Construction, Forestry, Maritime, Mining and Energy Union v Wambo Open Cut Pty Ltd T/A Wambo Open Cut Mine

[2019] FWC 7707

[2019] FWC 7707

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union
v
Wambo Open Cut Pty Ltd T/A Wambo Open Cut Mine
(C2019/4809)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 8 NOVEMBER 2019

Application to deal with a dispute in accordance with a dispute procedure in an enterprise agreement – warning given to employee in relation to taking of carer’s leave.

Introduction and background

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Wambo Open Cut Pty Ltd (Wambo) are in dispute about a level 3 final warning (Warning) issued to Ms Michelle Le Brocq on 4 June 2019 (Dispute). Ms Le Brocq is a member of the CFMMEU. She is employed by Wambo as a Production Operator at the Wambo Open Cut Mine (Mine).

[2] On 5 August 2019, the CFMMEU filed an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) in the Fair Work Commission (Commission) for the Commission to deal with the Dispute.

[3] The Peabody Energy Australia Wambo Open Cut Enterprise Agreement 2015 (Agreement) applied to Ms Le Brocq and Wambo at the time the level 3 warning was issued to Ms Le Brocq, when the Dispute arose, and when the Dispute was the subject of arbitration before the Commission on 21 October 2019.

[4] On 17 October 2019, a new enterprise agreement was approved by the Commission to replace the Agreement, which had a nominal expiry date of 14 December 2018. The new enterprise agreement is known as the Peabody Energy Australia Wambo Open Cut Enterprise Agreement 2019 (2019 Agreement). It commenced operation on 24 October 2019 and has a nominal expiry date of 1 March 2022. In the context of the Dispute, there are no material differences between the relevant terms of the Agreement and the 2019 Agreement.

[5] There is no dispute between the parties that I have jurisdiction to arbitrate the Dispute.

Relevant facts

[6] Ms Le Brocq commenced employment with Wambo on 26 February 2018. She is allocated to C crew and works a mixture of dayshift (6am to 4:30pm) and nightshift (4:30pm to 3am) at the Mine.

[7] Ms Le Brocq has a daughter who is about 10 years old. Ms Le Brocq is separated from her daughter’s father and they share custody of their daughter.

[8] On 17 August 2018, Ms Le Brocq attended a meeting with her supervisor, Mr Clinton Dark, and Mr Jeff Hanlon, Open Cut Mine Manager, to discuss Ms Le Brocq’s probationary performance review. The probationary performance review document reveals that Ms Le Brocq met Wambo’s performance expectations in all areas save one during her six month probationary period. 1 The one area in which Ms Le Brocq failed to meet Wambo’s performance expectations was “takes responsibility for own development (including completion of initial compulsory training e.g. SAP training for Maintenance employees)”. The comment made next to this performance criterion was “needs to improve on unplanned absenteeism”. Mr Dark’s final comment on the probationary performance review document was as follows:

“Michelle’s thirst for learning and life is infectious, her enthusiastic approach to day to day duties are outstanding, but must make a vast improvement on her sick leave.”

[9] At the meeting on 17 August 2018, it was brought to Ms Le Brocq’s attention that she had:

•  taken eight days personal leave;

•  failed to complete the required leave forms, except for one;

•  failed to provide medical certificates for any leave; and

•  taken three consecutive sick days without providing a certificate, in breach of the Wambo Coal Personal Leave and Absenteeism Policy (Leave Policy).

[10] During the meeting, Ms Le Brocq agreed that she would bring a medical certificate for all future days of personal leave when the absence was greater than one shift and complete the required leave form for all absences. There is no dispute that Ms Le Brocq complied with these requirements from 17 August 2018 until 25 March 2019.

[11] In early 2019, Mr Hanlon, as part of an initiative to address what he considered to be a poor culture in relation to absenteeism at the Mine, reviewed the leave records of employees across the Mine. As part of this review, Mr Hanlon identified a number of employees who had taken three or more single days of personal/carer’s leave without a medical certificate within the prior 12 month period. Ms Le Brocq was one such employee. Mr Hanlon then provided to Ms Le Brocq (and each other employee he had identified) a letter dated 1 February 2019 in the following terms:

“Dear Michelle

REQUIREMENT TO PROVIDE MEDICAL CERTIFICATES

Following a recent review of all employees’ personal leave (sick and carers), it has been identified that you have taken three or more days without providing a medical certificate in the last 12 months.

Enclosed with this letter is a copy of your recorded absences.

As per the Wambo Personal Leave and Absenteeism Policy:

“an Employee is entitled to a total of three (3) single day absences in a rolling 12 month period without being required to provide evidence to substantiate their personal leave requests, unless there are particular circumstances which make it reasonable for the Company to request evidence.”

Please be advised that you are now required to provide a medical certificate for all future personal leave absences. Failure to provide a medical certificate may lead to disciplinary action.

This requirement will be in place for a period of six months and will be reviewed in line with the Wambo Personal Leave and Absenteeism Policy.”

[12] On 20 March 2019, Ms Le Brocq was issued with a level 2 warning for failing to log in on her arrival at the Mine and complete a blood alcohol concentration test prior to commencing work. Ms Le Brocq did not dispute this warning.

[13] On 26 March 2019, Ms Le Brocq had custody of her daughter and was due to pick up her daughter from school prior to commencing night shift at the Mine at 4:30pm. After receiving a telephone call from her daughter’s school informing her that her daughter was not well, Ms Le Brocq picked her daughter up from school at about 1:30pm. Ms Le Brocq observed that her daughter had what appeared to be boils between her legs and on her stomach. Ms Le Brocq obtained advice from her mother and then decided that the appropriate course of action was to attend the chemist and obtain medication to treat the boils. Ms Le Brocq did not think it was necessary to take her daughter to the doctors because she knew she could care for her daughter. Ms Le Brocq sent photographs to her daughter’s father of the medication that she had bought to treat the boils. Ms Le Brocq gave evidence, which I accept, that her daughter was in considerable discomfort at the time and needed to be cared for by her.

[14] At 1:36pm on 26 March 2019, Ms Le Brocq sent a text message to her step–up supervisor, Mr Deaves, in the following terms:

“Hey jeddels, I am not coming in tonight had to pick up Mia from school, she’s had a few boils pop up. I don’t have crabs number but I called Dave and now you, I will grab his number next shift! Sorry!!”

[15] Ms Le Brocq also attached a photograph of her daughter’s boils to her text message to Mr Deaves, who responded as follows:

“All good Shelly. I hope she’s ok”

[16] Ms Le Brocq then sent a further text message to Mr Deaves:

“Thanks Jed, yeah I am not going to send her tomorrow either. Poor kid – right between her legs she can’t walk.”

[17] Mr Deaves responded by text, stating “Poor thing”.

[18] Ms Le Brocq also called and spoke to her other supervisor for the shift, Mr Dave Richards, to notify him of her absence from work.

[19] Ms Le Brocq did not attend for work at the Mine on 26 March 2019. At that time, she had a personal/carer’s leave credit of 85 hours. Wambo paid Ms Le Brocq carer’s leave for her shift on 26 March 2019.

[20] Ms Le Brocq attended the Mine for her next shift following her absence on 26 March 2019 and nothing was said to her in relation to her absence from work on carer’s leave on 26 March 2019.

[21] Ms Le Brocq accepts that she forgot to submit a written application for leave in relation to her absence from work for carer’s leave on 26 March 2019.

[22] At the end of April 2019, Wambo undertook a further review of employee absences. As part of this review, Mr Hanlon identified that Ms Le Brocq was absent from work on personal/carer’s leave on 26 March 2019 and had not provided a leave application form or a medical certificate in respect of her absence. Mr Hanlon considered this to be a breach of the requirements of the letter provided to Ms Le Brocq on 1 February 2019 and the requirement that she submit a leave application form for all absences from work.

[23] On 6 or 7 May 2019, Ms Le Brocq attended for work at the Mine and was informed that she was required to speak to Mr Hanlon, which she did. Mr Hanlon informed Ms Le Brocq that she had taken a sick day on 26 March 2019 without following the requirements in relation to personal absences, and she needed to provide a medical certificate. Mr Hanlon also informed Ms Le Brocq that he had a level 3 warning for her which, subject to the outcome of the meeting, she would be given. Ms Le Brocq told Mr Hanlon that she had been absent on 26 March 2019 because her daughter was sick and needed her care. There is a dispute between Ms Le Brocq and Mr Hanlon as to what was said in relation to obtaining a medical certificate for the absence on 26 March 2019. Ms Le Brocq contends that Mr Hanlon asked if she could bring in a doctor’s certificate for her absence and she indicated that she could “probably get one as my daughter’s father may have a certificate”. 2 Mr Hanlon contends that Ms Le Brocq told him her ex-partner had taken their daughter to the doctors and had a medical certificate, in response to which Mr Hanlon told Ms Le Brocq that she had seven days to produce the medical certificate, and if she did, the level 3 warning would not be issued to her. Mr Hanlon’s recollection of the conversation is supported by a contemporaneous note he made in his diary.3

[24] On 15 May 2019, Mr Hanlon spoke to Ms Le Brocq in the hallway at work. Again, there is a dispute as to what was said. Ms Le Brocq contends that Mr Hanlon asked her if she had a medical certificate and she indicated she did not but said she would bring something in the following day. Mr Hanlon contends that he told Ms Le Brocq she owed him some documentation and Ms Le Brocq assured him she had the documents and would bring them in the next day.

[25] On 16 May 2019, Ms Le Brocq provided Wambo with a statutory declaration and a completed leave application form. In her statutory declaration, Ms Le Brocq declared and affirmed that her daughter required her care due to a case of boils on 26 March 2019, resulting in Ms Le Brocq taking off night shift on that night. Ms Le Brocq did not provide Wambo with a medical certificate because she did not have one, nor did her daughter’s father.

[26] On 24 May 2019, Ms Le Brocq met with Mr Hanlon. Mr Hanlon informed Ms Le Brocq that a statutory declaration was not sufficient and would not be accepted, and he required her to provide a medical certificate in accordance with the letter dated 1 February 2019. There is a dispute between Mr Hanlon and Ms Le Brocq as to what was said in the balance of their discussion on 24 May 2019. Mr Hanlon contends that Ms Le Brocq informed him that she had not attended the medical practice with her daughter, her ex-partner had taken the child, and she had an issue getting the medical certificate from her ex-partner. Mr Hanlon then says he advised Ms Le Brocq that she could still request that the medical practice provide a certificate or correspondence verifying that her child attended the medical practice that day. Ms Le Brocq contends she did not inform Mr Hanlon that her ex-partner had taken their child to the doctor; she indicated that he may have. Mr Hanlon’s recollection of this conversation is supported by a contemporaneous note he made in his diary.

[27] On 4 June 2019, Ms Le Brocq attended a further meeting with Mr Hanlon. Ms Le Brocq informed Mr Hanlon that her daughter had not attended a medical practice on 26 March 2019. Mr Hanlon then issued the Warning to Ms Le Brocq, which states:

“…THIS WARNING

Type of Breach: Safety X Attendance X

Summary of Events/Facts Relating to the Incident:

Michelle was issued with a letter on 13 February 2019, stating that for all future absences from work, she must provide a medical certificate as she has exceeded three single day absences in a rolling 12-month period without providing evidence to substantiate her personal leave request. Michell has continued to take personal leave without providing a medical certificate to substantiate her absence.

Type of Warning: Level 3 X

Reasons Why This Incident Warrants This Level of Warning:

Michelle has continued to breach the Wambo Personal leave and Absenteeism Policy.

Corrective Actions to be Taken by the Employee:

For all future personal leave absences Michelle must provide a medical certificate.

Possible Consequences of Failure to Improve or Future Breaches:

If Michelle fails to provide a medical certificate for any future personal leave absences, this will result in further Disciplinary action, up to and including termination of employment…”

[28] Although I accept that Ms Le Brocq was stressed at the prospect of receiving a level 3 warning, I prefer Mr Hanlon’s evidence over that given by Ms Le Brocq in relation to the disputed parts of their conversations on 6 or 7 May 2019, 15 May 2019, and 24 May 2019, for the following reasons:

•  Mr Hanlon’s recollection is, in part, supported by his contemporaneous diary notes;

•  Ms Le Brocq’s evidence that she told Mr Hanlon she “could probably get one as my daughter’s father may have a certificate” 4 does not ring true. Ms Le Brocq knew that she had not taken her daughter to a doctor and her ex-partner had not taken her daughter to the doctors on 26 March 2019. At best, there was a chance that Ms Le Brocq’s ex-partner may have taken their daughter to a doctor at some earlier time and obtained a medical certificate. In those circumstances, it was not accurate for Ms Le Brocq to tell Mr Hanlon that she “could probably get” a medical certificate; and

•  In cross examination, Ms Le Brocq accepted that she had communicated to her ex-partner prior to her discussion with Mr Hanlon on 15 May 2019 and was aware that he did not have a medical certificate. Notwithstanding that, Ms Le Brocq, on her own evidence, told Mr Hanlon on 24 May 2019 that her ex-partner may have taken their child to the doctor. 5

Relevant terms of the Enterprise Agreement

[29] The following terms of the Enterprise Agreement are relevant to the Dispute:

“3. APPLICATION OF THE AGREEMENT

This Agreement sets out all the entitlements to remuneration and conditions of employment for Employees engaged at the Mine and covered by this Agreement. This Agreement supersedes and replaces all past agreements, customs and practices, either written or verbal.

…

6. COMPANY POLICIES AND PROCEDURES

Company Policies and Procedures do not form part of this Agreement. Employees are required to comply with the Company’s Policies and Procedures as varied from time to time. Appropriate training or familiarisation will be provided to Employees if required.

…

8.1 Confirmation of Employment

All new Employees at the time of engagement will be given a letter outlining their conditions of employment including a copy of this Agreement.

8.2 No Extra Claims

The parties agree that for the term of this Agreement they shall make no extra claims.

…

27. PERSONAL / CARER’S LEAVE

The purpose of making available personal/carer’s leave is to mitigate against financial hardship for Employees resulting from absences due to genuine personal illness or injury; or an illness, injury or unexpected emergency of a member of the Employee’s Immediate Family that requires the Employee to care for or support that person.

…

27.4 Taking Personal/Carer’s leave

It is expected that Employees must notify their supervisor as soon as reasonably practicable before the commencement of the shift where Employees are unable to attend work due to illness or injury stating the reason for the leave. Further notification is required from Employees if the duration of the absences extended beyond the initial notification.

Employees will be required to provide a medical certificate or other evidence to the satisfaction of the Company where Employees are claiming paid personal/carer’s leave for an absence greater than two (2) or more consecutive shifts.

Where the Company is not satisfied with an Employee’s stated reasons for the absence the Company may require the Employee to provide a medical certificate from a registered health practitioner or where not reasonably practicable; a statutory declaration for any period of personal/carer’s leave.

Employees may use their personal/carer’s leave entitlement to provide care and support for a member of their Immediate Family where such a person is ill or injured and Employees have a medical certificate stating that care by Employees is required.

Employees will not be entitled to claim paid personal/carer’s leave unless Employees meet the requirements as outlined above.”

Relevant policies

[30] The Leave Policy applies to Ms Le Brocq. Relevantly, it provides:

“5.0 Managing Personal Leave

5.1 Personal Leave Guidelines

The taking of, and payment for, Personal Leave is in accordance with the provisions in the relevant industrial instrument.

Employees who are genuinely ill or injured, or are required to provide care or support to an immediate family member or a member of the Employee’s household for genuine purposes will be entitled to their accumulated Personal Leave entitlements.

5.2 Notification of Personal Leave

If an Employee cannot report to work for reasons covered by Personal Leave, the Employee is required to notify his/her Supervisor. This should occur prior to the commencement of their rostered shift unless the Employee cannot comply because of circumstances beyond their control. The Employee must state the estimated duration of the absence.

5.3 Requirement for Supporting Documentation

An Employee who is genuinely ill or incapacitated or providing care and support to a family member or member of the Employee’s household for genuine purposes is required to provide evidence substantiating the absence. The evidence has to be sufficient to reasonably satisfy the Company that the absence is genuine.

The Company’s policy, which operates subject to the National Employment Standards, is to require substantiation in accordance with the following:

Normal Requirements

For any period of Personal Leave of two (2) or more consecutive days, the Employee is required to provide medical evidence (e.g. a medical certificate from a medical practitioner) to substantiate their Personal Leave request.

For any absence adjacent to public holidays (including long weekends resulting from public holidays) and/or annual leave, the Employee will be required to provide medical evidence (e.g. a medical certificate from a medical practitioner) to substantiate their Personal Leave request. This will only apply to rosters where the relevant public holidays are not rostered to be worked.

Otherwise, an Employee is entitled to a total of three (3) single day absences in a rolling 12 month period without being required to provide evidence to substantiate their personal leave requests, unless there are particular circumstances which make it reasonable for the Company to request evidence.

After the Employee has taken three (3) single day absences in the previous 12 months they are required to provide written evidence (e.g. a medical certificate from a medical practitioner) to substantiate any further Personal Leave requests (whether single or multiple days).

An Employee who is required to provide evidence (i.e. a medical certificate from a medical practitioner) to substantiate a request for Personal Leave can provide a statutory declaration instead if it is unreasonable in the circumstances for them to be expected to attend a medical appointment.

…

When the evidence is required

If an Employee is required to provide evidence to substantiate a request for Personal Leave, the evidence should be provided to the Company as soon as reasonably practicable. This may be before or immediately after the Personal Leave has started, unless the Employee cannot comply because of circumstances beyond their control.

Requirement to request further evidence when reasonable

The Company has the discretion to request further evidence to substantiate an Employee’s request for Personal Leave at any time if it considers that the evidence provided by the Employee would not satisfy a reasonable person that the Personal Leave is taken for a genuine purpose. This can include a requirement that a medical certificate is required even when normally this procedure would not require it.

If the Employee disputes the Company’s request to provide further evidence, this may be dealt with in accordance with the dispute resolution procedure contained within the industrial instrument relevant to the Employee…”

[31] The Warning was issued to Ms Le Brocq pursuant to the Wambo Coal Counselling and Disciplinary Policy (Disciplinary Policy). Section 4.3.3 of the Disciplinary Policy provides:

“A final warning will be given to an Employee when:

a) The Employee commits a Level 3 infringement; or

b) The Employee has failed to meet accepted behavioural standards within a twelve (12) month period of being placed on Level 2…”

Relevant statutory provisions

[32] The following provisions of the Act are relevant to the Dispute:

“s 55 Interaction between the National Employment Standards and a modern award or enterprise agreement

National Employment Standards must not be excluded

(1)  A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.

Terms expressly permitted by Part 2-2 or regulations may be included

(2)  A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:

(a) by a provision of Part 2-2 (which deals with the National Employment Standards); or

(b) by regulations made for the purposes of section 127.

(3)  The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).

Ancillary and supplementary terms may be included

(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.

…

s 61 The National Employment Standards are minimum standards applying to employment of employees

(1)  This Part sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).

…

s 97 Taking paid personal/carer's leave

An employee may take paid personal/carer's leave if the leave is taken:

(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; 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:

(i) a personal illness, or personal injury, affecting the member; or

(ii) an unexpected emergency affecting the member.

…

s 107 Notice and evidence requirements

Notice

(1)  An employee must give his or her employer notice of the taking of leave under this Division by the employee.

(2)  The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period, of the leave.

Evidence

(3)  An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

(a) if it is paid personal/carer's leave--the leave is taken for a reason specified in section 97; or

(b) if it is unpaid carer's leave--the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or

(c) if it is compassionate leave--the leave is taken for a permissible occasion in circumstances specified in subsection 105(1); or

(d) if it is unpaid family and domestic violence leave, and the employee has met the requirement specified in paragraph 106B(1)(a)--the leave is taken for the purpose specified in paragraph 106B(1)(b), and the requirement specified in paragraph 106B(1)(c) is met.

Compliance

(4)  An employee is not entitled to take leave under this Division unless the employee complies with this section.

Modern awards and enterprise agreements may include evidence requirements

(5)  A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer's leave, unpaid carer's leave or compassionate leave.”

[33] It is apparent from these provisions that in order to qualify for an entitlement to paid personal/carer’s leave under s 96 of the Act, an employee must meet two separate requirements: 6

•  first, the employee circumstances must, as a matter of fact, meet one of the criteria in s 97 of the Act; and

•  secondly, the employee must meet the notice and evidentiary requirements of s 107 of the Act.

Submissions

[34] Both parties filed detailed written submissions and made oral submissions in the arbitration on 21 October 2019. I have had regard to all those submissions in deciding this matter.

[35] In summary, the CFMMEU contends:

•  the Warning should not have been issued to Ms Le Brocq;

•  the evidentiary requirements placed on Ms Le Brocq in the Warning are contrary to the Agreement and the National Employment Standards (NES), to the extent the NES apply;

•  the Leave Policy, as applied to Ms Le Brocq and other employees, is inconsistent with the Agreement and the NES, to the extent the NES apply; and

•  the evidentiary requirements imposed on Ms Le Brocq on 1 February 2019 for the taking of personal/carer’s leave are contrary to the Agreement and the NES, to the extent the NES apply.

[36] In summary, Wambo contends:

•  Ms Le Brocq had an objectively poor record of compliance with procedural requirements in respect of personal/carer’s leave, which had been discussed with her at the conclusion of her probationary review;

•  there is no dispute that Ms Le Brocq’s daughter was ill and needed her care on 26 March 2019;

•  Ms Le Brocq took steps to notify her supervisor of her absence on 26 March 2019, but failed to provide any evidence (medical or otherwise) or even submit the required form, as she had agreed to do at the conclusion of her probationary review. She then provided unsatisfactory and misleading responses to Mr Hanlon in relation to the existence and provision of a medical certificate;

•  Wambo was justified in issuing the Warning to Ms Le Brocq on the basis that she failed to meet accepted behavioural standards, in that she failed to provide any evidence explaining her absence on 26 March 2019 or even submit an application in the required form and deliberately misled Wambo on several occasions during the discussions about her absence on 26 March 2019;

•  there is no need to determine whether the fourth subparagraph of clause 27.4 of the Agreement gave Wambo the right to require Ms Le Brocq to provide a medical certificate for each carer’s leave absence, because that is not what Wambo did in this case and it was not the reason the Warning was issued to Ms Le Brocq; 7 and

•  neither clause 27.4 of the Agreement nor s 107 of the Act restrict Wambo’s ability to put in place a policy setting out additional procedural requirements for the taking of personal/carer’s leave where properly justified.

[37] Wambo also proposed, in final oral submissions, to amend the Warning in the following respects:

•  by deleting the reference to “safety” as one of the “type[s] of breach” which gave rise to the Warning. Wambo accepts that Ms Le Brocq did not breach any relevant safety standard; and

•  by amending the “corrective actions” and “possible consequences” parts of the Warning as follows, to ensure consistency with the Leave Policy:

“Corrective Actions to be Taken by the Employee:

For all future personal leave absences Michelle must provide a medical certificate or statutory declaration if it is unreasonable in the circumstances to be expected to attend a medical appointment.

Possible Consequences of Failure to Improve or Future Breaches:

If Michelle fails to provide a medical certificate or statutory declaration if it is unreasonable in the circumstances to be expected to attend a medical appointment for any future personal leave absences, this will result in further Disciplinary action, up to and including termination of employment…”

Approach to be applied in determining the Dispute

[38] Wambo’s Disciplinary Policy is not incorporated into the Agreement. The issue of disciplinary action is not dealt with in any substantive way in the Agreement. In those circumstances, the question of disciplinary action is a matter of managerial prerogative and the Commission as the arbitrator of a dispute such as the present would not interfere with the employer’s decision to impose disciplinary action such as a warning unless it was unjust or unreasonable. 8 The decision may be unjust if, for example, the employee did not engage in the misconduct alleged by the employer. The decision would be unreasonable if no reasonable person in the position of the employer could have made the decision.9

Consideration

[39] The Warning was issued, according to its terms, because Ms Le Brocq breached the Leave Policy. Wambo contends that Ms Le Brocq breached the Leave Policy by not providing a medical certificate in respect of her carer’s leave on 26 March 2019. Wambo also contends that it was not open to Ms Le Brocq to provide a statutory declaration instead of a medical certificate because it was not unreasonable in the circumstances for Mr Le Brocq to be expected to attend a medical appointment. Wambo contends that the question of reasonableness in this context is not to be assessed by reference to the nature of the illness, but primarily by whether it is practicable for the employee to attend a medical appointment. In that regard, Wambo points to the fact that Ms Le Brocq picked up her daughter from school at 1:30pm and had time to attend a medical appointment that afternoon.

[40] I do not accept these submissions by Wambo. The Leave Policy gave Ms Le Brocq the option of providing either evidence such as a medical certificate or a statutory declaration if it was unreasonable in the circumstances to expect Ms Le Brocq to attend a medical appointment. Ms Le Brocq did not provide a medical certificate, but did provide a statutory declaration, albeit only after a request was made of her for evidence, together with the earlier photographs she had provided to her supervisor. In my view, the question of whether it is unreasonable in the circumstances for an employee to be expected to attend a medical appointment involves a broader enquiry than just the practicalities of attending a medical appointment. A child may suffer many illnesses or injuries where treatment by a medical practitioner is not required, but it is necessary for a parent of the child to provide care or support for the child as a result of their illness or injury. The present case is but one example. Ms Le Brocq’s daughter was in considerable discomfort on 26 March 2019 and needed to be cared for by her mother; the school called Ms Le Brocq to collect her daughter at lunch time. Ms Le Brocq had dealt with the treatment of boils in the past. She obtained the necessary medication from the chemist. I accept Ms Le Brocq’s assessment that her daughter did not require treatment by a medical practitioner. In those circumstances, although there was time in the afternoon of 26 March 2019 for Ms Le Brocq and her daughter to attend a medical appointment (assuming one could be arranged at short notice), I am satisfied that it was unreasonable in the circumstances for Ms Le Brocq to be expected to attend a medical appointment. In all the circumstances, I find that Ms Le Brocq did not breach the Leave Policy in connection with her absence from work on the ground of carer’s leave on 26 March 2019.

[41] Although the Warning does not make any mention of it being issued to Ms Le Brocq because she misled Mr Hanlon during their discussions in relation to her carer’s leave on 26 March 2019, Wambo seeks to rely on that conduct as an alternative justification for the Warning.

[42] It is necessary to consider the communications between Ms Le Brocq and Mr Hanlon in May 2019 in context. That context includes Ms Le Brocq’s leave record prior to 1 February 2019 and the direction issued to her on that day to “provide a medical certificate for all future personal leave absences”. Wambo came to impose that requirement because it had a concern that employees at the Mine were taking non-genuine personal/carer’s leave.

[43] It is appropriate for an employer to seek to minimise the taking of non-genuine personal/carer’s leave by its employees. But the steps taken to achieve that objective must conform with the employer’s own policies, together with any applicable industrial instruments and the Act.

[44] The Leave Policy permits Wambo to impose a different set of evidentiary requirements in circumstances where an employee has taken three single day absences in the previous 12 months. That trigger was plainly satisfied in this case insofar as Ms Le Brocq was concerned. As a result, Ms Le Brocq was required pursuant to the Leave Policy to provide written evidence (e.g. a medical certificate from a medical practitioner) to substantiate any further requests for personal leave. Importantly, the Leave Policy also permits an employee who is required to submit such written evidence to provide a statutory declaration instead if it is unreasonable in the circumstances for the employee to be expected to attend a medical appointment.

[45] Problems arose in the present case when Wambo imposed a requirement on Ms Le Brocq (and other particular employees) to provide a medical certificate for all personal/carer’s leave. That requirement was inconsistent with the Leave Policy, which permits the provision of “a statutory declaration instead [of a medical certificate] if it is unreasonable in the circumstances for them to be expected to attend a medical appointment”. The requirement to provide a medical certificate for all personal/carer’s leave was also unreasonable, for there may be circumstances where it is not reasonable for an employee to obtain a medical certificate for an absence on the basis of personal/carer’s leave. Wambo’s Leave Policy recognises that fact and permits the provision of a statutory declaration in those circumstances. Finally, the requirement to provide a medical certificate for all personal/carer’s leave was not a right conferred on Wambo by the Agreement.

[46] In the result, Wambo imposed a requirement on Ms Le Brocq which it had no right to impose. Had Wambo informed Ms Le Brocq on 1 February 2019 that, in accordance with paragraph 5.3 of the Leave Policy, she was required to provide either a medical certificate or a statutory declaration if it was unreasonable in the circumstances for her to be expected to attend a medical appointment, then I am confident there would have been no warning issued to Ms Le Brocq in respect of her carer’s leave on 26 March 2019. That is because Ms Le Brocq would have provided Wambo with a statutory declaration, which Wambo, acting reasonably, would have accepted. Instead, the requirement imposed on Ms Le Brocq to provide a medical certificate for all personal/carer’s leave and the threat of a level 3 final warning if she did not do so placed significant pressure and stress on Ms Le Brocq. In response to the imposition of that requirement, I find that Ms Le Brocq misled Mr Hanlon about the existence and potential availability of a medical certificate. My finding in this regard is based on Mr Hanlon’s version of his conversations with Ms Le Brocq on 6 or 7 May 2019, 15 May 2019 and 24 May 2019, which I have preferred over Ms Le Brocq’s evidence, for the reasons set out above.

[47] It was inappropriate of Ms Le Brocq to provide misleading information to Mr Hanlon. But it was also inappropriate of Mr Hanlon to impose the requirement which gave rise to the provision of that information, namely, a requirement to provide a medical certificate for all personal/carer’s leave.

[48] Wambo accepts, correctly in my view, that Ms Le Brocq’s failure to submit a leave application form, until she was prompted to do so, in connection with her absence from work on 26 March 2019 would not, of itself, justify a level 3 final warning.

[49] In all the circumstances, I am satisfied that the Warning was both unjust and unreasonable. It was unjust because Ms Le Brocq did not breach the Leave Policy. It was unreasonable because no reasonable person in the position of Wambo could have made the decision to issue Ms Le Brocq with a level 3 final warning in circumstances where she did not breach the Leave Policy and the misleading information she provided to Mr Hanlon was a direct result of the unreasonable requirement he imposed on her to provide a medical certificate for all personal/carer’s leave.

[50] In light of my finding that Ms Le Brocq did not breach the Leave Policy, it is not necessary in the present Dispute to determine the CFMMEU’s alternative argument that the Leave Policy is inconsistent with the Agreement or the NES. However, I will make some short comments about those matters.

[51] Unlike some enterprise agreements, 10 the Agreement does not contain any provision to the effect that the rights and obligations of the employer and employees covered by the Agreement are exhaustively stated in the Agreement. Clause 3 of the Agreement states that “this Agreement sets out all the entitlements to remuneration and conditions of employment for Employees” [emphasis added], but it does not include a similar statement about the obligations imposed on employees. Instead, clauses 6 and 8.1 of the Agreement expressly envisage there being policies and procedures and contractual conditions of employment, all of which sit outside the scope of the Agreement, imposing obligations on employees covered by the Agreement. Accordingly, it is open to Wambo to establish policies such as the Leave Policy to govern the taking of leave by employees, providing such policies are not inconsistent with the Agreement or the NES.

[52] The provisions of the Leave Policy under consideration in this case are not inconsistent with the Agreement or the NES. In particular, the Leave Policy permits Wambo, in circumstances where an employee has taken three single day absences in the previous 12 months, to require the provision of a medical certificate or statutory declaration if it is unreasonable in the circumstances for the employee to be expected to attend a medical appointment. Clause 27 of the Agreement does not seek to address such circumstances, nor does s 107 of the Act. Further, the requirement imposed by this part of the Leave Policy sits comfortably within the scope of what is permitted by s 107(3) of the Act, in that the provision of a medical certificate or statutory declaration would satisfy a reasonable person that the leave it taken for a reason specified in s 97 of the Act.

[53] As to the requirements of clause 27.4 of the Agreement:

(a) Ms Le Brocq complied with the first subparagraph of clause 27.4 of the Agreement by notifying her supervisor as soon as reasonably practicable before the commencement of the shift on 26 March 2019 that she was unable to work and stating the reason for the leave, including by providing photographs of her daughter’s boils;

(b) the second subparagraph of clause 27.4 of the Agreement is not relevant to the Dispute because it is confined to the taking of personal/carer’s leave for an absence of greater than two or more consecutive shifts. Ms Le Brocq was only absent for a single shift on 26 March 2019;

(c) the third subparagraph of clause 27.4 of the Agreement is only engaged where Wambo is not satisfied with an employee’s stated reasons for the absence. Wambo did not assert that it was not satisfied with Ms Le Brocq’s stated reasons for her absence from work on 26 March 2019. In any event, I am satisfied that it was not reasonably practicable for Ms Le Brocq to provide a medical certificate and she provided a statutory declaration instead. Ms Le Brocq therefore complied with clause 27.4, if it was engaged by the circumstances of her absence on 26 March 2019; and

(d) I accept Wambo’s submission that I do not need to determine whether the fourth subparagraph of clause 27.4 of the Agreement gave Wambo the right to require Ms Le Brocq to provide a medical certificate for each carer’s leave absence in order to determine the Dispute. The Warning was issued, according to its terms, because Ms Le Brocq breached the Leave Policy, not because Ms Le Brocq failed to comply with an obligation imposed on her by clause 27 of the Agreement. I do note, however, that sections 55(2) and 107(5) of the Act expressly permit an enterprise agreement to include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid carer’s leave. If a term is expressly permitted by sections 55(2) and 107(5) of the Act, s 55(4) has no work to do, for it provides that an enterprise agreement may also include ancillary or supplementary terms, but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the NES. The inclusion of the word “also” in section 55(4) makes clear that the restrictions on ancillary and supplementary terms do not apply to terms expressly permitted by s 55(2). The question of whether there is any restraint on the scope of terms which may be included in an enterprise agreement pursuant to s 107(5) of the Act is to be left for another day. As is the question of whether the second and third subparagraphs of clause 27.4 of the Agreement have any applicability to carer’s leave.

Conclusion

[54] For the reasons given, my determination of the Dispute is that the level 3 final warning issued by Wambo to Ms Le Brocq on 4 June 2019 must be withdrawn by Wambo and not relied on for any reason.

[55] Notwithstanding that conclusion, this decision should serve as an important reminder to Ms Le Brocq that she must comply with Wambo’s policies and procedures at all times and provide accurate and non-misleading information to her employer. Her employment at Wambo will be at risk if she does not do so. This decision should also serve as an important reminder to Wambo that it must comply with its own policies, together with any applicable industrial instruments and the Act, when exercising its managerial prerogative to discipline employees in its workforce.

DEPUTY PRESIDENT

Appearances:

Mr Endacott, of the Construction, Forestry, Maritime, Mining and Energy Union, for the applicant.

Mr Williams, of MinterEllison, for the respondent.

Hearing details:

2019.

Newcastle:

21 October.

Printed by authority of the Commonwealth Government Printer

<PR714139>

 1   Ex R1 at annexure JH-1

 2   Ex A1 at [17]

 3   Ex R1 at annexure JH-7

 4   Ex A1 at [17]

 5   Ex A2 at [18]

 6   Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [8]; Mondelez v AMWU [2019] FCAFC 138 at [149]

 7   Mr Williams made this submission as part of his closing oral submissions on 21 October 2019

 8   Australian Federation Union of Locomotive Enginemen v State Rail Authority of New South Wales(XPT Case) (1984) 295 CAR 188; Lend Lease Project Management and Construction (Australia) Pty Limited v CFMEU[2015] FWCFB 1889 at [26]-[27]

 9   CFMEU v HWE Mining[2011] FWA 8288 at [12]

 10   See, for example, DL Employment Pty Ltd v AMWU[2014] FWCFB 7946; Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 at [61]