Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd
[2020] FCCA 41
•20 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS v CLERMONT COAL PTY LTD | [2020] FCCA 41 |
| Catchwords: INDUSTRIAL LAW – Whether employer misapplied annual leave clause in enterprise agreement – proper construction of clause in enterprise agreement – whether respondent in breach of Fair Work Act 2009 (Cth) – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.50, 55(1), 55(2), 55(3), 55(4), 61(1), 96(1), 96(2) 97, 107, 127 |
| Cases cited: CFMEU v Hail Creek Coal Pty Ltd [2015] FCAFC 149 Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd (2018) 282 IR 228 |
| First Applicant: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Second Applicant: | ROBERT WADE COX |
| Third Applicant: | THELMA HANE SULLIVAN |
| Respondent: | CLERMONT COAL PTY LTD |
| File Number: | SYG 646 of 2018 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 16 September 2019 |
| Date of Last Submission: | 16 September 2019 |
| Delivered at: | Perth |
| Delivered on: | 20 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Massy instructed directly by Construction, Forestry, Mining and Energy Union (Mining and Energy Division) |
| Counsel for the Respondent: | Mr C Murdoch QC |
| Solicitors for the Respondent: | Ashurst Australia |
ORDERS
The application filed on 12 March, 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
SYG 646 of 2018
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
First Applicant
| ROBERT WADE COX |
Second Applicant
| THELMA HANE SULLIVAN |
Third Applicant
And
| CLERMONT COAL PTY LTD |
Respondent
REASONS FOR JUDGMENT
On 5 December, 2012 Fair Work Australia approved the Clermont Coal Enterprise Agreement 2012. It commenced operation on 12 December, 2012 and applied to the respondent, Clermont Coal Pty Ltd and its employees, including the second applicant, Robert Cox and the third applicant, Thelma Sullivan. The second and third applicants are members of the first applicant.
This application concerns the proper construction of cl.16.7 of the Enterprise Agreement, which deals with paid personal leave. The issue as framed by the parties is whether, on its proper construction, cl.16.7 of the Enterprise Agreement confers an entitlement upon an employee to be paid personal leave for periods where an employee is unable to attend work because of genuine illness or injury that is unlimited in duration and otherwise unqualified.
The applicants contend that cl.16.7 confers an entitlement to paid personal leave in circumstances where an employee is unable to attend work due to genuine illness or injury which is not limited in duration. The respondent contends that the clause does not confer on employees an entitlement to an unlimited amount of paid personal leave where an employee is unable to attend work due to genuine illness or injury. Rather, it provides for a process under which the respondent may exercise a discretion to approve leave in addition to that which an employee is otherwise entitled under the National Employment Standards.
The applicants contend that the respondent has misapplied cl.16.7 of the Enterprise Agreement and consequently:
a)the respondent has contravened s.50 of the Fair Work Act2009 (Cth); and
b)the second and third applicants have not been remunerated correctly for periods of time they were unable to work by reason of injury.
The factual matrix
The facts giving rise to the present application are not in dispute.
The respondent operates the Clermont Coal open cut coal mine, near Clermont in Queensland. The second and third applicants are both mine workers and commenced employment in 2011 and 2008 respectively. They remain so employed.
During the periods of time relevant to this proceeding, both the second and third applicants worked to a seven days on, seven days off roster, which rotated between day and night shifts. They worked seven consecutive day shifts, then had seven consecutive days off, then worked seven consecutive night shifts and then had seven consecutive days off. The roster then repeated. The commencement day for each seven day period was a Tuesday. The length of each rostered shift was 12.5 hours.
The production employees at the Clermont Mine are allocated to one of four crews either A, B, C or D crew. There are a number of departments or work areas within each crew. During the period of time relevant to this proceeding, the second applicant was allocated to C Crew and worked in the Load and Dump Department. The third applicant was allocated to D Crew and worked in the Haulage Team.
The second applicant was absent from work due to an eye injury from 28 June, 2016 to 4 July, 2016 (seven shifts or 87.5 hours). He was paid at his usual rate for these shifts and no leave was deducted from the leave balances appearing on his pay slip for this period.
The second applicant was also unable to work by reason of his eye injury from 26 July, 2016 to 1 August, 2016 (seven shifts or 87.5 hours).
There is no dispute that the second applicant was absent from work for both of these periods because of a genuine illness or injury for the purpose of cl.16.7 of the Enterprise Agreement.
Thus, by reason of his eye injury, the second applicant was absent from his employment for two periods of seven shifts, namely 28 June, 2016 to 4 July, 2016 and 26 July, 2016 to 1 August, 2016.
On about 8 August, 2016 the second applicant had a conversation with his supervisor, Mr Rowd Hayes. He asked for the 14 shifts he had missed to be covered by paid sick leave. Mr Hayes told him that he could not give him the whole period off as sick leave because he did not have enough sick leave for the whole period. Mr Hayes said he could approve of him using all of his sick leave and then some annual leave.
The second applicant’s requests for leave were confused and confusing. However, what occurred is accurately pleaded by the respondent in its defence as follows:
7. With respect to the Second Applicant’s claim generally the Respondent says that the following events occurred:
(a) The Second Applicant was absent from work due to an eye condition from 28 June 2016 to 4 July 2016 (7 shifts).
(b) The Second Applicant did not apply for leave for this period. No leave was deducted from the Second Applicant’s leave balance in respect of this period and he was paid normal wages for this period.
(c) The Second Applicant attended for work from 12 to 18 July 2016. However, in error, on 8 August 2016 he applied for four days of personal leave for the period 15-18 July 2016. The Respondent processed the Second Applicant’s leave application and deducted 4 shifts (50 hours) personal leave from his personal leave balance.
(d) The Second Applicant was absent from work from 26 July to 1 August 2016 (7 shifts). On 8 August 2016 the Second Applicant applied for annual leave in respect of this period. However, when he completed his leave application he wrote “25 July 2016 to 31 July 2016” on the leave application form. Since 25 July 2016 was not a rostered shift for the Second Applicant, the application was processed as 6 shifts of annual leave from 26 July to 31 July 2016.
(e) The Second Applicant did not apply for leave in respect of his absence from work on 1 August 2016 and he was paid normal wages for 1 August 2016 despite having been absent from work on that day.
(f) In May 2016 the Second Applicant had applied for seven shifts of annual leave from 23 August to 29 August 2016. The Second Applicant took this annual leave and it was processed as such.
There is no dispute that, at the relevant times, the second applicant was suffering from a genuine illness or injury where the second applicant was unable to attend work within the meaning of cl.16.7 of the Enterprise Agreement.
The third applicant was absent from work because of an injury to her left knee from 20 January, 2017 to 23 January, 2017 (four shifts or 50 hours), from 31 January, 2017 to 6 February, 2017 (seven shifts or 87.5 hours) and from 14 February, 2017 to 20 February, 2017 (seven shifts or 87.5 hours). The third applicant was absent from work for a total of 18 shifts (or 225 hours) by reason of her left knee injury.
The third applicant’s “personal leave balance” was recorded on her payslip that she received on 19 February, 2017 (which was for the pay period 1 February, 2017 to 28 February, 2017). The amount of leave so recorded was 90.90 hours.
On Tuesday 28 February, 2017 the third applicant applied for 18 shifts of paid personal leave in respect of the periods that she was unable to work by reason of her left knee injury.
The third applicant’s supervisor, Mr Greg Collins, approved of her taking 11 days (137.5 hours) of paid personal leave. He did not approve the remaining seven shifts and he suggested that she should apply to have them taken as annual leave. When the third respondent questioned this, she was told by Mr Collins that he could only approve up to 10 days paid personal leave.
The third applicant did as was suggested and applied for a further seven shifts (87.5 hours) of annual leave. That application was granted.
The third applicant claims that she should be reimbursed 87.5 hours of annual leave because she was entitled to that time as paid personal leave.
Principles of Construction
The parties agree that the principles to be applied in determining the proper construction of cl.16.7 of the Enterprise Agreement are well settled. The parties referred me to Skene v Workpac Pty Ltd (2018) 280 IR 191 where the Full Court of the Federal Court of Australia summarised the principles at [197] as follows:
The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...”: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).
In Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd (2018) 282 IR 228 at [9], the Full Court of the Federal Court pointed out that:
The reference there made to the observations of Kirby J at [96] of Amcor is a reference to his Honour’s remarks that the construction to be given to a clause in an industrial instrument “should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement”.
In Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 per Burchett J (with Drummond J agreeing) relevantly observed:
The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its significance, former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.
Consistent with the authorities the consideration of cl.16.7, should include the text of the clause, the agreement as a whole, the legislative framework and the history of the clause.
The clause and its background
Clause 16.7 of the Enterprise Agreement provides:
16.7 Personal Leave
The Company provides paid personal leave to ensure Employees are not exposed to financial loss or hardship during periods of injury or illness. Permanent Employees are able to access paid personal leave for periods of genuine illness or injury where the Employee is unable to attend work.
When approving personal leave, the Employee’s Leader will take into consideration specific individual circumstances. Employees are expected to make themselves available for work as soon as they are fit to do so.
Fixed Term Employees Individual entitlements will be specified in the Employee’s contact of employment.
A medical certificate should always be provided for absences of two days or more. Presentation of a medical certificate in itself will not result in authorisation of paid personal leave.
An Employee’s entitlement to paid personal leave will be reviewed in circumstances where the Employee has been absent from work for an extended period (typically three months).
16.7.1 Approval
For a period of up to 20 days within a twelve month period, the Employee’s leader may authorise paid personal leave. The Employee will continue to be paid in line with their current role remuneration.
For a period of 21 to 60 days within a 12 month period, the continuation of payment for personal leave (including the provision of allowances) is at the discretion of the Manager. Their decision will take into account the Employees’ circumstances and operational needs. The Manager, in consultation with the General Manager, may decide to discontinue payment or to continue payment of all or part of the Employee’s remuneration, depending on the individual circumstances.
Paid leave in excess of 60 days within a 12 month period can only be approved by the General Manager.
The National Employment Standards are set out in Part 2-2 of the Fair Work Act. Division 7, Part 2-2 of the Act provides for personal leave. By ss.96(1) and 96(2) of the Act an employee progressively accrues ten days of paid personal/carer’s leave for each year of service with his or her employer.
By s.97 of the Act personal leave could be taken in certain circumstances, namely:
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.
Section 107 of the Act provides for the notice and evidence requirements that need to be observed if an employee wishes to take personal leave.
Subdivision A of Division 3 of Part 2-1 of the Act deals with the interaction between the Standards and an enterprise agreement. By s.55(1), an enterprise agreement must not exclude the Standards. An enterprise agreement may include any terms expressly permitted by a provision of Pt 2-2 or by regulations made under s.127: s.55(2) of the Act. The Standards have effect subject to terms in an enterprise agreement permitted under s.55(2): s.55(3) of the Act. By s.55(4), an enterprise agreement may include terms that are ancillary or incidental or which supplement the operation of an entitlement of an employee under the National Employment Standards. The Standards cannot be displaced even if an enterprise agreement includes terms of the kind referred to in subsection 55(5): s.61(1) of the Fair Work Act.
Thus, irrespective of the terms of the Enterprise Agreement, and subject to the notice and evidence requirements of the Act, the respondent’s employees were entitled to a minimum of ten days paid personal leave per year of service.
According to the evidence, the first enterprise agreement covering production and engineering employees of the respondent at the Clermont mine was the Clermont Coal Workplace Agreement 2007. That agreement was made under the Workplace Relations Act 2007 as an employer greenfields agreement. The nominal expiry date of the 2007 agreement was the first anniversary following its lodgement.
Leave was deal with in that agreement in cl.8.1 as follows:
8.1 You will be entitled to leave in accordance with the Company’s leave policy as amended from time to time. As a minimum, you will be entitled to annual, personal, compassionate and parental leave in accordance with the Australian Fair Pay and Conditions Standard as at 1 November 2007.
The Clermont Coal Workplace Agreement 2007 was replaced by the Clermont Coal Employee Collective Agreement 2008. That agreement was also made under the Workplace Relations Act 2007 as an employee collective agreement. The nominal expiry date of that agreement was four years following its lodgement.
Again, leave was dealt with in that agreement in cl.8.1. It was in the same terms as cl.8.1 in the 2007 agreement.
The leave policy referred to in cl.8.1 and which provided for leave was the Rio Tinto Coal Australia Leave Policy. Clause 5.1 of that policy provided for personal leave in the following terms:
5.1 Personal Leave
RTCA provides paid personal leave to ensure staff are not exposed to financial loss or hardship during periods of illness.
Permanent employees are able to access paid personal leave for periods of genuine illness or injury where the employee is unable to attend work. When approving personal leave, the individual’s leader will take into consideration specific individual circumstances. Employees are expected to make themselves available for work as soon as they are fit to do so.
Fixed Term employees individual entitlements will be specified in the employee’s contract of employment.
A medical certificate should always be provided for absences of two days or more, though an employee’s leader may request a medical certificate for any personal leave reported. Presentation of a medical certificate in itself will not result in authorisation of paid personal leave.
An employee’s entitlement to paid personal leave will be reviewed in circumstances where the employee has been absent from work for an extended period (typically three months).
5.1.1 Approval
For a period of up to 20 days within a twelve month period, the employee’s leader may authorise paid personal leave. The employee will continue to be paid in line with their current role remuneration.
After a period of 20 to 60 days within a twelve month period, the continuation of payment for personal leave (including the provision of allowances) is at the discretion of the employee’s Manager, and their decision will take into account the employees’ circumstances and operational needs. The employee’s Manager, in consultation with the relevant General Manager, may decide to discontinue payment or continue payment of all or part of the employee’s role remuneration, depending on the individual circumstances.
Paid leave in excess of 60 days within a twelve month period can only be approved by the employee’s General Manager.
The Clermont Coal Employee Collective Agreement 2008 was replaced by the Clermont Coal Enterprise Agreement 2012, the agreement presently under consideration. Fair Work Australia approved that agreement. As part of the negotiation process for that agreement, the respondent made a representation to the employees covered by the agreement that:
Sections of the leave policy are now locked into the agreement. This means the leave provisions cannot be changed for the term of the agreement.
Consideration
The applicants submit that the structure of cl.16.7 demonstrates that there is a grant of an unlimited entitlement to leave.
The first sentence in cl.16.7, it is said, identifies the purpose of the entitlement. The applicants argue that any absence from work which is either unpaid or requires the use of another entitlement, such as annual leave, will involve financial loss. In the event annual leave is used, the employee will lose the benefit of an accrued entitlement. I accept that argument having regard to employees’ ability to accumulate annual leave entitlements that must be paid out at the conclusion of employment. It is, in my view, self-evident. However, whilst I also accept that the use of the word hardship suggests that the relevant absences contemplated by the clause might be prolonged, hardship is expressed as an alternative to financial loss. Financial loss might be incurred even as a result of brief absences from work, for example in circumstances where the relevant employee has exhausted the minimum personal leave entitlements provided by the National Employment Standards. Thus, I do not think that the clause has any particular application to prolonged periods of leave. It simply enables an employee to apply for personal leave.
I also accept that the second sentence confers an entitlement upon permanent employees, or perhaps gives rise to a legitimate expectation on their part, that paid personal leave is available to them – or can be accessed – where due to genuine illness or injury they are unable to attend work. The terms of the fifth paragraph underscore the nature of the benefit conferred by cl.16.7 as an entitlement.
The applicants argue that the entitlement conferred by the second sentence is unlimited or unqualified because there are no words of limitation contained within the grant of the entitlement. They direct me to the decision of the Full Court of the Federal Court of Australia in CFMEU v Hail Creek Coal Pty Ltd [2015] FCAFC 149 specifically at [33], [42] and [63]. In that case, the Full Court was called upon to construe a clause in an enterprise agreement dealing with personal and sick leave. For reasons that are not necessary to canvass here, the Full Court determined that the terms of the agreement there in question gave rise to an entitlement to employees to paid sick leave. But the clause with which the Full Court was concerned was in very different terms to the clause here. The clause there construed made no provision for the leave to be approved by the employer. At best, there was a provision that provided an employee’s manager with a discretion “as to whether any future component of salary will continue or be amended in any further payments made” where an employee took extended sick leave (usually longer than three months duration).
The entitlement to personal leave, either under the National Employment Standards or the Enterprise Agreement is not unqualified. I have set out the qualifications to the entitlement under the Standards above. In the event that an employee meets those qualifications, the leave provided for by the Standards is available to the employee.
The qualifications under the Enterprise Agreement are different to those set out in the National Employment Standards. Notable is the absence of any restriction on the amount of leave that might be available, the accrual of leave and the requirement to give notice (cf. s.107(1) of the Act). The respondent does not contend that there is any restriction on the amount of leave that might be available to an employee pursuant to cl.16.7. Nor is there any suggestion by the applicants that any particular amount of leave accrues under that clause.
However the most significant difference between the leave provided for by the National Employment Standards and the Enterprise Agreement is the requirement that the personal leave applied for by the employee be approved by the respondent. In my view, there can be no doubt that the personal leave provided by cl.16.7 of the Enterprise Agreement (to the extent that it exceeds the personal leave that would otherwise accrue pursuant to the National Employment Standards) is subject to the approval of the respondent. So much appears from the second paragraph of the clause which expressly refers to the approval of personal leave. The fourth paragraph in the clause underscores the position by providing that the presentation of a medical certificate in itself will not result in “authorisation of paid personal leave”. The review mechanism in paragraph 5 of the clause emphasises the point.
Paragraphs 6, 7 and 8 appear under the sub heading “16.7.1 Approval”. Those paragraphs identify which level of management is responsible for authorising the paid personal leave and the level of payment depending on the duration of the absence. If the leave provided for by cl.16.7 was an unqualified entitlement, those matters appearing as cl.16.7.1 would have no work to do. The applicants argue that the paragraphs are “mechanical provisions” which identify who has the authority to bind the respondent in respect of claims for paid personal leave. Indeed they are. They identify the level of management responsible for authorising or approving (words which are used synonymously in those paragraphs) the leave sought.
I am satisfied that cl.16.7 of the Enterprise Agreement is a term which supplements the National Employment Standards by providing employees covered by the agreement with access to paid personal leave in excess of that provided for by the Standards. In respect of claims for personal leave by employees up to and including ten days of leave as provided for by s.96(1), an employee need only satisfy the requirements of the Act as I have set out above. But upon doing so, the entitlement is available to the employee.
Clause 16.7 of the Enterprise Agreement has effect in respect of claims for paid personal leave in excess of ten days. Any such leave must be approved or authorised by the respondent according to the terms of the clause and clause 16.7.1.
The applicants’ argument is that once an employee establishes that he or she is unable to attend work for a period by reason of genuine illness or injury the respondent must approve or authorise paid personal leave. That is to say, the only work to be done by the clause 16.7.1 is to identify who for the respondent might give the relevant approval or authorisation for the leave, such approval or authorisation being a fait accompli where the respondent’s representative is satisfied that the employee is unable to attend work for periods by reason of genuine illness or injury.
The applicants argue that the ordinary and natural meaning of the terms approve or authorise (or their derivatives) in cl.16.7 is to “sanction, confirm or agree”. They argue that read in context, the approval or authorisation required of the respondent is not a conferral of an entitlement, but an acceptance or agreement, binding on the respondent that the employee is unable to attend work for periods by reason of genuine illness or injury.
Significantly, the applicants argue that “If the claim is approved the respondent is bound to provide the leave. If no approval is given, the employee can legally dispute the failure to provide the entitlement”. That submission, in my view highlights the real issue in this case. If an employee can “legally dispute the failure to provide the entitlement”, the dispute must be on the basis that the respondent’s delegate was bound to approve the applied for leave, rather than not approve it or alternatively, a decision under cl.16.7.1 not to continue paying an employee their remuneration or part of it while the employee is on leave should not have been made. That begs the question, “What must an applicant for leave establish before the respondent is bound to approve or authorise paid personal leave?”
The applicants argue that it is nothing more than that the employee is unable to attend work for periods by reason of genuine illness or injury. They argue that this meaning is confirmed by the second and fourth paragraphs of cl.16.7 because the first sentence of the second paragraph directs consideration to the personal circumstances of the employee. They argue that an employee’s individual circumstances and the objective facts of their illness or injury, will be critical to determining whether they answer the description of being unable to attend work due to genuine illness or injury.
But that argument does not recognise that the requirement of the second paragraph of the clause is to take into consideration “specific individual circumstances”. I accept the respondent’s argument that there is nothing in the second paragraph that limits the requirement to consider the individual circumstances of the employee to a consideration of whether the employee is in fact unfit for work. An employee’s “specific individual circumstances” go beyond the singular matter of whether the employee is unable to attend work for periods by reason of genuine illness or injury. That is especially so given the purpose of the clause identified in the first paragraph, is to provide paid personal leave to ensure employees are not exposed to financial loss or hardship during periods of injury or illness.
As the fourth paragraph makes clear, the respondent’s acceptance of the obligation to provide paid leave will not be triggered by the mere provision of a medical certificate. I accept that is consistent with the existence of a discretion to grant paid leave, even where absence is supported by a medical certificate to the effect that the employee is unable to work.
The first paragraph of cl.16.7.1 deals with two matters. The first is the identity of the person within the respondent’s organisation that might authorise absences of up to 20 days, within any 12 month period. The second matter is that it fixes the rate at which such absences will be remunerated. According to the paragraph, the employee will continue to be paid in line with their “current role remuneration”.
The use of the word may in the first paragraph of cl.16.7.1 is consistent with the “Employee’s leader” having a discretion to authorise paid personal leave. Authorisation carries with it more than just a determination of whether the employee is unable to attend work due to genuine illness or injury. As paragraph 2 of cl.16.7 mandates, it requires a consideration of the employee’s “specific individual circumstances”. It is concerned with more than the process for handling the employee’s claim for paid personal leave an entitlement.
The second paragraph of cl.16.7.1 also deals with a number of matters. First is the period to which the matters set out in the paragraph apply. Its operation is confined to a period between 21 and 60 days absence by an employee on personal leave. Second, it deals only with payment for that personal leave. That is so because the one of the subjects of this paragraph is the continuation of payment, not the continuation of leave. It is the continuation of payment that is left to the discretion of the “Manager”. Presumably the leave might continue on an unpaid basis, but approval for that is dealt with in cl.16.6 of the Enterprise Agreement. The paragraph also deals with the matters that might impact upon a decision about the continuation of payment. Those matters will include the “Employee’s circumstances and operational needs” and “the individual circumstances”. The text of the second paragraph of cl.16.7.1 confirms that the continuation of payment is discretionary.
The second paragraph of cl.16.7.1 is entirely inconsistent with the notion that ongoing and unlimited paid personal leave is an unqualified entitlement provided by cl.16.7. This paragraph expressly recognises that the Manager, in consultation with the General Manager may decide to discontinue payment or to continue payment on a particular basis. It is entirely consistent with the entitlement provided by the first paragraph of cl.16.7 being one which is qualified.
So too the third paragraph of cl.16.7.1. It provides that paid leave in excess of 60 days, is only to be approved by the General Manager of the mine.
I accept the applicants’ submission that taking cll.16.7 and 16.7.1 together, cl.16.7.1 is not concerned with the existence of the entitlement to personal leave. But I do not accept the submission that they are merely mechanical provisions directed to the identification of the person who determines whether the employee is unable to work due to genuine illness or injury. Each part of cl.16.7.1 goes further than that and they provided a significant qualification on the entitlement provided in the first paragraph of cl.16.7.
The applicants submit that the text of cl.16.7 confers “a specific entitlement on employees who are unable to attend work because of genuine illness or injury. The quantum of that entitlement is not limited.”
In truth, the entitlement conferred by cl.16.7 is an entitlement to apply for paid personal leave, on unlimited occasions. That entitlement is supplementary to the entitlements provided by the National Employment Standards. The application might be approved by the respondent, but it is not obliged to approve such an application simply on the basis that the employee is unable to attend work for periods by reason of genuine illness or injury.
The applicants argue that as matter of textual analysis, if the objective intention of the parties had simply been that the entitlements under the National Employment Standards would apply and that the employer would retain a discretion to confer leave in excess of that entitlement, nothing would need to be said. I accept the submission that all employers retain the discretion to pay their employees who are unable to work.
But in the absence of cl.16.7 if an employee made an application for paid personal leave beyond that provided in the National Employment Standards, the respondent would not be obliged to consider it. That is the true work done by the relevant clauses – to create an enforceable obligation to give proper consideration to an application by an employee for paid personal leave beyond that provided by the National Employment Standards.
The applicants submitted that in the event that I was against their construction of cl.16.7 they could not establish any breaches of the Fair Work Act and the application should be dismissed.
Accordingly, the application filed on 12 March, 2018 is dismissed
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 20 January 2020
Associate:
Date: 20 January 2020
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