Construction, Forestry, Mining and Energy Union v Glennies Creek Coal Management Pty Limited

[2013] FWC 4652

[2013] FWC 4652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union
v
Glennies Creek Coal Management Pty Limited
(C2013/332)

COMMISSIONER ROBERTS SYDNEY, 18 JULY 2013

Application to deal with a dispute - new Company Policy regarding taking of sick/carer’s leave - compliance with NES and Agreement provisions.

[1] This decision concerns an application filed on 5 March 2013 by Construction, Forestry, Mining and Energy Union (the CFMEU or the Union) pursuant to s.739 of the Fair Work Act 2009 (the Act) to resolve a dispute between it and Glennies Creek Coal Management Pty Limited (Glennies Creek or the Company) under the Integra Coal Operations Underground Coal Mine Agreement 2011 (the Agreement) regarding clauses 10.N and 15.B of the Agreement in connection with personal and carers leave, with specific reference to notification, proof and payment for such leave.

[2] Clause 10.N states:

“10.N Company Policies and Procedures

Employees will comply with all Company policies and procedures that are not contrary to the provisions of this Agreement as long as they are not harsh, unjust or unreasonable, to ensure that safe, efficient and cost effective operations are achieved. If a company policy changes consistent with this clause, prior to any change being implemented, the workforce will be consulted of these changes. Company policies and procedures where applicable will be freely available for viewing by Employees.”

[3] Clause 15 (Leave and Statutory Holidays) relevantly provides:

“15.B.1 Entitlement

Each Employee shall on commencement of employment and on their anniversary date be credited with one hundred and twenty (120) hours of Personal leave. Any Personal leave which is not taken by an Employee accumulates without limitation.

Paid sick leave is available to an Employee, other than a casual Employee, when he/she is absent due to personal illness or injury;

When the Company gives notice of termination of employment to an Employee who is absent from work on paid Personal leave, the termination of employment shall not take effect until the Employee's paid Personal leave has expired or the Employee is fit for duty, whichever occurs first.

This entitlement of personal leave exceeds the minimum requirements of the NES for Personal Leave.

For the purposes of this agreement personal leave has the following effect; An Employee who is absent from work on account of personal illness or injury or where an Employee is absent from work to provide care or support to an immediate family member or a member of the Employees household, who requires care or support due to illness or injury or because of an emergency affecting that person shall be entitled to paid personal leave of absence subject to the following conditions and limitations:

The term "immediate family" means:

(a) A spouse (including a former spouse, a de facto spouse and a former de facto spouse) of the Employee; and

(b) A child (including an adopted child, a step child or an ex nuptial child), parent, grandparent, grandchild or sibling of the Employee or spouse of the Employee.

15.B.2 Notification

An Employee is to whenever possible notify the Company, prior to taking personal leave of his/her inability to attend for duty so as to provide adequate time for the Company to make alternate arrangements to meet the workload at the Mine. The Employee is to also inform the Company of the type of absence, the estimated duration of the absence and, as far as practicable, details of the reasons for the absence.

Satisfactory notification of the absence by the Employee will be by phoning the Mine on the number designated by the Company and if unsuccessful leaving a suitable message. This should be prior to shift commencement and wherever possible at least thirty (30) minutes prior to shift commencement.

15.B.3 Proof

The Employee must prove to the satisfaction of the Company that the personal leave was taken due to a matter described in 15.B.1 in the event of a dispute it shall be dealt with in accordance with the Dispute Resolution Procedure Clause.

15.B.4 Part Shift Absence

If an Employee whom attends work for the greater part of a shift, falls ill and is unable to continue normal duties, such Employee will be paid as if at work and without loss of accruals subject to approval and agreement of their supervisor.

15.B.5 Payment

If the Employee has sufficient Personal leave credit, Personal leave taken must be paid at the base hourly rate for the length of the shift plus bonus for the period Employee was unable to attend and the hours paid will be deducted from the Employee's entitlement for each period of personal leave.

Notwithstanding the above when the mine achieves an absenteeism rate of equal to or less than 3.5%, on a 6 month rolling average, Employees will be paid personal leave as if at work. Where the absenteeism rate approaches or exceeds 3.5% Employees will be notified and given 3 months to improve performance.”

[4] Section 97 of the Act provides:

“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.

Note: The notice and evidence requirements of section 107 must be complied with.”

[5] Section 107 of the Act (Notice and evidence requirements) provides:

“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).

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.”

[6] The Explanatory Memorandum to the Fair Work Bill 2008 states at paragraph 415:

“Subclause 107(3) enables an employer to require an employee who has given notice to provide evidence that would satisfy a reasonable person that the employee is entitled to the leave. The types of evidence commonly requested include a medical certificate or statutory declaration. It may not be reasonable on every occasion of personal illness for an employer to require an employee to provide a medical certificate. However, in cases of an absence extending beyond a short period or repeated absences on particular days (e.g., before or after a weekend or public holiday), it may be reasonable for an employer to request a medical certificate in support of the employee’s request for leave.”

[7] The interaction between the National Employment Standards (NES) and enterprise agreements is dealt with in ss.55 and 56 of the Act. Section 55 of the Act provides that an agreement must not exclude any provision of the NES. Ancillary and supplementary terms may be included but only to the extent that the effect of those terms is not detrimental to an employee when compared with the NES.

[8] Section 56 provides: “A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.”

Background

[9] Glennies Creek is a division of Integra Coal which in turn is a division of Vale, a mining company headquartered in Brazil. The Glennies Creek mine is located in Singleton near the Hunter Valley region of New South Wales.

[10] In its form F10 - Application for FWA to Deal with a Dispute in Accordance with a Dispute Settlement Procedure, the CFMEU categorises the dispute with Glennies Creek in the following terms:

“1. The dispute concerns the operation and interpretation of the aforementioned provisions of the Enterprise Agreement and the National Employment Standards (NES) and the Respondent’s wish to implement an attendance procedure that is contrary to and/or inconsistent with the standards.

2. The Respondent has developed an attendance procedure. The form of the attendance procedure is contrary to what is required by the NES and Agreement and/or inconsistent with the standards.

3. The Union and employees have raised concerns with the Respondent about their intended policy and they have decided that they are going to implement the policy regardless. The implementation of the policy is contrary to the disputes resolution procedure contained at clause 9 of the Enterprise Agreement.”

[11] The application was the subject of conciliation before me on 18 March 2013. That conciliation was unsuccessful and the matter came on for hearing on 13 May 2013. The CFMEU was represented by its Industrial Research Officer, Mr K Endacott with Mr T Hardy. Glennies Creek was represented by Mr R Fleming with Mr M Nash.

[12] The Agreement was approved by me on 28 July 2011 with a nominal expiry date of 29 July 2014. The parties to the Agreement are Glennies Creek, the CFMEU and Glennies Creek employees in classifications specified in the Agreement. The Agreement relevantly states at clause 7:

“This Agreement, except where stated otherwise, is in full substitution for the Black Coal Mining Industry Award 2010 (the Award) and all other awards and agreements that may purport to cover the Employees covered by this Agreement.

No further agreements, customs and practices, whether documented or not, except those contained herein will be recognised from the operational date of this Agreement.”

[13] Clause 9 (Dispute Resolution Procedure) of the Agreement provides for a number of steps to be taken when a dispute arises. The clause provides at 9.A.2(iv):

“iv. If, after discussions between the Company and its Employees to the dispute or grievance, the dispute remains unresolved, either party may make application to the Fair Work Australia (FWA) for conciliation and if required arbitration or with the consent of both Company and its Employees to an agreed independent mediator for discussion.”

Evidence

Mr Walton

[14] Mr Walton gave sworn evidence and submitted a witness statement. 1

[15] It was, in summary, Mr Walton’s statement that he is a production employee and has worked for the Company since September 2006. Mr Walton said that when he has taken sick leave he has provided evidence both in the form of medical certificates and statutory declarations. “I believe I have always provided evidence of my illness that would satisfy a reasonable person. I have always received payment.”

[16] In relation to the Company’s new Attendance Policy, Mr Walton said: “The level of proof the company is requesting is unreasonable and they are not going to accept proof that would satisfy a reasonable person.”

[17] Mr Walton went on to say that in the Hunter Valley it is a problem to see a doctor at short notice: “I have on many occasions phoned to make a doctor’s appointment, and when needed so has my family. It is very difficult to gain an appointment at short notice. If you phone the doctor’s surgery, the receptionist will ask if it’s an emergency. When you respond saying ‘No, I’m just not well’ they then want to book you in a few days later.”

[18] Mr Walton also said that the nature of work as an underground coal miner is such that: “It’s not a job where you can be sick and think you can turn up and you will be alright.”

[19] “Locally where I live there is no such thing as a doctor being available on a weekend. If you get sick on a weekend and you need to see a doctor, you have to wait until Monday if you can get in, or the Tuesday. If I take two days off work and try to obtain a doctor’s certificate, and given I work the afternoon shift so if I’m sick on a Tuesday and try and get to the doctor’s and cannot get in until the Wednesday at least, to enable me to give the company notice I am sick, if I attend the doctor’s appointment and he provides me with a doctor’s certificate he will only provide me with the certificate from the date I have seen him. This means that when I provide evidence to the employer I have to provide two forms of proof, an example of which is one day as a medical certificate and one day as a statutory declaration.”

[20] In cross-examination, Mr Walton was shown a medical certificate dated 7 August 2012, covering the period 6 to 9 August 2012. Mr Walton agreed that the doctor provided him with a certificate for the day prior to him attending the doctor’s office. 2 He went on to say that a doctor will not always backdate a certificate.3

Ms Peck

[21] Ms Peck submitted a witness statement 4 but was not required for cross-examination.

[22] Ms Peck’s statement was, in summary, that she has been employed by the Company since October 2008. The statement went on to say:

“The purpose of the attendance procedure is to provide employees with a clear understanding of the company’s requirements with respect to attendance and a procedure to address employees who have an unacceptable record. The businesses reason for the change to the procedure was to ensure the efficient operation of the mine. We need people to attend for work when they are rostered to, so that we can run as productively and efficiently as possible. When people take unplanned leave this makes it difficult for the mine to operate efficiently and productively. The business also need to ensure that the procedure provided a clear indication of what evidence requirements were necessary when unplanned leave was taken.”

[23] Ms Peck went on to say that an extensive process of consultation was undertaken in regard to the changes to the Attendance Procedure. I have paid regard to the material in Ms Peck’s statement relating to the consultation process which commenced on 23 July 2012 and extended until the end of February 2013. Following this process, there was no agreement between the Company and the Union and the CFMEU lodged the dispute notification which is the subject of these proceedings.

[24] Attached to Ms Peck’s witness statement were documents setting out details of sick leave taken by employees over the previous two years. I have also paid regard to that material.

Mr Hardy

[25] Mr Hardy gave sworn evidence and submitted a witness statement. 5

[26] In summary, it was Mr Hardy’s witness statement that he is a full time production employee and has been employed by the Company since July 1999. He is Secretary of the CFMEU Glennies Creek Lodge and also holds other positions in the CFMEU. All production and engineering employees at Glennies Creek, excluding deputies, are members of the CFMEU.

[27] Mr Hardy went on to say: “I understand the terms of an Enterprise Agreement will override the Attendance Procedure, and the requirements of the National Employment Standards (with respect to personal and carer’s leave) override both the procedure and the Enterprise Agreement.”

[28] On 3 December 2012, he met with company representatives where the issue of statutory declarations for sick leave was discussed: “Other issues were discussed at the meeting including issues about medical certificates and that often it was not possible to obtain them. Also discussed was the provision of statutory declarations for single days as it is very difficult if you live locally to easily get in to see a doctor. The issues of medical certificates being required if someone had no personal leave accrual remaining and that under certain circumstances that would be very difficult. We also raised about how the company applies their procedures. Once they have a procedure in place then they won’t move from the procedure even when, if circumstances were taken into account, the application of the procedure is not reasonable. The company will always speak to people if they breach the procedure even if there was no need to and they still apply the same procedure for people who have a very good sick leave record and to those that don’t.”

[29] Mr Hardy went on to give details of further meetings with the Company and of CFMEU meetings with employees. The Company also held meetings directly with employees regarding the new procedure.

[30] The CFMEU then notified a dispute to the Company and this resulted in a further series of meetings together with a notification of a dispute to this Commission.

[31] Mr Hardy went on to say that the Mine operates 7 days a week, 24 hours per day, every day of the year except for Christmas Day and Boxing Day. His statement went on to set out difficulties encountered by employees in seeing a doctor at short notice.

[32] “The employees believe that the Attendance Procedure provides for a lesser standard than the Fair Work Act standard for evidence and notification of personal and carer’s leave. The employees believe the company has implemented the procedure contrary to the Grievance Procedure in the Enterprise Agreement while we are still going through the Grievance Procedure to rectify this matter and while the Grievance Procedure specifies the final step in finalising a dispute falls to Fair Work Australia. The employees believe they’re not required to comply with the new Attendance Procedure as the procedure in its current form is harsh, unjust or unreasonable as it is a lesser standard than the NES and it has been implemented prior to the grievance procedure process being completed.”

[33] In cross-examination, Mr Hardy was questioned about differences between the old and new attendance procedures. That material together with discussions concerning the relevant provisions of the Agreement was extensive and I will not set it out here in detail but have paid regard to it.

[34] Mr Hardy was asked: “By setting down a policy and an accountability procedure, each employee knows exactly what the expectation of the company is. They know that they have three statutory declarations they can give, they know that they have two days that they don’t have to give any certification and they know after that, they have to give medical certificates. Do you agree with that?” and said: “If that’s what the policy says they’ll know what’s in the policy. 6 He was then asked: “So it’s providing certainty for every employee that they know exactly how to comply with the procedure?” and said: “No it just means they know what’s in the policy. They may not be able to comply with those number of days depending on their circumstances.”7

Written submissions

[35] Both the CFMEU and Glennies Creek filed written outlines of submissions prior to the hearing. 8

[36] The CFMEU argued in its outline:

“a. The Respondent had in existence an Attendance Policy and Procedure and has amended that procedure and implemented the same.

b. The Attendance Procedure is detrimental to the employee(s) when compared to the provisions of the National Employment Standard (NES). This specifically arises concerning the amended notification of evidentiary provisions in the new procedure and the corresponding requirements of the procedure that the evidentiary arrangements must be complied.

c. An employee(s) does not receive personal/carer’s leave or the payment that should be afforded for that leave and may be subject to disciplinary action if they do not comply with the Attendance Procedure, even in circumstances where the requirement of Division 7 of Part 2.2 of Chapter 3 of the Fair Work Act ‘Personal/Carer’s and Compassionate Leave have been met.

d. The term of an Award, Enterprise Agreement or contract of employment cannot provide for a lesser standard or a standard than that provided for in the NES.”

[37] The CFMEU seeks that the Commission determines its application in the following terms:

“(a) The Attendance Procedure implemented is contrary to and/or is detrimental to the employee(s) as compared to Division 7 of Part 2.2 of Chapter 3 of the Personal/Carers and Compassionate Leave.

(b) The Attendance Procedure in the form implemented is harsh, unjust or unreasonable.

(c) Further we ask the Fair Work Commission to resolve the dispute by determining the manner the Attendance procedure should operate.”

[38] The Company argued in its outline that the evidentiary requirement set out at subclause 15.B.3 of the Agreement is clearly permitted by s.137(5) of the Act. The provisions of the Agreement were agreed to by the CFMEU in the approval process.

[39] “The certification/evidence requirements as set out at clause 5.1 of the Attendance Procedure merely sets out what is required to ‘prove to the satisfaction of the Company that the personal leave was taken due to a matter described in 15.B.1’. This is wholly consistent with the NES and the Enterprise Agreement. In the absence of such clarification, employees remain uncertain as to compliance with clause 15.B.3 of the Enterprise Agreement.”

[40] The outline went on to say:

“Each employee is entitled to 120 hours of personal leave annually and any unused leave will accumulate – clause 15.B.1 of the Enterprise Agreement. The evidence requirements of the Attendance Procedure are:

a. Medical certificate;

b. Alternatively, if it is not reasonably practicable to provide a medical certificate, a statutory declaration setting out the reason for personal leave and why it was not reasonably practicable to provide a medical certificate. Statutory declarations are limited to absences of not more than 2 days and not more than for three occurrences in any 12 month period.”

[41] The outline continued to argue that:

“Mr Hardy attached a number of letters signed by employees to his statement. The letter seeks to establish that it is difficult to see a doctor on short notice in the area the employees live. During the period April 2011 to April 2013 for the employees that signed the letter there were 280 occurrences of leave with a medical certificate. Of those occurrences, 204 were for 1 or 2 days (73%). The Attendance Procedure reflects what has been happening in practice for the past two years.”

[42] “Mr Hardy focuses on the difficulty of obtaining a medical certificate. However, the alternate option is to provide a statutory declaration. A statutory declaration can only be witnessed by a limited range of authorised people being a Legal Practitioner, Commissioner of the Court for taking affidavits, Justice of the Peace, Notary Public or any other person authorised by law to administer an oath. These people may not necessarily be available on short notice, afterhours or on weekends. A statutory declaration is not a simple substitute for a medical certificate.”

[43] In his supporting oral submissions, Mr Endacott said that I can be satisfied on the unchallenged evidence of Mr Hardy and Mr Walton that access to doctors is difficult for Glennies Creek employees. 9 “In fact the company brings no evidence from anyone to say that locally you can get in and see a doctor.”10

[44] Mr Endacott went on to argue that the new Attendance Procedure “falls foul of section 55 and section 61 of the Act that talks about you can’t have a position that’s lesser or more detrimental to the employee than the standard.” 11

[45] In his supporting oral submissions, Mr Fleming argued: “What the company is proposing through the attendance policy and the Accountability and Personal Conduct procedure is providing a single standard that applies to all employees, to be applied by all managers, supervisors in the event of a breach of policy. The policies are clear. They state exactly what’s expected of each employee and the consequences of failing to comply with those procedures is equally clear.” 12

The new Attendance Procedure

[46] A copy of the full Attendance Procedure is in evidence. 13 The date on that document is 4 March 2013. Section 5 of the Procedure provides:

“5. REQUIREMENTS FOR APPLYING FOR SICK LEAVE

5.1 Certification/Evidence Required

When applying for sick/carers leave you must provide evidence of the legitimate reason for the leave. A medical certificate is required in these circumstances. If it is not reasonably practicable to provide a medical certificate, you can provide a statutory declaration setting out the reason you needed to take personal leave and why it was not reasonably practicable to provide a medical certificate.

Each employee will be limited to submitting 3 statutory declarations in any 12 month period. Statutory declarations will not be accepted for absences on the first or last day of the shift (except in the case of an Underground weekend shift worker), the day before or after a public holiday or for absences of more than 2 days. Statutory declarations will not be accepted where an employee does not have any sick/carers leave remaining, regardless of if the limit of 3 has not been reached.

Backdated Doctors certificates will not be accepted.

Certification of the illness or injury must be supplied, where reasonable to do so, within 24 hours after the commencement of the absence in accordance with the Fair Work Act or immediately upon return to work. Failure to supply certification within the timeframe will result in the absence being recorded as uncertificated leave. A longer timeframe will be granted as is reasonable in the circumstances. In the case of prolonged absences certification must be provided to the company on a regular basis.

5.2 AUTHORISATION OF SICK LEAVE

The Company will authorise payment of Sick/ Carer's Leave once the claim has been accepted and authorised by the Employees Shift Supervisor or Superintendent. No payment for leave shall be paid prior to any leave application being submitted and authorised. If evidence is not provided in accordance with 5.1 this will result in the sick/carers leave not being authorised and being recorded as uncertified and unpaid.

Employees may have a discussion with their leader after returning from sick leave prior to their sick leave being authorised.”

[47] The Company produced a document entitlement ‘Tool Box Talk’ dated 1 March 2013 which apparently was the subject of a presentation to employees on 2 March 2013. 14. That document summarises changes to the Company’s Attendance Procedures in the following terms:

“ Each employee is limited to uncertified leave of up to 2 single days without appropriate certification within a rolling twelve (12) month period.

Each employee is limited to submitting 3 statutory declarations in any 12 month period.

Statutory declarations will not be accepted for absences the day before or after a public holiday or for absences of more than 2 days.

Statutory declarations will not be accepted where an employee does not have any sick/carers leave entitlement remaining, regardless of if the limit of 3 has not been reached.

A statutory declaration may be used for an absence on the first of last shift of a roster period.

Employee attendance will be monitored on a regular basis and where attendance is deemed unsatisfactory they will be coached.

An employee whose attendance record reaches an unacceptable level will be given a formal written warning in accordance with the Accountability & Personal Conduct procedure (APC). Previous disciplinary levels/warnings will be taken into account when determining what disciplinary level will be issued.”

[48] The Attendance Procedure document goes on at sections 6 and 7 to provide:

“6. UNACCEPTABLE ATTENDANCE

In defining ‘unacceptable attendance’ each case must be considered on its own facts but in general ‘unacceptable attendance’ may include but is not restricted to:

6.1 UNPAID ABSENCES

An employee who exceeds his/her Sick/Carer's leave entitlements and/or takes unpaid sick leave days without proof to the employer’s satisfaction that the absence from work was caused by illness or injury to themselves or a family member.

6.2 NOTIFICATION

An employee who fails to make appropriate contact with the mine to notify them of their absence.

6.3 LEAVE WITHOUT CERTIFICATION

An employee who within a rolling twelve (12) month period takes more than 2 single days without appropriate certification.


6.4 GENERAL ABSENCES

The following General absences may result in the employee having his/her attendance record highlighted. Highlighting an employee’s record is not considered as disciplinary action.

• An employee who in a twelve (12) month period approaches his/her full annual entitlements.

• Extended Periods -An employee who in a twelve (12) month period takes sick leave in one or two day absences that fall before or carry on from weekends, annual leave, public holidays, off cycle periods etc.

• Specific Day - An employee who in a twelve (12) month period takes more than two (2) days off of a specific day of the week or roster e.g. Mondays, first day or last day of their roster.

7. PROCEDURE TO ADDRESS UNACCEPTABLE ATTENDANCE

7.1 REVIEW

The company will on a regular basis (weekly/monthly) review employee attendance records highlighting those employees who have records approaching an unacceptable level.

7.2 COACHING

An employee whose attendance record is highlighted as a result of the review process will be coached by his/her immediate Supervisor and advised of the Company's concern that their attendance record is approaching an unacceptable level. The Supervisor will discuss with the employee the cause of his or her absences and possible steps he or she can take to remedy the absences.

Where an employee proves to the satisfaction of the Company that his/her absences were caused by illness or injury to themselves or a family member, the employee will not progress to the next stage of the attendance management process.

Where an employee demonstrates to the satisfaction of their Superintendent or Senior Manager that their absences were as a result of circumstances beyond their control, the Supervisor or Senior Manager may determine that the employee should not progress to the next stage of the attendance management process.

Any previous attendance records are to be taken into account when considering necessary action as a result of absenteeism.

7.3 FORMAL WRITTEN WARNINGS

An employee whose attendance record reaches an unacceptable level will be given a formal written warning in accordance with the Accountability & Personal Conduct Procedure (APC). Previous disciplinary levels/warnings will be taken into account when determining what disciplinary level will be issued.”

[49] The previous Attendance Procedure or Policy as it was then termed was promulgated in March 2010 15. That Policy said in relation to evidence:

“When applying for sick/carers leave you must provide evidence of the legitimate reason for the leave. A medical certificate is required in these circumstances. If it is not reasonably practicable to provide a medical certificate, you can provide a statutory declaration setting out the reason you needed to take personal leave and why it was not reasonably practicable to provide a medical certificate.”

Conclusions and Determination

[50] The Company has promulgated a new Attendance Policy. It is axiomatic that any policy can only be enforceable to the extent that it reflects the practical application of the Company’s obligations and rights pursuant to the Agreement and the relevant provisions of the Act. No such policy can have the effect of granting the employer any new right or expanding any existing rights. Were a policy to seek to do so, such policy, or a section of such policy, would be to null legal effect.

[51] The provisions of the Agreement, specifically subclause 15.B.3, provide that an employee must prove to the satisfaction of the Company that the relevant leave claim was taken for a legitimate purpose as set out in subclause 15.B.1.

[52] Section 107 of the Act sets out provisions relating to evidence/proof which allow an enterprise agreement to include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid sick/carers leave. The Explanatory Memorandum gives further guidance. The Memorandum makes it clear that in some circumstances an employer is entitled to request a medical certificate in lieu of a statutory declaration. In my view, there is nothing in the relevant agreement provisions which is in conflict with the NES. The quantum of leave available under the Agreement is in excess of the NES.

[53] The Company’s 2010 Attendance Policy provided that a medical certificate was required but could be replaced by a statutory declaration where it was not reasonably practicable to provide such a certificate. Any statutory declaration needed to set out the reason for the leave and also why it was not reasonably practicable to provide a medical certificate.

[54] The Company claims that the new Attendance Procedure of March 2013 is only intended to clarify what is required of employees and the consequences of failing to comply with the Company’s Procedures. In my view, the matters set out in the new Attendance Procedure and the requirements in it are unexceptional save in one important regard.

[55] The new requirement that each employee is limited to submitting three statutory declarations in any rolling twelve month period is in my view unreasonable and not in alignment with the NES or subclause 15.B.3 of the Agreement. This is not to say that the Company in any event is compelled to accept a statutory declaration on any occasion that sick/carers leave is claimed if the Company has legitimate reasons for doubting the veracity of such a declaration. The problem with the new Procedure is the arbitrary limitation of three statutory declarations in any rolling twelve month period. The Company has a wide discretion in relation to acceptable evidence but not to the extent of setting such an arbitrary limit.

[56] There will inevitably be some situations where an employee will quite legitimately submit more than three statutory declarations in any rolling twelve month period and all such declarations must be considered on their merits not as part of some arbitrary cut off point.

[57] In evidence as attachments to Mr Hardy’s witness statement are documents signed by some 61 Glennies Creek employees who are members of the CFMEU. Each of those documents contains a statement: “It’s my experience that in the area I live, there is a shortage of doctors. It’s difficult to see a doctor at short notice and with the way the roster works. It can take a couple of days to gain an appointment.”

[58] The documents from employees only represent anecdotal evidence but a similar position was put by Mr Hardy and Mr Walton in their sworn evidence. There was nothing from the Company which seriously challenged their evidence in that regard. Accordingly, it has had some weight in my decision making.

[59] In summary, it is my view and determination that the Company’s new Attendance Procedure is not contrary either to the terms of the Agreement or to the NES except in the one specific area which I have identified above in relation to a limit of three statutory declarations in any rolling twelve month period. In that respect, I further determine that the arbitratory limitation on statutory declarations is not enforceable as it is contrary to both the provisions of the Act and the Agreement.

[60] Before concluding this decision, I wish to note my view that the 2010 Attendance Policy/Procedure appears to have been perfectly adequate in relation to the evidence requirement and was fully compliant in that regard with both the Agreement and the Act.

[61] Any individual disputes over the application of the new procedure can be dealt with under the dispute resolution procedure.

COMMISSIONER

Appearances:

K Endacott with T Hardy for the Construction, Forestry, Mining and Energy Union.

R Fleming with M Nash for Glennies Creek Coal Management Pty Limited.

Hearing details:

2013.

Sydney:

May 13.

 1   Exhibit CFMEU 3.

 2   Transcript PN359.

 3   Transcript PN360.

 4   Exhibit Vale 4.

 5   Exhibit CFMEU 2.

 6   Transcript PN246.

 7   Transcript PN247.

 8   Exhibits CFMEU 1 and Vale 1 respectively.

 9   Transcript PN397.

 10   Transcript PN398.

 11   Transcript PN425.

 12   Transcript PN470.

 13   See Attachment TAH-6 to Exhibit CFMEU 2.

 14   See Attachment TAH-5 to Exhibit CFMEU 2.

 15   Exhibit Vale 2.

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