Daniel Moore v Ballarat Health Services

[2020] FWC 5690

[2020] FWC 5690

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Daniel Moore
v
Ballarat Health Services
(C2020/4944)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 OCTOBER 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] On 25 June 2020 Mr Daniel Moore 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) under the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020 (the Agreement).

[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 dispute was the subject of a conference before me at which I suggested the parties attempt to negotiate an agreeable outcome. Despite much correspondence and various proposals, they were unsuccessful and have requested I arbitrate an outcome, which they say the Agreement empowers me to do. 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 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 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.

Relevant Principles

[20] 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.”

[21] 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

[22] 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.

[23] The Agreement outlines the entitlement to personal/carers leave in clause 76. Clause 76.2 of the Agreement provides:

“(a) Paid personal/carer’s leave will be available to an Employee when they are absent because of:

(i) personal illness or injury; or

(ii) personal illness or injury of an immediate family or household member who requires the Employee’s care and support; or

(iii) an unexpected emergency affecting an immediate family or household member; or

(iv) the requirement to provide ongoing care and attention to another person who is wholly or substantially dependent on the Employee, provided that the care and attention is not wholly or substantially on a commercial basis.

[24] Clause 76.5 of the Agreement sets out requirements to give notice of the taking of personal/carer’s leave as follows:

“76.5 Employee must give notice

(a) Employees must give the Employer notice of the taking of personal/carer’s leave.

(b) The notice:

(i) Must be given to the to the Employer as soon as practicable (which may be a time after the leave has started); and

(ii) Must advise the Employer of the period, or expected period, of the leave.

(iii) The Employer must provide and inform Employees of a procedure for the notification by Employees of their inability to attend work due to illness or injury. All such notifications will be registered, detailing the time and name of the Employee.

[25] Clause 76.6 of the Agreement then outlines requirements to provide evidence in the following fashion:

“76.6 Evidence supporting claim

(a) The Employer will require the Employee to provide evidence that would satisfy a reasonable person to support the taking of personal/carer’s leave, provided that:

(i) Employees other than Dental Assistants employed by DHSV or Ballarat Health Service may be absent through personal illness or injury for one day without furnishing evidence on not more than three (3) occasions in any one year of service.

(ii) Dental Assistants employed by DHSV or Ballarat Health Service may be absent through personal injury or illness for one day without furnishing evidence on not more than five (5) occasions in any one year of service.

(b) When taking leave to care for members of their immediate family or household who are ill or injured and require care and support, the Employee will, if required by the Employer, establish by production of a medical certificate or statutory declaration, the illness or injury of the person who requires care and support.

(c) When taking leave to care for members of their immediate family or household who require care due to an unexpected emergency, the Employee must, if required by the Employer, establish by production of documentation acceptable to the Employer or a statutory declaration, the nature of the emergency and that such emergency resulted in the person concerned requiring care by the Employee.

(d) In normal circumstances, an Employee must not take leave to care for an immediate family or household member under this clause where another person has taken leave to care for the same person.

(e) An Employee is not entitled to personal/carer’s leave under this clause unless they have complied with the foregoing notice and evidence requirements.

[26] Clause 76.8 of the Agreement outlines the entitlement to unpaid personal/carer’s leave in the following terms:

“76.8 Unpaid personal/carer’s leave

Where an Employee has exhausted all paid personal/carer’s leave entitlements, he/she is entitled to take unpaid carer’s leave to provide care and support in the circumstances outlined in subclause 76.2(a)(ii), (iii), or (iv). The Employer and the Employee will agree on the period. In the absence of agreement the Employee is entitled to take up to two (2) days’ unpaid carer’s leave per occasion.”

[27] Clause 76.10 of the Agreement entitles casual employees to be unavailable for work if they need to care for members of their immediate family or household who are sick and require care and support, or who require care due to an unexpected emergency, or the birth of a child or upon the death of an immediate family or household member. In such cases, BHS will require the casual employee to provide satisfactory evidence to support the taking of this leave.

[28] Clause 77 of the Agreement outlines the entitlement to compassionate leave in circumstances where a member of an employee’s immediate family or household contracts or develops a personal illness or sustains a personal injury that poses a serious threat to their life or dies. In such circumstances, if requested, proof of the injury, illness or death must be provided that would satisfy a reasonable person. There are no express notice requirements.

[29] Clause 78 of the Agreement provides that an employee required to attend pre-natal appointments or parenting classes that are only available or can only be attended during the employee’s ordinary rostered shift may, subject to the provision of satisfactory evidence of attendance, access his or her personal leave credits. Further, the employee must give BHS prior notice of the his or her intention to take such leave.

[30] Clause 84.4 of the Agreement provides that in circumstances where an employee seeks to take community service leave, the employee will be required to produce evidence of their engagement in eligible community service activity to the satisfaction of BHS, if requested. In terms of notice, an employee must provide notice to BHS as soon as practicable (which may be after the absence has started) and must advise BHS of the period, or expected period, of the absence.

[31] Clause 84.6 of the Agreement provides for jury service and when required to attend for jury service, clause 84.6(b) requires the employee to notify BHS as soon as possible of the date they are required to attend jury service and to give BHS proof of attendance at the court, the duration of such attendance and the amount received for the jury service.

[32] Clause 85 of the Agreement provides for family violence leave and provides that evidence of family violence may be required. Clause 85.4(a) outlines the form in which the evidence can be provided. Further, clause 85.5(b) of the Agreement provides that an employee who supports a person experiencing family violence may utilise their personal leave entitlement to accompany them to court, to hospital, or to care for children. The Employer may require evidence consistent with subclause 85.4(a), from an Employee seeking to utilise their personal/carer’s leave entitlement. There are no express notice requirements.

[33] Clause 86.6 provides for cultural and ceremonial leave but there are no express notice or evidentiary requirements.

[34] The entitlements to personal/carers leave in sub-clauses 76(2)(a)(i)-(iii) of the Agreement mirror the entitlements to personal/carer’s leave in the National Employment Standards (NES) at s.97 of the Act. Clause 76(2)(a)(iv) of the Agreement then provides for an entitlement in a further scenario, where an employee has a requirement to provide ongoing care and attention to another person who is wholly or substantially dependent on the him/her, provided that the care and attention is not wholly or substantially on a commercial basis. It is of course permissible for an enterprise agreement to include a term that supplements the NES. 3

[35] As to the circumstances in which the entitlement under clause 76(2)(a)(iv) arises, it would seem it is available for an employee who is supporting a person experiencing family violence by caring for their children. 4 Equally, however, it appears wide enough to have applied to Mr Moore when he was required to provide ongoing care and attention to his dependent children. The only words of exclusion in clause 76(2)(a)(iv) are those stating that the care and attention is not to be wholly or substantially on a commercial basis. Further, clause 76.6(d) states that in normal circumstances, an employee must not take leave to care for an immediate family or household member where another person has taken leave to care for the same person.

[36] As to notice requirements, it is apparent from the various terms of the Agreement I have outlined that where notification of the taking of a particular form of leave is required, this will be outlined in varying forms of specificity. As for personal/carer’s leave, clause 76.5(b) requires an employee to give BHS notice of the period, or expected period, of the leave as soon as practicable but also allows for this to be at a time after the leave has started. 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). Absent the intervening circumstances on 11 May 2020, Mr Moore’s personal/carer’s leave would have continued to be available until such time as his accrued personal/carer’s leave was exhausted. Further, not having taken the leave due to an inability to attend work because illness or injury, Mr Moore was not subject to any specific procedural requirement to notify BHS that might have been imposed pursuant in clause 76.5(b)(iii).

[37] Similarly, where evidence supporting the taking of a form of leave is required, the Agreement specifies when this is required, together with the necessary form of the evidence. This varies according to which form of leave an employee seeks to utilise and as outlined above, in the case of cultural and ceremonial leave for example, there are no express notice or evidentiary requirements.

[38] Clause 76.6(a) of the Agreement outlines that for personal/carer’s leave generally, an employee is to provide evidence that would satisfy a reasonable person. In this matter, Mr Moore appears to have provided a statutory declaration outlining that he was required to take the leave to look after his children. Further, Mr Moore’s circumstances were not captured by either clause 76.6(b) or clause 76.6(c) and nor does he appear to have been disentitled to personal/carer’s leave under clause 76 by the operation of either clause 76.6(d) or clause 76.6(e).

[39] Therefore, I consider the terms of clause 76 of the Agreement allowed for Mr Moore to take personal/carer’s leave in the circumstances in which he did and that BHS approved the leave at the time it was applied for. The specific language of clause 76, when given its ordinary meaning, supports my conclusion and the language of the clauses relating to other forms of leave available under the Agreement that I have outlined provides context.

Conclusion

[40] I have found that Mr Moore’s particular circumstances in this case have given rise to an entitlement to personal/carer’s leave under clause 76 of the Agreement and that he complied with the notice and evidentiary requirements applicable to him. Specifically, I am satisfied that personal/carer’s leave was available to him due to his circumstances falling within those outlined in clause 76.2(a)(iv) of the Agreement.

[41] 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: As I have concluded that the reason for the leave meets the Agreement definition for personal/carer’s leave, it is not necessary to answer this question.

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

Answer: Not necessary to answer.

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: As I have found that Mr Moore’s circumstances gave rise to an entitlement to personal/carer’s leave under clause 76 of the Agreement, no.

DEPUTY PRESIDENT

Final written submissions:

Mr D Moore, 11 September 2020.
Ballarat Health Services, 14 September 2020

Printed by authority of the Commonwealth Government Printer

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 1   [2017] FWCFB 3005.

 2   [2017] FWCFB 4537.

 3   Fair Work Act 2009, s.55(4).

 4   Clause 85.5(b) of the Agreement.