Continence Foundation of Australia Ltd T/A Continence Foundation of Australia
[2022] FWC 3141
•25 NOVEMBER 2022
| [2022] FWC 3141 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Continence Foundation of Australia Ltd T/A Continence Foundation of Australia
(AG2022/4010)
| Nurses (National Continence Helpline) Enterprise Agreement 2022-2025 Health and welfare services | |
| COMMISSIONER SIMPSON | BRISBANE, 25 NOVEMBER 2022 |
Application for approval of the Nurses (National Continence Helpline) Enterprise Agreement 2022-2025
An application has been made for approval of an enterprise agreement known as the Nurses (National Continence Helpline) Enterprise Agreement 2022-2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the FW Act). It has been made by Continence Foundation of Australia Ltd T/A Continence Foundation of Australia (the Applicant). The Agreement is a single enterprise agreement.
The Australian Nursing and Midwifery Federation (ANMF), a bargaining Representative to the Agreement, notified the Commission via their Form F18 that they wished to be heard on whether the proposed Agreement meets the requirements of the National Employment Standards (NES) for long service leave for Category B Employees as this was an unresolved matter throughout bargaining (the Long Service Leave Issue). The ANMF further expressed that they supported the approval of the Agreement once the issue of whether the agreement is meeting the NES for long service leave is resolved.
I listed the matter for a Directions Hearing on 17 October 2022 and issued directions for the filing of material regarding the Long Service Leave Issue and other concerns the I had regarding the Agreement. These included:
1.The Flexibility Term;
2.Classification Matching; and
3.Public Holidays.
Flexibility Term
I raised with the parties that it was my view that the Flexibility Term in the Agreement was inconsistent with s.203(6)(b) of the FW Act and that should the Agreement be approved, the Commission would insert the Model Term. The Applicant raised no objection to this.
Classification Matching
I also raised with the parties an issue regarding the classification matching for Level 5 employees. The Applicant submitted that due to the way the Employer’s business operates – and the nurses under this agreement solely working as office-based telephone helpline service operators, Level 5 employees under the agreement would not exceed a Grade 3 classification under the Award. The level of complexity in the role means that employees could never be, and will never be, a Level 5 Grade 6 employee. The ANMF submitted that they agreed that Grade 5 in the proposed agreement is below Grade 5 in the award.
Public Holidays
I also raised an issue with the parties regarding the Public Holiday Clause in the Agreement. The Applicant provided an undertaking to address this concern, and the ANMF supported this undertaking.
The Long Service Leave Issue
Issues
The Applicant submitted that the text of s.113(3)(a)(ii) of the FW Act is clear. The test requires that the employee, at the test time, would have been entitled to long service leave. To be entitled to long service leave the employee must demonstrate that they would have satisfied the conditions of an applicable award and, at the test time, have been entitled to take, use or otherwise receive their long service leave. Cl 37.6 appropriately applies the Long Service Leave Act 2018 (Vic) (Victorian Act) to those employees who would not have been entitled to long service leave as at the test date.
The ANMF disagrees. The Applicant submitted that the ANMF asserts that Category B employees are entitled to long service leave benefits according to the Continence Foundation of Australia Ltd (National Continence Hotline) and Australian Nursing Federation Enterprise Agreement 2000 (2000 Agreement). The 2000 Agreement applied the Nurses (Victorian Health Services) Award 2000 (Pre-Reform Award).
ANMF submitted that they do not assert that Category B employees are entitled to long service leave benefits according to the 2000 Agreement. Rather, ANMF asserts that Category B employees are entitled to long service leave in accordance with section 113 of the Act which preserves the long service leave terms in accordance with the Pre-reform Award.
The issue between the parties is the proper construction of s.113 of the FW Act.
Interpretation of s.113 of the FW Act
The Applicant submitted that interpreting the true meaning of s.113 of the FW Act begins with a consideration of the text.[1] The Applicant submitted that the words of s.113 must be read in context and having regard to the statutory purpose or object.[2] In interpreting a provision in an Act, the interpretation that would best achieve the purpose or object of the Act (regardless of whether the purpose or object is expressly stated) is to be preferred to each other interpretation.[3]
Text
The Applicant submitted that subject to sub-section 113(3), s.113(1) will entitle an employee to long service leave in accordance with the terms of an applicable award. Where an employee does not have an entitlement to long service leave under any award derived long service leave terms, the Applicant contended that it will be necessary to consider the relevant State or Territory legislation; in this case the Victorian Act.[4]
With respect to Category B employees, the Applicant submitted that section 113(1) expressly requires that, for there to be “applicable award-derived long service leave terms” two conditions must be satisfied.[5] First, that there is an award which would have applied to Category B members at the test time if, at that time, they had been in their “current circumstances of employment”.[6] Second, that the terms of the award “would have entitled” Category B members to long service leave.[7] It is the second test which the Applicant says results in Category B employees being correctly subject to the Victorian Act. The Applicant submitted they are not aware of an authority that considers the operation of s.113(3) or (3A) of the FW Act in relation to employees who were not employed as at the test time. The Applicant cited the case of Maughan, where it considers s.113 of the FW Act in circumstances where the employee was subject to applicable award-derived long service leave terms prior to the test time.[8]
The Applicant submitted that the correct interpretation of s.113(3) should be that it refers to terms that provide for an entitlement that would actually have accrued. The Applicant further submitted that the reasoning at [43] of Maughan fails to correctly construct the text of s.113(3)(a)(ii). The Court refers to the employee having a “right” to long service leave. The text states “would have entitled the employee to long service leave”. The Applicant submits that the proper construction requires that the employee demonstrate that it had satisfied the conditions of the applicable award and was, at the test time, entitled to take long service leave.
It was submitted by the Applicant that historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.[9] The Applicant contended that the text of s.113(3)(a)(ii) is clear, and the applicable award-derived long service leave terms in relation to an employee are the terms of an award that would have applied at the test time and, would have entitled the employee to long service leave.
The Applicant submitted that only in circumstances where the employee would have been entitled to long service leave at the test time do the terms of the Pre-Reform Award apply. The test of s.113(3) includes “and” between subsections (a)(i) and (ii). Read together the applicable award must have entitled the employee to long service leave. That is to say that the employee had satisfied the conditions of the applicable award and was entitled to take long service leave or receive the benefits of its entitlement to long service leave.
The ANMF submitted that the Applicant refers to section 113(3) as a substantive provision. However, section 113(3) simply provides a definition for the purpose of section 113(1) rather than conferring an entitlement. As a result, the ANMF submitted that the Applicant fails to sufficiently address section 113 (1) which provides "If there are applicable award-derived long service leave terms (see subsection (3)) in relation to an employee, the employee is entitled to long service leave in accordance with those terms."
ANMF submitted that by failing to focus on section 113 (1) the Applicant misses the purpose of section 113, namely to establish a minimum national standard for long service leave as sections 3(b), 5(3), 59 and section 61 make clear.
The Applicant submitted that the Category B nurses were only employed by the Foundation from 1 January 2018 with the longest serving nurse being employed for less than 4 years. At the time of this submission no Category B nurse has provided the Foundation with material confirming they were subject to the Pre-Reform Award prior to 1 January 2010 or were entitled to long service leave prior to 1 January 2010.
The Applicant submitted that in Maughan, Katzmann J refers to s.113(a)(ii), and respectfully, Katzmann J’s position that “paragraph (a)(ii) is concerned with whether that award includes an entitlement to long service leave” is not the correct construction derived from the text itself.
The Applicant contended that the clear and certain meaning of the text is that the employee would have been entitled to long service leave. That is the employee would have satisfied the conditions of the applicable award to entitle the employee, to use, receive or otherwise benefit from long service leave as at the test date.
The ANMF submitted that the Applicant misstates the relevance of the reference to the "test time" in section 113(3)(a)(i). The "test time" in section 113(3)(a)(i) is directed to the presence of terms that would have applied. It does not govern the question of the existence of a vested entitlement to long service leave at that time.
The Applicant submitted that Clause 37.6 of the Proposed Agreement is correct to apply the Victorian Act to the Category B employees on the basis they are not entitled to long service leave under the Pre-Reform Agreement as at 31 December 2009 as required by s.113(3)(a)(ii).[10]
The ANMF submitted that the Applicant invites a single member of the Commission to depart from the approach adopted to the provision in question by the Full Court of the Federal Court in Maughan. The ANMF submitted that it is almost unthinkable that the Commission as presently constituted would do so. The ANMF submitted the Applicant says that the text concerned is "clear". Nonetheless, the Applicant then invites the Commission not to follow Full Federal Court authority that is inconsistent with the Applicant’s approach (Applicant’s Submissions [38]) and simultaneously chooses to ignore direct language in the Explanatory Memorandum.
The ANMF submitted that the decision of the Full Federal Court in Maughan is directly on point and contradictory to the Applicant’s argument that the employee needs to have been entitled at the test time to take the long service leave (or benefit) to have s.113 apply to them. ANMF submitted that Maughan clearly provides the authority that the long service leave entitlement does not have to have been accrued for the employee to have s.113 apply to them.
Justice Katzmann (Justices Greenwood and Besako agreeing) said at paragraph 43 in Maughan:
“The second condition in s 113(3)(a) is satisfied if, at the test time, the employee would have had a right to long service leave under a relevant award (that is, an award satisfying the first condition in s 113(3)(a)), irrespective of whether at that time the employee would have accrued long service leave.”
The ANMF submitted that this is a complete answer to the Applicant’s position.
Further, it was submitted by the ANMF the words of s.113(3)(a)(ii) do not have a requirement to have the entitlement to take the long service leave at test time. The test time requirement solely applies to s.113(3)(a)(i) as is made clear in the definition of test time at section 113 (3A).
The ANMF contended that whilst it is clear that the preservation of applicable award-derived long service leave terms was intended to be a transition until a uniform national long service leave standard was achieved, this uniform standard has not yet been achieved and as such the current law in section 113 utilising the Pre-Reform Award as the applicable base standard for both employees employed prior to 2010 and those employed post 2010 should be applied.
Context and purpose
The Applicant submitted that the EM does not address what it means for the employee to have been entitled to long service leave as at the test date as stated in s 113(3)(a)(ii).[11] The FW Act as a whole is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians. Part 2-2 sets the minimum standards that apply to the employment of employees which cannot be displaced. A reading of s.113(3) which preserved the long service leave entitlements of employees, who were entitled to use or benefit from long service leave, as at the test time, is consistent with a cooperative and productive workplace, and maintains the minimum standards that apply to employees.
The Applicant submitted that the EM provides that the entitlement of Division 9 is a transitional entitlement, pending the development of a uniform, national long service leave standard with the States and Territories.[12] This is consistent with a construction of s.113(3)(a)(ii) that seeks to determine whether an employee was entitled to long service leave as at the test date.
The Applicant submitted that Section 113 is intended to preserve the rights of an employees’ pre-reform long service leave entitlements where that employee was entitled to long service leave as at the test date.[13] This reading ensures that employees, who were subject to an applicable award as at 31 December 2009, from 1 January 2010, did not lose their long service leave entitlements or have their entitlement to long service leave diminished in any way from the introduction of the FW Act.
The Applicant submitted that the transitional nature of Division 9 was not intended to provide for new employment arrangements in 2022 or beyond. The Applicant contended that the intention of Parliament was to transition employees long service leave entitlements to a uniform, national long service leave standard.[14] The Applicant submitted that it can be inferred that employees who were not employed as at 31 December 2009 were to be subject to the award standards applicable to them from 1 January 2010.
The ANMF submitted that the Applicant wrongly characterises Division 9 and section 113 as transitional provisions not intended to provide for new employment arrangements in 2022. The difficulty with this analysis is that section 113 is a National Employment Standard. The approach advanced by the Applicant is to treat section 113 alone, among all the National Employment Standards, as a transitional provision preserving existing entitlements, rather than establishing a minimum national standard. The ANMF submitted that the provision was not treated as a transitional provision at the time section 113 was introduced and was not included in a scheme of transitional provisions. The Applicant would have employees who "would have" had access to Federal award long service leave terms defaulting to State Long Service Leave Act arrangements. This is instead of an approach that sees the section as securing the pattern of long service leave provisions provided by Federal awards and State long service leave at the time the NES commenced. Such a radical transfer of established Federal award long service leave provisions to State Long Service Leave Act provisions is nowhere evident in the language of the Act, the decision of a Full Federal Court or in the Explanatory Memorandum.
The ANMF submitted that associated with the misunderstanding of what was "preserved" by section 113, the Applicant's Submissions fail to address the interplay between the national employment standard for long service leave in section 113 and section 27 (1)(c) and 27(2)(g) in respect of the long service leave entitlement under State law.
In ANMF’s view section 113 (3) is not ambiguous. However, the legislative context in which section 113 was enacted is assisted by the explanation in the Supplementary Explanatory Memorandum, especially at paragraphs 38-45. This is reproduced below:
38. An employee is entitled to long service leave under clause 113 in accordance with applicable award-derived long service leave terms (subclause 113(1)).
39. This clause preserves the effect of long service leave terms in pre-modernised awards (i.e., awards as they stood immediately before commencement of the NES).
40. The legislative note after this subclause explains that the Bill does not exclude State and Territory laws dealing with long service leave, except in relation to employees entitled to long service leave under the NES.
41. To determine whether there are applicable award-derived long service leave terms, it is necessary to consider the award that would have applied to the employee’s current employment if the employee had been in that employment immediately before commencement (paragraph 113(3)(a)). (This test applies to existing employees and employees that start employment after commencement of the NES.)
42. When making the assessment under paragraph 113(3)(a), the effect of the types of agreements, and other instruments, referred to in subclause 113(2) on the award-derived entitlement is ignored.
43. The fact that an employee’s award-derived entitlement does not apply because of the operation of subclause 113(2) does not mean that the employee does not have an award-derived NES entitlement (and such an employee could not, for example, become covered by an agreement-derived NES entitlement under subclause 113(4)).
44. The legislative note after subclause 113(2) explains that where an agreement or instrument referred to in this subclause ceases to apply, the employee will be entitled to long service leave in accordance with any applicable award-derived long service leave terms.
The ANMF submitted that paragraph 41 clearly states that “(This test applies to existing employees and employees that start employment after commencement of the NES.)”.
The Applicant contended that the Full Federal Court of Australia did not deny that s.113 is a transitional provision designed to preserve the effect of long service leave terms in awards as they stood before the commencement of the NES.[15]
The Applicant submitted that the mischief that s.113 sought to address was ensuring that employees had entitlement to long service leave under an award, State or Territory Legislation or an agreement. Division 9 ensured that, as at the test date, employees were entitled to long service leave benefits that were no worse than the new NES.[16] Category B employees will be subject to the Victorian Act, consistent with the context and purpose of Division 9.
The ANMF submitted that the Applicant approaches section 113 as addressing a “mischief”, namely ensuring that employees in fact entitled to a long service leave benefit at the test time were "no worse off than the new NES" (Applicant’s submission [34]). This approach identifies the wrong "mischief". The purpose of section 113 was to establish a national employment standard for long service leave, based on pre-existing Federal award terms. It was noted that it is not clear to what the "new NES" refers in the Applicant’s Submissions.
ANMF submitted that the Applicant wrongly characterises section 113 as a provision that preserves employee long service leave entitlements. Rather, the section confers a minimum entitlement for all national system employees with applicable award-derived long service leave terms (See section 61). The Applicant's approach involves the national employment standard for long service leave for national system employees applying to only a tiny proportion of national system employees. That is, those employees employed prior to 1 January 2010 with a vested long service leave entitlement. The rest of the national system employees under this approach would default to State Act long service leave regulation. The ANMF submitted that the flaw in the Applicant's approach is that it misunderstands what is "preserved" by section 113 and the provisions in mentioned prior. What is "preserved" is the pattern of long service leave regulation as between long service leave terms in Federal awards and long service leave regulation in State long service leave Acts at 31 December 2009.
The Applicant submitted that the construction of s.113(3)(a)(ii) above is consistent with the establishing a minimum standard of long service leave entitlements for employees, and it is also consistent with the context of the transition to the FW Act on 1 January 2010 and preservation of long service leave entitlements of employees, who were entitled to long service leave, as at 31 December 2009.
The ANMF submitted that to the extent that the Applicant argues that in order for an employee to have the Award-derived entitlements as their NES they must have been employed at or before 31 December 2009, ANMF says that the words of section 113 (3) are clear i.e. the section does not refer to employees who were employed at the test time, but deliberately says “would have applied to the employee at the test time (see subsection (3A)) if the employee had, at that time, been in his or her current circumstances of employment”. ANMF submitted that any other interpretation would lead to ludicrous results. Further ANMF submitted that the Act sets up a scheme of a single NES for groups of workers in particular industries or occupations – either the pre-existing Awards or, if not pre-reform Awards then the state legislation (and in a few cases agreement-derived terms that were no less than the state legislation and where there were no award-derived terms). The interpretation relied on by the Foundation would lead to the result, as exemplified in the current enterprise agreement of a two-tier approach to NES standard for long service leave. The ANMF submitted that with respect, that is not what the Act says or what the Parliament intended.
Further, the ANMF submitted that if there was a credible argument about whether section 113 (3) is ambiguous, they submit that the provisions of the Act should be interpreted in a way that best benefits the employees and the objects of the Act. The Objects of the Act at section 3 include the Object of “ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards…”. ANMF submit that the NES provisions around long service leave would be undermined if an interpretation allowing multiple NES standards for the same group of workers with the same employer was mandated. Section 113 and 113A are clearly designed to make the Pre-Reform Award long service leave provisions the NES provision and only make very rare exceptions (the state legislation or, in very limited circumstances, agreement-derived terms where there are no award-derived terms).
The ANMF noted other cases where the NES provisions have been reviewed by the Courts and the issue of statutory interpretation has been raised. One such case was Anglican Care v NSW Nurses and Midwives’ Association [2015] FCAFC 81 which reviewed a decision of a single judge concerning the issue of whether for the purposes of s. 130 of the FW Act, state Workers Compensation legislation “permitted” the accrual and taking of certain types of leave. Justices Bromberg and Katzmann, in a joint majority decision, made it clear that the interpretation favoured by Anglican Care (the appellant) would limit the benefit of the NES provision. They said at paragraph 63:
“The dispute always concerned the meaning and effect of s 130 of the FW Act. In that regard, we reject Anglican Care’s submission that her Honour erred in adopting a beneficial construction. While s 130(1) is not remedial legislation, s 130(2) plainly is. It should be read beneficially and the exception narrowly construed: Goliath Portland Cement Co Ltd v Chief Executive Officer of Customs (2000) 101 FCR 11 at [29].”
At paragraphs 58- 61 their Honours concluded that:
“58. The effect of Anglican Care’s argument is that employees who were previously entitled to the dual benefit are deprived of it. Anglican Care could point to no material to demonstrate why those consequences would have been intended. Its argument essentially rested on its submission as to the meaning of the words “permitted by”. At a general level, Anglican Care submitted that the purpose of s 237 of the WR Act was to provide for harmony between the Commonwealth legislation and the legislation of the States and Territories. In this respect, however, its purpose was no different from the purpose of s 130 of the FW Act.
59. If Anglican Care were right, then statutory rights employees previously enjoyed would be removed by a provision which, as Anglican Care conceded, is ambiguous. In Buck v Comcare (1996) 66 FCR 359 at 364, a case about a provision of the Safety, Rehabilitation and Compensation Act which provided in certain circumstances for the automatic suspension of compensation and the pursuit or continuance of litigation over compensation rights (s 57(2)) Finn J made the following pertinent statement:
in a case, such as this, s 57(2) operates on a significant, albeit statutory, right of an employee…it is a right of sufficient significance to the individual…that, where there may be doubt as to Parliament’s intention, the courts should favour an interpretation which safeguards the individual.
60. The Full Court endorsed and applied these remarks in Australian Postal Corporation v Sinnaiah (2013) 213 FCR 449 at [34].
61. For all these reasons, the legislative context in which s 130 was enacted tells against the construction for which Anglican Care contended.
The ANMF submitted that the applicable award is the Pre-Reform Award which provides for a higher entitlement of 6 months at 15 years than the Long Service Leave Act 2018 (Vic) of two months at 10 years or three months after 15 years. The ANMF submitted that the Foundation were a party to the Pre-Reform Award through C No 30800 of 1997 – and the Pre-Reform Award became common rule in 2005. To ANMF’s knowledge the Foundation never challenged the roping-in application of the making of the Roping-In Award.
The Foundation has had 4 previous enterprise agreements prior to the current agreement as follows:
(a) The Continence Foundation of Australia Ltd (National Continence Hotline) and Australian Nursing Federation Agreement 2000;
(b) Nurses (ANF – Continence Foundation of Australia Helpline) Agreement 2002;
(c) Continence Foundation of Australia and Australian Nursing Federation Collective Agreement 2010-2012; and
(d) Continence Foundation of Australia and Australian Nursing Federation Collective Agreement 2012-2016.
The ANMF submitted that all of these agreements incorporated the long service leave provision for registered nurses from the pre reform Award. Whilst the current agreement does state that Category B employees are entitled to long service leave in accordance with the state long service leave legislation, this has not been accepted by the ANMF who maintain that it is inconsistent with section 55 of the Act and accordingly is rendered of no effect by section 56.
The ANMF noted that the new standard of long service leave only purports to apply to Category B employees who are employed after January 2018 and no current Category B employee has long service leave accrued. However, in the course of the proposed enterprise agreement the Category B position will come much closer to crystallization as the state long service leave legislation provides access to long service leave at 7 years, and the ANMF submitted it is now time to resolve this issue. The ANMF submitted that the approval of the last Agreement, where this issue was not canvassed, does not legitimise the position of the Foundation. If the different standard for Category B employees is wrong now under section 113, it was wrong at the time of the approval of the current agreement.
The ANMF contended that the current agreement and the proposed agreement which is the subject of this application both utilise and incorporate the classification descriptors and Classification in Grades structure from the Pre-Reform Award as the agreement classification descriptors and RN Grade structure. Section 113 (3) defines an applicable award-derived long service leave term to include the term of an award that would have applied to the employee at the test time if the employee had, at that time, been in his or her current circumstances of employment. Category B employees are nurses who would have been covered by the Pre-Reform Award for long service leave “had they been in their current circumstances of employment” which is defined in section 113 (3A) as immediately before the commencement of the Part.
Conclusion
The Applicant submitted that Category B employees only commenced employment with the Foundation after 1 January 2018. The longest serving Category B employee has been employed by the Foundation for less than 4 years.
The Applicant submitted that Commissioner Cribb assessed and approved the Current Agreement. Clause 35 of the Current Agreement included that a “Category B employee… is entitled to long service leave as per the Long Service Leave Act 1992 (Vic) or successor legislation.” It can be inferred that cl 35 of the Current Agreement, relating to long service leave entitlements, was considered by Commissioner Cribb to be consistent with the FW Act.
The Applicant further submitted that with respect, the construction of Katzmann J in Maughan should not be followed. The text of s.113(3)(a)(ii) makes clear that for the Pre-Reform Award to apply to Category B employees each employee must have been entitled to long service leave (that is had available to them long service leave), as at the test date. It was submitted that where no entitlement to long service leave is available the Victorian Act should apply. It was submitted the Commission should approve the Proposed Agreement and the application of the Victorian Act to Category B employees.
The ANMF submitted that the Commission is unable to approve the proposed Agreement in its present form. The proposed Agreement offends section 55 and the Commission cannot be satisfied as required by section 186(2)(c). ANMF is seeking the Commission issue a decision as part of this agreement approval process that:
(a) that the National Employment Standard for Long Service leave for Category A and Category B employees are the applicable award-derived long service leave terms of the Nurses (Victorian Health Services) Award 2000; and further;
(b) that the Commission require an Undertaking from the Employer that in order to approve the proposed Agreement that:
(i) clause 37.6 has no effect to the extent that it purports to provide a lesser standard of Long Service leave than the NES standard; and
(ii) the Agreement be read as if it provides to Category B employees the same NES entitlement to Long Service Leave as Category A employees (as set out in clause 37.1-37.5).
CONSIDERATION
I have considered the submissions of the parties in relation to the only outstanding issue between them and I have concluded that the ANMF position is correct. I agree that the provision in the proposed Agreement that says that Category B employees are entitled to long service leave in accordance with the state long service leave legislation is inconsistent with section 55 of the Act and accordingly is rendered of no effect by section 56.
I agree with the ANMF interpretation of section 113 of the Act, that the Category B employees under this proposed agreement are entitled to award-derived long service leave terms in the Pre-Reform Award by force of section 113.
I reject the Applicant’s interpretation of section 113 that it was intended to be read such that the long service leave entitlement was intended to be only transitional in nature, and only applicable to employees who were employed immediately before the test time defined in section 113(3A). This interpretation is inconsistent with the Full Court decision in Maughan and the Supplementary Explanatory Memorandum at paragraph 41 which says as follows:
“41. To determine whether there are applicable award-derived long service leave terms, it is necessary to consider the award that would have applied to the employee’s current employment if the employee had been in that employment immediately before commencement (paragraph 113(3)(a)). (This test applies to existing employees and employees that start employment after commencement of the NES.)”
The entitlement is not intended to be confined to only those employees who were employed at the time the NES commenced to operate.
On the basis of the finding in this decision, it is appropriate that the Applicant provide an undertaking to address this issue. I can advise that if the Applicant provides an undertaking to address this issue, and that the requirements of section 190(4) of the Act have been met in relation in relation to that undertaking if offered, it would be my intention to proceed to approve the Agreement. The Applicant is directed to advise chambers by Wednesday 30 November whether it intends to offer such an undertaking.
COMMISSIONER
[1] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41
(Alcan); (2009) 239 CLR 27 at [47]; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010
241 CLR 252 at [33]-[34].
[2] CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408.
[3] Acts Interpretation Act 1901 (Cth), s 15AA.
[4] FW Act, note under s 113(1).
[5] FW Act, ss 113(1) and (3); Maughan Thiem Auto Sales Pty v Cooper [2014] FCAFC 94, [39] (Maughan).
[6] FW Act, s 113(3)(a)(i); Maughan [40].
[7] FW Act, s 113(3)(a)(ii); Maughan [41].
[8] Maughan, [9]-[14].
[9] Alcan, [47].
[10] FW Act, Note under s 113(1) which provides that “This Act does not exclude State or Territory Laws that
deal with long service leave…”.
[11] Fair Work Bill 2008 Explanatory Memorandum (EM), [436]-[446].
[12] EM, [437].
[13] EM, [438], [441].
[14] EM, [437].
[15] Maughan, [44].
[16] Alcan, [4]; EM, [438], [441].
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