Construction, Forestry, Mining & Energy Union v Anglo Coal (Drayton Management) Pty Ltd
[2016] FCCA 400
•29 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CONSTRUCTION, FORESTRY, MINING & ENERGY UNION v ANGLO COAL (DRAYTON MANAGEMENT) PTY LTD | [2016] FCCA 400 |
| Catchwords: INDUSTRIAL LAW – Construction of enterprise agreement – whether there was a breach of the enterprise agreement – calculation of personal/carer’s leave in accordance with the enterprise agreement – application dismissed. |
| Legislation: Fair Work Act 2009, ss.3, 16, 18, 50, 95, 96, 97, 98, 99, 100, 101, 102, 539, 566, 570 |
| National Tertiary Education Union v La Trobe University [2015] FCAFC 142 United Voice v Valspar WPC) Pty Limited [2014] FCAFC 34 TWU v Coles Supermarkets Australia Pty Limited [2014] FCAFC 148 Australian Education Union v State of Victoria [2015] FCA 1196 |
| Applicant: | CONSTRUCTION, FORESTRY, MINING & ENERGY UNION |
| Respondent: | ANGLO COAL (DRAYTON) MANAGEMENT PTY LTD |
| File Number: | SYG 2955 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 29 February 2016 |
| Date of Last Submission: | 29 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 29 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Crawshaw SC |
| Counsel for the Respondent: | Mr A Gotting |
| Solicitors for the Respondent: | Ashurst Australia |
ORDERS
The two separate questions in the amended application in a case identified below be heard and determined first pursuant to r.17.02 of the Federal Circuit Court Rules 2001:
Question 1: Whether, for an employee who works 12.5 hour shifts, the proper construction of clause 21 of the Anglo Coal (Drayton Management) Pty Limited Enterprise Agreement 2012 is that the entitlement to payment under subclause 21.11 for the maximum of 127.5 hours of personal/carers' leave forgone is the payment that the employee would have been received if that employee had worked 127.5 hours or 187.5 hours?
Question 2: Whether, for an employee who works 12.5 hour shifts, the proper construction of clause 21 of the Anglo Coal (Drayton Management) Ptv Limited Enterprise Agreement 2012 is that the entitlement to payment under subclause 21.11 for 119 hours of personal/carers' leave forgone is the payment that the employee would have been received if that employee had worked 119 hours or 175 hours?
The separate questions be answered:
Question 1: 127.5 hours.
Question 2: 119 hours.
The proceedings be dismissed.
No order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Sydney |
SYG 2955 of 2015
| Construction, Forestry, Mining & Energy Union |
Applicant
And
| Anglo Coal (drayton) Management Pty Ltd |
Respondent
REASONS FOR JUDGMENT
These are proceedings within the Court's jurisdiction under s.566 of the Fair Work Act 2009 (Cth). The applicant alleges a breach of s.50 of the Fair Work Act 2009 which provides as follows:
Section 50 Contravening an enterprise agreement
A person must not contravene a term of an enterprise agreement.
The proceedings are brought pursuant to s.539 of the Fair Work Act 2009 in respect of that alleged contravention.
The object of the Fair Work Act2009 is as follows:
Section 3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and
(g) acknowledging the special circumstances of small and medium-sized businesses.
At a directions hearing on 26 November 2015, the Court endeavoured to clarify with the parties the kernel of the dispute between the parties in relation to the alleged contravention. The proceedings refer to several employees who have signed different agreements consistent with the Anglo Coal (Drayton Management) Pty Ltd Enterprise Agreement 2012, for the purpose of cashing out options in respect of personal carer's leave under that enterprise agreement.
The Court was informed that the kernel of that difference was that the respective employees had been paid an amount consistent with the alleged entitlement of 127.5 hours in respect of the value of their personal carer's leave hours that the employee elected to sacrifice. The applicant contended that the value of the personal carer's leave hours could give rise to a calculation for the purpose of payment in respect of most of the employees, based on a figure of 187.5 hours. The increased amount of 187.5 hours or 175 hours related to two rosters that provided for shifts four hours longer than 8.5 hours.
The Court made orders permitting the respondent to move for determination of a separate question, if that was capable of potentially giving rise to a final determination of the proceedings if answered a particular way. An application was put on by the respondent for the Court to determine first and separately the questions posed in the amended application in a case which are as follows:
Question 1: Whether, for an employee who works 12.5 hour shifts, the proper construction of clause 21 of the Anglo Coal (Drayton Management) Pty Limited Enterprise Agreement 2012 is that the entitlement to payment under subclause 21.11 for the maximum of 127.5 hours of personal/carers' leave forgone is the payment that the employee would have been received if that employee had worked 127.5 hours or 187.5 hours?
Question 2: Whether, for an employee who works 12.5 hour shifts, the proper construction of clause 21 of the Anglo Coal (Drayton Management) Pty Limited Enterprise Agreement 2012 is that the entitlement to payment under subclause 21.11 for 119 hours of personal/carers' leave forgone is the payment that the employee would have been received if that employee had worked 119 hours or 175 hours?
At the commencement of the hearing today, counsel for the applicant confirmed that if those questions were answered one particular way, that would give rise to a complete determination of the dispute between the parties. If answered another way, further matters would arise. The parties also identified that there was agreement in relation to the material upon which those separate questions should be determined. Three affidavits were read in that regard for the determination of those separate questions. Accordingly, the Court ordered the above two questions be determined first and before the balance of the proceedings.
The other relevant provisions of the Fair Work Act 2009 are as follows:
Section 16 Meaning of base rate of pay
General meaning
(1) The base rate of pay of a national system employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:
(a) incentive-based payments and bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) any other separately identifiable amounts.
Meaning for pieceworkers in relation to entitlements under National Employment Standards
(2) Despite subsection (1), if one of the following paragraphs applies to a national system employee who is a pieceworker, the employee's base rate of pay , in relation to entitlements under the National Employment Standards, is the base rate of pay referred to in that paragraph:
(a) a modern award applies to the employee and specifies the employee's base rate of pay for the purposes of the National Employment Standards;
(b) an enterprise agreement applies to the employee and specifies the employee's base rate of pay for the purposes of the National Employment Standards;
(c) the employee is an award/agreement free employee, and the regulations prescribe, or provide for the determination of, the employee's base rate of pay for the purposes of the National Employment Standards.
Meaning for pieceworkers for the purpose of section 206
(3) The regulations may prescribe, or provide for the determination of, the base rate of pay, for the purpose of section 206, of an employee who is a pieceworker. If the regulations do so, the employee's base rate of pay , for the purpose of that section, is as prescribed by, or determined in accordance with, the regulations.
…
Section 18 Meaning of full rate of pay
General meaning
(1) The full rate of pay of a national system employee is the rate of pay payable to the employee, including all the following:
(a) incentive-based payments and bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) any other separately identifiable amounts.
Meaning for pieceworkers in relation to entitlements under National Employment Standards
(2) However, if one of the following paragraphs applies to a national system employee who is a pieceworker, the employee's full rate of pay , in relation to entitlements under the National Employment Standards, is the full rate of pay referred to in that paragraph:
(a) a modern award applies to the employee and specifies the employee's full rate of pay for the purposes of the National Employment Standards;
(b) an enterprise agreement applies to the employee and specifies the employee's full rate of pay for the purposes of the National Employment Standards;
(c) the employee is an award/agreement free employee, and the regulations prescribe, or provide for the determination of, the employee's full rate of pay for the purposes of the National Employment Standards.
…
Division 7--Personal
Subdivision A--Paid personal
95 Subdivision applies to employees other than casual employees
This Subdivision applies to employees, other than casual employees.
96 Entitlement to paid personal/carer’s leave
Amount of leave
(1) For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.
Accrual of leave
(2) An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.
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 1: The notice and evidence requirements of section 107 must be complied with.
Note 2: If a female employee has an entitlement to paid personal/carer’s leave, she may take that leave instead of taking unpaid special maternity leave under section 80.
98 Employee taken not to be on paid personal/carer’s leave on public holiday
If the period during which an employee takes paid personal/carer’s leave includes a day or part‑day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid personal/carer’s leave on that public holiday.
99 Payment for paid personal/carer’s leave
If, in accordance with this Subdivision, an employee takes a period of paid personal/carer’s leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.
100 Paid personal/carer’s leave must not be cashed out except in accordance with permitted cashing out terms
Paid personal/carer’s leave must not be cashed out, except in accordance with cashing out terms included in a modern award or enterprise agreement under section 101.
101 Modern awards and enterprise agreements may include terms relating to cashing out paid personal/carer’s leave
(1) A modern award or enterprise agreement may include terms providing for the cashing out of paid personal/carer’s leave by an employee.
(2) The terms must require that:
(a) paid personal/carer’s leave must not be cashed out if the cashing out would result in the employee’s remaining accrued entitlement to paid personal/carer’s leave being less than 15 days; and
(b) each cashing out of a particular amount of paid personal/carer’s leave must be by a separate agreement in writing between the employer and the employee; and
(c) the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.
These provisions of the Fair Work Act 2009 provide a statutory entitlement to be paid personal/carer's leave, and materially provide a requirement for an enterprise agreement to include a cashing out option of the alternative kinds identified in s.102(2). Section 102(2)(c) identifies the intention that the employee must be paid at least the full amount that would have been payable to the employee, had the employee taken the leave that the employee has foregone.
Section 99 also requires that where the employee takes a period of paid personal carer's leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period. The scheme of the Act in this regard reveals an intention to permit an entitlement to be determined by reference to days or hours.
In the present case, the Anglo Coal (Drayton Management) Pty Ltd Enterprise Agreement 2012, consistent with the Act, provided for a cashing out option in relation to personal carer's leave addressed by cl.21 as follows:
21 PERSONAL I CARER'S LEAVE
Personal/ Carer's leave covers an employee's own sick leave when they are unable to work due to personal illness or injury. and leave to provide care to members of their immediate family or their household for whom they have responsibility, because of:
a) a personal illness or personal injury affecting the member, or
b) an unexpected emergency affecting the member.
The parties to the agreement are committed to minimising unplanned absenteeism at Drayton Mine whilst recognising that an employee who is absent from work due to the above reasons will be entitled to paid personal/ carer's leave subject to the following conditions and limitations.
21.1 No Personal Leave in Respect of Workers Compensation
An employee will not be entitled to paid personal/ carer's leave for any period in respect of which the employee is entitled to Workers Compensation.
21.2 Reporting of Absence from Work
An employee who is unable to attend work due to personal I carer's leave shall, unless there is genuine reason, advise the nominated company representative not less than 30 minutes prior to the commencement of their shift. They shall provide a reason for absence and an estimated date of return to work. For each additional shift or shifts of absence not nominated, the employee shall update the nominated company representative.
Failure to provide notice of absence may be dealt with under the counselling and discipline policy.
21.3 Annual Credit and Accumulation
On commencement of employment and every following twelve months an employee, other than a part time, temporary or casual employee, will be credited with 127.5 hours of personal leave. Personal/ carer's leave will accumulate without limitation.
21.4 Leave Deduction
Any personal leave taken shall be deducted from the personal/ carer's leave accumulated at the rate of 8.5 hours per shift.
21.5 Proof of Absence
Employees shall prove to the satisfaction of Drayton Mine that the absence from work was on account of illness or injury or was to provide care to members of their immediate family or their household for whom they have responsibility or for other personal emergencies.
Employees must provide a medical certificate in the following circumstances:
a) any personal/carer's leave of a duration of two days or greater (three days or greater for Monday to Friday roster employees).
b) after the employee has had a total of 5 days personal/ carer's leave within a 12 month period and which have not been supported by a medical certificate
The medical certificate will be attached to the employee's personal/ carer's leave claim form upon their return to work. Failure to provide the medical certificate may be dealt with under the counselling and discipline policy. A medical certificate that is obtained within two working days of the absence will be accepted as a medical certificate for the purposes of this clause.
Notwithstanding the above, management will consider exceptional circumstances where a medical certificate cannot be supplied.
2 7.6 Counseling for Excessive or Non Genuine Use of Personal Leave
An employee taking excessive absences, who has a pattern of absences or who has taken absences without a genuine reason may be dealt with under the counselling and discipline policy and if necessary referred to the appropriate employee assistance program.
21. 7 Payment
An employee will be paid for each shift of approved personal/ carer's leave as if at work.
21.8 Payment of Site Allowance on Long Term Personal Leave
Where an employee has been absent due to personal illness/injury for a period of at least 21 consecutive calendar days and has exhausted their paid personal leave entitlements, the site allowance referred to in clause 12.5 will continue to be paid to employees following the expiry of their paid personal leave for a further period of six calendar months or until cessation of the absence (whichever occurs first) in the following circumstances:
a) the absence must be verified by a Medical Certificate;
b) the employee must be taking all reasonable steps to assist in their own recovery and return to work;
c) the employee being willing to return to work under a return to work plan which may include working shorter work hours and undertaking alternative duties.
A staged return to work will not affect the Site Allowance payment if the program is approved by Drayton Mine.
21. 9 Personal/ Carer's Leave During Shift
An employee who absents themselves on personal/ carer's leave during a shift will be paid for the hours worked. Provided that the employee has sufficient accumulated personal/carer's leave, the employee will be paid personal/ carer's leave for the remaining duration of the shift.
Personal/ carer's leave taken in accordance with this clause will be deducted from the employee's accrued personal/ carer's leave as required on a pro rata drawdown basis.
21.10 Pay Out on Retrenchment, Retirement. Death, Ill Health or Resignation
On termination of employment due to retrenchment, retirement, death or ill health, accrued personal/ carer's leave will be paid out at the appropriate rostered rate that applied for the employee immediately prior.
On termination of employment due to voluntary resignation, an employee who has had a minimum of 5 years' service at Drayton Mine and has a remaining balance of greater than 127.5 hours shall be paid out their total balance at the appropriate rostered rate that applied for the employee immediately prior.
21. 11 Cashing Out Options
Provided an employee has a personal/ carer's accrual of not less than 255 hours, the employee may elect to cash out future personal leave benefits in accordance with this sub-clause.
At the time that the employee is to be credited with personal/ carer's leave under this clause, the employee may elect to sacrifice the whole or a portion of the personal/ carer's leave entitlement for the coming year (i.e. up to 127.5 hours of leave as the case may be) and instead receive an employer superannuation contribution to the employee's nominated superannuation fund equal to the gross (pre tax) value of the personal/ carer's leave hours that the employee elects to sacrifice.
Alternatively an employee may choose to direct that the sacrificed personal/ carer's leave benefits be paid through payroll to the employee or into the employee's superannuation fund in which case Drayton Mine will withhold applicable tax, and pay the net (post tax) value of the personal/ carer's leave hours which the employee elects to sacrifice.
Each cashing out must be by a separate written agreement between the employee and Drayton Mine and the employee will be paid as if the employee had taken the leave.
21.12 Termination while on Personal/ Carer's Leave
If Drayton Mine gives notice of termination of employment to an employee during a period of absence on paid personal/ carer's leave, that termination does not take effect until the employee has no further accumulation of personal/ carer's leave or until the employee is able to return to work, whichever occurs first.
The enterprise agreement also contained a definition provision, except where the agreement otherwise indicated, relevantly defining:
Paid as if at work has the same meaning as rostered rate of pay.
…
Rostered hours means the ordinary hours of work and rostered overtime.
Rostered Rate of Pay in relation to an employee means:
a) where the context necessitates the application of an hourly rate, the rate calculated by dividing the employee's annual salary by the number of rostered hours in the employee's roster in a year;
b) where the context necessitates the application of a daily rate, the rate calculated by dividing the employee's annual salary by the number of rostered days in the employee's roster in a year;
c) where the context necessitates the application of a weekly rate, the weekly rate set out in clause 12.4
The enterprise agreement, in section 4 entitled Remuneration and Benefits, sets out a provision providing for rates of pay in cl.12 as follows:
12 RATES OF PAY
12.1 Classification Rate
The classification rates for the purpose of calculating the rate of pay for Casuals and Annual Rostered Rates are contained in the following table:
12.2 Make Up of Annual Rostered Rates
The Annual Rostered Rates of pay contained within this clause provide for all rostered hours of work including rostered overtime and include all wages, allowances, loadings and disability payments previously paid for varying workplace conditions, skills payments and crib flexibility payments, except where otherwise provided for in the Agreement.
12.3 Induction Rate and Site Rate
During the first twelve weeks of employment, an employee will be paid 90% of the Annual Rostered Rate that applies to the employee's roster unless that employee is deemed as fully competent by Drayton Mine at any stage during the first twelve weeks of employment.
Subject to successfully completing the induction and training period, an employee will be paid the Annual Rostered Rate that applies to the employee's roster.
12.4 Payment of Weekly Salary
Each week an employee will be paid a salary equal to one fifty-second of the Annual Rostered Rate that applies to the employee's roster.
12.5 Annual Rostered Rates
The Annual Rostered Rates that apply to the following rosters are outlined below.
Annual rostered rates for new rosters not included below will be calculated in accordance with Appendix 3.
The Annual Rostered Rates includes a site allowance component of $20,461 from commencement of the agreement, $21,484 from the 1st Anniversary, and $22,559 from the 2nd anniversary of the commencement of the Agreement.
The Annual Rostered Rate for rosters I,J,K,L, includes additional payments to cover rostered work on public holidays.
12.6 Support Role Provision
An Employee who is appointed in the support role will receive a weekly allowance of $125.00 per week for the duration of the agreement.
Clause 12.1 identifies that the rates of pay are for the purpose of calculating the rate of pay for, relevantly, annual rostered rates, and in clause 12.2, there is a reference to the annual rostered rates of pay contained in this clause providing for all rostered hours at work. Clause 12.5 identifies the annual rostered rates by reference to rosters outlined, being rosters A to M, and in each roster, there is a reference to sick leave as an entitlement being 126.5 hours, regardless of the different number of hours in shifts. Further, each roster sets out an annual rostered rate on commencement of the agreement, and the changes that occur on the anniversary of the agreement. Clause 12.5 also makes clear that the annual rostered rate includes a site allowance component in its calculation.
Mr Crawshaw, senior counsel for the applicant, identified the distinction between the entitlement created by cl.21 and the payment that might be made under the cashing out option. Mr Crawshaw SC contended further that the cashing out option was one in which the value of the personal carer's leave hours should take into account a quantification of the payment by reference to the shift duration of 12.5 hours. Mr Crawshaw SC referred to para.22 of Ms Williams' affidavit which is as follows:
22. If the employee works a shift which is longer than 8.5 hours in duration, and they take a day (ie, shift) of personal/carer's leave, then Drayton has a practice of paying the employee the hourly amount of the "Annual Rostered Rate" for the shift duration.
Mr Crawshaw SC further referred to the response by Mr Thompson in para.12 as follows:
12. Ms Williams states at paragraph [22] of her Affidavit that if an employee works a shift which is longer than 8.5 hours in duration, and they take a day (i.e. shift) of personal/carer's leave, then Drayton has a practice of paying the employee the hourly rate amount of the "Annual Rostered Rate" for the shift duration. The shift duration is 12.5 hours for employees on Rosters I and J. Therefore consistent with clause 21. 7 of the 2012 Agreement, an employee on Roster I or J is paid the hourly rate amount of the "Annual Rostered Rate" for 12.5 hours. In addition, an employee on personal/carer's leave is paid any allowances that they would have received had they worked the shift, such as a step-up supervisor allowance.
In her reply, Ms Williams said as follows:
Paragraph 12
9. In response to paragraph 12 of the Thompson Affidavit, I say that, having reviewed that paragraph, I agree with what Mr Thompson has stated.
10. Additionally, I have made some enquiries of the Payroll Department of Drayton and the results of my enquires are that, of the employees named in the Statement of Claim, only Jamie Millard, Craig Bates and David Harvison have in the period from 1 January 2012 to current date, ever acted as Step-Up Supervisors, from time to time.
The statutory reference in s.101(2)(c) to the full amount that would have been payable turns on the proper construction of the enterprise agreement, not the practice of the parties It is not necessary to identify the respective agreements signed by the respective employees in detail. Suffice to say that for each employee, there was a signed agreement that identified an election to transfer a particular number of hours, in nearly all cases the maximum, either to the nominated superannuation fund before tax or after tax, or to the employee's bank account or nominated superannuation fund. In each instance in response to the election by the employee, the respondent completed the administrative exercise of making the payment in accordance with the election, and provided a record that identified units being hours, and a particular rate for the calculation of the payment to be made in respect of the number of units.
The effect of Mr Crawshaw SC's argument is to contend that the number of units should be swelled by reference to the increased shift of four hours to 12.5 hours, so that the calculation of entitlement for the purpose of payment would reflect a multiplier of units relevantly in the number of either 187.5 hours or 175 hours. I should note that not all employees elected to surrender the maximum number of hours. One referred to 127 hours in the election; one referred to 119 in the election; and the others referred to 127.5 hours.
Mr Crawshaw SC said that the effect of the words in cl.21.11 referring to the value of the personal carer's leave (a concept twice referred to in cl.21.11), together with the concluding sentence referring to "will be paid as if the employee had taken the leave" and cl.21.7, together with the statutory scheme, gave rise to a calculation of payment that should be made based on the 12.5 hours.
It was common ground that the maximum number of hours that could be the subject of election was 127.5 hours. When put to Mr Crawshaw SC that the effect of his contention was to swell the number of hours in respect of the maximum, Mr Crawshaw SC identified the distinction between the entitlement paid. The difficulty with Mr Crawshaw SC's argument is that the opening words of cl.21 identify that the entitlement to be paid personal carer's leave is subject to "the following conditions and limitations". Whether described as a condition or limitation, cl.21.3 and cl.21.4 identify both the credit entitlement in respect of personal carer's leave, being 127.5 hours, and that any personal leave taken shall be deducted from the personal carer's leave accumulated at the rate of 8.5 hours per shift.
If it had been intended to provide for an increased leave entitlement by reference to a longer shift duration, it would have been easy to say so, either in cl.12.5 in the reference to sick leave entitlement, or to make that clear in cl.21.3, in terms of the maximum number of hours, or in relation to the cashing out provision by identifying something other than the 127.5 hours of leave.
The principles relating to the construction of an enterprise agreement are not in issue, see National Tertiary Education Union v La Trobe University [2015] FCAFC 142 at [29]-[30] per Jessup J; United Voice v Valspar WPC) Pty Limited [2014] FCAFC 34 at [2] per Marshall and Perry JJ; TWU v Coles Supermarkets Australia Pty Limited [2014] FCAFC 148 at [39]-[46] per Siopis, Buchanan and Flick JJ; Australian Education Union v State of Victoria [2015] FCA 1196 at [34] per Bromberg J. The plain and ordinary language used in the enterprise agreement supports an election by reference to the units being a number of hours. That election was clearly intended to be a simple and practical task, readily capable of identification by those that benefit of the enterprise agreement.
The effect of Mr Crawshaw SC's argument would be to either double count the value of the annual rostered rate, or to ignore the maximum number of hours in the entitlement in the calculation of the value of the leave hours the subject of the cashing out agreement.
I accept the respondent's submission that cl.21.7 must be construed consistent with the definition referring to "paid as if at work", despite the slight difference in the expression found in cl.21.7. I also accept the respondent's submission that the rostered rate of pay for the purpose of the hourly rate is as identified in paragraph (a).
The applicant's contention is, in my opinion, inconsistent with the rosters identified in cl.12.5, and inconsistent with the clear identification of the maximum of 127.5 referred to both in cl.12.5 and referred to three times in cl.21, as well as being the base multiplier for the minimum number of hours of 255 hours that must be attained by an employee seeking to make any election. The statutory scheme does not support the applicant’s contention.
No evidence was put on to advance any case in respect of the rate identified by the respondent in its payment being erroneous beyond the contention that the number of hours should be increased by four hours per shift. The effect of that contention was to increase the number of units, and the effect of that was to exceed the maximum entitlement of the 127.5 hours. Apart from the illogicality of the applicant's contention that there should be taken into account the longer hours in the payment of the personal carer's leave, when compared to the entitlement, it does not accord with the plain and ordinary meaning of the words used. Whether or not the employee had taken the leave, the employee would not have been entitled to be credited with more than the 125.5 hours. The separate questions should be answered as follows: question 1, 127.5 hours; question 2, 119 hours.
It is unnecessary to address the other difficulties faced by the applicant given the signed elections in this case and it is unnecessary to determine whether s.50 could be said to have any application to the employee election agreement.
In the circumstances where the Court has answered the questions in that way, there is no further dispute remaining between the parties, and it is appropriate that the proceedings be dismissed. No application was made for costs in relation to s.570 of the Act.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 3 March 2016
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