Australian Workers' Union, The v Cement Australia Pty Limited T/A Cement Australia
[2025] FWC 137
•15 JANUARY 2025
| [2025] FWC 137 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Workers’ Union, The
v
Cement Australia Pty Limited T/A Cement Australia
(C2024/2903)
| COMMISSIONER HUNT | BRISBANE, 15 JANUARY 2025 |
Alleged dispute about any matters arising under the enterprise agreement and the NES
On 8 May 2024, the Australian Workers’ Union (the AWU) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with clause 1.10 of the Cement Australia Gladstone Union Collective Agreement 2022 (the Agreement/2022 Agreement). Cement Australia Pty Limited T/A Cement Australia is the Respondent to this application (Cement Australia/the Respondent).
I listed the matter for a conference on 22 May 2024. The matter did not resolve at conference, resulting in the matter being listed for arbitration.
Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing on 3 and 4 October 2024 in Brisbane. The AWU was represented by Mr Aaron Santelises, Industrial Advocate. I granted leave for the Respondent to be represented by Mr Mike Coonan of Corrs Chambers Westgarth.
The parties called the following witnesses who gave evidence and were cross-examined at the hearing:
· Mr Colin Vanderwolfe, Plant Operator;
· Mr Benjamin Gill, Operations Manager; and
· Ms Sandra Collins, Senior Site Executive.
Background
The Respondent operates in the cement manufacture and distribution industry. It conducts operations in Gladstone, Queensland, including at the Fisherman’s Landing Plant and the Easte End Mine (the Site).
Mr Colin Vanderwolfe is a Mine Operator at the Site. He reports to Ms Sandra Collins, the Senior Site Executive of the Site. Ms Collins reports to Mr Benjamin Gill, the Operations Manager of the Respondent’s Gladstone operations.
The Agreement covers Cement Australia, its employees and the AWU in relation to the Respondent’s cement manufacturing, mining and distributing operations at Gladstone. The AWU notified a dispute pursuant to clause 1.10 of the Agreement on behalf of Mr Vanderwolfe. The Agreement provides for generous access to personal leave, detailed below.
Mr Vanderwolfe received a letter from Mr Gill dated 12 December 2023, which stated that since 1 January 2023, Mr Vanderwolfe had taken 58 days of personal leave. The letter notified Mr Vanderwolfe that in light of this, his sick leave had been placed under review, and that in accordance with clause 7.3.6 of the Agreement, his entitlement to paid personal leave may be ceased for any further instances of personal leave.
In March 2024, Mr Vanderwolfe advised Ms Collins of an upcoming scheduled elective knee surgery to take place on 15 May 2024. Mr Vanderwolfe informed Ms Collins that he expected to be unable to perform work for three months following the surgery, and sought confirmation that he would receive paid personal leave for the duration of his absence.
By letter to Mr Vanderwolfe on 28 March 2024, Mr Gill informed Mr Vanderwolfe that one day of personal leave would be approved for the date of the operation, and personal leave would not be approved for any further absences in relation to the operation. The letter stated that it is “unreasonable to expect the company to provide you with paid personal leave for an extended period for an elective surgery in the lead up to your retirement” (emphasis in original) and noted that Mr Vanderwolfe had the option of taking annual leave or leave without pay.
Mr Vanderwolfe sent correspondence to Mr Gill on 10 April 2024, requesting Mr Gill review his decision with respect to the personal leave approval. Mr Vanderwolfe stated in the correspondence that as per the Agreement, the Operations manager can only make a determination with respect to the continuation of payment for personal leave once personal leave exceeds three months.
Mr Gill issued a letter in response on 23 April 2024 confirming that the decision made on 28 March 2024 would not be altered. The letter also stated that the Agreement does not provide an automatic entitlement to three months paid personal leave.
The AWU notified the Commission of the dispute on Mr Vanderwolfe’s behalf on 8 May 2024, seeking that Cement Australia comply with clause 7.3 of the Agreement.
The Agreement
Clause 7.3 of the Agreement provides as follows:
“7.3 PERSONAL/CARER’S LEAVE
It is an overarching principle of this clause that Employees acknowledge that the entitlement to Personal Leave is a generous provision and must be treated by every Employee with care and consideration. The provision exists to support Employees in cases of genuine illness and injury – and to support this, the misuse of Personal/Carer’s Leave will be managed. In cases where Personal Leave or Carer’s Leave is misused, formal disciplinary steps may be taken, which may include the cessation of paid Personal/Carer’s Leave for a period.
Personal/Carer’s Leave is unlimited however, it is accepted that if an Employee has a genuine need to be absent from work for a significant time, then it may be necessary for the Employer to review the continuation of payment for the ongoing personal/carer’s leave in accordance with clause 7.3.2 (e).
7.3.1 Personal Leave is:
An absence from work by reason of personal illness or injury, not being illness or injury arising out of or in the course of employment.
7.3.2 Personal Leave Entitlement and Notification
An Employee, other than a casual Employee, shall be able to take Personal Leave from work without loss of pay in cases where there is genuine need to do so and will be subject to the following:
(a) The Employee shall, where practicable give the Team Leader:
i. Notice prior to the absence of the intention to take leave;
ii.The name of the person requiring care and their relationship to the Employee;
iii. The reasons for taking such leave; and
iv. The estimated length of absence.
(b) If it is not practicable for the Employee to give prior notice of absence, the Employee shall notify the Team Leader or management by telephone of such absence at the first reasonable opportunity.
(c) The Team Leader will make the necessary arrangements for a replacement Employee, if necessary.
(d)For absences of more than one day, and for any single day absences where the Employee has already taken two single days that calendar year, they will be required to produce a medical certificate or evidence of illness satisfactory to the Employer (for example, a properly executed Statutory Declaration). Failure to provide the required evidence may result in non-payment of Personal Leave until the evidence is provided.
(e)After a period of three months continuous personal leave, the Operations Manager, in conjunction with the Department Manager and the Employee in conjunction with the Team Leader will review the case with a view to determining whether payment will continue. The intent of the business is to continue to support paid Personal leave for genuine cases of long term serious illness or injury. In determining if payment will continue management will consider the circumstances and if there is no likelihood of returning to work.
(f)Personal Leave entitlements under the terms of this Agreement will not be cumulative
7.3.3 Obligations, Spirit and Intent
Employees have an obligation to comply with the Employer’s requests to supply information regarding their incapacity and to work with the Employer to actively engage in the return to work process. This includes the Employee:
·engaging in genuine dialogue with their Department Manager and/or Operations Manager about the nature of the illness/injury and their ability to undertake alternative duties;
·actively participating in the Return To Work process, including working with the Employer, together with their treating practitioner to understand their fitness for alternative duties. The Employer will not attend a medical appointment with the treating practitioner without the Employee’s consent. The Employer will restrict discussions with the treating practitioner to the illness or injury for which the appointment was made.
7.3.4 Return to Work – Personal Leave (Illness or Injury)
(a)If an Employee who is on Personal Leave (due to personal illness or injury) and is incapacitated for more than 14 consecutive days, a return to work plan should be prepared. This plan, where required, should be completed as soon as practical once it is identified that a plan is required and the plan should be designed in full consultation with the Employee, their representative if desired and their treating medical practitioner.
(b)The plan should be realistic and achievable, ensuring the Employee’s return to work in a safe and timely manner. The Employee and their treating medical practitioner should each receive a copy of the plan, which may include alternative duties and details of a graduated return to work.
(c) A return to work plan must include:
· The name of the Employee;
· The date on which the Employee is expected to return to work;
· An offer of suitable alternative duties;
· The steps to be taken to facilitate the Employee’s return to work;
· The long term goal or aim.
(d)The basic objective is to ensure that everything possible is done to enable the incapacitated/ sick Employee to return to the workforce as soon as possible and to minimise the physical, psychological, social, vocational and economic consequences of the incapacity / illness.
7.3.5 Carer’s Leave
Carer’s Leave is an absence from work where the Employee is required to provide care and support to a member of the Employee's immediate family or household, subject to the following:
· An Employee with responsibilities in relation to either members of their immediate family or members of their household who need their care and support shall be entitled to the leave to provide care and support for such persons when they are ill, injured or in an unexpected emergency.
· The amount of paid leave allowed will be determined by management in consultation with the parties involved. Under this provision, no Employee will be disadvantaged with regards to the National Employment Standard. Where required, the team will be informed.
· The Employee shall establish by production of a medical certificate or evidence to the Employer’s satisfaction (for example, a properly executed Statutory Declaration) that the person concerned is ill and that the illness is such as to require care by another.
· Leave may be taken for part of a single day.
· The entitlement to the leave is subject to:
(a) The Employee being responsible for the care of the person concerned.
(b) The person concerned being either:
i. a member of the Employee's immediate family; or
ii. a member of the Employee's household.
(c) The Employer will have discretion to grant Carer’s Leave pending the Employee’s Personal Leave history. The Employer will not be unreasonable in
applying this discretion.
· In the case of Carer’s Leave, Employees must make every effort to explore alternative options for providing care that expedite the Employee’s return to work. For periods of
Carer’s Leave of more than 2 days, the Employee will be asked to engage with the Employer about the likely duration of the leave and what alternatives for care the Employee is exploring – including balancing the taking of Carer’s Leave with other potential carers.
The term "immediate family" includes:
(a)a spouse (including a former spouse, a de facto spouse and a former de facto spouse, spouse of the same sex) of the Employee; and
(b)a child, (including an adult child, an adopted child, an ex-foster child, a stepchild or an ex- nuptial child), parent, grandparent, grandchild or sibling of the Employee or spouse of the Employee.
7.3.6 Excessive Personal/Carer’s Leave Absenteeism
Where there is evidence of an Employee taking high levels of Personal/Carer’s Leave, a pattern of absences or concerns about the genuine nature of the Employee’s illness or injury then the Employee will be counselled and may be disciplined about their high levels of absenteeism. In these circumstances, the Employer will review the Employee’s history with a view to determining whether payment will continue.
7.3.7 Personal Leave and RDOs
(i)Maintenance Day Worker RDOs:
Regardless of the duration of Personal Leave taken, the RDO accrual remains constant but must be used once a pay cycle including when periods of Personal Leave fall on a RDO.
(ii)PSS/Despatch RDOs:
RDOs do not accrue on periods of Personal Leave of more than 4 weeks.”
Question(s) for arbitration
The AWU submitted that the following questions should be determined by the Commission:
“Having regard to clause 7.3 of the Cement Australia Gladstone Union Collective Agreement 2022 and the Respondent’s decision made by their correspondence on 28 March 2024 regarding Mr Colin Vanderwolfe:
1. Has the Respondent complied with clauses 7.3, 7.3.1, 7.3.2 to 7.3.4 of the Agreement; and
2. Has the Respondent complied with clause 7.3.6 of the Agreement.”
Cement Australia submitted that the Commission has no jurisdiction to answer the AWU’s proposed questions, as it would require to Commission to exercise judicial power or give an advisory opinion in declaring whether Cement Australia has breached a legal obligation imposed by the Agreement. Cement Australia referred to Ranger Uranium Mines Pty Ltd; Ex parte FMWU, in which the High Court of Australia stated:
“A dispute as to … the breach of a legal obligation … is a dispute which necessarily involves the exercise of judicial power. In conformity with s.71 of the Constitution … the Commission is not endowed with judicial power, and hence has no jurisdiction to entertain disputes as to the existence or enforcement of legal rights or obligations”.
Cement Australia proposed the following alternative question for arbitration:
“In the circumstances and in light of clause 7.3 of Agreement properly applied, should Mr Vanderwolfe be paid 3 months’ personal leave from and inclusive of his elective knee surgery?”
The AWU rejected the Respondent’s proposed question for arbitration. The AWU submitted that the application does not seek any order for payment or rectification by the Respondent and is instead seeking a determination as to whether there has been a misapplication of the Agreement by the Respondent, so in that sense is not seeking the Commission to exercise judicial power. Further, the AWU submitted that its questions do not ask the Commission to provide an advisory opinion, as they are based on a concrete dispute with a relevant factual background.
As it eventuated, during the Hearing I learned that Mr Vanderwolfe had approximately 10 weeks off work recovering from the surgery. Other than the one day’s paid personal leave for the day after the operation, he took long service leave, unpaid leave and annual leave for the period.
I have determined that the appropriate question for arbitration is:
“In the circumstances and in light of clause 7.3 of the Agreement properly applied, was Mr Vanderwolfe entitled to be paid personal leave for the approximate 10-week duration of his elective knee surgery and recovery?”
Evidence of Mr Colin Vanderwolfe
Mr Vanderwolfe commenced employment with Cement Australia in 1981 as a Mine Operator.
In July or August 2023, Mr Vanderwolfe was asked by Ms Collins whether he would be attending trackside training. He told Ms Collins that Cement Australia would be wasting its money as he was probably retiring in 2024. Ms Collins then requested he complete an intention to retire letter which stated he intended to retire around August 2024, which would then exempt him from the training. The letter, dated 25 August 2023, reads as follows:
“Attn Sandra Collins
It is my intention to retire in August 2024
Kind regards
Colin Vanderwolf”
In evidence given during the Hearing, Mr Vanderwolfe stated that he considered the trackside training would be a waste of time as he doesn’t get sent trackside. He accepted that he could be sent trackside by management.
In March 2024 he met with Ms Collins and requested personal leave for his upcoming operation on 15 May 2023. He said he would require at least three months off work. He was instructed by Ms Collins to make a personal leave application and provide a medical certificate, but that he probably would not get it.
On 28 March 2024, Mr Vanderwolfe was informed that he would not be granted paid personal leave for the surgery and three-month recovery period under clause 7.3.6 of the Agreement. He was told that upon producing a medical certificate for the day of the surgery, he would be granted paid personal leave for that day, and the remaining time could be taken as annual leave or unpaid leave.
On 10 April 2024, Mr Vanderwolfe sent correspondence to Cement Australia appealing the decision. He was then informed on 23 April 2024 that the decision would stand.
In evidence given during the Hearing, Mr Vanderwolfe stated that he would have liked to have had surgery on his knee earlier than 2024, but he had experienced other health problems, some requiring surgery. It was not known exactly what would be required until the surgery eventuated. As it turns out, Mr Vanderwolfe required a half-knee replacement, and he returned to work after approximately 10 weeks. He was only taking Panadol during his recovery; approximately six tablets per day.
Mr Vanderwolfe agrees that he cancelled a meeting with management to discuss his surgery; he cancelled as he wanted his union representative with him. He agrees that he informed Mr John Jamieson, Team Leader, that he would be unlikely to return to work after having surgery and would likely retire.
Mr Vanderwolfe ultimately gave notice of his retirement on 10 September 2024 and ended employment with Cement Australia on 8 October 2024.
The AWU’s submissions
The AWU submitted that Cement Australia did not comply with the Agreement as it has not followed the process outlined in clause 7.3 with respect to personal leave. Specifically, the AWU submitted that Cement Australia should have approved Mr Vanderwolfe’s request for personal leave, and any issues or concerns the Respondent had with Mr Vanderwolfe’s usage of personal leave could have been addressed, but only after three months of usage of personal leave by Mr Vanderwolfe.
The AWU provided its interpretation of the relevant clauses of the Agreement. First, in relation to clauses 7.3 and 7.3.1, the AWU argued that a personal leave entitlement is provided, whereby if there is a genuine illness or injury, an individual is entitled to personal leave. This entitlement is unlimited but will be managed if it is alleged that an employee is misusing it.
Second, the AWU submitted that the purpose of clause 7.3.2 is to outline the process required of an employee and the employer when an employee takes personal leave. Most relevantly, clause 7.3.2(e) provides that after a period of three months’ continuous personal leave, the Respondent may review an employee’s usage of personal leave with a view to determining whether payment will continue.
Finally, clause 7.3.6 states that where an employee takes high levels of personal leave, where there is a pattern of absences, or where there are concerns about the genuine nature of the employee’s illness or injury, the employee will be counselled and may be disciplined about their high level of absenteeism. In these circumstances, the Respondent will then review the employee’s history with a view to determining whether payment will continue. The AWU submitted that “these circumstances” referred to in clause 7.3.6 are the circumstances of an employee having undertaken high levels of personal leave. The review of the employee’s history and the determination of whether payment will continue must then be undertaken together, and the clause contemplates that the employee is already using personal leave at the relevant time.
Clause 7.3 and 7.3.1
Clause 7.3 of the Agreement provides that the personal leave provision under the Agreement exists to support employees in case of genuine illness and injury, that misuse of personal leave will be managed, and that personal leave is unlimited subject to the employer’s right to review the continuation of payment if an employee has a genuine need to be absent for a significant time. The AWU submitted that Mr Vanderwolfe, due to his upcoming surgery, had a genuine reason to undertake personal leave, meaning that the Respondent was obliged to have approved the personal leave as it is an unlimited entitlement.
Clause 7.3.2
The AWU referred to clause 7.3.2(e) of the Agreement, which states that “after” a period of three months of continuous personal leave, the Respondent may review an employee’s usage of personal leave to determine whether payment should continue. The AWU therefore submitted that any modification to Mr Vanderwolfe’s personal leave could only occur after approval of the leave, and the Respondent was only permitted to review his usage of personal leave after he had used three consecutive months of personal leave.
On account of the letter sent by Mr Gill to Vanderwolfe on 28 March 2024, Cement Australia did not approve Mr Vanderwolfe’s requested personal leave. Instead, personal leave was approved for only one day. The AWU submitted that this was not in compliance with clause 7.3.2, and the Respondent ought to have approved the requested leave, and thereafter reviewed Mr Vanderwolfe’s usage of it.
Clause 7.3.6
The AWU noted that clause 7.3.6 imposes two alternative preconditions on the Respondent’s entitlement to counsel or discipline an employee with respect to their usage of personal leave:
a) there is evidence that the employee has taken high levels of personal leave; or
b) there is a pattern of absences or concerns about the genuine nature of the Employee’s illness or injury.
The AWU submitted that clause 7.3.6 does not entitle the Respondent to limit any other future leave; the Respondent may only determine if payment of personal leave will continue. Therefore, the AWU submitted that in rejecting Mr Vanderwolfe’s personal leave request on 28 March 2024, the Respondent exceeded the power granted to it by clause 7.3.6.
As clause 7.3.6 states that the Respondent may determine whether payment will “continue”, the AWU submitted that any rejection by the Respondent may therefore only occur after personal leave has been approved and commenced. This did not occur, as demonstrated by Mr Gill’s letter on 28 March 2024. The AWU submitted that the Respondent’s rejection of personal leave was premature having regard to clause 7.3.6 of the Agreement.
Disposition
The AWU urged the Commission to determine that Mr Vanderwolfe was entitled to be paid for the time he had off work while he was recovering from surgery. That would result in the question for arbitration being answered in the affirmative.
Evidence of Mr Benjamin Gill
Mr Gill is the Operation Manager of Cement Australia’s Gladstone operations. He has been employed by Cement Australia for 12 years and in his current position for approximately two years.
Mr Vanderwolfe did not report to Mr Gill, but reported to Ms Collins, who reports to Mr Gill.
Mr Gill was involved in bargaining for the Agreement. In the previous agreement, the Cement Australia Gladstone Union Collective Agreement 2020 (2020 Agreement), personal leave was provided in clause 6.3, providing for generous entitlements. Mr Gill stated that during the term of the 2020 Agreement, the Respondent developed concerns about the usage of personal leave by employees covered by the agreement. In 2022, 104 employees accessed 15,048 hours of personal leave which is approximately double the maximum NES entitlement for that number of employees. Mr Gill said that this had diluted the spirit and intention of the personal leave entitlement provided by the 2020 Agreement.
Clause 6.3.5 of the 2022 Agreement is produced below:
“6.3.5 Excessive Personal/Carer’s Leave Absenteeism
(a)Personal/Carer’s Leave is unlimited however, it is accepted that if an Employee has a genuine need to be absent from work for a significant time, then it may be necessary for the Employer to review the continuation of payment for the ongoing personal carer’s leave in accordance with clause 6.3.2 (e).
(b)The Employee has a responsibility to work with the Employer to facilitate their return to work as soon as possible, when it is safe for the Employee to do so.
(c)Where there is evidence of an Employee taking high levels of Personal/Carer’s Leave, a pattern of absences or concerns about the genuine nature of the Employee’s illness or injury then the Employee will be counselled and may be disciplined about their high levels of absenteeism. In these circumstances, the Employer will review the Employee’s history with a view to determining whether payment will continue.
(d)Where a concern about an Employee’s absenteeism is identified:
·The Employer will first informally raise with the Employee any concerns about levels of Personal/Carer’s Leave before progressing to any formal process. At this stage, the Employee may be required to provide a Medical Certificate for future absences;
·If, after raising concerns with the Employee, their level or pattern of Personal/Carer’s Leave has not improved, then the Employer will engage in a formal disciplinary process, which may include warning regarding the Employee’s high levels of absenteeism and set clear parameters to which the Employee must comply (e.g. notification of absences).
(e)During this process (mentioned in sub-clause (d)), should absences fail to improve, the Employee’s entitlement to paid Personal/Cater’s Leave may be ceased by the Employer, for a period of six months.”
A review of leave utilised by employees covered by the 2022 Agreement was undertaken in September 2022. The review demonstrated that 68% of employees were on track to take leave greater than that provided for in the NES, and of those employees, 34% were on track to take more than twice the NES accrual.
In Cement Australia’s log of claims for the 2022 Agreement, Item 3 stated:
“We continue to have issues with some employees significantly misusing the leave provision. The current provision provides little to no scope to effectively manage these circumstances and the cost to business and time to manage is exhaustive. We seek much clearer levers to manage misuse of sick leave much earlier – if we can't achieve that, we seek to remove the provision for unlimited sick leave and defer to the NES.”
Mr Gill stated that it was agreed between the Respondent and the AWU that the personal leave provision must be treated with care and consideration, and not as an unlimited resource, and that excessive use would need to be managed. During the access period for the Agreement, Mr Gill spoke with employees about the intention of the personal leave provisions, and the expectation of employees when accessing personal leave.
During the access period for the 2022 Agreement, Cement Australia produced material explaining the 2022 Agreement to employees who were requested to vote on the agreement. The following relevant information was provided in respect of the changes to the personal leave clause:
“Personal / Carer’s leave provision remains, with added clearer provisions for managing the misuse of Personal / Carer’s leave, clarification of the spirit and intent of the provision, Employee’s obligations, and RDO’s in relation to Personal Leave.
No impact for employees who use sick leave in the spirit of the Agreement.”
The 2022 Agreement was made and then approved.
In 2023, Mr Gill was told that Mr Vanderwolfe had advised Cement Australia of his intention to retire in August 2024.
Mr Gill routinely reviews personal leave records, and in December 2023 he performed once such review. At that time, Mr Vanderwolfe had used 58 days of personal leave since 1 January 2023. As a result of his review, he wrote the following letter dated 12 December 2023 to Mr Vanderwolfe
“Dear Colin
Excessive Personal Leave
I’m writing to you regarding the quantum of your absences from work and your ongoing entitlement to paid Personal Leave.
Specifically, since 1 January 2023 to the date of this letter, you have taken 58 days of paid Personal Leave – i.e. more than five times the standard annual day entitlement under the National Employment Standards. This is particularly excessive when considered in the context of your historical high use of paid Personal Leave, with your current Personal (Sick) Leave is in a ‘negative balance’ of -1551 hours.
While the business has been very supportive in the provision of paid leave up until now, this level of Personal Leave is excessive and I write to notify you that your sick leave is currently under review, and, should shou have further instances of Personal Leave your entitlement to paid Personal Leave may be ceased in accordance with clause 7.3.6 of the Cement Australia Gladstone Union Collective Agreement 2022.
Colin, I hope you will reflect on this and understand the impact the quantity of your absences have on your fellow team members and the business, and make the necessary adjustments to address the issue.
Should you have any questions or wish to discuss this further, please don’t hesitate to reach out to make a time.
Kind regards
Ben Gill
Operations Manager – Gladstone”
The letter was hand-delivered to Mr Vanderwolfe on 19 December 2023. Mr Vanderwolfe requested to meet with Mr Gill. Mr Gill telephoned him and they agreed to meet on 28 December 2023. On 22 December 2023, Ms Collins informed Mr Gill that Mr Vanderwolfe had cancelled the planned meeting and escalated the matter with the AWU.
On 3 January 2024, Mr Gill spoke with Mr Tony Beers, AWU District Secretary. Mr Beers reiterated that Mr Vanderwolfe had been employed by Cement Australia for 40 years. Mr Gill replied that Mr Vanderwolfe had been looked after by Cement Australia, but his personal leave was now becoming excessive and detailed the paid personal leave taken by Mr Vanderwolfe over the previous nine years:
·2015 = 11 days
·2016 = 6 days
·2017 = 23 days
·2018 = 20 days
·2019 = 55 days
·2020 = 7 days
·2021 = 24 days
·2022 = 32 days
·2023 = 58 days
Mr Gill informed Mr Beers that Cement Australia stood by its letter to Mr Vanderwolfe of 12 December 2023. Mr Gill invited Mr Beers to contact him again if he wished to meet to further discuss the matter.
On 14 February 2024, Mr Gill received an email from Ms Collins, which stated that Mr Vanderwolfe had told her that he would be reviewing his retirement options that month, and would soon know whether he could retire in May 2024. The email also stated that she had been encouraging Mr Vanderwolfe to provide formal notice of his retirement so his replacement could be organised, and that Mr Vanderwolfe had advised Mr John Jamieson, Team Leader, that he would be seeing his doctor to discuss getting knee surgery before he retires. In the email, Ms Collins stated that she told Mr Jamieson that Mr Vanderwolfe should not expect personal leave for this without Cement Australia’s approval, to which Mr Jamieson said that Mr Vanderwolfe expected that personal leave for his surgery would be paid.
On 18 March 2024, Ms Collins told Mr Gill that Mr Vanderwolfe had informed her of the date of his surgery and his expectation that he would receive paid time off. Ms Collins asked Mr Vanderwolfe to provide a medical certificate, to which Mr Vanderwolfe said he would not have one until a decision was made on whether he would receive a partial or full knee replacement. Ms Collins explained to Mr Vanderwolfe that approval of personal leave was not automatic, and noted that Mr Vanderwolfe already had a high personal leave balance, which would impact Cement Australia’s decision.
Ms Collins informed Mr Gill on 21 March 2024 that Mr Vanderwolfe had said:
· that his doctor refused to supply a medical certificate until after the operation;
· he would only apply for personal leave for the day of 15 May 2024 (the date of the operation);
· he expected to be absent for three months and was entitled to receive paid personal leave for those three months; and
· he wanted a response from Cement Australia outlining its position on the payment of personal leave upfront.
Mr Gill was on annual leave at this time and was informed by Ms Collins on 27 March 2024 that Mr Vanderwolfe again requested a response to his request.
While Mr Gill was on annual leave, he decided the following:
a) he had no evidence of Mr Vanderwolfe’s expected recovery period, and he did not intend to approve any personal leave on that basis;
b) Mr Vanderwolfe’s intention to take three months’ personal leave for pre-retirement elective surgery was not in the spirit of clause 7.3;
c) Mr Vanderwolfe should be reminded of previous discussions that had occurred with respect to his use of personal leave and the fact that further instances of leave may not be paid;
d) it was unreasonable for Mr Vanderwolfe to expect three months of paid personal leave for an elective surgery in the lead up to his advised retirement in August 2024;
e) his decision was in accordance with the Agreement; and
f) Mr Vanderwolfe should be provided with a letter to this effect, confirming that he would be paid one day of personal leave for the day of the surgery only.
Mr Gill accordingly prepared a letter dated 28 March 2024, which he gave to Ms Collins to hand-deliver to Mr Vanderwolfe. The letter is produced below:
“Dear Colin
I refer to your recent discussions with Sandra Collins in relation to an upcoming operation.
Specifically, you advised you have an elective knee surgery scheduled May 15th in which you anticipate you will be unable to perform work for a period of 3 months, and you are seeking confirmation in advance of paid Personal Leave for the duration of your absence.
I remind you of our discussions late last year in relation to your excessive Personal Leave, and the correspondence to you dated 12 December, 2023, advising that your entitlement to paid Personal Leave was under review, and should you have any further instances of Personal Leave may not be paid in accordance with clause 7.3.6 of the Cement Australia Gladstone Union Collective Agreement 2022.
Further, it is unreasonable to expect the company to provide you with paid personal leave for an extended period for an elective surgery in the lead up to your retirement.
In consideration of the above, my position is as follows:
I.1 x days Personal Leave will be approved for the date of your operation, on the provision of a medical certificate.
II.Personal Leave will not be approved for any further absences in relation to this operation. You have the option to take annual leave or leave with out pay should you wish.
I am currently on leave, however will be available from 15th April 2024 should you or your union official wish to make a time to discuss with me further.
Regards,
Ben Gill
Operations Manager – Gladstone”
On 4 April 2024, Ms Collins sent an email to Mr Gill advising him that she had met with Mr Vanderwolfe that day and told him that only one day of personal leave would be approved. In response, Mr Vanderwolfe indicated he would contact the AWU and would make a workers’ compensation claim in relation to his surgery.
Mr Gill received correspondence from the AWU on behalf of Mr Vanderwolfe on 10 April 2024 disputing Cement Australia’s decision. He was then advised by Ms Collins via email on 15 April 2024 that Mr Vanderwolfe had told Mr Jamieson that he did not plan to return to work after surgery.
Mr Gill confirmed Cement Australia’s position in writing on 24 April 2024, produced below:
“Dear Colin
I refer to your letter of dispute received on 10 April, 2024, via your AWU union official.”
I have considered your response however my position put to you in my letter dated 28 March, 2024 remains.
I refer to your comments in relation to clause 2.3.9 (e) of the Gladstone Union Collective Agreement 2022, “As per our agreement you the operations manager can only make determination once my leave extends beyond 3 months”. For the avoidance of doubt the Enterprise Agreement does not provide an automatic entitlement to three months paid personal leave, nor is your situation – elective surgery in the lead up to your retirement – in keeping with the intent of the clause which refers to ‘cases of long term serious illness or injury’.
Clause 7.3.6 of the Agreement states “Where there is evidence of an Employee taking high levels of Personal/Carer’s Leave, a pattern of absences or concerns about the genuine nature of the Employee’s illness or injury then the Employee will be counselled and may be disciplined about their high levels of absenteeism. In these circumstances, the Employer will review the Employee’s history with a view to determining whether payment will continue.”
You have recently been counselled in relation to the quantum of your Personal Leave and advised that should you have further instances of Personal Leave your entitlement to paid Personal Leave may be ceased, receiving written correspondence to this effect on 12 December, 2023. Despite this, since the date of the aforementioned letter you have already been granted a further two days of paid Personal Leave.
Over the past 12 months, since 15 April, 2023, you have taken 54 days (648 hours) of paid Personal Leave – more than five times the standard annual day entitlement under the National Employment Standards. This is particularly excessive when considered in the context of your historical high use of paid Personal Leave; your current Personal (Sick) Leave is in a ‘negative balance’ of -1547 hours.
As previously provided, I will approve a further 1 x days paid Personal Leave for the date of your operation, on the provision of a medical certificate. However, Personal Leave will not be approved for any further absences. You have the option to take annual leave or leave without pay should you wish.
My position on this matter is firm.
Regards,
Ben Gill
Operations Manager – Gladstone”
Mr Gill did not receive a response. He was then notified that the dispute had been lodged in the Commission.
Mr Gill’s position is that Mr Vanderwolfe’s request to be paid for three months was unreasonable for the following reasons:
a) the surgery was elective;
b) Mr Vanderwolfe claimed to have a right to the paid personal leave;
c) he was not aware at the time of the request that his actual recovery period would in fact be three months;
d) he had advised his intention to retire after the proposed period of leave;
e) he had previously been provided with approximately three months of light duties following a period of paid personal leave for a non-work-related injury in 2023;
f) he had recently received notice regarding his high use of personal leave; and
g) he had been notified that future personal leave may not be approved.
In evidence given during the Hearing, Mr Gill noted that the following two paragraphs were new insertions into the 2022 Agreement:
“It is an overarching principle of this clause that Employees acknowledge that the entitlement to Personal Leave is a generous provision and must be treated by every Employee with care and consideration. The provision exists to support Employees in of genuine illness and injury – and to support this, the misuse of Personal/Carer’s Leave will be managed. In cases where Personal Leave or Carer’s Leave is misused, formal disciplinary steps may be taken, which may include the cessation of paid Personal/Carer’s Leave for a period.
Personal/Carer’s Leave is unlimited however, it is accepted that if an Employee has a genuine need to be absent from work for a significant time, then it may be necessary for the Employer to review the continuation of payment for the ongoing personal/carer’s leave in accordance with clause 7.3.2(e).”
Evidence of Ms Sandra Collins
Ms Collins has been employed by Cement Australia as the Senior Site Executive at the East End Mine since January 2023. In this role she reports to Mr Gill.
On or around 21 August 2023, Mr Luke McAlpine, Team Leader, informed Ms Collins that Mr Vanderwolfe had told him that he did not want to attend trackside training because he planned to retire in 2024. Ms Collins later spoke with Mr Vanderwolfe about the need to provide formal notice of his retirement plans. Mr Vanderwolfe provided such notice to Ms Collins by way of the handwritten letter on 25 August 2024 at [22].
On or around 14 February 2024, Mr Vanderwolfe informed Ms Collins that he was on track to review his retirement plans with his financial planner that month and following this he would have more clarity around the date of his retirement. Ms Collins sent a summary of this conversation by email to Mr Gill.
On 27 November 2023, Mr Gill advised Ms Collins of the results of a review he had conducted in relation to employees’ use of sick leave. The records showed that Mr Vanderwolfe had used more than 50 days of personal leave from 1 January 2023.
Mr Gill drafted a letter dated 12 December 2023 for Ms Collins to deliver to Mr Vanderwolfe. She did this on 19 December 2023, and Mr Vanderwolfe told Ms Collins that he would discuss the letter with Mr Gill. Ms Collins was then informed by Mr Gill shortly after that Mr Vanderwolfe had arranged a meeting with him in late December 2023. Ms Collins received a note from Mr Vanderwolfe on 22 December 2023 cancelling the meeting. The letter is produced below:
“Sandra,
We have a meeting with Ben Gill regarding my Personal sick leave scheduled next Thursday.
I do not want to meet given the serious nature of the letter regarding my sick leave and the matter is in dispute.
I have asked my Union Official (Tony Beers) to deal with this matter on my behalf.
He advised he will speak with Ben Gill directly early in the New Year to try to find a resolution to this Dispute.”
Ms Collins recalls a conversation in early January 2024 where Mr Gill told her that he had informed Mr Beers that Cement Australia would not be withdrawing the letter issued to Mr Vanderwolfe.
Ms Collins became aware of Mr Vanderwolfe’s intention to undergo his surgery on or around 14 February 2024, when she was informed by Mr Jamieson. She asked Mr Jamieson to discuss the issue with Mr Vanderwolfe and advise him that he should not expect personal leave after the surgery. Mr Jamieson then relayed Mr Vanderwolfe’s response, which was that he expected to receive paid sick leave for the surgery and the recovery period. Ms Collins sent an email to Mr Gill outlining the details of this discussion.
On 18 March 2024, Mr Vanderwolfe informed Ms Collins that the surgery had been scheduled for 15 May 2024, and he was seeking three months’ paid personal leave. Ms Collins asked Mr Vanderwolfe to provide a medical certificate, to which he said that he was unable to provide one until after the surgery. Ms Collins reminded Mr Vanderwolfe of his high personal leave usage, explained that approval of personal leave is not automatic, and informed him that Cement Australia would not consider a request for three months’ paid personal leave without a medical certificate. She told him that she did not know how much leave would be approved but recommended that Mr Vanderwolfe obtain a medical certificate and apply for an initial known period of personal leave. Mr Vanderwolfe then agreed to seek a medical certificate.
On 21 March 2024, Mr Vanderwolfe informed Ms Collins that he was unable to obtain a medical certificate for the recovery period until after the surgery had been completed, and that he would apply for only one day of personal leave for the date of the surgery in accordance with the medical certificate he had received. Despite this, Mr Vanderwolfe informed her that he expected to need three months of sick leave, and that if this was not going to be granted by Cement Australia, he would like a meeting with Mr Gill or a written response to his request from Cement Australia. Ms Collins informed Mr Gill of this conversation.
On 27 March 2024, Mr Vanderwolfe raised the issue with her again, requesting a response from Cement Australia in relation to his request for a meeting with Mr Gill or written communication from Cement Australia. Ms Collins passed this request on to Mr Gill despite him being on annual leave at that time. Mr Gill then called her shortly afterwards and told her that he would not approve any leave beyond the day of his surgery and would draft a letter to Mr Vanderwolfe to that effect.
Mr Gill provided the letter to Ms Collins on 28 March 2024, and she scheduled a meeting with Mr Vanderwolfe to take place on 4 April 2024. Ms Collins, Mr Vanderwolfe, Mr Jamieson and Mr McAlpine were present at the meeting. Ms Collins read aloud Mr Gill’s letter of 28 March 2024 to Mr Vanderwolfe. Mr Vanderwolfe then said words to the effect that he would be contacting the AWU, that he was disappointed, and that he would consider making a workers’ compensation claim.
Directly after the meeting, Ms Collins emailed a summary of the meeting’s discussions to Mr Gill.
On 15 April 2024, Ms Collins was informed by Mr Gill that he had received a letter from the AWU on Mr Vanderwolfe’s behalf disputing the sick leave decision. From this point, Ms Collins was not involved in the matter. Around the same time, Ms Collins stated that Mr Jamieson informed her that Mr Vanderwolfe had told colleagues that he did not plan to return to work after his surgery. Ms Collins passed this information to Mr Gill by email on 15 April 2024.
Mr Gill sent Ms Collins his response to Mr Vanderwolfe on 23 April 2024.
Mr Vanderwolfe was not rostered to work on the day of his operation but received paid sick leave the following day on 16 May 2024 as he was rostered to work that day. Ms Collins stated that this was in accordance with the medical certificate Mr Vanderwolfe had provided, which stated that he was having surgery on 15 May 2024, would be unfit on 16 May 2024, and there would be a subsequent review on 28 May 2024.
Ms Collins called Mr Vanderwolfe on 16 May 2024 to enquire about the surgery. He told her that he had a half-knee replacement.
From his operation until 25 July 2024, Mr Vanderwolfe had been on either annual leave, long service leave or unpaid leave.
Ms Collins disagreed with Mr Vanderwolfe’s evidence that he has at all times complied with clause 7.3.3 of the Agreement in relation to this matter. She stated that clause 7.3 is a generous provision, and that from the outset Mr Vanderwolfe has claimed he has an unqualified right to three months of paid sick leave and maintained this position despite not knowing the actual surgery that would be performed and in the absence of any medical evidence as to the necessity of the leave.
Ms Collins’ position is that clauses 7.3.3 and 7.3.4 impose an obligation on Mr Vanderwolfe to actively engage in a return-to-work process. She stated that Mr Vanderwolfe has not done so, and Cement Australia only became aware of his intention to return to work in early-July 2024. Before this time, Mr Vanderwolfe had not spoken to anyone about returning to work in any capacity, and Cement Australia did not anticipate that he would return to work, as the only indications it had received were that he did not intend to return for any more than a token period.
Cement Australia’s submissions
Referring to Ridd v James Cook University,[1] the Respondent submitted that the policy purpose for the Agreement, the context of the clause as a whole, the textual choices made by the parties, and a practical and common-sense application of the Agreement must all be considered when interpreting the clause.
With respect to the Agreement’s policy purpose, the Respondent submitted that changes were made to clause 7.3 during negotiations for the Agreement in order to insert clearer provisions for Cement Australia to manage the use of personal leave. It is the Respondent’s view that under the previous agreement, there were systemic issues of misuse of personal leave, and these matters and the proposed changes were agreed to by the AWU.
In relation to context, the Respondent submitted that the AWU’s interpretation ignores the preamble of clauses 7.3 and 7.32, reads clause 7.3.2(e) in isolation without regard to the preamble and broader clause, and reads clause 7.3.6 in isolation without reference to the context of the clause. The Respondent submitted that the preamble of clause 7.3 does not grant employees a blank cheque to take personal leave, and that it remains incumbent on employees to use personal leave only when necessary. The preamble also grants Cement Australia the ability to manage the use of personal leave. The Respondent stated that this is reinforced by clause 7.3.2, which refers to the entitlement to access personal leave without loss of pay where there is a “genuine need” to take personal leave. The Respondent submitted that this demonstrates that, contrary to the AWU’s submission, paid personal leave is not an automatic right.
With respect to clause 7.3.6, the Respondent argued that the AWU’s interpretation would give the clause no work to do. Clause 7.3.6 allows the Respondent to review an employee’s personal leave history with a view to determining whether it will continue to make unlimited personal leave available. The Respondent argued that this is not only directed to employees already on personal leave. Instead, the clause allows the Respondent to manage the use of personal leave by allowing it to not treat future absences as personal leave. The Respondent submitted that this interpretation of clause 7.3.6 accords with the overarching intent of clause 7.3 as a whole.
The textual choices of the Agreement, in relation to the references to “genuine need” and “genuine cases of long term serious illness or injury”, were said by the Respondent to be significant. These are clear textual choices which the Respondent argued the AWU’s interpretation ignores.
The Respondent submitted that the AWU’s interpretation does not provide a practical and common-sense outcome, would lead to unworkable industrial outcomes, and would give clause 7.3.6 no, or no sensible, work to do.
The Respondent submitted that the AWU has ignored the policy purpose, of which the AWU is aware, for the inclusion of clause 7.3.6 in the Agreement. This has led the AWU to misconstrue the Agreement. The Respondent referred to the opening sentences of clause 7.3, which state:
“It is an overarching principle of this clause that Employees acknowledge that the entitlement to Personal Leave is a generous provision and must be treated by every Employee with care and consideration. The provision exists to support Employees in cases of genuine illness and injury – and to support this, the misuse of Personal/Carer’s Leave will be managed.”
Further, the Respondent referred to the opening sentence of clause 7.3.2:
“An Employee, other than a casual Employee, shall be able to take Personal Leave from work without loss of pay in cases where there is a genuine need to do so…”
The Respondent argued that the AWU has ignored the interaction between these clauses in light of the overall purpose of clause 7.3.
The Respondent submitted that the Commission cannot interfere with Cement Australia’s right to manage its own business, and in these circumstances the Commission cannot stand in the shoes of the employer and decide what sick leave should be paid to Mr Vanderwolfe.
The Respondent submits that the Agreement permits it to manage the use of personal leave and does not provide an unqualified entitlement for employees. The Respondent noted that the evidence demonstrates that the Respondent conducted a review of Mr Vanderwolfe’s personal leave, flagged him as having taken a large amount of personal leave, sought to counsel him with respect to his use of personal leave, and notified him that he should not assume all personal leave would be paid in the future. The Respondent noted Mr Vanderwolfe then proceeded on the basis that he had an unqualified right to apply for paid sick leave and an assumption that Cement Australia could not do anything about his use of personal leave until three months’ paid personal leave had elapsed.
The Respondent submitted that it properly considered whether there was a genuine need for Mr Vanderwolfe to access personal leave in light of his record of paid sick leave, the length of time requested, the prior notice that had been given to him regarding his use of personal leave, his previously expressed intention to retire after the surgery, and a subsequently expressed intention not to return after his leave for the surgery.
Ultimately, the Respondent submitted that it acted in accordance with clause 7.3.6 of the Agreement to first only approve the personal leave Mr Vanderwolfe had formally applied for, and secondly deny his assertion that he had an automatic right to three months’ paid personal leave.
The Respondent submitted that absurdity should be avoided. Whilst paid personal leave in the Agreement is unlimited, access to it is governed. The Respondent submitted that there was no room to infer that leave needs to be taken for it then to be withdrawn. The Respondent submitted that clause 7.3.6 has its own work to do.
On that basis, the Respondent submitted that the question for arbitration should be answered in the negative.
The AWU’s reply submissions
The AWU denied the Respondent’s assertion that it has failed to consider clause 7.3 as a whole. The AWU noted that its interpretation of the clause referred to the preamble of the clause, outlined the key terms in clause 7.3.2, and provided substantial submissions in relation to the interconnectedness of the clauses.
The AWU rejected the Respondent’s submissions that the Agreement does not grant employees a “blank cheque” to take personal leave. The AWU reaffirmed that any cessation of payment for personal leave can only occur after the approval of such leave, having regard to the word “continuation” in the clause.
The AWU denied the Respondent’s suggestion that the AWU’s interpretation gives clause 7.3.6 no work to do. The AWU’s position is that the clause exists to either discipline an employee post-usage or allow the Respondent to consider whether payment should continue for an employee already on personal leave.
The AWU submitted that the Respondent has focused primarily on background matters and placed a heavy reliance on clause 7.3.6 of the Agreement, without considering the contextual background of clause 7.3 and the clause as a whole.
A National Employment Standards (NES) precedence clause is included as an undertaking to the Agreement. The AWU therefore submitted on that basis that the Respondent’s continual reference to the NES throughout its submissions is misguided because the NES is of lesser benefit compared to the Agreement.
The AWU submitted that Mr Vanderwolfe applied for personal leave on the basis of clause 7.3, which provides for an unlimited entitlement for Personal Leave, in circumstances where the entitlement can be reviewed after three months in accordance with clause 7.3.2(e), and where the Respondent can consider whether to continue the personal leave under clause 7.3.6. In the AWU’s submissions, Cement Australia did not properly consider Mr Vanderwolfe’s request under clause 7.3.
The AWU submitted that the Respondent has not provided a clear interpretation using the words of clause 7.3. Instead, the AWU submitted that the Respondent has provided no insight into how clause 7.3.6 entitles Cement Australia to limit the amount of personal leave before it is taken by an employee. In the AWU’s view, the clause allows the Respondent to consider whether payment will “continue” and counsel or discipline an employee for high levels of absenteeism, but does not allow the Respondent to limit leave before it is taken.
Consideration
It is clear that employees covered by the earlier 2020 Agreement had been provided with extraordinarily generous paid personal leave entitlements. In my view, however, there were still some perimeters around the access to paid personal leave under the 2020 Agreement, as will is explained below.
Having experienced a very large uptake of paid personal leave by employees covered by the Agreement in 2022, it is unsurprising that Cement Australia sought to modify the provision and in bargaining for the Agreement the subject of this application, made inroads during the negotiations to tighten the ring around access to the generous entitlements.
The clause in the 2022 Agreement is clause 7.3 and there were certainly some changes to that clause when contrasted with clause 6.3 of the 2022 Agreement. The whole preamble to the remaining subclauses details the purpose of the provision. My view is that the second paragraph provides an unwavering link to clause 7.3.2(e). In those circumstances, because of the reference to clause 7.3.2(e), the continuation of the payment for the ongoing (that is, already commenced) personal leave can only be considered once the three-month threshold has been met.
The references to likelihood of returning to work in 7.3.2(e) make it clear that the consideration in this subclause is undertaken when an employee has had a lengthy period away from work. This is largely no different from the provisions at clause 6.3 of the 2020 Agreement.
Accordingly, I would find that in reference to the preamble in 7.3 and having regard to 7.3.2(e), there would be an entitlement for an employee, including Mr Vanderwolfe, to have a period of three months of paid leave and for consideration of extension of that time to occur only after a period of three months.
However, there is always work for clause 7.3.6 of the Agreement to do (and at clause 6.3.5 of the earlier 2020 Agreement). Clause 7.3.6 details the scenario where the Respondent has had cause to counsel, and even discipline an employee about their high uptake of Personal/Carer’s Leave, or where there has been a pattern of absences, or where the employer holds concerns about the genuine nature of the employee’s illness or injury. There is a small shopping list of circumstances where the Respondent is permitted to counsel (and maybe discipline) an employee about their absences from the workplace, with the discretion afforded to the Respondent to determine whether payment will continue.
Mr Vanderwolfe was informed in December 2023 that there was evidence that he was taking high levels of paid personal leave. He was not, thankfully, an employee who had a pattern of absences (for example, regularly taking Mondays and Fridays off work), nor was there any concern at that stage about the genuineness of his absences. He was, quite simply, taking a very large amount of paid time off work due to his various medical conditions.
The Respondent, armed with an entitlement to do so pursuant to clause 7.3.6 of the 2022 Agreement, counselled Mr Vanderwolfe about his high level of absenteeism. The Respondent was expressly permitted to do so pursuant to the Agreement. The Respondent reviewed Mr Vanderwolfe’s history and determined, pursuant to clause 7.3.6 that payment may be ceased for future absences.
Mr Vanderwolfe was put on clear notice of the Respondent’s right to decide if he would be paid for future absences.
Clause 7.3.6 provides this express provision for the Respondent to foreshadow to employees that future absences may not be paid. In the same way, the Respondent could counsel and then discipline an employee with a pattern of absences, (say Mondays and Fridays), to inform them that if they took further patterns of absences, they will not be paid.
There is certainly no restriction, as the AWU put, that the leave must have been commenced, and been ongoing for three months, before the Respondent could take action to consider not making payment.
Mr Vanderwolfe was entitled to be absent from work due to his surgery and recovery. He was an employee counselled in December 2023 about his excessive absences from work. Pursuant to clause 7.3.6, and noting that the Respondent counselled him in writing, he was not entitled to payment for his absence.
If the Respondent had not flagged Mr Vanderwolfe as it did in December 2023, and counselled him as it did, it would not be able to rely on clause 7.3.6. However, it did flag him as an employee with an excessive amount of paid leave taken, and it did counsel him. It was entitled to determine whether payment would continue for any future absences. In these circumstances, it matters not that his leave had not commenced at that time.
If it had been necessary to determine, pursuant to clause 7.3.2, if there was a genuine need for Mr Vanderwolfe to be absent from the workplace to take personal leave without loss of pay, my view is that the elective nature of the surgery is an irrelevant consideration. Employees are entitled, pursuant to the NES to take paid leave from work whether any medical treatment is unplanned or elective. Employees are entitled to undergo elective cosmetic surgery, if they so please. Their entitlement to paid sick leave for elective cosmetic surgery is no different than their entitlement to paid sick leave if they have a burst appendix. If medical certificates are produced declaring the employee to be too ill to attend for work, they are entitled to be absent from the workplace.
Further, Mr Vanderwolfe’s declared intention to retire would not be a relevant consideration at clause 7.3.2. It would only be a relevant consideration at clause 7.3.2(e) after a period of three months of paid leave.
As it is, Mr Vanderwolfe was an employee counselled pursuant to clause 7.3.6 of the Agreement. If he had not been a counselled employee, having already taken a very large amount of paid personal leave, I consider there would be little restriction on him being granted paid personal leave, other than a reconsideration at three months pursuant to clause 7.3.2(e). Having been a counselled employee, the Respondent was entitled to notify him that future absences may not be paid and ultimately the Respondent informed him unequivocally that his absence, bar one day, would not be paid.
Conclusion
In answering the question for arbitration:
“In the circumstances and in light of clause 7.3 of the Agreement properly applied, was Mr Vanderwolfe entitled to be paid personal leave for the approximate 10-week duration of his elective knee surgery and recovery?”
I determine that the answer is no.
The proceedings before the Commission in relation to this dispute are now concluded.
COMMISSIONER
Appearances:
A Santelises for the Australian Workers Union.
M Coonan of Corrs Chambers Westgarth, with permission, for Cement Australia Pty Limited T/A Cement Australia.
Hearing details:
2024.
Brisbane.
3 & 4 October.
[1] (2021) 274 CLR 495, 516–8.
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