Gemma Tracy Richman v Curtin University T/A Curtin University
[2024] FWC 645
•19 MARCH 2024
| [2024] FWC 645 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Gemma Tracy Richman
v
Curtin University T/A Curtin University
(C2024/1228)
| COMMISSIONER LIM | PERTH, 19 MARCH 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
Introduction
Ms Gemma Richman and her employer, Curtin University (Respondent or Curtin), are in dispute over her entitlement to paid parental leave. This dispute is pursuant to the terms of the Curtin University Enterprise Bargaining Agreement 2022 - 2025 (Current Agreement).
Ms Richman contends that she is entitled to paid parental leave pursuant to clause 42 of the Current Agreement. Curtin’s position is that Ms Richman does not meet the eligibility criteria in the clause.
On 28 February 2024, Ms Richman applied to the Commission pursuant to s 739(6) of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the Current Agreement.
On 5 March 2024, I conducted a conference with the parties. The parties agreed for the matter to be dealt with on the papers, and Ms Richman requested that the matter be dealt with on an expedited basis given that she is very close to giving birth.
Having considered the facts of the matter and the submissions of the parties, I find that Ms Richman is not entitled to paid parental leave pursuant to clause 42 of the Current Agreement.
My detailed reasons follow.
Agreed facts
The parties tendered an agreed statement of facts for this matter. The relevant facts are as follows:
(a)Ms Richman commenced her employment with the Respondent on 4 January 2016.
(b)Ms Richman took her first period of parental leave in 2022. This leave was taken in accordance with clause 41 of the Curtin University Enterprise Bargaining Agreement 2017-2022 (2017 Agreement), which applied at the time.
(c)From 3 February 2022 to 2 February 2023 inclusive, Ms Richman was on paid parental leave, paid as half pay.
(d)From 3 February 2023 to 9 August 2023, Ms Richman took a combination of annual leave and long service leave.
(e)On 4 August 2023, Ms Richman emailed the Head of School and the Faculty General Manager to advise them of her second pregnancy.
(f)On 10 August 2023, Ms Richman’s period of annual leave and long service leave ended and she returned to her substantive position of School Business Manager, Population health, Faculty of Health Sciences, on a part-time basis.
(g)On 19 October 2023, the Current Agreement came into operation.
(h)On 15 January 2024, Ms Richman emailed the People Operations team, advising them of her intention to take a period of 12 months paid parental leave from 22 February 2024.
On 24 January 2024, Ms Richman lodged a formal application for ‘Parental Leave Half Pay (Primary Caregiver)’, with a start date of 22 February 2024 and end date of 21 February 2025 (Paid Parental Leave Application).
(j)Ms Richman followed up her Paid Parental Leave Application with the People Operations team on 7, 14 and 19 February 2024.
(k)On 21 February 2024, Ms Melodie Young advised Ms Richman via email that she was not entitled to the second period of paid parental leave. This is because she had not been at work for the requisite 12 months, given that she had only returned to work from leave on 10 August 2023.
(l)Ms Richman requested that the matter be escalated, and on 20 February 2024, she commenced a dispute pursuant to clause 65 of the Current Agreement.
(m)On 27 February 2024, Ms Melisa Kaharevic, Director People and Culture, upheld the Curtin’s original decision on the same basis.
(n)On 28 February 2024, Ms Richman lodged her Form F10 application with the Commission.
Relevant legislation
The Commission’s power to deal with disputes is set out in s 595 of the Act, which provides:
“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 or in accordance with another provision of this Act.
(2)The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a)by mediation or conciliation;
(b)by making a recommendation or expressing an opinion.
(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.
Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).
(4)In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.
(5)To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”
Subdivision B of Div 2 of Pt 6-2 of the Act concerns “Dealing with disputes”. Section 738 of the Act provides:
“738 Application of this Decision
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 that includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extend 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.”
Section 739 provides the Commission’s power to deal with disputes as follows:
“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.
(2)[Repealed]
(3)In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4)If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5)Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6)The FWC may deal with a dispute only on application by a party to the dispute.”
Relevant provisions of the Agreement
“42.1 Eligibility for Parental Leave
(a)A Casual Employee is entitled to Unpaid Parental Leave but is not entitled to Paid Parental Leave.
(b)An Employee is entitled to Parental leave and associated entitlements under this clause if the leave is in relation to:
(i)the birth of a child to the Employee, the Employee’s Partner, Immediate Family or Member of Household; or
(ii)the placement of a child, age 16 years or younger, for adoption with the Employee, their Partner, Immediate Family or Member of Household
and the Employee meets the minimum Continuous Service requirement of the leave type taken.
(c)A Part-time Employee will be eligible for paid Parental Leave proportionate to hours worked in the 12 months immediately prior to the commencement of the Parental Leave.
(d)If an Employee temporarily works less than their ordinary hours of work (Full-time or Part-time as applicable) during their pregnancy in accordance with clause 42.10, paid Parental Leave entitlements will be based on the Employee’s ordinary hours of work.
(e)A Fixed Term Employee will be eligible for paid and unpaid Parental Leave, however, the period of Parental Leave will not extend beyond the term of the Fixed Term Appointment.
(f)To be eligible for a second or subsequent period of paid Parental Leave, an Employee must return to work for a continuous period of 12 months prior to the second or subsequent period of leave.” (emphasis added)
Submissions
5.1 Ms Richman
Ms Richman makes two sets of arguments as to why she is entitled paid parental leave for her second pregnancy under the Current Agreement.
The first group of arguments centre on the proposition that Ms Richman was eligible for the paid parental leave entitlement for her second pregnancy under the 2017 Agreement. Clause 41.3 in the 2017 Agreement provides:
“41.3 Paid Parental Leave Entitlement
…
Paid Parental Leave for Birth Mother (up to 26 weeks)
41.3.2 A Birth Mother is entitled to up to 26 weeks of paid parental leave in association with the birth of their child, subject to:
(a)12 months Continuous Service immediately prior to commencement of the parental leave; and
(b)the Staff Member being the child’s Primary Caregiver for the duration of the parental leave.”
Clause 3 of the 2017 Agreement defines “continuous service” as any period during which an employee covered by the Agreement is attending work; absent on approved paid leave; or absent of approved unpaid leave of 10 days or less (which will count as service). Periods of approved unpaid leave of more than 10 days will not count as service but will not constitute a break in service.
Ms Richman submits that the provisions of the 2017 Agreement should be applied to her second period of parental leave for the following reasons:
(a)She informed several Curtin representatives of her pregnancy and her intended commencement of paid parental leave while the 2017 Agreement was in operation. Curtin proceeded with its 2024 staffing budget on the basis that Ms Richman would be on parental leave and recruited for a parental leave replacement to fill Ms Richman’s substantive role for the period of her parental leave. As the request to appoint a parental leave replacement was approved by Curtin on 2 October 2023, Ms Richman submits that this constitutes an “offer and acceptance between [the parties] that the Paid Parental Leave would be proceeding.”
(b)Neither the 2017 Agreement nor the Current Agreement state that a leave application form is required to be entitled to paid parental leave.
(c)Clause 42.1(f) stipulates that an employees must return to work for a continuous period of 12 months prior to the second or subsequent period of leave. As the Current Agreement has not been in place for 12 months, the 2017 Agreement needs to be considered to determine whether she is eligible to the paid parental leave entitlement.
Ms Richman’s second set of arguments concern the construction of clause 42.1(f) of the Current Agreement and are as follows:
(a)“Return to work” and “continuous period” are not defined in the Current Agreement.
(b)“Return to work” and “continuous period” should include periods of annual leave and long service leave. In support of this, Ms Richman points to clause 14.3 of the Current Agreement, which provides an entitlement to continuing appointment where an employee has been appointed in the same faculty or area over a continuous period of 7 or more years. It is assumed that during this seven-year period an employee would take leave each year, particularly given that the Current Agreement provides Curtin with the power to direct an employee to take excess accrued annual leave and long service leave.[1]
(c)If annual leave and long service leave do not count towards a ‘continuous period’ of employment, it would be unlikely that any Curtin staff member would meet the eligibility requirements for subsequent parental leave as annual leave is required to be taken each year.
(d)The Fair Work Ombudsman website provides that paid leave counts as ordinary hours,[2] and therefore paid leave should be deemed as “work” and “return to work”.
Ms Richman also makes submissions regarding Curtin’s alleged discriminatory conduct and mishandling of her pregnancy and request to be transferred to a safe job. Ms Richman submits that this is prohibited under the Act. I note that those complaints are outside the jurisdiction of this application.
Ms Richman seeks a determination that she is entitled to 26 weeks of paid parental leave for her second pregnancy. Ms Richman also seeks compensation for the additional work she has had to undertake and compensation for the undue stress this dispute has caused her.
5.2 Curtin University
Curtin submits that the only provisions that are relevant to determining the question of Ms Richman’s entitlement to paid parental leave from February 2024 are the provisions in the Current Agreement.
Curtin points to s 58 of the Act, which provides that only one enterprise agreement can apply to an employee at a particular time. Where there is an earlier agreement that has passed its nominal expiry date, the earlier agreement ceases to apply to the employee when the later agreement comes into operation and can never apply again.[3]
Curtin also relies on s 51 of the Act, which provides that an enterprise agreement does not give a person an entitlement unless the agreement applies to the person.
As the 2017 Agreement has passed its nominal expiry date and the Current Agreement came into operation on 19 October 2023, any rights or entitlements under the 2017 Agreement, including eligibility for paid parental leave, are not applicable.
Curtin submits that it is not relevant that Ms Richman provided notice of her intention to take parental leave while the 2017 Agreement was in operation. Ms Richman’s entitlement to paid parental leave is determined at the time she proceeds on such leave. It is not determined when she first indicated an intention to take parental leave and not when she first applied for parental leave.
With regards to the words of clause 42.1(f), Curtin submits that they are clear and unambiguous. The three requirements are:
(a)Has the employee returned to work i.e. they are no longer absent on leave?
(b)If so, was that return to work at least 12 months in duration?
(c)If so, is that period of 12 months prior to the employee taking a second or subsequent period of parental leave?
It is necessary to consider the meaning of “return to work”, not “continuous service”, as Ms Richman suggests. The meaning of “continuous service” is relevant to an employee’s entitlement to other forms of leave, including the first period of paid parental leave, but not the entitlement to a second period of paid parental leave.
Curtin relies on the Full Bench authority of AMWU v Berri Pty Limited,[4] which provides that the construction of an enterprise agreement begins with consideration of the ordinary meaning of the relevant words understood in light of its industrial context and purpose.
Curtin submits that the Oxford Definition defines “return to work” as “relating to the resumption of work by a person following a significant period of absence”.
Curtin contends that “return” requires a positive action to be taken in regard to one’s employment status after a period of inaction, such as being absent on paid or unpaid leave. In a practical sense, this means actively resuming work in the workplace. If an employee remains on leave, they have not returned to work.
In Ms Richman’s case, she returned to work on 10 August 2023. Therefore, the earliest date from which she could have become entitled to a second period of paid parental leave would be 9 August 2024.
Curtin also contends that there is no contract between the parties for Ms Richman to take paid parental leave. Curtin did not offer Ms Richman paid parental leave, and there is no evidence of acceptance of an offer. Even if there was an offer and acceptance (which is denied), no contract has been created as the other elements required in order for a contract to be legally binding are absent.
Lastly, Curtin denies any allegation that it has engaged in any form of unlawful discrimination or inappropriate treatment towards Ms Richman.
Consideration
There is no contest, and I find, that the parties have complied with the requirements of the dispute settlement procedure in the Current Agreement and the Commission has been authorised to arbitrate the dispute.
I now turn to Ms Richman’s dispute.
Ms Richman makes various submissions as to the significance of the 2017 Agreement and how it should apply to her circumstances. The 2017 Agreement is no longer in operation and there are no transitional or saving provisions in the Current Agreement for the 2017 Agreement paid parental leave provisions. I agree with Curtin’s submissions regarding the effect of ss 51 and 58 of the Act.
For completeness, I address the contention between the parties as to the point Ms Richman’s eligibility for paid parental leave should be assessed. Ms Richman submits that it should be when she first notified Curtin of her pregnancy. Curtin contends the point of assessment is when Ms Richman took her parental leave. I accept Curtin’s argument.
Ms Richman’s argument that the point of assessment is an earlier date, such as when an employee notifies Curtin of their pregnancy and their intention to take parental leave, leads to undesirable outcomes. Take for example, the situation of an employee notifying Curtin seven months before they intend to take parental leave. If at the time of the notification the employee does not meet the eligibility requirements for paid parental leave, but at the time of taking the parental leave they do, this would unfairly deny them the entitlement under Ms Richman’s construction.
At the time Ms Richman commenced her second period of parental leave (and even when she made her Paid Parental Leave Application), the Current Agreement applied.
I now turn to consider the construction of the Current Agreement.
In interpreting an award or enterprise agreement, the task is to construe the document in a practical manner and within the industrial environment in which it was drafted.[5] The Full Court of the Federal Court in WorkPac Pty Ltd v Skene[6] recently affirmed this approach and other relevant precedents at [197]:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).”
Clause 42.1(f) provides that to be eligible for a second or subsequent period of paid parental leave, an employee must return to work for a continuous period of 12 months prior to the second or subsequent period of leave. This clause is to be read in the context of the parental leave clause, the Current Agreement, and the fact that it is intended to apply to employees who have already taken a prior period of parental leave.
I do not agree with Ms Richman’s contention that a finding that she did not return to work when she commenced her period of annual leave and long service leave means that anyone who takes annual leave or long service leave in the 12 months leading up to a period of subsequent parental leave is ineligible for the paid parental leave entitlement.
It is clear from the terms of the Current Agreement that certain types of absences do not break periods of continuity. However, clause 42.1(f) must be read in the context of someone returning to work from their prior period of parental leave. Ms Richman’s situation is different to an employee who after taking a period of parental leave, returns to work for two years with a period of annual leave amongst that period, who then takes a subsequent period of parental leave.
I make the following findings:
(a)I find that the ordinary meaning of “return to work” in Clause 42.1(f) means to return to actual work and the performance of work after an employee’s first or prior period of paid parental leave.
(b)I accept that Ms Richman’s first period of paid parental leave ended on 2 February 2023. However, she did not return to work; she took a period of annual leave and long service leave. Going from paid parental leave to annual leave and long service leave cannot be said to be returning to the performance of work.
(c)Ms Richman returned to work on 10 August 2023. Therefore, she had not returned to work for a continuous period of 12 months prior to her taking her second period of parental leave in February 2024.
Accordingly, Ms Richman is not eligible for paid parental leave pursuant to clause 42.1(f) of the Current Agreement.
For completeness, I address Ms Richman’s contention that there was a contract struck between the parties which gives her the entitlement to paid parental leave. Ms Richman’s argument is unfortunately misconceived and outside the jurisdiction of the Current Agreement’s dispute clause.
COMMISSIONER
Hearing on the papers
[1] Clause 36.4; Clause 37.7.
[2] Section 58(2)(e), Act.
[4] [2017] FWCFB 3005.
[5] Kucks v CSR Ltd (1996) 66 IR at 184 (“Kucks”),
[6] [2018] FCAFC 131.
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