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…

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.

Continue reading Daniel Moore v Ballarat Health Services

Details

AGLC: Daniel Moore v Ballarat Health Services [2020] FWC 5690
Case: [2020] FWC 5690
Decision Date: 26 OCTOBER 2020

CaseChat Overview and Summary

Daniel Moore, a former employee of Ballarat Health Services, brought a case before the Fair Work Commission, asserting that he was unlawfully denied personal/carer’s leave under the relevant enterprise agreement. The dispute centred around whether the conditions under which Mr Moore took leave were in accordance with the provisions of the agreement. Ballarat Health Services, on the other hand, argued that Mr Moore's leave did not meet the criteria stipulated within the agreement, hence his entitlement was properly denied.

The legal issues at hand required the Commission to interpret the terms of the enterprise agreement, particularly those related to personal/carer’s leave, and to determine if Mr Moore's circumstances warranted the leave as per the agreement. The primary focus was on the interpretation of specific clauses within the enterprise agreement and whether they applied to Mr Moore's situation. The Commission had to assess the factual context of Mr Moore's leave requests and compare them against the agreed terms.

In its reasoning, the Commission examined the explicit language of the enterprise agreement, taking into account relevant precedents and the ordinary meaning of the terms used. The Commission found that the provisions concerning personal/carer’s leave were not met in Mr Moore's case. The Commission determined that the leave Mr Moore sought was not available under the agreement as it did not fall within the specified conditions. Consequently, the decision was in favour of Ballarat Health Services, dismissing Mr Moore's claim.

The Commission’s decision was final, with no further orders required as the dispute was resolved based on the interpretation of the enterprise agreement.

Orders