“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Colorpak Limited
[2012] FWA 6934
•15 AUGUST 2012
[2012] FWA 6934 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Colorpak Limited
(C2011/6515)
COMMISSIONER HARRISON | SYDNEY, 15 AUGUST 2012 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] .
[1] This decision arises from an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) pursuant to s.739 of the Fair Work Act 2009 (the Act). The AMWU and Colorpak Limited are in dispute regarding the interpretation of the Wadepack Ltd Enterprise Agreement 2010 1 (the Agreement) in respect of the cashing out of paid personal/carers leave.
[2] The Agreement applies as a result of the transfer of business from Wadepack Ltd to Colorpak.
[3] The AMWU contends that ss. 100 and 101 of the Act permits the inclusion of a clause in an enterprise agreement that provides for the cashing out of paid personal/carers leave subject to the conditions set out at s.101(2) being satisfied.
[4] Clause 14 of the Agreement provides:
“14. SICK LEAVE BONUS
Any unused Sick Leave left over at renewal date (anniversary date) will be available to be taken as a bonus at Christmas or may be accumulated and paid on termination. The unused sick leave is the amount of untaken leave from the prior year(s) before your new allocation.
The maximum bonus paid from prior years unused sick leave at any Christmas will be 2 weeks, however, on termination the full balance of the prior year(s) unused sick leave will be available for payment. (This applies to all accumulated sick leave from prior years, but will not exceed the accumulated Sick Leave provisions as specified by the Award).
It is agreed between the parties that on the pay out of unused Sick Leave, the entitlement to that period of leave and its payment is extinguished once and for all.
The Sick Leave payment on Termination consists only of the prior years allocation and not the current years allocation.
This means that if you have 30 hours left from prior years allocation plus this year allocation (which is granted on your anniversary date each year), you would not be entitled to be paid out the 30 hours from prior years.”
[5] Section 101(1) and (2) of the Act provides:
“101 Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer’s leave
(1) A modern award or enterprise agreement may include terms providing for the cashing out of paid personal/carer’s leave by an employee.
(2) The terms must require that:
(a) paid personal/carer’s leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid personal/carer’s leave being less than 15 days; and
(b) each cashing out of a particular amount of paid personal/carer’s leave must be by a separate agreement in writing between the employer and the employee; and
(c) the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.”
[6] Colorpak submits that clause 14 of the Agreement has no effect because it contravenes the National Employment Standards (the NES). Section 55 of the Act refers to the interaction between the NES and an enterprise agreement as in this case. It provides for ancillary and supplementary terms at subparagraph (4):
“A modern award or enterprise agreement may also include the following kinds of terms:
(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;
(b) terms that supplement the National Employment Standards;
but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.”
[7] Colorpak contends that the wording of clause 14 of the Agreement is detrimental to an employee with respect to the NES. It was said the offending paragraph of clause 14 is:
“Any unused sick leave left over AT RENEWAL date (anniversary date) will be available to be taken as a bonus at Christmas or may be accumulated and paid on termination. The unused sick leave is the amount of untaken leave from the prior years before your new allocation.”
[8] It was submitted the above wording taken in its literal sense would result in employees having less than 15 days accumulated personal leave balance.
[9] It was further submitted that clause 14 of the Agreement offends s.101(2) because the “terms” do not provide for each cashing out to be by a separate agreement in writing between the parties.
[10] The AMWU contends that the meaning of the word “term” in s.101(1) is different from what it means in s.101(2). Of s.101(1), they say that it is “obvious from the text of that provision” that it authorises the inclusion of a clause in an agreement that permits the cashing out of paid personal leave. In s.101(2), however, they say that “the reference to the terms of the start of this provision should be read as a reference to the actual casing out” 2.
[11] There are several reasons why I believe this position is untenable. First, “[i]t is a general rule for the construction of statutes that, where a word is used more than once in a statute, it is presumed to have the same meaning ‘unless there is reason to do otherwise” 3. This presumption is easily displaced4.
[12] Section 101(2) with “the terms must ...” would be confusing and ambiguous without the context of s.101(1), where “the terms” originally appear, clearly as the terms of enterprise agreements that authorise cashing-in. Both in its ordinary, literal meaning and in context, s.101(2) clearly continues from and refers to s.101(1).
[13] Notwithstanding the previous two paragraphs, there are several situations in which it is permissible to consult extrinsic materials in interpreting an Act of the Commonwealth Parliament 5. The Explanatory Memorandum in the Fair Work Bill states that “[t]o ensure that employees retain access to paid leave in the event of illness or injury, the cashing out terms in a modern award or enterprise agreement must require that ...” (my emphasis), and goes on to state the three conditions now found in s.101(2)(a)-(c)6.
[14] The correct construction of s.101 is that a clause in an enterprise agreement permitting cashing out is permissible subject to that clause conforming to the three conditions in s.101(2). The AMWU’s characterisation of this position as requiring “that the clause must repeat, word for word... the words set out in s.101(2)” 7 is in my view incorrect and I find no such requirement is imposed. To comply, a clause in an agreement must effectively impose the safeguards set out in s.101(2), in the same way as complying consultation clauses and flexibility clauses must provide for certain matters.
[15] It follows and I find that clause 14 “Sick Leave Bonus” of the Wadepack Ltd Enterprise Agreement 2010 has no effect to the extent that it contravenes s.55 of the Act.
[16] I decide the dispute accordingly.
COMMISSIONER
Appearances:
A. Walkaden for “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
C. Cleary for Colorpak Limited.
1 PR997564
2 Transcript PN7-8
3 Taikato v The Queen (1996) 186 CLR 454 at 461 per Brennan CJ, Mc Hugh, Toohey and Gummow JJ, quoting Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618
4 Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 10 per Gibbs CJ, and at 15 per Mason J.
5 Acts Interpretation Act 1901 (Cth) s.15AB.
6 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at 67-68
7 Transcript PN18, PN54
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