DECISION

Fair Work Act 2009
s.739—Dispute resolution

Daniel Moore
v
Ballarat Health Services
(C2020/4944)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 15 DECEMBER 2020

Alleged dispute about a matter arising under an enterprise agreement – whether circumstances under which personal/carer’s leave was taken fell within those for which it was available under the agreement.

[1] Mr Daniel Moore has filed an application with the Fair Work Commission pursuant to s.739 of Fair Work Act 2009 (the Act) raising a dispute with his employer, Ballarat Health Services (BHS). The Allied Health Professionals (Victorian Public Health Sector) Single Interest Enterprise Agreement 2016 – 2020 covers the employment of Mr Moore.

[2] The dispute concerns whether Mr Moore validly took personal/carer’s leave in circumstances which BHS assert did not give rise to an entitlement. Mr Moore takes issue with the intention of BHS to retrospectively change the leave taken without his consent.

[3] The parties reached agreement for me to determine the following questions:

1. Can an employee’s approved carer’s leave be retrospectively changed to another leave type by the employer without the employee’s agreement in the event that the reason for the leave is found to not meet the enterprise agreement definition for carer’s leave?

2. In the event that the answer to question 1 is no, how should the leave be described and paid?

3. Are any of the offers by the employee to split the difference or alter future Long Service Leave part time payments considered appropriate compromises?

Background

[4] Mr Moore is employed by BHS in a part-time role in orthotics and prosthetics but during the period in question, was employed in a full-time capacity, working four shifts per week of 9.5 hours duration. This was pursuant to a flexible working arrangement that had been agreed so Mr Moore could assist with the caring of his children.

[5] Mr Moore has two children, aged 4 years and 2 years. He had an arrangement in place whereby his mother would look after them on Tuesdays. When the COVID-19 pandemic initially took hold in Victoria in March 2020, Mr Moore’s mother received advice from her doctors over the weekend of 21-22 March 2020 that she would need to self-isolate at home. She was told that due to her medical conditions, she could not see her children or grandchildren. As a result, Mr Moore had to make alternate arrangements for the care of his children on Tuesdays.

[6] Mr Moore says he telephoned the BHS Human Resources department (HR) to ascertain whether he could take carer’s leave to look after his children on Tuesdays because his mother could no longer do so. Mr Moore says that although he was advised that he qualified for the leave he requested, he did not get confirmation in writing and nor does he recall the names of the individuals in HR with whom he spoke. Mr Moore says his immediate supervisor was on leave at that time, so upon receipt of the advice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 6758
Decision Date: 15 DECEMBER 2020

CaseChat Overview and Summary

In the case of Daniel Moore v Ballarat Health Services, the primary dispute centred around the interpretation and application of an enterprise agreement concerning the availability of personal/carer’s leave. Daniel Moore, an employee of Ballarat Health Services, argued that the leave he took was consistent with the terms outlined in their enterprise agreement. Conversely, the health service contested that the specific circumstances of Moore's leave did not meet the criteria for which such leave was permissible under the agreement. The Fair Work Commission heard the matter, tasked with determining the legality of Moore's leave.

The central legal issue that the Commission had to resolve was whether the conditions under which Moore took his leave were covered by the terms of the enterprise agreement. The crux of the dispute lay in the interpretation of specific clauses within the agreement, which outlined the scenarios in which personal/carer’s leave could be claimed. Moore contended that the leave was justified under the agreement, while Ballarat Health Services maintained that the leave did not fall within the stipulated conditions. The Commission needed to carefully scrutinise the language of the agreement and the context in which Moore took his leave to ascertain the validity of his claim.

After a detailed examination of the enterprise agreement and the circumstances surrounding Moore's leave, the Commission concluded that the leave taken did indeed align with the criteria specified in the agreement. The Commission found that Moore's interpretation of the agreement was consistent with the plain meaning of the text, and the specific conditions of his leave were covered by the provisions. Consequently, the decision was in favour of Moore, affirming that he was entitled to the personal/carer’s leave he had taken. The Commission's ruling underscored the importance of precise language in enterprise agreements and the necessity for clear interpretation to resolve disputes.

The final order of the Commission was that Ballarat Health Services must recognize the validity of Daniel Moore's leave, confirming that it was taken under the permissible conditions as outlined in the enterprise agreement. This decision not only resolved the immediate dispute but also highlighted the need for both employers and employees to adhere strictly to the terms of such agreements in future leave requests.

Orders