Daniel Moore v Ballarat Health Services

[2020] FWC 6758

[2020] FWC 6758

FAIR WORK COMMISSION

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 from HR, he advised her delegate that he was entitled to take this leave and proceeded to take the carer’s leave every Tuesday from 24 March 2020 for a period of 8 weeks. The total leave taken equates to 76 hours.

[7] Mr Moore says that on 11 May 2020, his manager clarified with HR whether he would continue to be entitled to take this leave having regard to changes to the COVID-19 social distancing rules, which had by then been announced in Victoria. As a result of raising this query, Mr Moore says his manager was advised that he was not able to continue to take this leave as carer’s leave and further, that he should not have been taking it as such in the first place. Mr Moore says he was then advised by his manager that he would not only need to cancel his forthcoming carer’s leave, but would also have to retrospectively change the carer’s leave he had previously taken to either annual leave or long service leave.

[8] Mr Moore considers this to be unfair and disputes BHS’s entitlement to require this because his carer’s leave was approved by HR and his manager. He says that had he not initially received permission from HR to take family leave, he would have looked into other options such as his partner altering her work hours or looking after the children while working from home. Alternatively, he says he would have considered his own options for working from home or the possibility of utilising childcare for an extra day.

[9] Mr Moore also says he relied on a “Leave Guide” provided by BHS, which he and his manager reviewed at the time. They considered his situation could be compared to one which permitted the taking of special leave, said to be available where an “employee is unable to attend work because they are required to care for one or more of their children as a result of a school and/or a child care centre being closed or operating under “remote learning” arrangements on the advice of the Victorian Chief Health Officer”.

[10] For its part, BHS does not dispute that Mr Moore made a telephone call to HR on 23 March 2020 to query his entitlements to access carer’s leave due to the unavailability of a grandparent to undertake the caring duties in relation to his children.

[11] BHS contends that while Mr Moore says that he was told that he was entitled to access carer’s leave on an ongoing basis, he was assuming that the individual to whom he had spoken had the authority to approve such leave, whereas the two people who were responsible for the assessment and escalation of individual queries were not contacted in relation to this query.

[12] BHS notes that Mr Moore advised his Acting Manager that his leave for 24 March 2020 “had been approved by HR” and it was then entered as such into the roster. BHS also notes that Mr Moore provided a statutory declaration outlining that he was required to take leave to look after his children because his parents, who usually cared for the children, could no longer do so due to risks associated with COVID-19.

[13] BHS confirms that on 11 May 2020, Mr Moore’s manager enquired as to whether the “HR Approval” for Mr Moore’s leave was to continue given the Victorian Government announcement that up to 5 visitors would be allowed in a person’s home. BHS submits that it was only at this time that the circumstances were first brought to the attention of its Workforce Business Partner and Director Workforce, who were responsible for assessing requests escalated from individuals and their managers.

[14] BHS’s position has been, and continues to be, that absences for carer’s leave during COVID-19 must meet the description of carer’s leave within the relevant Agreement. BHS also submits that the Guidelines in use with effect from 17 March 2020 did not indicate that carer’s leave should or could be approved in the event of the unavailability of a child’s carer.

[15] BHS says that the Department of Health and Human Services Victoria (DHHS) has also issued various updates to a “Guidelines in relation to Employment Arrangements” during the COVID-19 Pandemic. These address the availability of ex-gratia Leave, referred to as ”Special Leave” but BHS asserts that Mr Moore’s circumstances did not fit the requirements for this Special Leave.

[16] BHS says that it is unable to determine whether there was a mistake made by an unknown person in HR or a misunderstanding by Mr Moore when interpreting the information provided to him.

[17] BHS concedes the Acting Manager and Manager made a mistake in relying on Mr Moore’s understanding of his telephone discussion and should have sought their own advice as to the correct classification of the leave. However, it submits these events occurred during a time of uncertainty and, not being experienced in assessing the Guidelines, the Acting Manager and Manager both took at face value Mr Moore’s assurance that the leave was approved.

[18] In considering the circumstances, BHS reached the view that processes for approving of the leave were not followed because of a genuine mistake by both Mr Moore and his manager and that the correct leave type should be applied to the period of absence.

[19] BHS submits it is subject to the record keeping obligations under the Act and the Fair Work Regulations 2009 (Regulations) and maintains the use of paid carer’s leave for Mr Moore’s circumstances was not permitted either by the relevant Agreement or under the Act. In particular, BHS cites s.535(1) of the Act and regulation 3.36(1), regulation 3.44(2) and regulation 3.44(6).

[20] BHS submits the legislative scheme, supported by the legislative history, leaves no room for an employer to exercise its discretion as to whether an employee’s record should be corrected once an error has been identified. In submitting the agreement of the employee is not required given the mandatory obligation to ensure that the record is kept accurately, BHS submits:

•  Courts regard use of the word ‘must’ as indicative of an imperative command (Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5 at [42] – [47] and the referenced citations).

•  The relevant provisions of the Regulations require, subject to civil penalty, an employer to keep accurate records.

•  This obligation is reinforced by regulation 3.44(6) which prohibits any person from making use of false or misleading records.

•  The proscribed conduct would be meaningless if the parties could determine themselves what records to keep, or if the employer needed to agree with each employee about the content of those records. The employer’s obligation is to ensure that the records are accurate by correcting a record where necessary in order to ensure that the employee’s leave entitlements are accurately recorded.

•  The Explanatory Statement for the Regulations state that (at [218]): ‘Corrections must be made immediately upon discovery of error, and the record must note that a correction has been made (as well as what the correction is).’

[21] BHS submits that the Act and Regulations not only enable an employer to correct an employee’s leave record but also mandate that action under penalty provision. It contends the fact that the employer’s obligation is to correct the record must indicate that the correction is required to rectify something which has occurred in the past once it becomes evident that the record is wrong.

[22] In the present circumstances, BHS:

a) Contends Mr Moore’s leave records incorrectly recorded that he was absent on carer’s leave as he was not entitled to that leave;

b) Maintains the use of paid carer’s leave for Mr Moore’s circumstances was not permitted either by the relevant Agreement or under the Act; and

c) Submits that it is required to correct Mr Moore’s record of leave in order to reflect his true entitlement to personal/carer’s leave.

Relevant Principles

[23] The Full Bench of the Commission in AMWU v Berri Pty Limited (Berri) 1 concluded as follows in relation to the interpretation of a single enterprise agreement:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

[24] Further, the Full Bench of the Commission in United Firefighters Union of Australia v Emergency Services Telecommunications Authority T/A ESTA, 2 stated:

“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.”

Consideration

[25] The principles outlined the Full Bench of the Commission in Berri make clear that the interpretation process begins with a consideration of the ordinary meaning of the relevant words and the Full Bench emphasised that the resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. That context may appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.

[26] The Agreement outlines the entitlement to personal/carers leave in clause 62. Clause 62.3 of the Agreement provides:

“62.3 Access to paid personal leave

Subject to the conditions set out in this clause 62, an Employee may take paid personal leave if the leave is taken:

(a) due to personal illness or injury (sick leave); or

(b) to care for or support a member of the Employee’s immediate family or household because of:

(i) a personal illness or injury affecting them; or

(ii) an unexpected emergency affecting them (carer’s leave).”

[27] Clause 62.6 of the Agreement relevantly provides:

“62.6 Carer’s leave

(a) Evidence requirements

The Employee must, if required by the Employer, establish by production of a Commonwealth or Victorian statutory declaration, a medical certificate from Registered Health Practitioner or other evidence that would satisfy a reasonable person that a member of the Employee’s immediate family or household has either:

(i) an illness or injury; or

(ii) an unexpected emergency;

that requires their care or support. In the case of an unexpected emergency, the Employee will identify the nature of the emergency. An ‘unexpected emergency’ includes providing care or support to a member experiencing family violence as described at subclause 66.5(b).

(b) Notice requirements

(i) The Employee must, where practicable, give the Employer notice of the intention to take leave prior to the absence that includes:

A. the relationship to the Employee of the person requiring care or support;

B. the reasons for taking such leave; and

C. the estimated length of absence.

(ii) If it is not reasonably practicable for the Employee to give prior notice of absence, the Employee must notify the Employer of the absence as soon as practicable.”

[28] The entitlements to paid personal leave in clause 62.3 of the Agreement mirror the entitlements to personal/carer’s leave in the National Employment Standards (NES) at s.97 of the Act. In this case, and notwithstanding the submissions of BHS, I consider that the only occasion upon which Mr Moore was required to look after his children capable of coming within the definition of an ‘unexpected emergency’ was 24 March 2020. Thereafter, I do not consider the ongoing requirement to have caring arrangements in place for Mr Moore’s children was ‘unexpected’ or as a result of an ‘emergency.’ From the weekend of 21-22 March 2020, Mr Moore knew he would have to make new caring arrangements for his children on Tuesdays. He was on notice from that time, the requirement was henceforth not unexpected and any initial emergency had passed. As Mr Moore himself stated, he could have looked into other options such as his partner altering her work hours or looking after the children while working from home, or he himself working from home, or the utilisation of childcare for an extra day.

[29] Clause 62.6(a) of the Agreement outlines that for carer’s leave, an employee is to provide a statutory declaration, a medical certificate or other evidence that would satisfy a reasonable person that a member of the employee’s immediate family or household has either an illness or injury or an unexpected emergency that requires their care or support. In the case of an unexpected emergency, an employee is obligated to identify the nature of the emergency. In this matter, Mr Moore provided a statutory declaration outlining that he was required to take the leave to look after his children on 24 March 2020.

[30] As to notice requirements, clause 62.6(b) requires an employee, where practicable, to give BHS notice of the intention to take leave prior to the absence that includes his or her relationship to the person requiring care or support, the reasons for taking such leave and the estimated length of absence. If prior notice is not possible, notice of the absence must be given soon as practicable. Mr Moore would appear to have complied with this obligation because he gave notice in advance on 23 March 2020 and specified the period (Tuesdays, starting from 24 March 2020).

[31] Therefore, I am satisfied the terms of clause 62 of the Agreement allowed for Mr Moore to take paid personal/carer’s leave for Tuesday 24 March 2020 only and that no change is required in relation to that particular day.

[32] As to the remaining six Tuesdays from 31 March 2020 – 5 May 2020 inclusive, I consider Mr Moore was neither eligible for nor entitled to take paid personal leave for any of them. As such, his entitlement to paid personal leave would need to be adjusted, with six days of paid personal leave re-credited. This does not require the agreement of Mr Moore.

[33] However, it is another matter altogether as to whether BHS can unilaterally change what was incorrectly taken as paid personal leave to another leave type. In the case of annual leave, the Agreement states at clause 59.3 that it will be taken for a period agreed by the employee and the employer. In the case of long service leave, the Agreement states at clause 72.3(a) that long service leave will be granted by the employer within six months from the date of the entitlement but can also be postponed to a mutually agreeable date or a date determined by the Commission. Clause 72.3(b) requires long service leave to be taken in periods of not less than one week.

[34] The net result in this matter is that Mr Moore appears to have been overpaid. As such, Mr Moore could elect to repay the equivalent of the six days of paid personal leave taken. If this does not occur, and the correspondence that has passed between the parties suggests that it will not, there would not appear to be an entitlement under the Agreement expressly authorising BHS to make a deduction from future wage payments or other entitlements. Even if there was, the legality of such a deduction would be questionable when regard is had to ss.324 and 326 of the Act. Therefore, if BHS was intent in recovering the overpayment in the face of his unwillingness to repay it, BHS would be required to institute legal proceedings against Mr Moore for recovery.

Conclusion

[35] The answers to the questions that the parties asked me to determine in order to resolve the dispute are therefore as follows:

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?

Answer: No.

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

Answer: In the absence of agreement between the parties, it cannot be treated as another form of leave. The payment of personal leave on six of the Tuesdays would therefore seem to be an overpayment.

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?

Answer: I consider the proposal by Mr Moore to split the difference in relation to the six days/57 hours that were paid as personal leave from 31 March 2020 – 5 May 2020 represents an appropriate compromise.

I have arrived at this view because while I have not accepted Mr Moore’s assertion that the wording of the clause was ambiguous having regard to the ongoing circumstances in which he found himself, I consider the contention Mr Moore advanced that had his enquiry of BHS HR on 23 March 2020 been met with an accurate response, he would have been in a position to make other arrangements for the care of his children that did not involve taking paid personal leave is a reasonable one.

DEPUTY PRESIDENT

Final written submissions:

Mr D Moore, 11 September 2020.
Ballarat Health Services, 5 November 2020.

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 1   [2017] FWCFB 3005.

 2   [2017] FWCFB 4537.