Crompton v Lion-Dairy
[2013] FMCA 27
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CROMPTON v LION-DAIRY | [2013] FMCA 27 |
| INDUSTRIAL LAW – Fair Work Act – interpretation of Enterprise Agreement – whether employee entitled to salary continuance payments after first 3 month period – employer’s right to withhold authorisation of further payments. |
| Fair Work Act 2009 (Cth) ss.217 & 548 |
| BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Burns v Australian Airlines Limited (1995) 185 CLR 410 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Construction, Forestry, Mining and Energy Union v Amcor Limited (2002) 113 IR 112 Horkulak v Cantor Fitzgerald International [2004] All ER (D) 170 Kamp v TransUrban Limited [2009] VCC 0611 Kucks v CSR Limited (1996) 66 IR 182 The Australian Licensed Aircraft Engineers Association v Qantas Airways Limited [2007] AIRC 406 |
| Applicant: | MICHAEL ANTHONY CROMPTON |
| Respondent: | LION DAIRY & DRINKS PTY LTD (FORMERLY KNOWN AS NATIONAL FOODS LTD) |
| File Number: | ADG 279 of 2011 |
| Judgment of: | Simpson FM |
| Hearing date: | 21 May 2012 |
| Date of Last Submission: | 21 May 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 24 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr McDonough |
| Solicitors for the Applicant: | C B McDonough & Co. |
| Counsel for the Respondent: | Mr Forbes |
| Solicitors for the Respondent: | Freehills |
ORDERS
The applicant’s application of 28 October 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 279 of 2011
| MICHAEL ANTHONY CROMPTON |
Applicant
And
| LION-DAIRY & DRINKS PTY LTD (FORMERLY KNOWN AS NATIONAL FOODS LIMITED) |
Respondent
REASONS FOR JUDGMENT
Introduction
In these reasons, statements of fact are findings of fact arrived at on the balance of probabilities after considering all of the evidence and the submissions put.
These proceedings were brought in the Court’s Fair Work Division as a small claim. Section 548(3) of the Fair Work Act 2009 (Cth) provides that the Court is not bound by any rules of evidence and procedure and may act in an informal manner, without regard to legal forms and technicalities. A party can only be represented in the proceedings by a lawyer with the leave of the Court[1]. The Court may grant this leave to a party and, if it considers it appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.[2] In this case, both parties sought to be represented by lawyers. Leave was given to both parties.
[1] s.548(5) Fair Work Act
[2] s.548(6) Fair Work Act
The respondent has been referred to in the documents filed as National Foods Limited. Affidavit evidence filed indicates that, at some stage, the respondent changed its name to Lion-Dairy & Drinks Pty Ltd. In the heading I propose to refer to the respondent as Lion-Dairy & Drinks Pty Ltd (formerly known as National Foods Limited).
Background
The respondent company is in the business of producing milk products. The applicant has worked for the respondent since December 2001. He currently works for the respondent as a storeman.
The applicant’s employment is governed by the National Foods Limited, Salisbury Production Enterprise Agreement 2010 (“the Enterprise Agreement”). The applicant says that the respondent contravened a provision of the Enterprise Agreement, namely Clause 23. Clause 23 is concerned with Salary Continuance in circumstances where an employee has long term non-work related sickness or injury which has resulted in them being unable to work.
Clause 23 provides as follows:
“23. Salary Continuance
Subject to the provisions of this clause, employees who have been employed with National Foods in excess of three months (permanent full time or part time) will have access to apply for long-term salary continuance in the event of long-term sickness and injury.
23.1Salary continuance does not apply for any injury or illness occurred and claimed as workers compensation.
23.2Salary continuance does not apply to casual employees.
23.3An employee can only claim once for each illness/injury. Provided that, in the event that an employee participates in a return to work programme, and subsequently needs to go back on salary continuance, this is considered one instance. In this instance, the total entitlement of all time off under salary continuance will be no greater than the amounts specified in clause (sic).
23.4Employees shall accrue sick leave in accordance with clause (sic) of this agreement. Sick leave remains subject to the provisions of appropriate medical certificates and other conditions as specified in clause (sic).
23.5In the event of long-term sickness and injury, an employee may apply for salary continuance.
(a) Application for salary continuance is made to the Site Operations Manager and Human Resources Manager as soon after the injury or illness becomes known as is practicable; and
(b) A doctor’s certificate must be attached to the application, specifying the reason for salary continuance, and the estimated period of illness or injury.
23.6By applying for salary continuance, the employee agrees to give the company the right to review their case with their treating doctor(s) and specialists(s). This will be for purposes of discussing return to work plans, and rehabilitation plans and helping to determine the claim.
(a) Employees must sign an agreement allowing such discussions to occur at the same time that the application is entered into; and
(b) The employee also agrees to independent medical examinations, if and as necessary.
23.7The employee will be notified in writing whether their application for salary continuance has been accepted:
(a) There is a 10 working day waiting period before salary continuance applies; and
(b) During this waiting period, an employee may utilise accrued sick leave.
23.8Once the application for salary continuance has been approved, and the 10 working day period has been served:
(a) The employee will continue to receive 100% of their weekly rostered earnings for a period of three months. Authorisation to extend beyond the three month period must be given by the Group Executive – Human Resources;
(b) If approved, at the conclusion of the three month period, the employee will be eligible to receive 75% of their rostered earnings for an additional period of 21 months;
(c) Should an employee return to work or a partial return to work plan after the initial 3 months, any actual time worked will be paid at 100%, with hours not worked continuing to be paid at 75%. For example – if an employee returned to work on a 20 hours per week basis – they would receive 20 hours ordinary rostered earnings, then the remainder of their ordinary hours at 75%;
(d) Payment is subject to the company receiving ongoing medical evidence to support the condition, which may include independent medical advice;
(e) Salary continuance will not exceed two years, or twenty four months in any circumstances;
(f) At the conclusion of this two year period, the employee will be invited to take their accumulated annual leave, or long service if it is considered that a return to work is not possible in the short term. Once all entitlements have been used, and if a return to work does not eventuate, the company will notify the employee, giving no less than two weeks notice, that their leave is to be discontinued; and
(g) If at this time, the employee is unable to provide the company with a return to work date, and it is no longer practicable for the company to hold the employee’s position open, the employee will be notified in writing of such, and advised of the company’s intent to terminate employment providing the necessary notice. The Group Executive – Human Resources will only give approval for this course of action, when it can be shown that the Company has acted in a fair and reasonable manner and every effort has been made to enable the employee to return to work.
23.9The company reserves the right, at its sole discretion, to reject a claim for salary continuance or to cease a claim for salary continuance, in the event that the employee does not participate in reasonable return to work and rehabilitation plans, completed in conjunction with their treating doctor.”
Findings
The applicant injured his right knee on 1 October 2010 when playing football in the backyard of his home. The applicant was unable to attend work on 3 October 2010 by reason of pain and restriction of movement in his right knee. He advised the respondent by telephone that he was unfit for work.
On 6 October 2010 the applicant consulted his general practitioner as the knee was still badly swollen and the applicant could not weight bear on his right leg. The general practitioner drained approximately 180 millilitres of fluid from his right knee joint and arranged for x-rays to be taken.
The symptoms persisted such that the applicant was unable to attend to his work duties as a result of which the applicant provided the respondent with appropriate medical certificates.
The applicant’s general practitioner arranged for the applicant to have an MRI scan of his knee. This scan revealed that the applicant had a torn anterior cruciate ligament and a ruptured miniscal cartilage which would require further assessment and possibly surgical repair by an orthopaedic surgeon.
On or about 14 October 2010 the applicant submitted a claim to the respondent for payment of salary continuance benefits pursuant to Clause 23 of the Enterprise Agreement. The respondent approved Salary Continuance on 18 October 2010 with effect from 3 October 2010.
The applicant’s general practitioner informed the applicant that he could make inquiries with orthopaedic surgeons as to their availability to examine him and, if necessary, book him in for surgery. The applicant was informed that the surgery would cost approximately $8,000 in addition to other associated costs such as the hospital fee and the anaesthetist fee.
The applicant contacted the Lyell McEwin Hospital and requested an appointment on the priority list at the orthopaedic outpatient’s clinic. The applicant telephoned the hospital in or about late October 2010 and was informed that the earliest appointment at the clinic was for 24 December 2010. An appointment was made for the applicant to see an orthopaedic surgeon on that date.
The applicant says that he kept the respondent informed of his ongoing incapacity and the medical treatment that the applicant had sought.
On 24 December 2010 the applicant attended the clinic and was examined by an orthopaedic surgeon, Dr T Savvoulidis. The applicant was informed that surgical repair of the knee joint was necessary but that the surgery could not be performed until the end of March 2011 as a result of the hospital’s lengthy waiting list.
The applicant says that after leaving the clinic he travelled to the respondent’s premises and informed Mr Liston, the Site Operations Manager at Salisbury, of the information he had received from the orthopaedic surgeon.
By letter dated 5 January 2011 the applicant was informed by the respondent that the initial 3 month period of Salary Continuation payment would expire on 2 January 2011 and that re-approval of the Site Manager and P & C Manager would be required for payments to continue. They inferred that if approval was not given, that the Salary Continuance payments would cease effective as of 10 January 2011. No approval was given and payments ceased on the day mentioned.
The applicant underwent surgical repair of his right knee joint on 31 March 2011.
After certain correspondence was exchanged between the applicant and the respondent in April 2011 and early May 2011 the respondent informed the applicant by letter dated 18 May 2011 that his claim for Salary Continuance payments for the period 10 January 2011 to 31 March 2011 inclusive was rejected.
The applicant continued his rehabilitation program from 31 March 2011 and eventually returned to his normal duties with the respondent on 6 October 2011. It is to be noted that at various times both prior to and subsequent to the surgery the applicant made himself available to return to work on restricted duties. The respondent declined to make such duties available to him.
The respondent paid the applicant’s Salary Continuance payments for the period 2 October 2010 to 10 January 2011 inclusive and again, at the rate of 75% for the period 31 March 2011 to 6 October 2011 inclusive.
The applicant’s rate of pay for the period 10 January 2011 to 31 March 2011 was $1,289 per week.
Submissions of the parties
The applicant’s written Outline of Submissions stated:
“1.The applicant’s claim is for the sum of $11,604 by way of salary continuance payments.
2.The terms of the applicant’s employment with the respondent are set out in the National Foods Limited, Salisbury Production Enterprise Agreement 2010 (the EBA).
3.Clause 23 of the EBA details, inter alia:
3.1 the entitlement to salary continuance;
3.2 the eligibility provisions;
3.3the manner and method by which such claims are to be made;
3.4the manner in which the entitlements are calculated and the duration for which such payments are to be made.
4.It is common ground that:
4.1at all material times the applicant was employed by the respondent and the terms of employment were encompassed in the EBA.
4.2in about late September/early October 2010 the applicant sustained a serious injury.
4.3by reason of the injury the applicant was unable to perform his work duties with the respondent for the period 1 October 2010 – 11 January 2011.
4.4the respondent paid to the applicant salary continuance payments pursuant to Clause 23 of the EBA.
4.5the salary continuance payments ceased on 10 January 2011.
4.6the salary continuance payments were reinstated on 31 March 2011.
4.7the applicant remained unfit to return to work duties with the respondent until 6 October 2011 when salary continuance payments again ceased.
5.The respondent denies liability to make salary continuance payments for the period 10 January 201 – 31 March 2011 by reason of the discretion conferred upon it by Clause 23.9 of the EBA.
6.The discretion to reject the claim for salary continuance or to cease a claim for salary continuance vests solely in the company but the exercise of the discretion is not unfettered. The right to reject or cease salary continuance only arises if the applicant “does not participate in reasonable return to work and rehabilitation plans”.
7.The injuries sustained by the applicant required surgical repair. During the period 10 January 2011 – 31 March 2011 the applicant was awaiting the necessary surgery. At least by inference, no return to work or rehabilitation plan could be established prior to the surgery being performed. There did not exist any return to work or rehabilitation plan. The “right” asserted by the respondent to cease the claim for salary continuance never arose.
8.There is no power to refuse the “authorisation” referred to in Clause 23.8(a) of the EBA unless the discretion conferred by Clause 23.9 is enlivened.
9.The applicant’s claim is based on the clear and unambiguous wording of Clause 23 of the EBA. The normal rules of construction apply. The parties are obliged to co-operate in doing all things necessary for the performance of the employment contract. Burns v Australian Airlines Limited (1995) 185 CLR 410.
10.In the event the Court finds the exercise of the discretion contained in Clause 23.9 is enlivened:
10.1the applicant does not assert any obligation on the respondent to exercise that discretion “reasonably”. The applicant does not contend that a further term should be implied into the EBA apart from the terms that the parties must act in “good faith” and with “mutual trust and confidence”. Horkulak v Cantor Fitzgerald International (2004) All ER (D) 170.
10.2the Court should only substitute its own decision in place of the original decision made by the respondent if it finds there was no bona fide or rational exercise of the discretion or that the decision to cease salary continuance payments was irrational and perverse and could not have been made by any reasonable decision maker. Kamp v TransUrban Limited (2009) VCC 0611.”
The respondent’s written Outline of Submissions stated:
“1.The applicant alleges a contravention of clause 23 of the National Foods Ltd, Salisbury Production Enterprise Agreement 2010 (the Enterprise Agreement).
2.The precise nature of the Respondent’s contravention is not specified in the application.
3.The Applicant seeks payment of salary continuance payments for a 12 week period, from 10 January 2011 to 31 March 2011, a sum of $11,604.
4.The application appears to be advanced on the premise that the Applicant has an entitlement to salary continuance payments by reason of the fact that the Applicant sustained an injury in September 2010 which prevented him from performing his ordinary duties.
5.The application is misconceived.
6.The application however pays no regard to the terms of clause 23 or the conditions upon which an employee of the Respondent may seek to access the salary continuance payments.
7.There is no absolute entitlement to salary continuance payments under the terms of the Enterprise Agreement. So much is clear from the unambiguous wording of the clause itself.
8.It is plain from the introductory words of clause 23 that an employee’s access to apply for long term salary continuance is “subject to the provisions of this clause”. Regard must be had to the clause as a whole, including any conditions imposed on the availability of the salary continuance benefit.
9.It is common ground that the Applicant made an application for salary continuance (clause 23.5).
10.It is common ground that the Applicant’s application was accepted on or about 18 October 2011 (clause 23.7).
11.It is common ground that the Applicant received 100% of his weekly rostered earnings for a period of three months (clause 23.8(a)).
12.Authorisation to extend salary continuance beyond the three month period must be given by the Group Executive – Human Resources (clause 23.8(a)).
13.The evidence is that no such authorisation was given.
14.Further, the Respondent has a right, at its sole discretion, to reject a claim or to cease a claim for salary continuance, in the event that an employee does not participate in reasonable return to work and rehabilitation plans, completed in conjunction with their treating doctor (clause 23.9).
15.The evidence is that the Respondent exercised its discretion to cease payments of salary continuance to the Applicant.
16.The Respondent has a complete defence to the Applicant’s claim.
17.There is no enforceable entitlement to payment of salary continuance if the Respondent has not authorised it beyond the initial three months.
18.There is no enforceable entitlement to salary continuance if the Respondent has exercised its discretion to cease payments.
Interpretation of the Enterprise Agreement
19.The Applicant’s claim does not sit well with the plain words of the clause or the obvious intent of parties who negotiated the clause.
20.The process of searching for the proper interpretation of an industrial agreement has been the subject of much judicial consideration.
21.There are well established principles under the general law for the construction of contracts. Those principles are generally applicable in the construction of certified agreements.
22.Where a certified agreement contains clear words which are not susceptible to ambiguity, the Court should give those words their ordinary plain meaning. There is no room for the court to search for an alternative meaning where the words are clear.
23.The judgment of the High Court in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352 per Mason J established widely accepted principles for resolving ambiguity in contracts. In that case Mason J stated the rule thus:
‘The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than on meaning. But it is not admissible to contradict the language of the contract when it has plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed’.
24.There is no evidence before the court which would suggest a meaning other than that contended by the Respondent.
25.If the Applicant contends a different meaning, he bears the onus of establishing that the words in the Enterprise Agreement are ambiguous and that the parties to the agreement had a different intention in mind.
26.In Kucks v CSR Limited (1996) 66 IR 182 at 184 Madgwick J held:
‘It is trite that narrow or pedantic approaches to the interpretation of an aware are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evidence purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well- understood words are in general to be accorded their ordinary or usual meaning’. (emphasis added)
27.Where an agreement confers discretion or a right on a party, there is no room to fetter that discretion or subject it to any test of reasonableness unless that is what the parties plainly intended.
28.The premise of the Applicant’s case is that the Respondent wrongfully or unfairly ceased the salary continuance payments to him in January 2011.
29.The agreement does not expressly or by implication impose on the Respondent an obligation to act reasonably or fairly in relation to its decisions about salary continuance. See eg. The Australian Licensed Aircraft Engineers Association v Qantas Airways Limited [2007] AIRC 406.
30.In recent times there has been a leaning toward the contractual approach to the interpretation of certified agreements, focussing on the parties’ presumed intentions. Hence Justice Finkelstein’s observation about the limits to the court’s interpretive function in his first instance decision in Construction, Forestry, Mining and Energy Union v Amcor Limited (2002) 113 IR 112 at [18]:
‘there comes a point when a court of construction must resist the temptation of forcing a meaning to a bargain which the parties did not intend and to substitute for the arrangements actually made, an arrangement which the court believes is a better one.’
31.The Respondent says in any event that it did act fairly and reasonably, but there is no requirement that it do so.
32.Furthermore there is no room for the implication of a term or additional words into an agreement which is plain in its meaning. If the Applicant contends that a further term should be implied into the Agreement, he carries the onus of satisfying the court that it is necessary to do so.
Implication of a further term
33.The legal tests for implication of a term are well established: BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266.
34.There is no implied term that the employer’s exercise of the discretion is subject to a ‘reasonableness’ test.
35.In BP Refinery (Westernport) Pty Ltd v Hastings Shire Council, at 282 – 283, the Privy Council listed the five requirements necessary to be satisfied as follows:
‘Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a term in a contract which the parties have not thought fit to express. In their view, for a term to be implied the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that ‘it goes without saying;’ (4) it must be capable of clear expression; (5) it must not contradict any express term of contract.’
36.The onus of showing that the criteria have been satisfied lies on the party that asserts the implied term.
37.Reasonableness alone is not enough to imply a term: Codelfa, at 346, per Mason J.
38In any event, for the reasons set out below, the scope for the court to imply a term into a certified agreement is very limited.
The Enterprise Agreement is an instrument under the Fair Work Act
39.The task of the Court to give effect to the agreement of the parties, as approved by Fair Work Australia.
40.The words chosen by the parties must be presumed to reflect the parties’ mutual intent. The Agreement does not require the implication of additional words or conditions to give it efficacy.
41.By reading the clause subject to the implication of additional words, the Court is in effect being called upon to vary the agreement. This is not a task it should engage in.
42.If the parties to the agreement wish to vary it to remove an uncertainty or ambiguity, there is a process within the Fair Work Act for that to occur. A party must make application to FWA and meet the tests necessary to satisfy FWA that a variation should be made (see section 217 of the Fair Work Act 2009 (Cth)).
43.Alternatively, parties have an opportunity when they next bargain to negotiate a different outcome for their future enterprise agreement.
44.But until then, the court is bound to interpret the Agreement according to well established principles of construction, and the rights and obligations of the parties should be determined accordingly.”
Conclusion
In my opinion, for the reasons that follow, the respondent has not breached the terms of the Enterprise Agreement in not providing the applicant with Salary Continuance payments for the period 10 January 2011 to 31 March 2011.
Clause 23.8 provides that after three months, approval is needed before the employee is entitled to any further salary continuance payments. It is not disputed that no such authorisation was given pursuant to that subclause. The power given to the respondent, or more particularly the Group Executive-Human Resources, referred to in subparagraph 23.8(a) to grant or not grant an approval for Salary Continuance payments to be made after the expiry of the first 3 months, is without qualification. It cannot be challenged.
The matter has become more complicated than it really is as a result of the wording of the letter from Mr Listen, the respondent’s Operations Manager, dated 5 January 2011 addressed to the applicant. The letter stated as follows (emphasis added):
“Dear Michael
Re: Salary Continuance payment – rupture of right anterior cruciate ligament
I write in regard to your payment of Salary Continuance in relation to a personal injury sustained by you on 2/10/2010.
In early December 2010 I discussed with you the need for you to expedite the rehabilitation process related with your injury and in doing so advising that you should request your surgeon to where possible bring the surgery forward to middle of January or continuity of your Salary Continuance payments could be at risk. I also suggested that to expedite the surgery you may need to look at funding the cost yourself.
Following discussions with Manfred Lang and Janine Smith over the last two days I note that you attended a medical appointment on the 24/12/2010 and as a result of this appointment there is no date scheduled for surgery but a time proposed around the end of March 2011, with rehabilitation extending to the end of June 2011 until you are fully fit to return to work. I note your sick certificate states you have some capacity for work; however given the restrictions we do not have any suitable duties that meet these criteria and as such are unable to return you to site.
Approval for Salary Continuance is at the discretion of the Site Manager and P & C Manager and must be re-approved if it extends past the initial 3 month period. I note that the three month period expired on the 2/1/2011.
Given that you are past the three month period and that to date, due to delay in surgery, you are not undertaking any rehabilitation associated with your injury. Effective as of the 10th of January 2011 we will be ceasing Salary Continuance payments. We will however open your position at National Foods Salisbury until the 30th of June 2011.
Please contact me if you need to discuss further.
Yours sincerely
Gabrielle Liston
Operations Manager
NFL Salisbury”
It will be seen that the penultimate paragraph of the letter refers to the respondent “… ceasing Salary Continuance payments”. These words may have led the applicant and the applicant’s solicitors to believe that the respondent was exercising its power pursuant to clause 23.9 to not continue payments when in fact it was exercising its power to not continue payments pursuant to clause 23.8 of the Enterprise Agreement[3]. Paragraph 5 and 6 of the applicant’s Outline of Submissions reveals the applicant’s misunderstanding of the basis upon which the respondent did not continue making payments. The third to last paragraph of the letter makes it clear that the respondent was exercising its power pursuant to subclause 23.8(a) to decide whether or not it would authorise a continuation of payment of salary continuance amounts. As it happened, they decided to decline to authorise further payments.
[3] See applicant’s submissions at para 23 of these reasons.
The exercise of the power in relation to authorisation to extend payments beyond the first three months is not subject to the provision contained in clause 23.9, namely, that ceasing payments will only arise if the applicant does not participate in reasonable return to work and rehabilitation plans.
When the letter of the 5 January 2011 is read as a whole, it can be seen that the respondent decided to decline to approve an extension of payments past the initial three month period and that therefore from 10 January 2011 the respondent, “… will be ceasing Salary Continuance payments”, or perhaps more precisely salary continuance payments will cease because approval has not been given to continue payments.
The respondent says in its letter of 18 May 2011 to the applicant that “the company has not stated that you have breached any provisions of the EBA but rather your commitment to expedite your surgery and rehabilitation has been inadequate for the Company to approve ongoing coverage of your injury via the salary continuance provisions”. This statement too may have led the applicants to believe that the respondent was relying on clause 23.9. In fact, I interpret what the respondent was there saying, was that they were providing an explanation for why the respondent was declining to approve a continuation of payments past the first three month period. It is to be noted that there was no obligation on the respondent to provide any explanation.
It will be seen from these reasons that I consider the submissions put on behalf of the applicant to be flawed and that I agree with the submissions put on behalf of the respondent.
In the circumstances, I do not consider it necessary to deal with the question of what the correct interpretation of clause 23.9 of the Enterprise Agreement is. That clause is irrelevant to the powers and duties that are imposed on the respondent pursuant to clause 23.8. I also do not consider it necessary to deal with the question of whether an additional term should be implied in the agreement. The applicant does not submit that it should.
The applicant’s application should be dismissed.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Simpson FM
Date: 24 January 2013
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