Independent Education Union of Australia v Peregian Beach Community College Ltd T/A Peregian Beach College
[2024] FWC 1874
•18 JULY 2024
| [2024] FWC 1874 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Independent Education Union of Australia
v
Peregian Beach Community College Ltd T/A Peregian Beach College
(C2024/3055)
| COMMISSIONER SIMPSON | BRISBANE, 18 JULY 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 14 May 2024, the Independent Education Union of Australia (the Applicant / the IEUA) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the FW Act) to deal with a dispute arising under the Peregian Beach College Enterprise Agreement 2022 (the Agreement). Peregian Beach Community College Ltd T/A Peregian Beach College is the Respondent in the matter (Peregian / the Respondent).
The matter was listed for private conference on 31 May 2024. The matter could not be resolved. The IEUA sought the matter proceed to arbitration. I issued directions for the filing of evidence and submissions.
The Applicant relied on its Form F10 application, submissions filed on 14 June 2024, and submissions in reply filed on 26 June 2024. The Respondent relied on its initial response to the application and submissions filed on 21 June 2024. Having viewed the written material filed by the parties, I am satisfied that the dispute does not involve factual disputes that would warrant the conduct of a hearing in order to determine the matter. On that basis, I have concluded it is appropriate to determine the dispute on the papers, with the consent of the parties. The parties provided the below agreed facts and proposed question for arbitration.
“Agreed Statement of Facts
1. In February 2023, prior to the birth of his child, IEUA-QNT member Mr Jason Rogers enquired of the respondent his entitlement to Paid Parental Leave under the Peregian Beach Community College Enterprise Agreement 2022 (the Agreement).
2. Having received no response, Mr Rogers followed up with the respondent on 11 March 2023 regarding his entitlements and setting out his understanding of being entitled to 1 week’s payment at the birth of his child and if he was to become the primary carer within the relevant timeframe a further 11 weeks payment. Mr Rogers was orally referred to the EBA by College staff at this time.
3. Mr Rogers followed up his earlier emails on 28 March 2023 again outlining his understanding of his entitlement to paid leave in relation to the birth of his child. He was advised that he was entitled to two weeks from Centrelink paid and one week paid, one week unpaid from Peregian Beach College on 28 April.
4. On 5 May, Mr Rogers followed up in relation to primary care giver’s leave, still pursuing his argument that he had entitlement.
5. Having received no response to this query, Mr Rogers followed up with the respondent on 2 June 2023.
6. On 5 June 2023 Mr Rogers received a response from the respondent’s employee Kristy Barker, indicating if he intended on becoming the primary carer, he should provide copies of documents provided to Centrelink showing he was claiming primary care giver. Mr Rogers did not provide any paperwork.
7. Mr Rogers accessed non-primary caregivers leave in July 2023 following the birth of his child on 19 July 2023.
8. Mr. Rogers had several exchanges with his employer in September and November 2023 in relation to his understanding of his right to access leave in accordance with Clause 5.2.3 (a) of the Agreement, whereupon the employer continued to reject his application and indicated that the employer would not engage in further discussion in the matter.
9. IEU-QNT Industrial Officer Nicholas Sahlqvist wrote to the College principal Mr. Dupuy on 5 March 2024 outlining the interpretation that Mr. Rogers had an entitlement to paid leave under clause 5.3.2(a) of the Agreement.
10. Mr. Noel Woodall, Legal Practitioner Director of Sunshine Coast Legal responded on 6 March 2024 indicating he had been instructed to act on behalf of the College and maintaining the position that Mr. Rogers has no entitlement to leave under clause 5.2.3 (a) of the Agreement.
11. IEU-QNT Industrial Officer Nicholas Sahlqvist responded to Mr. Woodall’s correspondence on 7 March 2024, maintaining the interpretation that Mr. Rogers had an entitlement to leave under clause 5.3.2 (a) of the Agreement.
12. Mr. Woodall again responded on behalf of the employer on 8 March 2024, maintaining the position that Mr. Rogers has no entitlement to leave under clause 5.2.3 (a) of the Agreement.
13. IEU-QNT Industrial Officer Nicholas Sahlqvist responded to Mr. Woodall’s correspondence on 14 March 2024 maintaining the interpretation that Mr. Rogers had an entitlement to leave under clause 5.3.2 (a) of the Agreement.
14. Mr. Woodall again responded on behalf of the employer on 15 March 2024, maintaining the position that Mr. Rogers has no entitlement to leave under clause 5.2.3 (a) of the Agreement.
15. On 15 May 2024 the IEU-QNT lodged a Dispute with the Fair Work Commission regarding the interpretation of clause 5.3.2 (a) of the Agreement.
Proposed Question for Consideration
1. The parties seek a determination from the Fair Work Commission on the question of whether a staff member is excluded from accessing paid parental leave under clause 5.3.2 (a) of the Peregian Beach Community College Enterprise Agreement 2022 due to having earlier accessed paid parental leave under clause 5.3.2 (d) of said agreement.”
Clause 5.3 of the Agreement provides as follows:
5.3 Parental Leave
The following Parental Leave provisions are to be read in conjunction with the National Employment Standards and the Fair Work Act 2009 as varied from time to time.
5.3.1 Paid Parental Leave – Eligibility
The following employees shall be eligible for paid leave under this clause:
(a) Full-time employees who have 1 (one) year’s continuous service;
(b) Part-time employees who have been employed for one calendar year(notwithstanding that the amount of service is less than the equivalent of 1 year full time service);
(c) Fixed term employees who have been employed for one calendar year notwithstanding that the amount of service is less than equivalent of one year service. In determining this eligibility period for fixed term employees, 2 (two) or more fixed term periods may be combined so long as the gaps between such periods were less than 3 (three) months;
(d) Where an employee has returned to work after a period of maternity leave and completed at least one further calendar year of service; that employee shall be entitled to access a second or subsequent period of paid maternity leave.
5.3.2 Paid Parental Leave
(a) In addition to statutory entitlements to unpaid leave, primary caregivers will be entitled to paid leave of eleven (11) continuous and uninterrupted weeks which is exclusive of any vacation period that falls during the paid leave. This paid leave may be accessed at half pay. In such circumstances the employee will be entitled to double the period of leave which would otherwise be applicable. Where possible, an employee shall commence leave at the conclusion of a school term or as near as possible to the conclusion of a school term. Employees shall return to school at the beginning of the nearest school term.
(b) The employer funded eleven (11) weeks paid parental leave will be in addition to the Commonwealth Government’s implementation of a national paid parental leave scheme.
(c) Superannuation, and all other employee entitlements, continue to accrue during the employer funded part of an employee’s period of paid parental leave.
(d) In addition to the unpaid leave provisions prescribed by legislation, non-primary caregivers are entitled to a period of 5 (five) days paid leave and 5 (five) days unpaid leave which is to be taken consecutively.
Applicant Initial Submission
The Applicant submitted that as outlined in the agreed facts a dispute has arisen between the Applicant and Respondent in line with clause 9.1 Dispute Resolution Clause of the Agreement. It was submitted the requirements of clause 9.1 have been met as the IEUA member, Mr Rogers, initially attempted to resolve his concern with the employer before reporting the matter to the IEUA. Following discussions between the IEUA and the Respondent the dispute remained unresolved and was notified by the Form 10 dispute dated 14 May 2024.
The dispute concerns the interpretation of clause 5.3.2 of the Agreement.
It was submitted Mr Rogers was only informed by the Respondent following an application to access leave under clause 5.3.2 (a) of the Agreement that he had no entitlement to this leave as he had already accessed leave under clause 5.3.2 (d).
The IEUA submitted that there is nothing in the agreement that limits a staff member’s ability to access leave under clause 5.3.2 (a) of the Agreement due to having earlier accessed another form of leave under the relevant clause.
It was submitted that the principles for the interpretation of enterprise agreements were set out by the Full Bench of the Fair Work Commission in AMWU v Berri Pty Ltd[2017] FWCFB 3005 (‘Berri’). That said 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 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 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.”
The Applicant submitted that the language in clause 5.3.2 of the Agreement has a plain meaning and that there is no ambiguity. The Applicant contended that there is nothing in the agreement that prohibits or suggests that an employee is only able to access one entitlement under this provision.
The Applicant submitted that there are limits considered by the Agreement on accessing entitlements under clause 5.3.2 and these are contained in clause 5.3.1 of the Agreement and a staff members entitlement to statutory unpaid leave as either a primary caregiver or non-primary caregiver, as seen in clause 5.3.2 (a) and 5.3.2 (d) which read:
“(a) In addition to statutory entitlements to unpaid leave, primary caregivers……”
and
“(d) In addition to the unpaid leave provisions prescribed by legislation, nonprimary caregivers…”
It was submitted by the Applicant that no consideration was given to any further limitation on access to leave under this clause as now being proposed by the Respondent.
The Applicant submitted had there been ambiguity, or a different interpretation understood by the Respondent they could have indicated this to Mr Rogers prior to his accessing his first period of leave under clause 5.3.2 (d).
It was submitted that in line with the decision in Berri at paragraph [9] that as the clause of the Agreement has a plain meaning then evidence of the surrounding circumstances, if there is any, should not be considered to contradict the plain language of the clause.
The Applicant seeks the answer to the question for consideration to be in the negative, in that staff members of the Respondent are not excluded from accessing paid parental leave under clause 5.3.2(a) of the Agreement due to having earlier accessed paid parental leave under clause 5.3.2 (d).
Respondent Submissions
The Respondent submitted that the Agreement was approved by Deputy President O'Neill on 6 February 2023. The IEUA member, Mr Rogers, commenced employment with the Respondent on 20 January 2022, and accordingly, is assumed to have been a person that participated in the vote approving the Agreement by the Respondent’s employees.
The Respondent noted as agreed, Mr Rogers made enquiry a number of times as to his entitlements for paid parental leave. Ultimately, Mr Rogers made an application for paid parental leave under Clause 5.3.2 (d) of the Agreement, in July 2023. This leave was approved and Mr Rogers took said leave pursuant to Clause 5.3.2(d).
Following Mr Rogers return from leave he then made enquiry with the Respondent as to an additional period of leave pursuant to Clause 5.3.2 (a). Following numerous exchanges of correspondence over a period of months, the Respondent confirmed its position that an employee is not entitled to take paid parental leave twice, once under 5.3.2(d) and 5.3.2(a).
The point of contention between the parties in this proceeding is that clause 5.3.2 (a) provides for an entitlement to leave for Primary Caregivers and clause 5.3.2 (d) provides for an entitlement to leave for Non-Primary Caregivers.
As noted within the Agreed Statement of Facts, this position was subsequently reiterated to the Applicant, with reference made to the legislative regime and an invitation extended to provide a legal basis to support the contrary position contended. No such reply was received and the application giving rise to these proceedings was made.
The cases dealing with the approach to the task of construing an enterprise agreement were considered at some length in the matter of Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd[2023] FWC 806, [18] – [23]. The starting point were the principles set out in a Decision of a Full Bench of the Commission in Berri.
It was submitted that further, the principles were also set out by the Full Court of the Federal Court in Workpac Pty Ltd v Skene [2018] FCAFC 131 at [197] as follows:
“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).”
The Respondent cited AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women’s Hospital[2022] FWCFB 7 at [29] where the Full Bench of the Commission also distilled the principles relevant to the construction of enterprise agreements from the Full Court of the Federal Court majority in James Cook University v Ridd [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ at [65] as follows (with citations removed and some paraphrasing):
· The starting point is the ordinary meaning of the words, read as a whole and in context.
· A purposive approach is preferred to a narrow or pedantic approach – the framers of such documents were likely to be of a practical bent of mind. The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.
· Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association.
· Context may include ideas that gave rise to an expression in a document from which it has been taken.
· Recourse may be had to the history of a particular clause where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form.
· A generous construction is preferred over a strictly literal approach but agreements should make sense according to the basic conventions of the English language.
· Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.
It was submitted that in CFMEU v Endeavour Coal Pty Ltd T/A Appin Mine[2017] FWCFB 4487 a Full Bench of the Commission held that the context of an agreement provision is significant. At [43] it notes the Full Bench set out the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184 at [71] – [85] emphasising the following matters:
· Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means and there is always some context to any statement;
· Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”;
· To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side;
· The phrase used by Mason J in Codelfa “if the language is ambiguous or susceptible of more than one meaning” does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context; and
· Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction.
The Respondent submitted that the case law in relation to the approach to the construction of enterprise agreements makes it clear that context and purpose must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning. The Full Bench in Berri dealt with the relevance of post agreement conduct to the construction of the terms of an enterprise agreement citing the judgment of Gray J in ALHMWU v Prestige Property Services Pty Ltd [2006] FCA 11 in which at [44] his Honour observed that:
“…
I am prepared to accept that the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs. If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken however, to distinguish a common understanding from common inadvertence ... In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue.”
The Respondent’s Agreement was approved by The Commission on 13 February 2023. The version of the Paid Parental Leave Act 2010, that applied at that time was compilation No. 41.
It was submitted that since that time the Paid Parental Leave Act 2010 has received a number of further amendments. Those amendments gave affect to what was a substantial change to the function of the Commonwealth Government’s Paid Parental Leave Scheme. Particularly of relevance to this matter was the removal of the limitations on the partner of the Mother of the Child and the amount of leave they received. Under Compilation No. 41, which was law at the time the Agreement was approved, there were limitations imposed upon the Secretary as to when a grant for paid Parental Leave was payable, of particular relevance is s21 which provides:
21 Parental leave pay is already payable to the person etc.
(1) The Secretary must not make a payability determination under section 13, 14, 15, 16 or 17 that parental leave pay is payable to a person for a child if:
(a) there is in force another payability determination under such a provision that parental leave pay is payable to the person for the child, in respect of a different claim made by the person; or
(b) if the person is the primary claimant—there is in force a payability determination under such a provision that parental leave pay is payable to:
(i) the person’s partner for the child; or
(ii) the person’s former partner (when he or she was the person’s partner) for the child; or
(c) if the person is the secondary claimant—there is in force a payability determination under such a provision that parental leave pay is payable to:
(i) the person’s partner for the child (other than as the primary claimant to which the person’s secondary claim relates); or
(ii) the person’s former partner (when he or she was the person’s partner) for the child (other than as the primary claimant to which the person’s secondary claim relates).
(2) Subsection (1) does not apply to a claim that is made in exceptional circumstances.
Further, a payability determination under the Act is defined as;
payability determination means:
(a) for parental leave pay—a determination made under section 13, 14, 15, 16, 17, 17A, 17B or 17C that parental leave pay is, or is not, payable to a person for a child; or
(b) for dad and partner pay—a determination made under section 115BB that dad and partner pay is, or is not, payable to a person for a child.
It was submitted the consequence of this is that if a person had already received an approved determination for Dad and Partner Pay, they were then ineligible to be approved to receive paid parental leave.
The Respondent submitted that on the plain reading of the clauses generally, for a person to have an entitlement to both would be duplicitous in nature, and gives rise to the question as to why two separate clauses would be necessary.
It was submitted that further, within the relevant clauses there are two classes of person that qualify for either clause 5.3.2. (a) or 5.3.2. (d), and they are the Primary Caregivers or the Non-Primary Caregivers. There is no express definition for either phrase within the Agreement. Whilst the assumption may be that the plain meaning of the phrases is self-evident, circumstances within modern society have developed such that the previous idea of the composition of the family unit has changed to include same sex relationships, adoptions, single parents, co-parenting and so on. Accordingly, consideration needs to be given to the legislative context under which the agreement was made.
Clause 5.3 of the Agreement titled Parental Leave, reads as follows:
“The following Parental Leave provisions are to be read in conjunction with the National Employment Standards and the Fair Work Act 2009 as varied from time to time.”
The Respondent submitted that the National Employment Standards are provided for under Part 2-2 of the FW Act. Within that Part, Parental Leave and related entitlements are provided for via Division 5. Whilst Division 5 provides the entitlements of an employee, it does not define Primary Caregivers or the Non-Primary Caregivers nor provide for the specific operation of the Paid Parental Scheme. The operation of the scheme was provided for by way of the Paid Parental Leave Act 2010. The object of the Act (compilation No.41.) was as follows:
3A Objects of this Act
(1A) This Act establishes a paid parental leave scheme with 2 payments— parental leave pay, and dad and partner pay.
(1B) The objects of the paid parental leave scheme are to:
(a) signal that taking time out of the paid workforce to care for a child is part of the usual course of life and work for both parents; and
(b) promote equality between men and women and balance between work and family life.
(1) The object of parental leave pay is to provide financial support to primary carers (mainly birth mothers) of children, in order to:
(a) allow those carers to take time off work to care for the child after the child’s birth or adoption; and
(b) enhance the health and development of birth mothers and children; and
(c) encourage women to continue to participate in the workforce; and
(d) provide those carers with greater flexibility to balance work and family life.
(2) The object of dad and partner pay is to provide financial support to fathers and partners caring for newborn or newly adopted children, in order to:
(a) increase the time that fathers and partners take off work around the time of birth or adoption; and
(b) create further opportunities for fathers and partners to bond with the child; and
(c) allow fathers and partners to take a greater share of caring responsibilities and to support mothers and partners from the beginning.
(3) The financial support provided by this Act is intended to complement and supplement existing entitlements to paid or unpaid leave in connection with the birth or adoption of a child.
Further, Primary Caregiver is defined under s47 of the Act (Compilation 41) as follows:
47 When a person is the primary carer of a child
(1) A person is the primary carer of a child on a day in the person’s reference period if:
(a) the child is in the person’s care in that period; and
(b) the person meets the child’s physical needs more than anyone else in that period.
(2) A person’s reference period is the period of one or more days that is determined by the Secretary for the purposes of making a payability determination on the person’s claim.
(3) Only one person can be a child’s primary carer on a particular day.
(4) Despite subsection (1), a person is not the primary carer of a child on a day if, before that day, the child has died.
Eligibility for dad and partner pay is defined under s 115DD of the Act (Compilation 41) as follows:
115DD Who can make a claim for dad and partner pay
Only the following people can make a claim for dad and partner pay for a child:
(a) the biological father of the child;
(b) the partner of the child’s birth mother;
(c) an adoptive parent of the child;
(d) a person who satisfies circumstances prescribed by the PPL rules
The Respondent submitted that whilst Non-Primary Caregivers is not defined under the Act, it is asserted that given the similarity in characteristics of the persons thought to qualify for dad and partner pay and that of what might commonly be regarded as the Non-primary caregiver, that the Non-primary care giver is a person who receives dad and partner pay under the Act. In furtherance to this assertation, reference was made to the terms within clause 5.3.2.(d) which provides the benefit afforded to such an employee so entitled, is “in addition to the unpaid leave provisions prescribed by legislation.”
The Respondent submitted there are plainly no leave provisions prescribed by legislation for a Non-Primary Caregiver, whilst the provision in relation to dad and partner affords such an employee same. Accordingly, it is clear that a narrow interpretation is not appropriate for want of frustration of the clause, and the Non-primary caregiver then was a person that would qualify for dad and partner pay under legislation.
It was submitted that the Applicant has previously maintained that there is nothing within the Agreement which prevents an employee from being entitled to claim both Primary Caregiver and Non-Primary Caregiver Leave. It was submitted that it is also true, that there is no term that allows this to occur. It was submitted that in the absence of same, the matters then give rise to consideration of the surrounding circumstances, particularly as to what was the law at the time. The Respondent submitted the basis for this position is that the law at the time was an objective background fact, that knowledge of is assumed.[1]
The Respondent submitted that it is already noted that pursuant to s21 Paid Parental Leave Act 2010, a person who has already received an approved determination for Dad and Partner Pay, were then ineligible to be approved receive Paid Parental Leave. If it were accepted as it should be, that the definitions of Primary Caregivers and Non-Primary Caregiver are derived from the Paid Parental Leave Act 2010, then so too must the limitation provided for via s 21. The consequence of same being that a person would not have an entitlement to claim leave under both Clause 5.3.2.(a) and 5.3.2.(d).
It was submitted that whilst the Paid Parental Leave Act 2010 has been subsequently amended, the version of the Act which applies to this matter is that which was in force at the time the Agreement was approved.
The Respondent submitted that had the act (or more broadly the regime) not been amended it is the Respondent’s view that an attempt to claim both the Primary Caregivers and Non-Primary Caregivers leave would not have occurred. The prior version of the Act made the definitions and the entitlements of each clear and the Agreement is an extension of same. It was submitted a contrary position has previously been foreshadowed by the Applicant, which means to suggest the terms included within Clause 5.3.2.(a) and 5.3.2.(d), mean to depart from the application of the legislative regime, that is to say in each case the inclusion of the following words (in bold) establishes a regime under the Agreement in of itself;
(a) In addition to statutory entitlements to unpaid leave, primary caregivers will be entitled to paid leave of eleven (11) continuous and uninterrupted weeks which is exclusive of any vacation period that falls during the paid leave. This paid leave may be accessed at half pay. In such circumstances the employee will be entitled to double the period of leave which would otherwise be applicable. Where possible, an employee shall commence leave at the conclusion of a school term or as near as possible to the conclusion of a school term. Employees shall return to school at the beginning of the nearest school term.
(d) In addition to the unpaid leave provisions prescribed by legislation, nonprimary caregivers are entitled to a period of 5 (five) days paid leave and 5 (five) days unpaid leave which is to be taken consecutively.
It was submitted that in the context of what was the Act at the time, it is the Respondent’s position the inclusion of same was to clearly, on its plain meaning, differentiate between what was the amount of Leave (unpaid or paid) an employee was entitled to under the Act and what was to be provided under the Agreement. It was not an attempt to establish a new regime which departed entirely and functioned independently from the Act.
The Respondent submitted that further to matters raised by the Applicant already dealt within this submission, it is noted the Applicant contends;
“That no consideration was given to any further limitation on access to leave under this clause as now being proposed by the Respondent.
The Applicant submits had there been ambiguity, or a different interpretation understood by the Respondent they could have indicated this to Mr Rogers prior to his accessing his first period of leave under 5.3.2 (d)”.
It was submitted by the Respondent that for the reasons stated above, there would have been no need to further clarify or limit access to Leave under this clause as it was already limited via the Act.
It was submitted that further, Mr Rogers only sought to apply for Leave under both 5.3.2 (a) and 5.3.2 (d) after he had already taken leave under 5.3.2 (d). He did not prior to taking said leave, provide notice that he intended to take both. Accordingly, the Respondent was not in a position to respond as contended by the Applicant.
For the reasons stated above, the Respondent seeks a determination that the answer be made in the affirmative, that is to say a staff member is excluded from accessing paid parental leave under clause 5.3.2 (a) of the Peregian Beach Community College Enterprise Agreement 2022 due to having earlier accessed paid parental leave under clause 5.3.2 (d) of said agreement.
Applicant’s Reply
The Applicant submitted that the Respondent is in error where they submit that case law related to construction of agreements requires the context and purpose must be considered even when the words on their face have a clear and unambiguous meaning. The Applicant re-asserted its submissions that clear and unambiguous words are to be taken as read and other evidence shouldn’t be considered to contradict the plain language of the clause.
The Applicant submitted there is no basis for the reference to and reliance on the Paid Parental Leave Act 2010 as proposed in the Respondent’s submission. This act simply provides for a statutory regime in relation to a government payment of Paid Parental Leave and has no implication on enterprise agreements and should be disregarded.
The Applicant submitted had there been a common understanding of the application of the terms of the Parental Leave Act 2010 to the Agreement it is more likely than not that reference to said act would have been made in the Agreement along with reference to the National Employment Standards and the Fair Work Act 2009 as seen in clause 5.3 of the Agreement.
The Applicant submitted that the terms primary caregiver and non-primary caregiver are commonly used phrases in enterprise agreements and don’t require legislative assistance in interpretation as submitted by the Respondent. Identical wording had been used in earlier Peregian Beach College Enterprise Agreements.
The Applicant submitted if the Commission is swayed by the need for extraneous definitions, then the Paid Parental Leave Act 2010 is not of assistance as even in the Respondent’s submissions the act does not define the term non-primary caregiver, one of the terms the Respondent indicates is in contention in this matter.
The Applicant submitted that it is not duplicitous to seek to access multiple leave provisions under the Agreement as submitted in the Respondent’s submissions. It was submitted that the Agreement clearly provides for two different entitlements with different requirements to be met to access the said leave. Clause 5.2.3 (a) requires the employee to take on primary caring responsibility of their child and 5.2.3 (d) allows for a short period of leave to assist as non-primary caregiver for their child.
It was submitted that in the alternative, if the Agreement is to be read in conjunction with the Paid Parental Leave Act 2010 the Applicant submits that any interpretation should be under the act as varied from time to time as required of the Act under the agreement.
The Applicant submitted that paragraph 29 of the Respondent submissions should be disregarded as the precedent relied upon does not support the contention that the Paid Parental Leave Act 2010 should be frozen in time. The Applicant contended the relied upon precedent points to a common understanding between the parties on the interpretation of a clause in an agreement which has not been made out by the Respondent. It was submitted the reference provided in the submissions at paragraph 29, ALHMWU v Prestige Property Services Pty Ltd 17, they believe should have read ALHMWU v Prestige Property Services Pty Ltd [2006] FCA 11 and had simply been erroneously copied from paragraph [22] of Construction, Forestry, Maritime, Mining and Energy Union v DP World Brisbane Pty Ltd[2023] FWC 806 which reads:
[22] ……….. In principle 15 in Berri the Full Bench dealt with the relevance of post-agreement conduct to the construction of the terms of an enterprise agreement citing the judgment of Gray J in ALHMWU v Prestige Property Services Pty Ltd in which his Honour observed that:
“I am prepared to accept that the construction of an award can be affected by a common understanding of the parties to it about a particular state of affairs. If such a common understanding existed when the award was made, it should not be departed from when the Court comes to construe the award at a subsequent time. Care must be taken however, to distinguish a common understanding from common inadvertence ... In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue.”
The Applicant submitted in the alternative, if the Parental Leave Act 2010 is to be relied upon and the act as varied from time to time is the correct interpretation as earlier submitted, then nothing in the current version of the act limits their member’s claim to both forms of paid parental leave under the Agreement.
The Applicant contended that in response to paragraph 34 of the Respondent’s submissions, Mr Rogers did seek clarity on the leave he would be able to avail himself of prior to taking his first period of leave and it was a lack of clarity from the Respondent that saw Mr Rogers access the leave in the order that is now being anticipated.
Consideration
When the context and purpose are considered, I prefer the Respondent’s interpretation. It is true to say the clause does not say whether it was intended that an employee could access both the primary care giver entitlement in cause 5.3.2(a), and the non-primary care giver entitlement in clause 5.3.2(d), however the Paid Parental Leave Act 2010 as it applied at the time the Agreement was made, was clear that if an employee received Dad and Partner pay they could not subsequently also receive Paid Parental Leave. The fact that clauses 5.3.2(a) and (d) both make reference to the entitlements being, “in addition to” statutory entitlements supports the Respondent’s interpretation that the Agreement intended to provide an additional amount compared to statutory entitlements, and not create a different regime to the one that operated under statutory entitlements at the time.
I don’t agree with the Applicant’s submission that if the statutory regime is to be considered as part of the context and purpose of the Agreement, then the statutory entitlement should be considered as it has been varied from time to time. That is because in accordance with section 182(1) an enterprise agreement is made when a majority of effected employees vote for that enterprise agreement. In this case the Agreement was made before the Paid Parental Leave Act 2010 was amended, and at the relevant time of the Agreement was made an employee who accessed Dad and Partner pay could not also access Paid Parental Leave.
Conclusion
The answer to the question for interpretation is yes, a staff member is excluded from accessing paid parental leave under clause 5.3.2 (a) of the Peregian Beach Community College Enterprise Agreement 2022 due to having earlier accessed paid parental leave under clause 5.3.2 (d) of said agreement.
COMMISSIONER
[1] Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd (Berri) [2017] FWCFB 3005 at [14].
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