Damon Hobbs v Australian Government: Australian Financial Security Authority T/A Australian Financial Security Authority

[2015] FWC 356

[2015] FWC 356

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Damon Hobbs
v
Australian Government: Australian Financial Security Authority T/A Australian Financial Security Authority
(C2014/449)

Tasmania
COMMISSIONER LEE	MELBOURNE, 21 JANUARY 2015

Application to deal with a dispute - discretionary leave under an agreement - application dismissed.

[1] On 24 March 2014 Mr. Damon Hobbs (the Applicant) referred a dispute with the Australian Government: Australian Financial Security Authority T/A Australian Financial Security Authority (the Respondent) to the Fair Work Commission (the Commission) pursuant to the dispute settlement procedure contained in clause 54 of the ITSA Enterprise Agreement 2011-2014 (the Agreement).The Agreement refers to the “Insolvency and Trustee Service Australia (ITSA)”, the title that applied to the Respondent until 2013. However, there is no dispute that the Agreement continues to cover and apply to the Respondent.

[2] The Applicant, in his original application, sought that various orders be made pursuant to the Agreement. The Applicant also sought that various orders be made pursuant to the Australian Public Service Employment Conditions and/or the Fair Work Act 2009 (the Act) and/or the common law. The original application was made on the Commission’s Form F1 (no specific form). The application was dealt with and marked as an application under section 739 of the Act after Commission staff sought clarification from the Applicant as to what section of the Act he was seeking to lodge his application under.¹ During the conversation with Fair Work Commission staff, the Applicant was provided with information about available legal services in Hobart and information in relation to the Hobart Community Legal Centre.

[3] The application lodged sought that urgent declaratory orders be made by the Commission. In summary, the orders sought were that:

• As a result of the Respondent’s actions (or failure to act), the Applicant’s employment had been effectively terminated by the Respondent on an involuntary basis and the involuntary termination provisions of the Agreement and related policies should be applied.



• If the first order is not made, a second alternate order is made that the Applicant be permitted to return to work.



• If the second alternate order is not made, that a third alternate order is made that the Respondent grant discretionary paid leave to the Applicant whilst the details of a return to work plan can be agreed.

[4] I have already dealt with a preliminary jurisdictional objection to the application by decision dated 1 October 2014 2. Relevantly, in my decision on the jurisdictional objection I determined as follows:

“Order 3 - that in the event that full time work is not deemed appropriate at this time, that AFSA grant me discretionary paid leave equivalent to my usual full time wage whilst the details of a return to work plan for which I have already been waiting approximately 6 months, can be agreed and given full effect.

[34] The Respondent accepts that the Applicant has raised a dispute in relation to a matter under the Agreement, namely whether discretionary leave should have been granted with or without pay to the Applicant. Clause 22.11 sets out the provisions of the Agreement as they relate to discretionary leave.

[35] The Respondent also accepts that the Applicant has followed the necessary steps under clause 54.1 and clause 54.2 of the Agreement. Accordingly, the Respondent accepts the Commission has jurisdiction to arbitrate and make a determination that is binding on the parties about whether the Respondent should have been granted discretionary leave-miscellaneous with pay, during any of the various periods from 21 October 2013-14 July 2014.

[36] I am satisfied that order 3 falls within the jurisdiction of this Commission.

Conclusion

[37] The matter can proceed to substantive hearing to determine the question as to whether the relief at order 3 should be granted. There is no jurisdiction to grant the first and second orders sought by the Applicant and therefore the application for the making of the first and second orders is dismissed and will not be further dealt with.” 3 [footnotes omitted]

[5] This decision determines the dispute that arises from Order 3 that is sought by the Applicant and set out above. That is, should the Respondent have been granted discretionary leave - miscellaneous with pay, during any of the various periods from 21 October 2013 - 14 July 2014.

Proceedings thus far

[6] Permission to appear for the Respondent was granted. The reasons for doing so were set out in the jurisdictional decision of 1 October 2014.

[7] This matter has been before the Commission for some time. The chronology of the proceedings was also set out in the earlier jurisdictional decision. Aside from the arbitral proceedings, extensive efforts have been made to resolve this matter by conciliation, both prior to the jurisdictional determination, after that determination and ultimately by another member of the Commission after the conclusion of the hearing of the substantive matter. All efforts to resolve the matter by agreement have ultimately been unsuccessful and a determination of the matter in dispute is required.

[8] Directions were set for the filing of written materials in the matter. The directions were complied with. Various confidentiality orders were sought by the Applicant and granted going to medical records and other material that the Applicant considered personal and private. Partly for this reason, I have not canvassed in this decision in any significant detail the medical or personal history of the Applicant though I note that it is a key feature of the submissions made by both parties. A hearing was held in Hobart on 25 November 2014.

Factual Background

[9] The Respondent set out a lengthy summary of the events that they submit have occurred, referenced to the voluminous correspondence that has been exchanged between the Applicant and the Respondent and various medical practitioners. For the most part, the factual circumstances are not in dispute and can be discerned from the correspondence.

[10] It is neither desirable nor necessary to canvass in any great detail the history of the circumstances of the Applicant’s employment with the Respondent as ultimately, this determination is based upon the proper construction of the relevant terms of the Agreement.

[11] However, a summary of the events is necessary to provide some context for the dispute brought by the Applicant, particularly the events surrounding the Applicants’ requests for leave, in particular discretionary paid leave. That summary is as follows:

• On 28 April 2005, the Applicant commenced employment with the Respondent.



• On 11 July 2013, the Respondent conducted interviews for the position of Senior Case Manager. The Applicant was one of the candidates interviewed.



• On 7 August 2013, AFSA filled the position of Senior Case Manager. The Applicant was unsuccessful in obtaining the promotion.



• On 8 August 2013, the Applicant attended work in the morning and requested to work from home for the balance of that day and 9 August 2013. His request was granted.



• The Applicant then took 2 weeks’ previously arranged recreational leave. He was due to return to work on 27 August 2013 but called in sick, providing a medical certificate for the period 26 – 30 August 2013.



• On 29 August 2013, the Applicant applied for unpaid leave for a period of 4 weeks from 2-30 September 2013. The application referred to the stress he was experiencing as a result of being overlooked for the appointment that he was a candidate for. This request for leave was granted.



• On 27 September 2013, close to when this period of unpaid leave was to end, Mr. Gales the Human Resources Manager wrote to the Applicant about putting in place a return to work plan and seeking him to sign an authority to release medical information. The 27 September 2013 email to the applicant from Mr. Gales reads in part:

“As agreed I have attached the Authority to release Medical Information. This will give your doctor your approval for him to speak with me about developing a return to work plan. Also attached is the RTW plan document for your reference. I will work with you, your doctor and John Cummings in formulating an appropriate plan for you return to work. If you sign the Release Form and return it to me with your doctors contact information I can then contact him and send him a copy”.

• The Applicant signed the authority dated 30 September 2014. Mr. Gales then in early October contacted the Applicant’s doctor seeking to discuss a return to work plan for the Applicant.

[12] Despite the apparent transparency with which Mr. Gales approached the Applicant’s doctor, the Applicant wrote to Mr. Gales on 14 October 2013 expressing serious concern that he was being pressured back to work and that Mr. Gales hadn’t advised him that he had “instructed a report from Dr. Gregor” and that “...perhaps...it was your intention to keep your instructions for a medical report quiet...” 4

[13] In my view, the concern of the Applicant about the report being requested from the doctor when considered against the clear indication of intent of Mr. Gales in the 27 September 2013 email and the subsequent signing of the medical release by the Applicant are unwarranted.

[14] The encouragement by Mr. Gales that the Applicant return to work, irrespective of the medical report, if he felt that he could was inconsistent with the sensible approach Mr Gales was taking to the return to work program. However, overall the correspondence of Mr. Gales does not suggest he was doing anything other than what he should have been doing. That is to try and get the Applicant back to work when he was fit and able.

[15] In any case, the email of 14 October 2013 included the following from Mr. Gales:

“I also wish to make it clear that [the Respondent] is not pressuring you to return to work if you are not fit for duty, and I apologise if that is the impression I have given you. We want to see you return to work when you are able or fit to perform you duties.” 5

[16] It appears that from this time on, there has been a series of protracted and ultimately unsuccessful attempts to have the Applicant return to work. Those involved from the Respondent included, in addition to Mr. Gales, Mr. Morris (Director Employee Relations) and Ms. Neeley (Director People and Capability). During this time, various medical reports from a number of practitioners and fitness for duty reports were sought, meetings arranged and cancelled and so on.

[17] The Applicant clearly lays the blame for his non return to work squarely at the feet of the Respondent, submitting that;

“It is astonishing, therefore, that [the Respondent] has not yet finalised an appropriate RTW plan and that I have not been returned to work in over fourteen (14) months. [The Respondent’s] handling of the situation has been immensely damaging to me personally and professionally.” 6

[18] However, the evidence in this matter, gleaned from the raft of correspondence does not entitle the Applicant to hold to this view. Instead the evidence is more supportive of a view that the Respondent, while not perfect in its efforts, has been strenuously trying to get the Applicant back to work.

[19] To be clear, it is ultimately not relevant to this determination whether the Applicant or the Respondent is responsible for the failure of the Applicant to return to work. The relevance is connected only to the fact that it is clear from the submissions of the Applicant that his blaming of the Respondent is a significant factor underpinning his submissions as to why he should be granted discretionary paid leave. The Applicant submits:

“If paid leave could not be granted in my circumstances, it is difficult to imagine when it could be paid at all.” 7

[20] I note that there is one period where the Respondent did grant discretionary paid leave to the Applicant during his lengthy absence from work. That period was from 3-14 March 2014. The Respondent submitted that the application for paid discretionary leave was granted for that period because during that period, the Respondent had no evidence that the Applicant was either fit for work or unfit for work and was awaiting the assessment of Dr. de Saxe. 8

[21] In summary, the Applicant has not attended for work for the Respondent since 8 August 2013. The Applicants’ submission includes the following:

“...it is noted that I have not been returned to work in 447 days thus far, for a lack of a finalised RTW plan that was first promised me by AFSA in September 2013.” 9

[22] The majority of that period the applicant has been on unpaid leave.

[23] I note that the Applicant advised me at the hearing that he was still covered by a medical certificate that extended to the following day, that he was seeing his doctor the next day and that he sees his doctor monthly. 10 The Respondent submitted at the hearing that the status of the Applicant was that he remained on unpaid sick leave.11

The relevant provision of the agreement

[24] The discretionary leave - miscellaneous provisions are set out in the Agreement as follows:

“Discretionary Leave - Miscellaneous

22.9. Discretionary miscellaneous leave may be granted to an employee, additional to the specific leave entitlements contained in this Agreement, as outlined in ITSA’s Discretionary Miscellaneous Leave guideline, as varied from time to time.

22.10 Discretionary miscellaneous leave will also be granted to employees for the purposes of cultural, ceremonial and NAIDOC week celebration purposes, as outlined in ITSA‟s Discretionary Miscellaneous Leave guideline, as varied from time to time.

22.11 Discretionary miscellaneous leave may be granted:

• with or without pay;



• for the period requested or for part of the period;



• in the case of leave without pay, either to count as service or not to count as service; and



• subject to conditions.

[25] The Respondent’s Discretionary Miscellaneous Leave Guideline (the guideline) provides that:

“1. This advice outlines the policy and procedures relating to the discretionary miscellaneous leave provisions of sub-clauses 22.9 to 22.11 of the ITSA Enterprise Agreement 2011-2014 (ITSA EA).

2. The discretionary miscellaneous leave provisions aim to increase flexibility to AFSA and its employees in the use of leave where other leave types are not available, without prescribing the circumstances under which such leave can be granted. Details of the leave entitlement and types prescribed by other provisions of the ITSA EA, or legislation, are at Attachment 1. [emphasis added]

3. [repeats clause 22.11 of the EA]

4. Factors that should be considered when approving applications for discretionary miscellaneous leave will include AFSA’s operational requirements, the reasons for the leave, whether other options are available and normal community obligations.

5. Secondary considerations for discretionary miscellaneous leave without pay can include: the value to AFSA of the activity to be undertaken during the leave; the actual time off required; and the long term development needs of the employee.

7. The discretionary miscellaneous leave provisions also provide for the granting of leave beyond the guaranteed minimum entitlements provided by the National Employment Standard (the NES) in the Fair Work Act 2009 and the ITSA EA.

8. Applications for discretionary miscellaneous leave must be made to the employee’s National Manager, or General Manager Operations. Where the National Manager or General Manager Operations is not the employee’s immediate supervisor, applications for leave require a recommendation from the employee’s supervisor.

Outside employment

…

Non-assigned status (unattachment)

...

Applying for discretionary miscellaneous leave

15. Employees should submit applications for discretionary miscellaneous leave in writing, prior to the date they wish to take the leave. The application should include details of the duration of the absence and reason(s) for the application. Applications should be submitted as far in advance as possible to ensure that managers have the opportunity to make alternative staffing arrangements.

16. Approval of applications for discretionary miscellaneous leave cannot be assumed and therefore employees must ensure applications are approved prior to making any commitments which depend on leave being approved.

17. Written advice should be provided to the applicant, on the outcome of an application for discretionary miscellaneous leave. In most cases this can usually be accomplished by a notation on the leave application, although specific arrangements may require separate notification. However, the relevant manager should provide written notification of, and reasons for, decisions in circumstances where:

• the leave applied for is not granted;



• leave is granted for a period other than the period requested; or



• the granting of the leave is subject to conditions.

18. Managers should also provide comments or approval, as appropriate, on any other relevant aspect of the application. This could include:

• whether the leave is with or without pay:



• whether or not it is to count as service, with the general principle that leave without pay will not count as service;



• intention to move the employee to unassigned duties; and/or



• approval for outside employment, or a note to the effect that specific details of outside employment are required before approval to this can be given.

19. After approval has been granted, managers should forward the application, together with supporting documentation to the HR Team, Melbourne, for pay\ administration. The HR Team should receive the application well in advance of the commencement of the leave to allow any necessary salary variations to be made.

The law to be applied

Principles of construction of agreements

[26] The general approach to the construction of enterprise agreements was considered in the Full Bench decision of the Commission, The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd¹². In that decision the Full Bench stated that;

“[19] The general approach to the construction of instruments of the kind at issue here is set out in the judgment of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (Wanneroo):

“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998)80 IR 345 (Marshall J). ”


[20] To this we add the oft-quoted observations of Madgwick J in Kucks v CSR Limited that a narrow pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, 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.”

[21] Although their Honours were each dealing with the proper interpretation of an award, the same principles are apt to apply to the interpretation of enterprise agreements.  For example, similar observations were made in Amcor Limited v CFMEU (Amcor):

“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”

[22] The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo:

“It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg GeorgeA Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”” [footnotes omitted]

[27] The legal position on the powers of the Fair Work Commission to arbitrate disputes generally is as follows.

[28] Sub-sections 595(1) and (3) of the Fair Work Act 2009 (the Act) provide that:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision in this Act.

…

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.”

[29] The Commission is empowered to deal with disputes through the operation of Division 2 of Part 6-2 of the Act, specifically sections 738 and 739. Relevantly, section 738 provides that:

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”

[30] Section 739(3) provides that:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

...

(3) In dealing with a dispute the FWC must not exercise any powers limited by the term.”

[31] The specific dispute settling procedure in the relevant agreement needs to be considered in terms of the relevant law.

[32] The Agreement in this matter includes a dispute settling procedure at clause 54 which is in the following terms:

“54. Resolution of Agreement Disputes

54.1 If a dispute relates to a matter under this Agreement, or the National Employment Standards, the parties to the dispute must first attempt to resolve the matter at the workplace level by discussions between the employee or employees concerned and the relevant supervisor/manager.

54.2 If a resolution to the dispute has not been achieved after discussions have been held in accordance with sub-clause 54.1, the parties to the dispute will endeavour to resolve the dispute in a timely manner through discussions with more senior levels of management where appropriate or through alternative dispute resolution methods.

54.3 If discussions at the workplace level do not resolve the dispute, and all appropriate steps have been taken in accordance with clauses 54.1 and 54.2, a party to the dispute may refer the matter to Fair Work Australia.

54.4 Fair Work Australia may deal with the dispute in two stages:

• Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and



• if Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:

–arbitrate the dispute; and
–make a determination that is binding on the parties.

Note: If Fair Work Australia arbitrates the dispute, it may also use the powers that are available to it under the Fair Work Act 2009.

54.5 ITSA, or an employee who is a party to the dispute, may appoint another person, organisation or association to accompany and/or represent them for the purposes of this term.

54.6 Resolution of disputes is to occur in good faith by following the same principles as the good faith bargaining requirements at section 228 of the Fair Work Act 2009.

54.7 While the parties are trying to resolve the dispute using the procedures in this term:

• an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and



• an employee must comply with a direction given by the Chief Executive to perform other available work at the same workplace, or at another workplace, unless:

–the work is not safe; or
–applicable occupational health and safety legislation would not permit the work to be performed; or
–the work is not appropriate for the employee to perform; or
–there are other reasonable grounds for the employee to refuse to comply with the direction.

54.8 The parties to the dispute agree to be bound by a decision made by Fair Work Australia in accordance with this term.

Consideration

[33] The Respondents submits, and I agree, that there is no room for dispute about the ordinary meaning of the words in clause 22.9 of the Agreement. That clause gives the Respondent discretion to grant leave to its employees, over and above any other leave entitlement that might accrue under the Agreement. Nothing in the Agreement, obliges the Respondent to exercise that discretion favourably to employees, unless clause 22.10 applies (for cultural, ceremonial and NAIDOC week celebration purposes). Clause 22.10 does not apply in the circumstances of this case.

[34] The word discretionary has an ordinary meaning. It means subject to or left to someone’s discretion. 13 Discretion is defined as the power or right of deciding or of acting according to one’s own judgement; freedom of judgement or choice.14

[35] Further, the Discretionary Miscellaneous Leave guideline provides guidance about factors to consider when exercising the discretion. I cannot discern anything in the guidelines that operates to fetter the discretion of the decision maker. It is clear that the ordinary meaning of the words in the Agreement is that discretionary leave is to be granted at the discretion of the decision maker

[36] As considered earlier in the decision, it is clear enough the Applicant holds to the view that the discretion to provide paid discretionary leave for the relevant period should have been exercised by the Respondent in his case as the Respondent is responsible (in his view) through its actions, for his lengthy absence from the workplace. As already stated, an objective consideration of the evidence is not supportive of the Applicant in holding that view.

[37] However, even if that were not the case and the conduct of the Respondent was such that I agreed with the Applicant that they could be said to be responsible for the Applicants’ failure to return to work, that would not alter the outcome of the case. While in such circumstances I might form a view that it was not fair or just that discretionary paid leave was not granted, my view of the fairness of the conduct would not matter. I am not free to give effect to some anteriorly derived notion of what is fair and just. I agree with the Respondent’s submissions that while the Applicant believes that the discretion ought to have been exercised in his favour, or that he had a right to expect that it would be, is not a relevant consideration for the Commission in determining the matter.

Conclusion

[38] This decision determines the dispute that arises from Order 3 that is sought by the Applicant and set out above. That is, should the Respondent have been granted discretionary leave -miscellaneous with pay, during any of the various periods from 21 October 2013-14 July 2014.

[39] It follows from my reasoning above that the answer to the question is No. There is no requirement for the Respondent to grant discretionary leave for the period above to the Applicant, nor for any period for the reasons advanced by the Applicant. The only circumstance where the Respondent must provide leave is where the leave is for one of the reasons contemplated in clause 22.10 of the Agreement.

[40] I note that clause 54.8 of the Agreement provides that the parties to the dispute agree to be bound by a decision made by the Commission in accordance with this term.

COMMISSIONER

Appearances:

D Hobbs on his own behalf

V Masters of Australian Government Solicitor for the Respondent

Hearing details:

2014.

Hobart:

November 25.

1 See file note 24/03/2014

 2   [2014] FWC 6446

 3   Hobbs v Australian Government: Australian Financial Security Authority T/A Australian Financial Security Authority, [2014] FWC 6446, [34] - [37]

 4   Email of 14 October 2013

 5   Letter of 15 October 2013

 6   Applicant’s submissions, filed 28 October 2014, [4]

 7   Applicant’s submissions, filed 28 October 2014, [6]

 8   Respondent’s submissions, filed 11 November 2014, [24]

 9   Applicant’s submissions, filed 28 October 2014, [4]

 10   PN165-166

 11   PN86-87

12 [2014] FWCFB 7447

 13   Macquarie Concise Dictionary, Fifth Edition, 2009

 14   Macquarie Concise Dictionary, Fifth Edition, 2009

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