastern Health ultimately maintained its view that Ms Tunney was not entitled to paid parental leave.
16. On 13 July 2023, the ANMF again wrote to Eastern Health, further outlining the basis for Ms Tunney's parental leave entitlement.
17. On 13 July 2023 a response was received from Eastern Health, again stating its view that Ms Tunney had no paid parental leave entitlement under the Enterprise Agreement.
18. On 17 July 2023, discussions were held between the ANMF and Eastern Health's Director of Workplace Relations in which Eastern Health's previously held position was confirmed. The Director of Workplace Relations is delegated by Eastern Health to have these discussions.
19. Ms Tunney is currently on unpaid parental leave.
20. In order to return to work Ms Tunney would have to satisfy Eastern Health that she has capacity to safely return to work.
21. On 4 November 2023, Ms Tunney sought Eastern Health’s assistance to apply to her insurer to receive disability cover on the basis of incapacity.’
The submissions
On 22 December 2023, the Applicant submitted (footnotes omitted):[2]
‘Was Ms Tunney an “Eligible Casual Employee” in December 2022 pursuant to clause 68.2(c) of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 (Enterprise Agreement) insofar as whether Ms Tunney had “but for the birth or expected birth of a Child or the decision to adopt a Child, a reasonable expectation of continuing engagement by the Employer on a regular and systematic basis”?
17. Ms Tunney’s entitlement to take parental leave arises from her status as an “Eligible Casual Employee” defined in clause 68.2(c) of the Agreement, which provides:
Eligible Casual Employee means a casual Employee that has been employed by the Employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months and who has, but for the birth or expected birth of a Child or the decision to adopt a Child, a reasonable expectation of continuing engagement by the Employer on a regular and systematic basis.
18. The Agreement does not impose a restriction on taking paid parental leave whilst in receipt of workers’ compensation (ANMF v Alfred Health (2017) 272 IR 366; [2017] FWCFB 4420 at [47]). The Applicant submits that an Eligible Casual Employee is entitled to take paid parental leave pursuant to clause 68.5 of the Agreement whilst in receipt of workers’ compensation.
19. The Applicant further submits that the appropriate test time for application of the definition in this matter, is when Ms Tunney’s parental leave application was made (and granted by the Respondent) being October 2022 and that matters since the application was made are irrelevant.
20. Commissioner Roe in Ponce v DJT Staff Management Services Pty Ltd[2010] FWA 2078 (Ponce v DJT) noted that a reasonable expectation of continuing employment is not only about having that expectation at the time of exercising an entitlement, but about having that expectation during the period of qualifying service for those entitlements (at [59] and [88]). Indeed, in Gu v Geraldton Fisherman’s Cooperative Pty Ltd[2022] FWC 1342 the reasonableness of the expectation is to be determined with reference to all the circumstances "throughout [the] duration of employment", at [42]. Ms Tunney is a long serving Eastern Health employee, having worked with the Respondent since her registration commenced as a registered nurse in 2011, that is for her entire career as a registered nurse to date. In the 12 months before Ms Tunney gave notice of her intention to take parental leave and at the time she gave notice, Ms Tunney was undertaking suitable treatment and had (and still does have) an intention to return to work in her substantive role at Eastern Health at the conclusion of the parental leave period.
21. In Ponce v DJT Staff Management Services Pty Ltd[2010] FWA 2078 Commissioner Roe opined that the requirements under the Act for regular and systematic employment and reasonable expectation of continuing employment on a regular and systematic basis are interlinked. He said (at [66]):
It is clear that to establish 'regular and systematic' there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.
22. In this matter, the Respondent acknowledges that Ms Tunney’s employment prior to the application for parental leave was regular and systematic for the requisite 12-month period, despite the workplace injury and the period of time away from work on workers’ compensation.
23. The Commission may consider any relevant factor in determining whether a casual employee, during their period of service, had a reasonable expectation of continuing employment (Gu v Geraldton Fishermen’s Cooperative Pty Ltd[2022] FWC 1342 at [31]). The following factors, are matters which have been considered by the Commission in relation to determining whether an employee has a reasonable expectation of continuing employment:
a. evidence given by the employee and others as to their actual expectation (Ponce v DJT at [46]).
b. the period of employment.
c. representations made (and by whom).
d. the industry in which the work is performed (Newman v The Western Australian Turf Club[2022] FWC 1492 at [42].)
ANMF will consider each in turn.
24. Ms Tunney intends, and continues to intend, to return to work with the Respondent at the conclusion of her parental leave. While Ms Tunney did not have capacity to work at the time of the application, she was on leave from work receiving ongoing payments of workers compensation. She sought parental leave from the Respondent due to the impending birth of her children and as she intended to return to work at the conclusion of this leave.
25. Ms Tunney has worked at Eastern Health for the entirety of her career as a registered nurse, commencing her employment as a graduate nurse in 2011. She has over 12 years’ continuous service with the Respondent and intends to continue her employment at the conclusion of the parental leave.
26. In the following cases, requests for time off were considered relevant in determining that each of the employees was engaged on a regular and systematic basis with a reasonable expectation of their employment continuing. In Ponce v DJT, the employee requested not to work for a number of weeks during his employment, which the employer accepted (at [21]). In Nasarenko v Natural Remedies Group Pty Ltd [2012] FWA 10698 the employee was granted an unpaid leave of absence, in respect of which forms were submitted and approved (at [13]). Ms Tunney applied for unpaid parental leave on the advice of the Respondent and this leave was granted. It is reasonable that the advice and the granting of the leave, gives rise to an expectation that at the conclusion of the leave, an employee would return to work, and to the substantive role to which she is entitled. At or around the time of her application, Ms Tunney had not been advised that she was not entitled to parental leave, only that she was not eligible for the paid component of the parental leave on the basis that she had been in receipt for workers compensation payments for the preceding 12 months. Notably, the Respondent has acknowledged that Ms Tunney is currently on parental leave.
27. ANMF submits that there is no evidence indicating that work would cease to be offered as before the leave. Ms Tunney is not on notice of any variation of the basis on which she is employed. The Respondent has taken no action to terminate Ms Tunney’s employment and while she was unwell in the period before the leave commenced, there is no evidence that this will be the case at the conclusion of the leave period. Ms Tunney intends to return to work; the employer has taken no action to prevent her from doing so after her parental leave concludes, these matters all indicate that Ms Tunney had, and continues to have, a reasonable expectation of continuing employment.
28. Last, ANMF notes that in Camilleri v The GEO Group Australia Pty Ltd[2022] FWC 1384, Commissioner Bissett in determining eligibility for the purposes of an unfair dismissal application, was satisfied that the employee had an expectation of ongoing employment at the time of dismissal based on the employer's need for staff. The nursing workforce challenges in Victoria are well documented. Ms Tunney is well aware of these workforce matters and has as a result, a reasonable expectation that casual work will be available at the conclusion of her parental leave period.
29. Ms Tunney had a reasonable expectation of continuing engagement by the Employer on a regular and systematic basis as follows:
a. Ms Tunney was engaged in ongoing employment as a casual employee of the Respondent;
b. the Respondent had taken no action to terminate Ms Tunney’s employment;
c. representatives of the Respondent advised Ms Tunney to make an application for unpaid parental leave from her ongoing employment;
d. Ms Tunney’s request for unpaid parental leave was granted by the Respondent;
e. Ms Tunney is a long serving employee with the Respondent and intends to return to work with the Respondent at the conclusion of her parental leave;
f. there is an industry-wide shortage of nursing workforce which has meant, and will continue to mean for some time, that casual nursing employees are in high demand.
30. The Applicant submits that Ms Tunney is therefore an “Eligible Casual Employee” and is entitled to both unpaid and paid parental leave in accordance with the Agreement.
If so, how should Ms Tunney’s paid parental leave entitlement for the purposes of clause 68.5(a)(ii)(A) of the Enterprise Agreement be calculated?
31. With respect to quantum for paid parental leave, an eligible employee (including an eligible casual employee) is entitled to 14 weeks paid parental leave. “Paid” in the context of parental leave is not defined in the Agreement. On this point, ANMF makes the following submissions:
a. When determining eligibility for paid parental leave for casual employees under this clause, the parties are required to consider a period of 12 months to determine whether the worker was employed on a regular and systematic basis.
b. The relevant 12-month period for these purposes is the period leading up to the birth.
c. Ms Tunney was absent from work during this period due to an injury arising in the course of her employment and was in receipt of workers’ compensation payments under the WIRC Act.
d. In Fair Work Australia of Workpac Pty Ltd v Bambach[2012] FWAFB 3206 it was determined that an employee’s 14-month period away from work on workers’ compensation was an “authorised absence” because it was “legally sanctioned” under workers’ compensation legislation. The Full Bench determined that the employee’s absence from work on workers’ compensation was not an excluded period for the purpose of “continuous service” under section 22 of the Fair Work Act. The consequence was that the benefits paid whilst on workers’ compensation were made pursuant to the employer’s legal obligation to do so with the result that the absence was an authorised paid absence from work.
e. The amount of compensation payable under the WIRC Act is determined by reference to an employee’s pre-injury average weekly earnings. This includes their base rate of pay plus any overtime and shift allowances over the preceding 12-month period.
f. Workers’ compensation under the WIRC Act exists to compensate workers for lost earnings. Had Ms Tunney not been injured at work, she would have been working and earning income in the 12 months leading up to the birth.
g. The most appropriate way to estimate what these earnings would have been is with reference to Ms Tunney’s pre-injury average weekly earnings, as calculated under the WIRC Act. This is an objective calculation which was determined to be an appropriate measure by the parliament in the context of workers’ compensation. It should therefore be considered appropriate to use in the context of paid parental leave for casual employees.
32. ANMF submits that Ms Tunney is entitled to parental leave, including paid parental leave paid at $800/week for the 14 weeks of her entitlement, or a total payment of $11,200.
33. In the alternative, if the Fair Work Commission does not accept that the quantum of paid parental leave should be calculated with reference to Ms Tunney’s pre-injury average weekly earnings, the Applicant submits that a calculation of the quantum is referrable to Ms Tunney’s period of casual employment immediately preceding the date of the workplace injury and should be paid at the average weekly rate of the casual employment.’
On 22 December 2023, the Respondent submitted (footnotes omitted):[3]
‘Subject matter of the hearing - whether Ms Tunney is entitled to paid parental leave under clause 68.5(a)(ii) read with 68.2(c) of the Enterprise Agreement.
7. In order to have an entitlement to PPL under the Enterprise Agreement, Ms Tunney must satisfy the following:
7.1 that she is a casual employee; and
7.2 that she has been employed by Eastern Health on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months; and
7.3 that she had in December 2022 (when she applied for PPL), but for the birth of her children, a reasonable expectation of continuing engagement by Eastern Health on a regular and systematic basis.
8. As to the first threshold issue, it is accepted that Ms Tunney was employed by Eastern Health as a casual employee (as identified in paragraph [1] of Statement of Agreed Facts).
9. As to the second threshold issue, it is accepted that Ms Tunney has been employed on a regular and systematic basis for a sequence of periods of employment by Eastern Health of at least 12 months in the past. Eastern Health recognises that while Ms Tunney has not worked for Eastern Health since August 2021 due to her lack of capacity, she has been employed by Eastern Health in varying capacities since 2011 (as identified in paragraph [1] of Statement of Agreed Facts).
10. As to the third threshold issue, the Respondent submits that in December 2022 Ms Tunney did not, but for the birth or expected birth of a Child or the decision to adopt a Child, have a reasonable expectation of continuing engagement by Eastern Health on a regular and systematic basis.
11. Whether or not an employee has a reasonable expectation of continuing employment will turn on the specific facts and circumstances of the present matter. Relevantly, we note the following:
11.1 Ms Tunney has not provided any service to Eastern Health since August 2021 (as identified in paragraph [2] of Statement of Agreed Facts);
11.2 at all times when making enquiries and/or applying for paid parental leave Ms Tunney had no capacity for work (as identified in paragraph [8] of Statement of Agreed Facts);
11.3 Ms Tunney has advised Eastern Health since August 2021 that she has had no capacity for work (as identified in paragraph [2] of Statement of Agreed Facts). Eastern Health understands that she has been in receipt of WorkCover payments in relation to her August 2021 injury (as identified in paragraph [2] of Statement of Agreed Facts).
12. Given Ms Tunney had not worked at Eastern Health for approximately 16 months as at December 2022, coupled with her certificates of capacity stating she had no capacity for work, it is submitted that she did not, but for the birth or expected birth of a Child or the decision to adopt a Child, have a reasonable expectation of continuing engagement by Eastern Health on a regular and systematic basis.
13. In particular, given the history of this matter and her very lengthy period away from work, it cannot be said that Ms Tunney could have held a reasonable expectation that she would return to her role as a Registered Nurse on a regular and systematic basis. It is submitted that whether Ms Tunney has a hope or expectation of one day returning to work (which would seem to be unrealistic in all of the circumstances, including her seeking insurance cover on the basis of incapacity) is irrelevant to the question of whether she had a reasonable expectation of continuing employment on a regular and systematic basis so as to be an Eligible Casual Employee when she applied for PPL in December 2022. The nature of any treatment she may currently be receiving is equally irrelevant to that question.
Wages/work bargain
14. In addition, the view that Ms Tunney is not entitled to paid parental leave under the Enterprise Agreement finds support in case law that makes clear that some entitlements only arise in the context of the wages/work bargain.
15. In Johnson v Finance Sector Union of Australia Deputy President Colman held that paid parental leave was a 'service benefit' that applies or accrues or is provided when a person is rendering a service.
16. Further, in Mrs Hannah Jane Wilkinson v Eastern Health[2022] FWC 260, the FWC found that in relation to the entitlement to personal leave, the evident purpose underpinning the provision was to ensure that an employee is paid for absences because of illness (and subject to sufficient accrual) for the period the employee would otherwise have been required or permitted, and been ready, willing or able to work ordinary hours. In that matter and because the employee could not work because they were unvaccinated against COVID-19, it was found that they were not entitled to paid personal leave.
17. The Respondent submits that the entitlement to PPL under the Enterprise Agreement should be construed in a similar way. This would mean that as Ms Tunney is not able to work regardless of her pregnancy, she is not entitled to the benefit.
If Ms Tunney is an eligible employee how should her paid parental leave be calculated?
18. If Ms Tunney is an eligible employee under the Enterprise Agreement, the second question for arbitration requires consideration of the way in which the Ms Tunney's entitlement to PPL should be calculated.
19. The Enterprise Agreement is silent on the method for calculating an employee's entitlement to PPL.
20. The Applicant contends that the quantum of Ms Tunney's paid parental leave under the Enterprise Agreement should be calculated by reference to her pre-injury weekly earnings (PIAWE) as calculated under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act).
21. Conversely, Eastern Health contends that the calculation of Ms Tunney's entitlement should be calculated by reference to her average hours immediately preceding the commencement of unpaid parental leave, which have been zero for the past two years.
22. In interpreting the Enterprise Agreement, the FWC will consider and apply:
22.1 the plain language of its terms;
22.2 the objective common intention of the parties;
22.3 modes of textual analysis developed in general law;
22.4 the surrounding circumstances of the Enterprise Agreement which establish background facts known to both parties; and
22.5 admissible extrinsic evidence.
23. Eastern Health submits that applying those principles Ms Tunney's entitlement should be calculated by reference to her average working hours in the period of time immediately preceding her application (i.e. zero).
Conclusion
24. For the reasons outlined above, Ms Tunney did not have a reasonable expectation of regular and systematic employment with Eastern Health, apart from the birth of her child, when she took unpaid parental leave in December 2022 and is therefore not entitled to paid parental leave under the Enterprise Agreement.
25. The agreed questions for arbitration should therefore be answered as follows:
1. No
2. Not applicable.
If the answer to question 1 is “yes”, contrary to this submission, then question 2 should be answered “At the rate of pay Ms Tunney was receiving at the time of her application for paid parental leave, being zero due to her incapacity for work.”’
On 22 December 2023, the Applicant submitted in reply (footnotes omitted):[4]
‘1. The Respondent contends that Ms Tunney did not have a reasonable expectation of regular and systematic employment with Eastern Health, apart from the birth of her child, when she took unpaid parental leave in December 2022 and is therefore not entitled to paid parental leave under the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 (Agreement). And on this basis, the Respondent contends that the paid leave entitlement is not applicable.
2. In the alternative, the Respondent has submitted that if Ms Tunney is considered to be an “Eligible Casual Employee”, then she is not entitled to any payment for a period of paid parental leave as she had not received wages from the Respondent in the 12 months preceding her application.
3. It is accepted at PN8 and PN9 of the Respondent’s Outline of Submissions that Ms Tunney meets the first two threshold definitional matters of the term “Eligible Casual Employee” as follows:
a. that she is a casual employee; and
b. that she has been employed by Eastern Health on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.
4. The Respondent submits that Ms Tunney does not, but for the birth or expected birth of a Child or the decision to adopt a Child, have a reasonable expectation of continuing engagement by Eastern Health on a regular and systematic basis for the following reasons:
a. she has not provided any service to Eastern Health since August 2021, including when making enquiries and applying for paid parental leave; and
b. that an entitlement to paid parental leave only applies in the context of the wages/work bargain.
5. With respect to the first of the Respondent’s arguments, the Applicant notes the Full Bench decision in the Parental Leave for Casuals Test Case Decision, in which it was stated at [42] that for the purposes of "reasonable expectation of ongoing employment”, continuous service is work for an employer on a regular and systematic basis which includes any period of authorised leave or absence. The Full Bench in Fair Work Australia of Workpac Pty Ltd v Bambach[2012] FWAFB 3206 found that workers’ compensation is an “authorised absence” which is “legally sanctioned” under workers’ compensation legislation. As an absence taken pursuant to the WIRC Act is a period prescribed by regulations, the absence does not amount to a break in Ms Tunney’s service and should not be viewed in the way the Respondent contends.
6. The Full Bench in Shortland v Smiths Snackfood Co Ltd[2010] FWAFB 5709 at [13] found that an employees’ continuous service was not “broken” by an absence due to injury or illness, but rather “when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements”. As such, the Full Bench determined that the Applicant in that matter had a reasonable expectation of continuing employment, despite being absent from work due to injury and incapacity allegedly from a work-related injury of which he had lodged a claim for workers’ compensation (Shortland v Smiths Snackfood Co Ltd[2010] FWAFB 5709 at [16]).
7. ANMF submits that there is no evidence indicating that work would cease to be offered to Ms Tunney as before the leave. Ms Tunney is not on notice of any variation of the basis on which she is employed. The Respondent has taken no action to terminate Ms Tunney’s employment and while she was unwell in the period before the leave commenced, there is no evidence that this will be the case at the conclusion of the leave period. In addition, the granting of parental leave for Ms Tunney supports the reasonable conclusion that the employment relationship would continue beyond the period of parental leave.
8. With respect to the second of the Respondent’s arguments, the Agreement does not impose a restriction on taking paid parental leave whilst in receipt of workers’ compensation (see ANMF v Alfred Health (2017) 272 IR 366; [2017] FWCFB 4420 at [47]). The decisions referred to in the Respondent’s Outline of Submissions at PN 15 and 16 can be distinguished on this basis.
9. The Fair Work Act 2009 (Vic) does not preclude Ms Tunney from taking parental leave while receiving workers’ compensation; it explicitly provides that unpaid parental leave is not prevented from being taken when in receipt of workers’ compensation payments. Notably where an employee is entitled to unpaid parental leave under the Agreement, there are no additional requirements or exclusions which apply to access the entitlement to paid parental leave. Eligibility for unpaid parental leave is identical to eligibility for paid parental leave under the Agreement and where one is satisfied, the other is also.
10. With respect to all other matters, the Applicant relies on its Outline of Submissions filed on 11 December 2023.’
On 22 December 2023, the Respondent submitted in reply:[5]
‘1. As to paragraph 3 of the Submissions:
1.1 Paragraph 8-16 do not accurately reflect the Statement of Agreed Facts (SOAF) filed by the parties on 11 December 2023.
2. As to paragraph 8 of the Submissions:
2.1 Ms Tunney has not worked continuously for the Respondent up until the present time. Ms Tunney has not worked for the Respondent since August 2021 (approximately 2.5 years).
3. As to paragraph 9 of the Submissions:
3.1 Ms Tunney has had no capacity for work since August 2021.
4. As to paragraph 10 of the Submissions, the Respondent repeats paragraph 1.1 above and refers to paragraph 3 of the SOAF noting that the figure of $800 is notional.
5. As to paragraph 12 of the Submissions, the Respondent repeats paragraph 1.1 above and refers to paragraph 9 of the SOAF noting that Ms Tunney commenced unpaid parental leave on 15 December 2022.
6. As to paragraph 14 of the Submissions, the Respondent repeats paragraph 1.1 above and refers to paragraph 11 and 13 of the SOAF noting that the Respondent engaged in discussions with Ms Tunney about why she was not entitled to paid parental leave prior to her request being denied in April 2023.
7. As to paragraphs 19-25 of the Submissions, the Respondent agrees that the appropriate test time for the application of the definition in clause 68.2(c) of the Agreement is the time at which Ms Tunney applied for parental leave being October 2022, and that matters since that time are irrelevant.
8. The Respondent reiterates its submission that, as at that time, Ms Tunney did not, but for the birth or expected birth of a Child or the decision to adopt a Child, have a reasonable expectation of continuing engagement by Eastern Health on a regular and systematic basis.
9. A “reasonable” expectation connotes an objective test. At the time of her application for leave, Ms Tunney was certified as having no capacity for work. Objectively, the required reasonable expectation did not exist at that time.
10. Indeed, although it is not strictly relevant as noted above, Ms Tunney still does not objectively have such a reasonable expectation, as she has applied for disability cover insurance on the basis of incapacity. She is not an “Eligible Casual Employee” as defined in the Agreement.
11. It is submitted that Ms Tunney’s stated subjective hope or intention of returning to work with Eastern Health in the future is not relevant to the matter the Commission must decide. It is certainly not persuasive, in light of her disability insurance application noted above.
12. Deputy President Beaumont in Gu v Geraldton Fishermen’s Co-operative Pty Ltd[2022] FWC 1342 stated:
“[41] In my view, the consideration of ‘reasonable expectation’ is twofold. It requires, as was identified in Bronze Hospitality No.2, an examination of whether: (a) the employee had an expectation of continuing employment by the employer on a regular and systematic basis (subjective); and (b) that expectation, if held, was ‘reasonable’ (objective).
[42] In determining whether the expectation was ‘reasonable’, regard is had to the employment contract as established at the time employment commenced. However, in my view consideration extends to all circumstances throughout duration of employment, as they prove relevant. As observed in Bronze Hospitality No.2, the Act does not limit the matters that may be taken into account in determining whether the expectation is reasonable. Such matters will include, for example, whether there are any mutual undertakings that are to be inferred from conduct or implied that take effect as contractual variations, or any subsequent express contractual variation. Matters may also include the period of employment, representations made (and by whom), rostering arrangements (particularly those made amply in advance), the industry in which the work is performed, and so on.”
(Emphasis added)
If that statement of principles is correct, there is still a requirement for the expectation to be objectively reasonable. In light of the certified incapacity for work of Ms Tunney at the time of her parental leave application, and with the wisdom of hindsight demonstrating that that incapacity still continues now, there could be no reasonable expectation of continuing engagement by Eastern Health on a regular and systematic basis.
13. As to paragraph 22 of the Submissions:
13.1 For clarity, it is not conceded that Ms Tunney worked on a regular and systematic basis in the 12 months preceding her application for paid parental leave. Ms Tunney did not work at all for (approximately) 14 months prior to making the application. The Respondent does accept (see paragraph 9 of its Outline of Submissions dated 11 December 2023) that she was employed by it for a sequence of periods of employment of at least 12 months in the past.
14. As to paragraph 26 of the Submissions:
14.1 The Respondent made clear to the Applicant its position that she was not entitled to paid parental leave. The fact that the Respondent allowed the Applicant to take unpaid parental leave, rather than (for example) terminating her employment on the ground of incapacity, is irrelevant.
15. As to paragraph 31(g) of the Submissions:
15.1 it is erroneous to read into the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 (Enterprise Agreement) that earnings should be calculated by way of 'what they would have been' save for Ms Tunney sustaining a workplace injury. The calculation should be based on what her earnings were – that is, what she actually earned in wages for the hours worked in the period immediately before she applied for parental leave (and commenced unpaid parental leave). That amount of wages and hours is zero.’
Consideration
In the first instance, I observe that the relevant construction and interpretation principles should be derived from the Full Bench authority of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005 (Berri).[6]
Further, as evidenced by each party’s submissions, the contest is solely on the express words of the Agreement.
Therefore, in adopting the Berri principles it is necessary to,
a) begin the analysis with a consideration of the ordinary meaning of the words of the relevant clauses in the Agreement,
b) determine whether the Agreement has a plain meaning,
c) review the text of the Agreement as a whole,
d) not rewrite the Agreement to achieve what might be regarded as a fair or just outcome,
e) (in determining the objective intention of the parties) do so by reference to what a reasonable person would understand by the language used in the Agreement,
f) not adopt an overly technical approach to the interpretation of the Agreement, and
g) not contradict the plain language of the Agreement.
The starting point is to determine if the Agreement is ambiguous or susceptible to more than one meaning. For the reasons below I do not think it is. While an interpretation of the Agreement may not be free from difficulty it is the case that the principles developed in the general law in the context of the interpretation of statutes can usefully be applied.
Also, it is necessary to have regard to the ordinary meaning of relevant words. It is neither necessary nor permissible to include new words or ignore others that exist, to determine the meaning of the Agreement.
It is entirely consistent with the Berri principles that the rules of statutory construction be applied to assist in understanding the meaning of the Agreement as a whole. As the Full Bench observed in Berri,[7]
‘… 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…’
In the present matter, the relevant clause is 68.2(c). It provides that,
‘Eligible Casual Employee means a casual Employee that has been employed by the Employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months and who has, but for the birth or expected birth of a Child or the decision to adopt a Child, a reasonable expectation of continuing engagement by the Employer on a regular and systematic basis.’ (emphasis added)
Eastern Health conceded that Ms Tunney was employed as casual employee and that she ‘has been employed on a regular and systematic basis for a sequence of periods of employment by Eastern Health for at least 12 months in the past.’
Consequently, it is only whether Ms Tunney ‘has … a reasonable expectation of continuing engagement by [Eastern Health] on a regular and systemic basis’ that is to be decided in the present matter.
It is important to note that the first part of clause 68.2(c) refers to ‘employed’ and the last part of the condition precedent refers to ‘engagement’.
Was there a reasonable expectation of continuing engagement?
The Agreement does not define the term ‘a reasonable expectation of continuing engagement.’
However, although there is a difference in language between the Agreement and the FW Act, some guidance can be found in the decisions that deal with the term 'reasonable expectation of continuing employment' (also not defined in the FW Act). In essence each matter will depend on the particular circumstances of the case.
In the present matter the time for assessing whether the expectation was reasonably held is in October 2022, that is, when Ms Tunney applied for paid parental leave. The parties agree on that being the assessment period.
The relevant principles are that:
a) the expectation must be objectively found;[8]
b) the nature of the employee’s expectation is to be assessed by reference to the period of service;[9]
c) ‘continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements.’;[10]
d) ‘The set of facts in each case must be examined.’;[11]
e) As was held in Ponce,
‘[76] In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and employee, then evidence of regular and systematic employment can be established where:
·The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and
·Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.
[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis. That is an expectation that this pattern of when work will continue to be offered and be accepted will continue.
[78] If the hours worked over a lengthy period are similar to or exceed that of full-time ordinary hours then this would also be strong evidence that work is being performed when offered and that work is being offered when available at the time parties know this is practical. Hence this would also be evidence of regular and systematic employment.’
f) As was held in Jefferson Bell v Aboriginal Legal Service (NSW/ACT) Limited,[12]
‘[11] The word “regular” should be construed liberally. It implies some form of repetitive pattern and does not mean frequent, often, uniform or constant. Employment on a “regular” basis may be constituted by frequent though unpredictable engagements. The word “systematic” requires that the engagement be “something that could fairly be called a system, method or plan”. The concept of engagement on a “systematic” basis does not require the employee to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance on the employee’s services as an incident of the business by which he or she is engaged.
[12] The Act does not define the phrase “reasonable expectation of continuing employment”, nor does it set out any particular matters which should be taken into account in assessing whether a particular employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis during that employee’s period of service as a casual employee. Whether an employee had such an expectation will depend on the particular circumstances.
[13] It is also to be observed that the relevant “reasonable expectation” in s.384(2)(a)(ii) is as to continuing employment with the employer on a regular and systematic basis. This plainly suggests that the relevant reasonable expectation is as to continuing casual employment by the employer on a regular and systematic basis. Were it otherwise, the words “on a regular and systematic basis” would be otiose. The connection between “employment as a casual employee” and “on a regular and systematic basis” is established by s.384(2)(a)(i) and that connection seems to us to be maintained in s.384(2)(a)(ii). Section 384(2) is concerned with the circumstances in which a casual employee’s period of service as a casual employee is included in that employee’s period of employment for the purposes of s.383.’
g) As was held in Bronze Hospitality Pty Ltd v Hansson (No 2),[13]
‘[40] But I do not accept that as a matter of construction of s 384(2)(a)(ii), a week and a half of regular employment cannot establish that pattern. The ordinary meaning of the words of s 384(2)(a)(ii) requires that the employee has subjectively formed an expectation of continuing employment by the employer on a regular and systematic basis. If that expectation has been formed, it is necessary to assess whether it is a reasonable one. It is true that the word 'reasonable' is generally used in the law to import an objective standard: Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 at [33] (Lord Hoffmann). But the FWA does not limit the matters that may be taken into account in determining whether the expectation is reasonable. Certainly, the shorter the period of employment, generally the harder it will be for the employee to establish that he or she reasonably relied on a pattern of work, if that is the basis of his or her reasonable expectation. But the reasonableness of the expectation depends on all the circumstances, and there is no minimum period in the legislation that makes a week and half insufficient in every case.’
The following facts are relevant to assessing whether objectively, Ms Tunney had a ‘reasonable expectation of continuing engagements … on a regular and systematic basis.’:
a) Ms Tunney has been a casual employee since 1 March 2021;
b) Since August 2021 Ms Tunney has had no capacity to work;
c) Ms Tunney made an application for paid parental leave in October 2022;
d) By the time Ms Tunney made her application for paid parental leave she had:
i.not worked for 14 months;
ii.no capacity for work.
The existence of a rostering system (I can assume Eastern Health has one), rosters posted in advance, shift allocations and the frequency and amount of work allocated, can all give rise (separately and in combination) to an expectation of continuing engagement. However, that was not the situation in October 2022.
For some time, by October 2022, Ms Tunney did not have an established sequence of engagements. She had not been rostered, nor worked, for 14 months. It seems to me therefore that Ms Tunney could only have a reasonable expectation of continuing employment on a similar basis to that which she had worked in the preceding year (i.e. no hours). The expectation of continuing employment also arises because Eastern Health took no steps to terminate Ms Tunney’s employment during her long period of being unable to work.
I accept that subjectively Ms Tunney aspired to return to work. There is no reason to doubt the submission made by the ANMF that Ms Tunney has been ‘undertaking suitable treatment.’ However, Ms Tunney would have had to have been medically cleared to return to work. That matter appeared in the agreed facts.
In October 2022 there is no evidence that Ms Tunney would have been so medically cleared at the completion of the paid parental leave (i.e. in March 2023). The objective evidence does not support a reasonable expectation of continuing engagement. All that Ms Tunney could objectively reasonably expect was that Eastern Health would allow her to remain ‘on the books’ as a casual employee on some sort of unpaid authorised absence. In October 2022 it could not be known if any casual shifts would resume for Ms Tunney.
The fact that Ms Tunney applied for and was granted unpaid parental leave leads only to the expectation that, at the end of the period of unpaid parental leave, Ms Tunney would continue in employment. It says nothing about ‘continuing engagement … on a regular and systematic basis’. An ongoing contract supports an expectation of ongoing engagement, but it is not decisive of the matter.
I also accept that the workforce challenges in nursing give rise to an expectation of continuing engagement. However, that too is not decisive of the matter.
Therefore, for these reasons I am not satisfied that Ms Tunney had a reasonable expectation of continuing engagement by Eastern Health on a regular and systemic basis.
Conclusion
Because Ms Tunney did not have a reasonable expectation of continuing engagement by Eastern Health on a regular and systemic basis, she is not entitled to paid parental leave under the Agreement.
The agreed questions for arbitration are answered as follows:
· Q1: No
· Q2: Not applicable.
COMMISSIONER
Hearing details:
On the papers.
Final written submissions:
22 December 2023.
[1] The Digital Tribunal Book (DTB), Exhibit 4.
[2] DTB, Exhibit 2.
[3] DTB, Exhibit 3.
[4] DTB, Exhibit 5.
[5] DTB, Exhibit 6.
[6] DTB, Exhibit 6, p 103; see also DTB, Exhibit 7, p 120.
[7] [114].
[8] Tilbrook v Willall Industries Pty Ltd[2011] FWA 6300, [36].
[9] Ibid.
[10] Shortland v The Smiths Snackfood Co Ltd[2010] FWAFB 5709, [13].
[11] Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic [2010] FWA 2078, [75].
[12] [2018] FWCFB 6102.
[13] [2019] FCA 1680.
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