Metropolitan Fire & Emergency Services Board
[2011] FWA 307
•17 JANUARY 2011
[2011] FWA 307 |
|
DECISION |
Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty
Metropolitan Fire & Emergency Services Board
(AG2011/5083)
METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD, UNITED FIRE FIGHTERS UNION OF AUSTRALIA, OPERATIONAL STAFF AGREEMENT 2010
Fire fighting services | |
COMMISSIONER ROE | MELBOURNE, 17 JANUARY 2011 |
Variation of agreement to remove uncertainty
[1] On 10 January 2011 the Metropolitan Fire and Emergency Services Board (the Applicant or MFB) made this Application to vary the Metropolitan Fire And Emergency Services Board, United Fire Fighters Union Of Australia, Operational Staff Agreement 2010 (the Agreement). I approved the Agreement on 23 September 2010. The Application was made under Section 217 of the Fair Work Act 2009 (the Act) on the grounds that there was uncertainty in the Agreement.
[2] The Applicant submitted to the Tribunal that there was some urgency to deal with this matter. The alleged uncertainty related to the evidence required for the taking of personal leave. I accept that in emergency services a minimum level of personnel are required for the performance of many critical functions and therefore employees who are absent from duty need to be replaced in an efficient and reliable manner. If uncertainty exists in respect to the requirements for the taking of personal leave this can clearly lead to disputation and difficulties in managing emergency services. For these reasons I accepted that this was a matter which should be dealt with expeditiously.
[3] I listed the matter for hearing on 12 January 2010. The Bargaining Representatives for the Agreement were the United Fire Fighters Union of Australia (UFU) and Mr Phillip Klein, Mr Lou Mele, Mr Ross Trimboli, Mr Colin Bibby, Mr Alan Drury and Mr Wayne Crossley. I directed the Applicant to ensure that the Bargaining Representatives other than the Union be notified of the hearing. I am satisfied that the Applicant did ensure that the Bargaining Representatives were notified of the hearing and its subject matter.
[4] At the hearing Ms Louise Russell of Herbert Geer solicitors sought and was granted leave to appear for the Applicant. Mr Peter Marshall appeared for the UFU. Mr Wayne Crossley, Mr Ross Trimboli, and Mr Lou Mele also appeared (the other Bargaining Representatives). Sworn evidence was given by Ms Kirstie Schroder Director of Capacity Development for the Applicant who had been involved on behalf of the Applicant in the final stages of the negotiation and the making of the Agreement. Sworn evidence was also given by Mr Peter Marshall who as the Secretary of the UFU had been closely involved in all aspects of the negotiation and making of the Agreement.
[5] Submissions were made by the three other Bargaining Representatives and they were also able to cross examine the witnesses. The three other Bargaining Representatives submitted that they had been involved in the early part of the negotiations in February 2010 but had been excluded from the final stages of negotiation. This submission was not challenged by the other parties and I accept it. All of the Bargaining Representatives were aware of the summary material presented to employees during the access period leading up to the ballot which set out the key changes from the 2005 Agreement and which was submitted in evidence. 1 Mr Trimboli and Mr Mele hold the rank of Commander and were not present at the member meetings where Mr Peter Marshall explained the Agreement and answered questions about it.
Jurisdiction
[6] Section 217 of the Act provides:
“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty
(1) FWA may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
(2) If FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”
[7] It is necessary for me to determine first whether or not there is an ambiguity or uncertainty. If I am satisfied that there is an uncertainty then I must determine whether or not I should use my discretion to remove that uncertainty and then determine how the Agreement should be varied to remove the uncertainty. I am satisfied that the Applicant employer is covered by the Agreement and has the capacity to make the Application.
[8] The Applicant submitted that the decision of Senior Deputy President Marsh in Beltana Highway Mining Pty Ltd 2sets out a useful summary of the relevant principles to be applied under s 217. Those principles are as follows:
“[23] The following guidance can be discerned from authorities which have dealt with s.170MD(6) applications:
• before exercising its discretion to vary an agreement pursuant to s.170MD(6)(a) the Commission must first identify the ambiguity or uncertainty (PR917548 at para.28, Print M2454 at p.3, Print 2431 at para.8);
• the Commission may then exercise the discretion to remove the ambiguity or uncertainty by varying the agreement (PR917548 at para.28, PR903843 at para.7, Print M2454 at p.4);
• the first step i.e. identification of an ambiguity or uncertainty requires the determination of a “jurisdictional fact” (PR917548 at para.33, 199 CLR 135 at 148);
• the correct approach to identifying an ambiguity or uncertainty requires the making of an objective judgment as to whether, on the proper construction of the relevant provision of an agreement, the wording of that provision is susceptible to more than one meaning (PR917548 at para.49, PR903843 at para.7, Print M2454 at p.3);
• the words used in the provision are construed in their context including where appropriate the relevant parts of the parent award with which a complementary provision is to be read (Print Q2603 at para.30 per Munro J);
• s.170MD(6)(a) is not confined to the identification of which words of a clause give rise to an ambiguity or uncertainty. A combination of clauses may have that effect (Print R2431 at para.12);
• the Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention (Print M2454 at p.4, Print R2431 at para.14);
• the Commission’s task is to make an objective judgment as to whether the wording of a provision is susceptible to more than one meaning. It must avoid contentions that are “self serving” (PR924146 at para.20 and PR903843 at para. 7);
• the second step in the process is the exercise of discretion as to whether or not an agreement should be varied to remove the ambiguity or uncertainty (PR917548 at para.54);
• the Commission may not appropriately use its power to rewrite an agreement to install something that was not inherent to the agreement when it was made (Print Q2603 at para.29);
• the Commission is to have regard to the mutual intention of the parties at the time the agreement was made (PR917548 at para.54) and subsequent conduct of the parties;
• the Commission is empowered to remove an ambiguity or uncertainty by varying an agreement to remove it in a manner which gives effect to the mutual intentions of the parties at the time the agreement was made. The Commission is not limited by the form of the application before it (PR917548 at para.56);
• in looking at the context of a provision the Commission is entitled to consider (46 IR 128 at p.134):
• the effect of a prefatory statement made by the parties at the time when it was introduced into the award;
• the circumstances of the origin and use of the clause;
• the time when and the circumstances under which the instrument is made;
• the entire document of which the contentious provision is part or other documents with which there is an association;
• ideas that give rise to an expression in a document.
[24] In summary, the task is to make an objective judgment as to whether the wording of a provision(s) is susceptible to more than one meaning. If that judgment is in the affirmative then the Commission may exercise its discretion to decide whether or not the agreement should be varied to remove the ambiguity or uncertainty. In exercising such a discretion, the Commission is to have regard to the mutual intention of the parties at the time the agreement was made.”
[9] I agree that this is an appropriate summary of the relevant principles.
The Alleged Uncertainty
[10] The alleged uncertainty in the Agreement relates to the evidence required in respect to the taking of personal leave. There are two types of leave which are relevant, sick leave and the use of sick leave for carers leave. The Agreement provides for:
- Sick leave which is provided for in clause 53 of the Agreement,
- Use of sick leave to provide care and support for others (carers leave) which is provided for in Clauses 53.4 and 54 of the Agreement. Carers leave in Clause 54 is confined to members of the immediate family or household whilst under Clause 53.4 it is broadened to allow for the employee to provide care and support for any persons who are ill or unable to care for themselves.
[11] The terms of the Agreement which define the entitlement to these forms of leave and the evidence required in respect to the taking of these types of leave are as follows:
“53. SICK LEAVE
53.1. Entitlement
The amount of sick leave to which an employee is entitled to take without loss of pay
depends on how long the employee has been employed by the employer and
accumulates as follows:
53.1.1. on commencement of employment 144 hours.
53.1.2. on January 1 of the following year an amount proportionate to the
period of employment in the previous year, less any sick leave taken in that year.
53.1.3. on January 1 of each subsequent year 144 hours.
53.1.4. accumulated personal leave may be used as sick leave if the current
sick leave entitlement is exhausted.
53.1.5. if an employee is receiving workers’ compensation payment, he or she
is not entitled to sick leave.”
....
“53.3. Evidence supporting claim
53.3.1. An employee shall not be entitled to more than three days sick leave
without a medical certificate or a statutory declaration in any one year.”
“53.4. Sick leave for other purposes
An employee is entitled to take sick leave for absences to provide care and support for persons who are ill or unable to care for themselves”
“54. CARER’S LEAVE
54.1. Paid leave entitlement
An employee is entitled to use their sick leave each year to care for members of his or
her immediate family or household who are sick and require care and support. This
entitlement is subject to the employee being responsible for the care and support of
the person concerned. In normal circumstances an employee is not entitled to take
carer’s leave where another person has taken leave to care for the same person.”
....
“54.3. Evidence supporting claim- An employee shall not be entitled to more than
a total of five days carers leave without medical evidence in any one year.”
[12] Sick leave requires “a medical certificate or a statutory declaration” after more than three days in any one year. (Clause 53.3.1)
[13] Carers leave to care for members of the immediate family or household requires the provision of “medical evidence” after more than five days in any year. (Clause 54.3)
[14] It is uncertain as to what the evidence requirement is in respect to leave to provide for the care and support for persons who are ill or unable to care for themselves as outlined in Clause 53.4. It is uncertain as to whether the evidence requirement is governed by Clause 53.3.1 or by Clause 54.3. A second source of uncertainty arises because if the evidence requirement for the situation referred to in Clause 53.4 is 53.3.1 then it may be that members of the immediate family or household can also be covered by the provisions of Clause 53.3.1 as well as by the different requirements of Clause 54.3. This is because members of the immediate family or household are a subset of the persons who are ill or unable to care for themselves. If you are a taking leave to care for a member of your immediate family or household are you required to refer to Clause 53.4 or could you claim to be covered by Clause 53.3.1?
[15] The UFU, the Applicant employer and the other Bargaining Representatives in the proceedings before me, with the possible exception of Mr Trimbole, all agreed that this uncertainty existed. 3
[16] The other Bargaining Representatives argued that the evidence requirement in 53.3.1, that is medical certificate or statutory declaration, should be read as covering carers leave by virtue of the fact that Clause 53.4 was under the sick leave heading. It is clear that this is not the only possible reading given that carers leave under Clause 54 begins with the words “an employee is entitled to use their sick leave” which is almost identical to Clause 53.4 which begins with the words “an employee is entitled to take sick leave”. In other words both are use of sick leave for carers purposes. Furthermore the interpretation supported by the other Bargaining Representatives would mean that Clause 54.3 has no work to do given that members of the immediate family and household who are ill or unable to care for themselves are a subset of persons who are ill or unable to care from themselves. However, it is clear that the interpretation suggested by the Bargaining Representatives is possible from a plain reading of the words of the Agreement. The alternative interpretation favoured by the UFU and the MFB, that evidence for all carers leave, including leave pursuant to Clause 53.4, is covered by Clause 54.3, is equally, if not more, sustainable from a plain reading of the words.
[17] I therefore conclude that:
- On a proper construction of the relevant provisions of the Agreement the wording of the provision in respect to carers leave in 53.4 is susceptible to more than one meaning. It could be regarded as sick leave covered by the evidence requirements of Clause 53.3.1 or as carers leave covered by the evidence requirements of Clause 54.3.
- Even allowing for the context of the various provisions the uncertainty remains
- The uncertainty results from a reading of Clause 53.4 in conjunction with the other provisions of Clauses 53 and 54.
- There are clearly rival contentions about the meaning of the clauses which have been advanced in these proceedings and there is an arguable case for either contention.
- The contention of the Applicant in these proceedings concerning the existence of an uncertainty is not self serving. There is a real issue of uncertainty.
[18] The uncertainty is a matter of some consequence. Fire fighting services require a minimum level of personnel for certain functions. Personnel who are absent on sick or carers leave often have to be replaced. Hence the evidentiary requirement can have a significant impact on costs to the employer. It is also possible that an employee who acted on the understanding that the evidentiary requirement for taking care of a household member could be covered by Clause 53.3.1 rather than Clause 54.3 could be subject to disciplinary action should the employer take a contrary view.
[19] I therefore conclude that I should exercise my discretion to vary the Agreement to remove the uncertainty.
The Intention of the parties.
[20] The parties negotiated the Agreement using the previous enterprise agreement, the Metropolitan Fire And Emergency Services Board , United Fire Fighters Union Of Australia, Operational Staff Agreement 2005 (the 2005 Agreement), as the basis.
[21] The major differences between the 2005 Agreement and the 2010 Agreement in respect to sick and carers leave are:
- The addition of the words “or a statutory declaration” in clause 53.3.1 so that sick leave requires “a medical certificate or a statutory declaration” after more than three days in any one year.
- The addition of Clause 53.4 which provides an extension of carers leave to allow for absence to provide care and support for persons other than members of the immediate family or household.
- A change to the evidence required to support a claim in respect of carers leave in Clause 54.3. There are two changes of significance here. Firstly, the 2005 Agreement required evidence in respect to all carers leave whereas the 2010 Agreement only requires evidence after five days in any one year. Secondly, the 2005 Agreement allowed for evidence in the form of medical certificate or statutory declaration whereas the 2010 Agreement requires “medical evidence”.
[22] The evidence requirement for carers leave in the 2005 Agreement was as follows:
“The employee must, if required by the employer, establish by production of a medical certificate or statutory declaration, the illness of the person concerned and that the illness is such as to require care by another”.
[23] Mr Crossley, Mr Trimboli and Mr Mele accepted that these were the differences between the two Agreements. Mr Crossley put into evidence a summary of the negotiating positions of the parties as at February 2010 which had been prepared by Mr Hocking on behalf of the Applicant. 4 Mr Peter Marshall accepted that this was an accurate summary of the position at that stage. That document establishes that the UFU was seeking to increase the number of sick leave days which can be taken without evidence from 3 days to 5 days and to allow statutory declarations as an alternative to medical certificates and to extend access to carers leave to others regardless of whether they are members of the immediate family or household. The document also established that the MFB rejected these claims and sought changes to sick and carers leave to align with the NES.
[24] The MFB and the UFU gave evidence that the UFU did not further pursue the claim to include statutory declarations as an alternative to medical certificates and that there was no agreement reached to that change. The MFB and the UFU gave evidence that there was agreement to extend carers leave to allow for absence to provide care and support for persons other than members of the immediate family or household and that there was agreement to change the evidentiary requirement for all carers leave such that the first five days of carers leave in any one year would no longer require evidence and that beyond that medial evidence would be required rather than a medical certificate of a statutory declaration.
[25] Mr Peter Marshall and Ms Schroder gave evidence that the new Agreement involved a commitment to improved services and support mechanisms for employees including when facing illness or the illness of others. The joint statement of the MFB and the UFU to all employees announcing the new Agreement and providing advice concerning the voting procedure included a summary of the key components of the new agreement. It includes “consolidation of services and support mechanisms to employees inclusive of a 5 day evidence cap on carers leave”. 5Prior to the vote a five page document headed “Further explanatory notes about proposed new enterprise agreement” was circulated to all employees and it contained a table which summarised the changes between the 2005 Agreement and the 2010 Agreement.6 That document summarised the changes to carers leave as:
“consolidation of services and support mechanisms to employees inclusive of a 5 day evidence cap on Carers leave. Spouse definitions have been broadened within the leave provisions and a new evidence supporting claim clause has been inserted under carers leave.”
There is no other reference in the document to sick or personal leave.
[26] I am satisfied from the evidence that Mr Peter Marshall explained at meetings of members prior to the vote the nature of the changes made in respect to carers leave in the 2010 Agreement when compared to the 2005 Agreement. 7 Neither Peter Marshall nor the MFB raised that there was any change to the evidence requirements in respect to personal sick leave in Clause 53.3.
[27] The other Bargaining Representatives made it clear that they were concerned about the change in the 2010 Agreement compared to the 2005 Agreement in respect to immediate family or household carers leave. They acknowledged that the 2005 Agreement required the provision of “medical certificate or statutory declaration” in respect of all carers leave and that carers leave was confined to immediate family or household. They acknowledged that the equivalent clause in the 2010 Agreement, Clause 54.3, required the provision of “medical evidence” but only in respect of more than five days carers leave in any one year and that carers leave was extended to include any persons cared for. They were unhappy with the removal of “statutory declaration” as an evidence requirement for carers leave. Mr Crossley argued this was the source of the uncertainty. 8 However, I am satisfied that there is nothing uncertain or ambiguous about the change to carers leave for immediate family or household in Clause 54. Furthermore I am satisfied that the existence of changes in respect to carers leave were included in the explanatory material provided to all employees and were further explained at the meetings of members prior to the vote. The source of the uncertainty arose from the inclusion of a new provision in Clause 53.4 which extended carers leave to any person who needs caring and support and also from the inclusion of the words “or statutory declaration” in Clause 53.3.1.
[28] The existence of the uncertainty I have earlier identified became of significance because of the addition of the words “or statutory declaration” in the evidence requirements for individual personal sick leave in Clause 53.3.1. In the absence of these words the evidence requirement in Clause 53.3.1 would have been “medical certificate” whilst the evidence requirement for carers leave in Clause 54.3 is “medical evidence”. The uncertainty as to which provision applies to carers leave under Clause 53.4 would of much lesser significance and consequence if the words “or statutory declaration” in Clause 53.3.1 were not present. There is clear evidence from those involved in the negotiations that the words “or statutory declaration” did not reflect the intention of the parties. There was no agreement between the parties to change the words from “medical certificate”. Those were the words that existed in the 2005 Agreement. The other Bargaining Representatives acknowledged that they had no basis to refute the evidence of Mr Peter Marshall and the MFB in this respect. 9 They had not been in any negotiations where the issue of changing the evidentiary requirement for sick leave had been raised, nor had they been at any meeting where agreement to any change in the evidentiary requirement for sick leave had been reported.
[29] The existence of the uncertainty and the unintended additional words “or statutory declaration” in the Agreement came to light after the Agreement had been approved. The MFB through Ms Schroder submitted the minutes of an EB consultative forum between the UFU and the MFB held on 17 November 2010. 10 One of the items in the minutes relates to “Provision of evidence”. Under that item the following appears:
“Action: One stop shop matter to be forwarded to implementation working party as a priority. MFB to provide list of services to tomorrow’s meeting. Agreed that there was no intent to alter sick leave and that there will be no retrospective action. Action: MFB to write to UFU seeking clarification, UFU to respond.”
[30] Integrity in the bargaining process is essential to successful outcomes and to the proper implementation of agreements. It is to the credit of the UFU and Mr Peter Marshall in particular that they have acknowledged the truth about the unintended additional words “or statutory declaration” in the Agreement. The UFU clearly understand that if the boot was on the other foot and there were unintended words in the Agreement to the disadvantage of employees, and the employer failed to honestly acknowledge this, it could have very serious consequences. Furthermore the UFU clearly understands that the loss of trust that could come from failing to act with integrity in these matters would have very serious consequences for the outcome of future negotiations.
[31] Mr Trimbole acknowledged that when after the Agreement had been approved, he first raised the matter that statutory declaration appeared in Clause 53.3.1 with Mr Peter Marshall, Mr Peter Marshall expressed his surprise at this and said that he wasn’t aware that the employer had agreed to put it in the Agreement. 11
[32] The F17 Form which was submitted at the time of the approval of the Agreement reveals that voting for the Agreement occurred in two processes. 291 employees voted at meetings organised by the UFU and 29 employees exercised individual secret ballots at the Eastern Hill Headquarters of the MFB. The vote in favour of the Agreement was 318 in favour and 2 against. I am satisfied that those employees who voted at the meetings organised by the UFU were made aware of the changes to carers leave and would have had no expectation that there was any change to the evidentiary requirement in respect to sick leave. I am therefore satisfied that had the Agreement been worded so as to reflect the intention of the UFU and the MFB it would have made no significant difference to the vote.
How should the Agreement be varied to remove the uncertainty?
[33] The Applicant proposes that the Agreement be varied by:
1. Deleting the words “or a statutory declaration” in Clause 53.3.1 and
2. By adding a new clause as follows: “53.3.2 Evidence requirements for sick leave taken pursuant to clause 53.4 is set out in clause 54.3.”
[34] Ms Schroder on behalf of the MFB and Mr Peter Marshall on behalf of the UFU gave evidence that these changes would ensure that the Agreement reflected the intention of the parties that:
- carers leave be extended to a broader range of persons than in the 2005 Agreement
- that the evidence requirement for all forms of carers leave be the same and
- that the evidentiary requirement for sick leave should not be changed from that which existed in the 2005 Agreement.
[35] I am satisfied that the variation sought does reflect the intention of the UFU and the MFB in finalising the negotiations for the making of the Agreement and does remove or resolve the uncertainty.
Simply removing the unintended words “or a statutory declaration” would significantly remove the uncertainty given that the difference in evidentiary requirements between Clause 53.3.1 and Clause 54.3 would be largely eliminated as a result. However, some uncertainty would remain as there are a different number of days allowed prior to the requirement to produce evidence in Clause 53.3.1 and Clause 54.3. Hence I consider it necessary to vary Clause 53.3.1 and to add the new Clause 53.3.2 in order to remove the uncertainty. I also considered whether or not simply adding the proposed new Clause 53.3.2 could overcome the uncertainty. However, in my judgment this would not be an appropriate variation as it would not reflect the totality of the intention of the parties at the time the Agreement was made and hence would not be the most appropriate way to overcome the uncertainty.
[36] I am satisfied that the variation sought is appropriate.
[37] I consider it appropriate that the Order should operate from the date the Agreement commenced operation, the 30 September 2010. However, it is possible that a manager may have granted an employee sick or carers leave in a manner different from that intended by the MFB and the UFU and reflected in this variation in the period between 30 September 2010 and 17 January 2011. If this has occurred then an absence claimed and accepted using a statutory declaration during the period from 30 September 2010 until 17 January 2011 should not be regarded as one of the days he or she is entitled to without evidence during one year. I have no evidence that such a situation has arisen. For abundance of caution I will add to the variation sought by the parties a provision that “53.3.3 In the event that an employee, during the period from 30 September 2010 to 17 January 2011, makes a claim to utilise sick leave and provides a statutory declaration as evidence and that claim is accepted by the employer then any such day shall not count towards the three days allowed in any one year in clause 53.3.1” An order to this effect will be issued.
COMMISSIONER
Appearances:
Ms Louise Russell - Herbert Geer Solicitors on behalf of the Applicant
Mr Peter Marshall - UFU
Mr Wayne Crossley - Other employee Bargaining Representative
Mr Ross Trimboli - Other employee Bargaining Representative
Mr Lou Mele - Other employee Bargaining Representative
Hearing details:
2011
Melbourne
January 10
1 Exhibits MFB1 and MFB 2
2 PR932468
3 PN46-52 and PN62-63 and PN451
4 Exhibit WC-1
5 Exhibit MFB-1
6 Exhibit MFB-2
7 PN228-232
8 PN46
9 PN433
10 Exhibit MFB-3
11 PN394-396
Printed by authority of the Commonwealth Government Printer
<Price code C, AE881005 PR505972 >
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