C.H. v Australian Criminal Intelligence Commission
[2022] FWC 2051
•16 SEPTEMBER 2022
| [2022] FWC 2051 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution in relation to flexible working arrangements
C.H.
v
Australian Criminal Intelligence Commission
(C2022/1413)
| COMMISSIONER MCKINNON | SYDNEY, 16 SEPTEMBER 2022 |
Application to deal with a dispute in relation to personal/carer’s leave
This is a dispute about the entitlement to personal/carer’s leave under clause 131(c) of the Australian Criminal Intelligence Commission Enterprise Agreement 2016-19 (the Agreement) In dispute is whether the particular circumstances of C.H. are “other exceptional circumstances” for the purposes of clause 131(c) of the Agreement.
C.H. is employed by the Australian Criminal Intelligence Commission (ACIC) under the Agreement. He and his wife are trying to start a family but are having difficulty because of his wife’s medical condition. They are worried about the effect that COVID-19 infection will have on the chances of a successful pregnancy. To minimise the risk, C.H. wants to work mostly from home for blocks of up to 12 weeks at a time, for an indefinite period of up to 5 years.
The ACIC has refused the request to work from home for 5 days per week. Its Home‑Based Work (HBW) Policy provides for employees to work from home but requires most employees to have regular weekly attendance of at least 2 days per week in the office. As an alternative, C.H. has proposed working from home for 3 days per week and taking personal / carer’s leave for 2 days per week during the anticipated 12‑week blocks. The ACIC has refused this request because it does not consider that C.H. would be eligible for personal/carer’s leave under clause 131 of the Agreement in the circumstances.
C.H. has applied to the Commission to deal with the dispute under section 739 of the Fair Work Act 2009 (Act) and clauses 254 to 261 of the Agreement (which deal with dispute resolution). C.H. seeks a finding that his are “other exceptional circumstances” for the purposes of taking personal/carer’s leave under clause 131(c) of the Agreement. C.H. also seeks the restoration of annual leave taken instead of personal leave for this purpose and a review of, or changes to, the HBW Policy so that it is fairer for employees. The parties agree that the Commission has jurisdiction to deal with the dispute to the extent that it is about matters arising under the Agreement.
I have decided that the circumstances of C.H. are not exceptional circumstances within the meaning of clause 131(c) of the Agreement. Accordingly, no restoration of annual leave taken instead of personal/carer’s leave is required. I have not assessed the fairness of the HBW Policy. These are my reasons.
The Agreement
The Agreement is a single enterprise agreement covering the ACIC and its non-SES employees. The Agreement is supported by ACIC policies, procedures and guidelines (as updated from time to time) but they do not form part of the Agreement. The Agreement prevails over a policy, procedure or guideline to the extent of any inconsistency. Policies, procedures and guidelines which are referenced in and support the operation of the Agreement may be made or varied from time‑to‑time following consultation. They apply in the form they are in at the time of any relevant action or decision.
Clause 131 of the Agreement deals with “Personal/Carer’s Leave” and says this:
“All employees are entitled to access personal/carer’s leave (with or without pay) for the purposes of:
a) personal illness or injury;
b) caring responsibilities (for an Employee’s family or household members who may be ill or injured); or
c) other exceptional circumstances.”
The term “exceptional circumstances” is not defined in the Agreement and has its ordinary meaning. It is a term that is also used in:
Clause 71 of the Agreement, which provides that “in exceptional circumstances, an Employee may accrue flex credit above 22.5 hours with the agreement of their Manager”
Clause 123 of the Agreement, which provides that “the CEO may approve, in exceptional circumstances, purchased leave for a non-ongoing Employee”
Clause 212 of the Agreement, which provides that “in exceptional circumstances, an Employee may be required to be on call outside work hours for a finite period of time”, and
Clause 330 of the Agreement, which provides that “In all but exceptional circumstance, the maximum length of time a person should have to remain on duty is 14 hours, including the 12-hour shift and a two-hour additional duty period before or after the shift.”
Other clauses of the Agreement that are also relevant to the dispute include clause 106 (requests for flexible working arrangements) and Part D generally (dealing with Leave, including annual leave, purchased leave, long service leave, compassionate/bereavement leave and miscellaneous leave).
What are exceptional circumstances for the purposes of the Agreement?
The principles to be applied in the interpretation of enterprise agreements are well settled.[1] The first step is to determine whether the disputed terms of the agreement have a plain meaning or are instead ambiguous or susceptible to more than one meaning. The language of disputed terms is to be construed objectively, having regard to both context and purpose, and a narrow or pedantic approach to interpretation is to be avoided. Where there is ambiguity, evidence of surrounding circumstances can be admitted, but only to establish objective background facts relevant to the meaning of disputed terms.
Clause 131 of the Agreement operates within a statutory framework that provides for enterprise agreements to supplement, but not exclude, the National Employment Standards (NES). Accordingly, clause 131 supplements the NES entitlement to personal/carer’s leave by broadening the circumstances in which such leave can be taken under Division 7 of Part 2-2 of the Act.
Under section 97 of the Act, employees can take personal/carer’s leave if it is taken:
(a)Because they are not fit for work because of a personal illness/ or personal injury, affecting them, or
(b)To provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of a personal illness, or personal injury, affecting the member, or an unexpected emergency affecting the member.
The entitlement to personal/carer’s leave in clause 131 of the Agreement is expressed in more general terms than section 97 of the Act. It applies where an ACIC employee is ill or injured (clause 131(a)), or where they have caring responsibilities for a person in their family or household who is ill or injured (clause 131(b)). It also applies in other “exceptional circumstances” (clause 131(c)), although these are not exceptional circumstances ‘at large’. They include, but are not limited to, unexpected emergencies affecting a family or household member cared for by the employee, consistent with the NES.
The location of clause 131(c) within the group of clauses dealing with personal/carer’s leave affects its meaning. The Agreement also provides for a range of other forms of leave in addition to personal/carer’s leave, including as annual leave (at clauses 110-121), purchased leave (at clauses 122-128), long service leave (at clauses 157-159), and compassionate/bereavement leave (at clauses 171-172). The CEO may grant paid or unpaid miscellaneous leave ‘for a variety of purposes… having regard to the operational requirements of the ACIC, including for purposes that the CEO considers to be in its interests’ (clauses 164-168).
The availability of these various forms of leave indicates that personal / carer’s leave for the purposes of ‘other exceptional circumstances’ was not intended to be unlimited in scope and that it does not apply where another form of leave applies instead. Rather, the scope of personal/carer’s leave under clause 131(c) of the Agreement is limited to circumstances where, for personal health or caring reasons not otherwise covered by clauses 131(a) and (b), an employee needs to take leave. In this sense, the use of the word “other” in clause 131(c) is significant: it distinguishes clauses 131(a) and (b) from clause 131(c) while linking them together as a group of exceptional circumstances that necessitate the taking of leave.
The meaning of “exceptional circumstances” is often considered by the Commission in connection with the exercise of discretion in cases of unfair dismissal and unlawful termination. A Full Bench of Fair Work Australia summarised the position in Nulty v Blue Star Group[2]:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
This summary was developed having regard to the Federal Court decision of Rares J in Ho v Professional Services Review Committee No 295[3], where his Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
More recently, the meaning of “exceptional circumstances” was considered by the NSW Supreme Court to include the following principles[4]:
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered.[5]
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors.[6]
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.[7]
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision.[8]
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case.[9]
These cases guide the interpretation of clause 131(c) of the Agreement because, like in those cases, “exceptional circumstances” under the Agreement takes its ordinary meaning. It requires all of the relevant circumstances of the employee who has applied for personal/carer’s leave to be considered, bearing in mind the purpose of personal/carer’s leave under the Agreement. The caselaw is also consistent with how the term “exceptional circumstances” is used in the Agreement. In the clauses referred to at paragraph [8] above, exceptional circumstances are those that are an exception to the rule (accruing more than the flex credit ceiling, or approval of purchased leave for those who would not usually be eligible), or out of the ordinary or unexpected (being required to be on call outside of work hours, or working a shift of more than the agreed maximum shift length).
Are the circumstances of C.H. exceptional?
The circumstances relied upon by C.H. in support of his application for personal/carer’s leave are, in short, the potential risk, delay and increased costs of invitro-fertilisation (IVF) treatment associated with COVID-19 infection, having regard to his wife’s serious medical condition and cumulatively rare pre-existing conditions.
The medical certificates confirm that C.H’s wife has Stage 4 Endometriosis. The certificates do not speak to the seriousness or rarity of the condition or the existence of more than one condition, although I accept that Stage 4 is the most severe form of endometriosis. I also accept that their attempts to start a family over 4 years have been unsuccessful and that C.H. and his wife are approaching the age where fertility drops significantly.
While they are undergoing IVF treatment, medical practitioners have recommended, but not instructed, C.H. and his wife to minimise their risk of exposure to COVID-19. This has led to their decision to maintain a ‘lockdown lifestyle’: only leaving home for exercise, groceries and to attend medical appointments. C.H.’s wife works from home. C.H. works partly from home and partly in the office. When he travels for work, he lives apart from his wife on his return in ‘self-isolation’ for days at a time to reduce her risk of exposure to COVID-19.
C.H submits that these are “exceptional circumstances” because they:
are requirements or recommendations of successful medical treatment that are not compatible with his working arrangements,
are unlikely to be applicable for most other staff, given the compounded seriousness and cumulative rarity of his wife’s pre-existing conditions,
will not apply on a continuous or permanent basis as there will be gaps between treatment periods and treatment will eventually end, and
are dependent on the current COVID-19 environment, as a significant reduction in case numbers or relaxation of treatment guidelines would mean leave would likely no longer be required.
C.H. also submits that the risk of COVID-19 transmission is higher in the ACIC offices than in the Australian Capital Territory (ACT), where the office is located. The ACIC denies this assertion and submits that if anything, the risk is lower. Neither has established their respective proposition. The analysis provided by C.H. does not take into account a range of variables including the incidence of unreported infection and the source of infection for a particular individual. Many of the individuals who reported infection to the ACIC also reported that they had not been in the office while infectious, while others were unsure. The submission that risk of transmission within ACIC offices is lower because rates of vaccination are higher (100%) than in the community generally (less than 100%) does not account for matters such as waning vaccine efficacy, office-related ventilation and proximity issues as well as non‑compliance with risk management strategies. It is not a matter that is necessary to decide. It can generally be accepted that there is a risk of exposure to COVID-19, now present in the community, in any place where people interact together, including workplaces of the ACIC.
C.H. submits that before the COVID-19 pandemic, there were no specific medical guidelines that would delay or compromise their treatment. Any other disease that would warrant such consideration was not as virulent or widespread in Australia as COVID-19 now is. Outside of the IVF treatment, or after an initial high-risk period has passed, his circumstances would not warrant the kind of longer‑term precautions that might be necessary for employees who are permanently immunocompromised. Further, the refusal to grant personal leave is having psychological impacts due to anxiety about contracting COVID‑19 at work and uncertainty about both working conditions and his future career. On this issue, C.H. has indicated to the ACIC that if he is required to work in the office for 2 days each week, he will find alternative employment.
The ACIC does not consider the circumstances of C.H. to be exceptional. It argues that most people wish to avoid contracting COVID-19, while many will face circumstances where contracting COVID-19 will negatively affect their health. This includes those who are auto‑immune compromised, or who have surgery delayed, or who are unable to visit certain places or participate in certain events because of the risk of COVID-19 infection either to themselves or others. The view of the ACIC is that exceptional circumstances include unexpected personal/carer emergencies, specialist appointments, hospital visits and the like, but not most scheduled absences.
Supporting the ACIC’s interpretation of the Agreement is its HR/EA Interpretation and Guidance series – Personal/Carer’s Leave Policy which, at clause 19, explains that an employee is entitled to personal/carer’s leave if they are:
Unfit for duty due to personal illness or injury, or
Providing care or support to a member of their immediate family or household member requiring care and support because of a personal illness or injury, or
Required to absent themselves from work due to exceptional circumstances such as an unexpected emergency affecting the employee.
Under the HR/EA Guidance, “exceptional circumstances” include situations where an employee is required to absent themselves from work due to an unexpected emergency affecting the employee. It would not usually include arrangements that can be planned for in advance, although exceptions can be made in a particular case. Arrangements that can be planned for, such as Pupil Free Days and scheduled household maintenance, are not considered unexpected emergencies. However, applications for personal/carer’s leave for emergency purposes where notice of the situation has been available to the employee may be considered by the manager and approved if the manager considers that the employee’s personal circumstances warrant it.
While it does not affect the meaning of clause 131 of the Agreement, commentary in the HR/EA Guidance “due to exceptional circumstances such as an unexpected emergency affecting the employee” sheds light on the approach the ACIC has taken in relation to its broadening of the NES entitlement to personal/carer’s leave under the Agreement. Leave has been expanded to cover unexpected emergencies affecting both the employee and the person for whom they have caring responsibilities. However, this example should not be understood as exhaustive. While unexpected emergencies will usually be “exceptional circumstances”, not all exceptional circumstances will be emergencies. Many other circumstances are also likely capable of being described as exceptional.
Given its ordinary meaning, clause 131(c) of the Agreement does not limit the category of personal/carer’s leave for exceptional circumstances to those that constitute unexpected emergencies. Nor does it limit leave of this kind to circumstances relating only to the health or wellbeing of an employee. The clause covers all exceptional circumstances that, for personal health or caring reasons, necessitate the taking of leave except those that fall within the scope of clauses 131(a) and (b) of the Agreement.
The leave sought to be taken by C.H. cannot be taken as personal or carer’s leave under clause 131(a) and (b) of the Agreement. C.H. does not have a personal illness or injury that would prevent him from attending the office for 2 days per week. If fear and anxiety about contracting COVID-19 through unnecessary exposure in the workplace cause him and his wife distress and strain, he may indeed become eligible for personal carer’s leave under clause 131(a) of the Agreement.
The notion that C.H is performing carer-like duties by limiting exposure to COVID-19 and maintaining the physical integrity of the household to reduce external risk factors and ensure effective treatment is rejected. It is effectively an argument in support of a claim for carer’s leave under clause 131(b) of the Agreement. However, carer’s leave is for the purpose of caring for a person who is affected by illness, injury or unexpected emergency. It is not for the broader preventative purpose of avoiding illness, injury or emergency. Such an interpretation would significantly expand the scope of the entitlement to personal/carer’s leave beyond what is contemplated by the Agreement. While C.H may need to take leave in the future to care for his wife when she is ill, for example, in connection with her medical condition, the need for this to occur for 2 days of each week that C.H. has sought to take personal/carer’s leave is not established.
That leaves the question of whether leave can be taken under clause 131(c) of the Agreement. I accept that the reasons relied upon by C.H. fall generally in the category of personal health reasons, but they are not reasons that necessitate the taking of leave. The potential for risk, delay and increased costs associated with invitro-fertilisation (IVF) treatment due to COVID-19 infection is not an exceptional circumstance. It is a circumstance regularly encountered by couples undergoing IVF treatment since 2020. Further, endometriosis is an underlying condition. For C.H. and his wife, having to deal with the condition is part of their ordinary life, rather than an exception.
It is common for people to worry about, and seek to avoid, exposure to COVID‑19, for a range of reasons. They may have an underlying condition that increases their risk of severe injury or death. They may not want to infect others. They may be limited in who they can visit, or where they can go. Fear or anxiety about exposure to COVID-19 is not an exceptional circumstance.
The evidence does not establish that C.H. is uniquely affected by the HBW Policy compared to other ACIC employees. Indeed, it is likely that there are a range of personal and medical circumstances affecting employees of the ACIC and their varying preferences in relation to working from the office and from home. There is no basis to find that other ACIC employees are affected by the HBW Policy either in the same way as C.H, or in a different way, or not at all. The circumstances of C.H. are not exceptional on this account.
It will often be the case that working arrangements come into conflict with medical recommendations, both work- and non-work‑related. For this reason, employers regularly make reasonable adjustments to accommodate particular needs such as disability, illness and injury, both to promote and support workplace participation. In this case, the ACIC has suggested a range of reasonable adjustments to reduce the risk to C.H. while he is at work, including changes to his hours of work and internal office location. There appear to be some practical difficulties with what has been suggested, but this is an area that could be further explored through sensible discussion between the parties to address the concerns of C.H.
The circumstances relied upon by C.H. will not endure forever but what is contemplated is a regularly encountered pattern of absence for 12 weeks at a time, possibly multiple times each year, over a period of up to 5 years. In the meantime, the COVID‑19 environment is evolving. Widespread restrictions have largely been relaxed due to high vaccination rates among the community as well as embedded risk management strategies in places where people gather, including the workplace of the ACIC.
When each of these matters are taken into account, I do not find the circumstances relied upon by C.H. in support of his request for personal/carer’s leave to be “other exceptional circumstances” for the purposes of clause 131(c) of the Agreement. This is the case whether the circumstances of C.H. are considered individually or in combination.
The HBW Policy
C.H. seeks a review of the “unfair work from home policy currently implemented” by the ACIC, having regard to his personal circumstances, broader Australian Public Service (APS) approaches and its underlying purpose of supporting career progression and workplace cohesion as well as the practical implications of the policy. In my view, this is beyond the scope of my power to arbitrate, because the fairness of ACIC policies, including in their application to a particular employee, is not a matter arising under the Agreement. While the Agreement acknowledges the existence of various ACIC policies, procedures and guidelines, they do not form part of the Agreement.
Other matters
The ACIC objects to my dealing with aspects of the application by C.H. relating to a request for flexible working arrangements within the meaning of section 65 of the Act. Firstly, it submits that C.H. has not made such a request. Secondly, the ACIC submits that I have no jurisdiction to deal with the matter.
C.H. does not appear to be eligible to make a request for flexible working arrangements under section 65 of the Act, because none of the circumstances in section 65(1A) appear to apply. If I am wrong about that, the second difficulty is that the ACIC denies any knowledge of a request made by C.H. under section 65. In those circumstances, it is difficult to see how there can have been discussions at the workplace level about it, such that the dispute resolution process in clauses 254 to 261 of the Agreement has been followed. As a result, I do not yet have jurisdiction to deal with a dispute about whether the Agreement permits arbitration of disputes about a request made by C.H. under section 65 of the Act.
Conclusion
The circumstances of C.H. are not “other exceptional circumstances” for the purposes of clause 131(c) of the Agreement.
The dispute is determined accordingly.
COMMISSIONER
Hearing details:
Determined on the papers.
Final written submissions:
June 28.
[1] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Limited[2017] FWCFB 3005; The Australasian Meat Industry Employees Union v Golden Cockerel[2014] FWCFB 7447; see also Workpac v Skene [2018] FCAFC 131.
[2] [2011] 203 IR 1 at [13].
[3] [2007] FCA 388 (27 March 2007).
[4] Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66].
[5] R v Kelly (Edward)[2000] 1 QB 198 (at 208).
[6] R v Buckland[2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
[7] Ho v Professional Services Review Committee No 295[2007] FCA 388 (at [26]).
[8] R v Buckland (at 1268; 912-913).
[9] Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).
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