Glen Eira City Council v Australian Municipal, Administrative, Clerical and Services Union

[2015] FWC 2694

[2015] FWC 2694

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.739—Application to deal with a dispute

Glen Eira City Council
v
Australian Municipal, Administrative, Clerical and Services Union
(C2015/28)

Local government administration
DEPUTY PRESIDENT SMITH	MELBOURNE, 30 APRIL 2015

National Employment Standards; personal/carers leave.

[1] The following decision, now edited, was issued during proceedings conducted on 16 April 2015.

[2] The parties have sought to reach agreement but I regret that this matter was not able to be resolved. I must now determine what the Glen Eira City Council Enterprise Agreement 2013 [AE403143] [the Agreement] means. Often in these cases it’s not recognised that conciliation provides better opportunities than does arbitration. It is clear in this matter.

[3] To begin there is no breach of the no-extra claims provision because the actions of the employer are governed by the Agreement. When either employees or employers can implement terms of an agreement it’s not a breach of the no-extra claims commitment.

[4] I turn now to the letter of the Chief Financial Officer. It provides for anybody who has taken sick leave of a particular quantum to provide a sick leave certificate. There is perhaps some internal inconsistency in that the second aspect of the letter as it speaks of providing such evidence that would satisfy a reasonable person. I now turn to what the Agreement provides.

[5] The ASU seeks to distinguish between a discretionary decision and a mandated outcome.  Clause 37.5.3(a) of the Victorian Local Authorities Award 2001 [AP811556] relates to carer’s leave and it provides:

37.5.3(a) The employee shall, if required, establish by production of a medical certificate or statutory declaration, the illness of the person concerned.

[6] Clause 39.1.2 of the Award relates to sick leave and it provides:

39.1.2 For each period of sick leave exceeding three working days, a satisfactory certificate by a duly qualified medical practitioner will be required, stating the nature of the illness or injury or, at the discretion of the medical practitioner, the cause of absence and the probable duration.

[7] This clause of the Award goes on to state:

Provided that the respondent may require a medical certificate to be furnished with respect to any absence.

[8] It has a further qualification in relation to Public Holidays. The language contained in these clauses are discretionary, that is, it is at the discretion of the employer that it may require a medical certificate or statutory declaration in the case of carer’s leave. It is also discretionary in relation to sick leave in that the employer may require a medical certificate to be forwarded with respect to any absence.

[9] This discretionary right is not inhibited by the preceding sentence of clause 39.1.2. and whilst I can understand the argument raised by the union that the focus is on sick leave exceeding three working days; nonetheless the proviso exists and it is clear.

[10] My conclusion in relation to the no-extra claims clause is equally applicable to the argument raised in relation to consultation.

DEPUTY PRESIDENT

Appearances:

D. Tozer Solicitor on behalf of the Glen Eira City Council.

D. Nunns for the Australian Municipal, Administrative, Clerical and Services Union.

Hearing details:

2015.

Melbourne:

April, 16.

Printed by authority of the Commonwealth Government Printer

<Price code A, AE403143  PR563239>