Mrs Stephanie Brooks v Macquarie University
[2023] FWC 422
•21 FEBRUARY 2023
| [2023] FWC 422 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mrs Stephanie Brooks
v
Macquarie University
(C2022/5820)
| DEPUTY PRESIDENT CROSS | SYDNEY, 21 FEBRUARY 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
This dispute concerns a dispute notification by Ms Stephanie Brooks (the Applicant), regarding the timing and amount of Long Service Leave (LSL) paid to her by Macquarie University (the Respondent/the University) pursuant to the Macquarie University Academic Staff Enterprise Agreement 2018 and/or the Macquarie University Professional Staff Enterprise Agreement 2018 and/o, the Applicant further claimed,r the Macquarie University Teaching Staff Greenfields Agreement 2015 (the Agreements).
The dispute (the Application) concerns the operation and interpretation of the LSL provisions of the Agreements. The Parties accepted that the LSL provisions of the Macquarie University Academic Staff Enterprise Agreement 2018 and/or the Macquarie University Professional Staff Enterprise Agreement 2018 were relevantly the same. Clause 29 of the Macquarie University Professional Staff Enterprise Agreement 2018 (the Professional Staff Agreement) provides:
29. LONG SERVICE LEAVE
29.1 Long service leave is an entitlement that recognises a Staff Member’s length of Continuous Service to the University.
29.2 Long service leave is centrally funded.
29.3 Long service leave entitlements are set out tin the table below:
| Full-time staff | On completion of 10 years Full-time Continuous Service | Total of 3 months paid leave |
| Continuous Service between 10 and 15 | Total of 3 months plus 9 calendar days paid leave per year of Continuous Service (less any leave previously taken) | |
| On completion of 15 years Full-time Continuous Service | Total of 4.5 months paid leave (less any leave previously taken) | |
| On completion of each additional year of Full-time Continuous Service after 15 years | Total of 4.5 months plus 15 calendar days paid leave per year of Continuous Service (less any leave previously taken) | |
| Part-time staff | Accrues on a proportionate basis of Full-time entitlement | |
| Casual Staff | Accrues on a proportionate basis of Full-time entitlement for Casual Staff that completed 10 years Continuous Service on or after 9 May 1985 only | |
Continuity of Service
29.11 When a period (or periods) of leave without pay exceeds an aggregate of 6 months the excess over 6 months will not be counted as service in determining the total service for long service leave purposes.
Clause 12.3 of the Professional Staff Agreement is also relevant. It provides:
A Staff Member employed on a casual basis will be paid the applicable casual hourly salary rate provided for in Schedule 2, Casual Academic Rates of Pay. The hourly rate includes a loading of 25%. This loading is paid in compensation for the casual nature of the appointment and all forms of leave (excluding long service leave), redundancy and any other relevant entitlements.
Clause 50.2 of the Professional Staff Agreement is also relevant. It provides in part:
In the event of a dispute relating to this Agreement, the National Employment Standards or matters relating to a written policy of the University regarding employment, the Staff Member or the NTEU will raise the dispute with the University and attempt to resolve the matter in accordance with this clause.
There was no issue as to whether the dispute related a matter arising under the Agreement, nor that the requisite steps in the disputes settling procedure clause had been followed.
The Dispute Notification
In the Form F10 Application for the Commission to deal with a dispute, the Applicant outlined the basis of the dispute as:
Dispute basis: there are three parts to the dispute.
1. The hourly rate at which Long Service Leave (LSL) has been paid.
2. The number of hours of LSL accrued.
3. When LSL needs to be paid.
The Respondent accepted that:
a) The Fair Work Commission (the Commission) has jurisdiction to determine the dispute by arbitration (s.739(4) of the Act);
b) The Commission is not precluded from dealing with the dispute; and
c) The Applicant is covered by the Agreements and has standing to agitate the dispute in the Commission.
The three questions before the Commission were outlined by the Respondent to be:
(1) Did the Applicant’s employment with the Respondent ‘terminate’ on 31 December 2021, thereby triggering the requirement for the Respondent to pay out the Applicant’s accrued but untaken long service leave in accordance with clause 29.10 of the Professional Staff Enterprise Agreement?
(2) Has the Respondent applied the correct ‘hourly rate’ to the long service leave payment? Specifically, has the Respondent correctly applied the relevant ‘base rate of salary’ specified in clause 29.10 of the Professional Staff Agreement, when it calculated the Applicant’s long service leave entitlement using the base rate of pay of her fixed-term Curriculum Designer Position?
(3) Has the Respondent correctly calculated the proportionate accrual of hours of long service leave relative to the Applicant’s actual hours worked?
The Legislation
Section 739 of the Fair Work Act 2009 (Cth) (the Act) provides:
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) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(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.
[Emphasis added]
The Background Facts
Arising from the materials relied upon by the parties, it became apparent that there were no significant factual disputes between the parties.
The Applicant worked for the Respondent in various positions since 1 March 2000 and her engagements had been both on casual and on a fixed-term basis. From 1 January 2018 to 31 December 2021, the Applicant was employed on a fixed-term, part time basis pursuant to a number of fixed term contracts, as a Curriculum Designer (the Curriculum Designer Position). The Professional Staff Agreement applied to the Applicant’s employment in the Curriculum Designer Position. The Curriculum Designer Position was described as having a 0.8 load.[1]
On 26 November 2021, the Respondent advised the Applicant that the fixed-term of the Curriculum Designer Position would end, and that the Respondent was not in a position to offer a further contract extension. The Applicant’s last date of employment in the Curriculum Designer Position was 31 December 2021 (the Fixed Term End Date).
During 2021, the Applicant was also engaged in the following positions on a casual basis pursuant to separate contracts:
(a) Exam Supervisor;
(b) Research Assistant; and
(c) Sessional Teaching Academic.
The Professional Staff Agreement applied to the first two of the above positions and the Macquarie University Academic Staff Enterprise Agreement 2018 (the Academic Staff Agreement) applied to the third. The Applicant’s last casual engagement for the 2021 year was on 14 December 2021.
During 2022, following the conclusion of the Curriculum Designer Position, the Applicant was engaged by the Respondent casually in the following positions:
(a) Teaching Assistant (Casual);
(b) Casual Academic – Course Developer; and
(c) Sessional Teaching Academic.
The Professional Staff Agreement applied to the first of the above positions and the Academic Staff Agreement applied to the second and third. The Applicant’s first casual engagement with the Respondent in 2022 was on 16 February 2022.
The Applicant was also engaged as a Sport Officer (Casual) in 2022 by U@MQ Limited. The Fitness Industry Award 2020 applied to these engagements, which commenced in January 2022.
On 19 and 20 February 2022, the Applicant received confirmation from the Sessional Academic Staff Unit of Macquarie Business School that she would be offered casual engagements for Semester 1, 2022.
In about March 2022, the Applicant raised a complaint with Department of Premier & Cabinet, NSW Industrial Relations (NSWIR) in respect of how the Respondent had accrued and calculated her long service leave. By letter dated 24 June 2022, NSWIR wrote to the Respondent advising of the termination of their investigation into the Applicant’s complaint, and confirming that it did not have jurisdiction to investigate the complaint because the industrial instruments that applied to the Applicant’s employment were regulated by the Fair Work Ombudsman and that the Agreements provided for long service leave in terms which are different to the Long Service Leave Act 1955 (NSW) (the LSL Act). That letter also noted that the Applicant was a worker for whom long service leave entitlements were regulated by the Agreements that confer long service leave provisions more favourable than those prescribed in the LSL Act and also contained provisions which override the LSL Act.
The Respondent paid the Applicant a total of $30,728.11 in three payments in the first half of 2022. The third payment, in the amount of $6,104.20 in respect of her long service leave entitlement was paid to the Applicant on an ex gratia basis by the Respondent as part of the dispute resolution process. That ex gratia payment was made in recognition that the hours associated with the Applicant’s casual academic duties for ‘full unit delivery.’ The Respondent increased the Applicant’s accrued hours to the equivalent of a full-time employee (1.0).[2]
The Applicant’s Case
The Application for the Commission to deal with a dispute, in relation to relief sought, commenced with “I would like the following points clarified. These are all in relation to calculating a LSL entitlement with reference to the MQU EBAs.”, and then sought the provision of advice asking questions commencing with enquiries such as “What rate of pay applies…”, “Can you clarify section 29.3 in the context…”, “Where in the EBA does it imply…”, and “I would like an interpretation as to how….” Those enquiries were repeated in the Applicant’s submissions in the matter.
The Applicant was advised on numerous occasions throughout the handling of the Application that the Commission did not provide legal advice or advisory opinions, but rather it dealt with claims made by parties. Eventually it was established that there were essentially two limbs to the Applicant’s case:
(a) That she should not have been paid out her LSL accrual in early 2022 as her employment was continuing;[3] and
(b) Her payment of LSL in 2022 should have been calculated on a rate that combined her Curriculum Designer Position plus earnings from her casual engagements in positions on a casual basis as Exam Supervisor, Research Assistant, and Sessional Teaching Academic.[4]
Consideration
(a) Payment of Entitlements
Regarding the payment of LSL entitlements in early 2022, the parties accepted that:
(a) Because there had not been a break in service of three month in the beginning of 2022, that LSL continued to be accrued by the Applicant;[5] and
(b) The monies having been paid, subject to issues of calculation, the Applicant understood there was nothing that could be done by way of remedy.[6] As the Applicant put in proceedings:
My claim is, I actually didn't want to get paid, because I had ongoing work, but that's happened, so we can't move that back. My claim is, I was paid at the incorrect rate, because I had more than one position active on that date.
I accept that the reason the Respondent determined that LSL was payable was that it thought the Applicant did not have on-going work with the Respondent. The Respondent’s casual needs could not be confirmed until shortly before a Semester commenced. When the Respondent can determine actual student numbers in each class, has an opportunity to manage permanent staff’s workload allocations, and is able to approve requests for casual assistance it can contemplate employing staff.
(b) Rate of Payment
As outlined above, the Disputes Settlement clause of the Academic Staff Agreement and the Professional Staff Agreement refer to “…dispute(s) relating to this Agreement, the National Employment Standards or matters relating to a written policy of the University regarding employment, the Staff Member or the NTEU…”.
When the Applicant explained her claim, it was apparent that the Applicant was not raising a dispute relating to any Agreement, the National Employment Standards or matters relating to a written policy of the University regarding employment. Instead, she advanced a claim under the LSL Act. In the hearing the following exchange occurred:[7]
THE DEPUTY PRESIDENT: What relief are you seeking? At the end of the day you're going to have to say to me, 'These are the orders you should make'.
MS BROOKS: I would like to be paid, as I've understood the Long Service Leave Act tell me, and other - - -
THE DEPUTY PRESIDENT: Even though the state government has told you it doesn't apply to you?
MS BROOKS: Yes, because if silent where do we go? I don't understand. That's my question. If we don't have my situation covered in the EBA, what do we do?
Advancing such a claim falls outside the scope of the Disputes Settling Procedure, and it also invites the Commission to contravene s.739(4) of the Act by seeking the Commission make a decision that is inconsistent with the fair work instrument(s) that apply to the parties. The Agreements clearly provide that LSL shall be made “…at the Staff Member’s base rate of salary”. By inviting payment at a different rate, the Applicant is impermissibly urging a decision inconsistent with the clear provisions of the Agreement.
The Applicant’s position seeks to “cherry pick” the superior elements of the Agreements, particularly in the area of LSL entitlement (the LSL Act provides 2 months leave after 10 years, while the Agreements provide 3 months leave after 10 years), but thereafter use some unexplained rationale for the rate upon which LSL is paid arising from the LSL Act.
The Respondent paid to the Applicant on an ex gratia basis an amount in recognition of the hours associated with the Applicant’s casual academic duties for ‘full unit delivery’, and increased the Applicant’s accrued hours to the equivalent of a full-time employee (1.0),[8] thereby paying the maximum possible payable under the Agreements.
Conclusion
The Applicant does not agitate a dispute regarding the Agreements, the National Employment Standards or matters relating to a written policy of the University regarding employment, but instead advances a claim under the LSL Act. The dispute falls outside the scope of the Disputes Settling Procedure, and it also invites the Commission to contravene s.739(4) of the Act by making a decision that is inconsistent with the Agreements that provide comprehensively for LSL.
Were a claim advanced relating to the provisions of the Agreements, the action of the Respondent in paying the Applicant the equivalent of a full-time employee would satisfy any such claim.
The answers to the three questions outlined by the Respondent are:
Did the Applicant’s employment with the Respondent ‘terminate’ on 31 December 2021, thereby triggering the requirement for the Respondent to pay out the Applicant’s accrued but untaken long service leave in accordance with clause 29.10 of the Professional Staff Enterprise Agreement?
Answer: No, although as at 31 December 2021, the Respondent understood the Applicant’s employment had ceased and commenced making LSL payments. The Applicant continues to accrue LSL.
Has the Respondent applied the correct ‘hourly rate’ to the long service leave payment? Specifically, has the Respondent correctly applied the relevant ‘base rate of salary’ specified in clause 29.10 of the Macquarie University Professional Staff Enterprise Agreement 2018 (the Professional Staff Agreement) when it calculated the Applicant’s long service leave entitlement using the base rate of pay of her fixed-term Curriculum Designer Position?
Answer: Yes, and the action of the Respondent in paying the Applicant the equivalent of a full-time employee would satisfy any claim.
Has the Respondent correctly calculated the proportionate accrual of hours of long service leave relative to the Applicant’s actual hours worked?
Answer: Yes.
The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mrs Brooks, on her own behalf.
Ms Don, of the Respondent.
Hearing details:
2022.
December 1.
Sydney.
[1] Transcript PN 423.
[2] Transcript PN 450 to 451.
[3] Transcript PN 534.
[4] Transcript PN 535.
[5] Transcript PN 484.
[6] Transcript PN 473, and 486 to 490.
[7] Transcript PN 468 to 471.
[8] Transcript PN 450 to 451.
Printed by authority of the Commonwealth Government Printer
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