Ms Lynette White v Department of Families, Fairness and Housing

[2021] FWC 1806

[2021] FWC 1806

FAIR WORK COMMISSION

DECISION

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

Ms Lynette White
v
Department of Families, Fairness and Housing
(C2020/8455)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 APRIL 2021

Alleged dispute about matters arising under an enterprise agreement and the NES – Jurisdictional objection upheld – application dismissed.

[1] On 18 November 2020, Ms Lynette White made an application under s.739 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission (Commission) to deal with a dispute. Ms White referred the dispute pursuant to clause 13 of the Victorian Public Service Enterprise Agreement 2020 (the 2020 Agreement). On 8 February 2021, I heard oral argument from the parties that supplemented material they had previously filed in response to my Directions.

[2] In or around 2000, Ms White experienced a workplace injury and has since been absent from the workplace. The WorkCover claim she lodged was accepted but in 2016 Ms White’s entitlement to Workcover payments ceased upon her turning 65 years old. Thereafter Ms White commenced using her leave entitlements to cover her absence from work. By virtue of a recent Machinery of Government change, Ms White is now employed by the Department of Families, Fairness and Housing. She remains covered by the 2020 Agreement. Pursuant to s.586(a) of the FW Act, I will amend the name of the Respondent to the application Ms White has made to reflect the recent Machinery of Government change, such that it will henceforth be the Department of Families, Fairness and Housing.

[3] Ms White has approached the question of jurisdiction through the lens of Clause 13.9 of the Agreement. She says she is in dispute with the Department of Families, Fairness and Housing (the Department) and cites correspondence with it in support of her proposition that because her dispute has not been settled through an internal dispute resolution process (Clause 13.9(b)), she may apply to the Commission to have the dispute dealt with by conciliation (Clause 13.9(c)). However, the availability of the Clause 13 dispute resolution process relies on there being a dispute within the meaning of Clause 13.2 of the 2020 Agreement, which states that ‘a dispute about a matter arising under this Agreement or the National Employment Standards set out in the FW Act, other than termination of employment, must be dealt with in accordance with this clause.’ (my emphasis)

[4] The Department submits Ms White’s claims do not relate to matters arising under the 2020 Agreement or the National Employment Standards (NES) and therefore the Commission does not have jurisdiction to deal with this dispute.

[5] Ms White firstly claims an entitlement to long service leave accruals during the period from 2001 to 2016. She says the Department has refused to pay her any long service leave on the basis that employees are not entitled to accrue long service leave other than during the first 12 months of receiving workers’ compensation payments. Ms White appears to contend that she has an entitlement to accrued long service leave derived from Victorian long service leave legislation.

[6] The Department submits the dispute about long service leave accruals does not fall within clause 13 of the 2020 Agreement because it is not a dispute arising under the 2020 Agreement. Clause 62.6(a)(iii) of the 2020 Agreement specifically states that long service leave does not accrue for ‘an absence from duty in excess of 12 months when the Employee was in receipt of weekly payments of compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) or any corresponding previous enactment’. The Department says that it recognised Ms White’s long service leave accruals in respect of the first 12 months of the compensation period, as the Agreement required it to do. The Department’s position is that Clause 62.6(a)(iii) is perfectly clear, and that there can be no dispute about the fact that Ms White cannot claim payment for the subsequent years in which she was absent from duty and receiving workers’ compensation.

[7] In the decision issued on 2 October 2020 approving the 2020 Agreement, 1 Deputy President Gostencnik dealt with long service leave as follows:

“[6] In correspondence to my chambers on 3 September and 21 September 2020, an employee bargaining representative for the Agreement submitted that the Commission is required to have regard to the Victorian Long Service Leave Act 2018 (Victorian LSL Act) in approving the Agreement. In short compass, the Applicant submits that in approving the Agreement, the Commission is not required to consider the Victorian LSL Act, under the National Employment Standards employees to be covered by the Agreement are entitled to long service leave in accordance with the terms of the Victorian Public Service Award 2005, and the long service leave provisions in the Agreement meet the requirements of s.186(2)(c) of the Act. I accept the Applicant’s submission in this regard.

[7] Section 113 of the Act deals with entitlement to long service leave. For the purposes of s.113(3) of the Act, I am satisfied that there are applicable award-derived long service leave terms for the employee that will be covered by the Agreement. The Victorian Public Service Award 2005 would have provided minimum long service leave entitlements to employees if, at the test time, the employees had been in their current circumstances of employment. Those terms constitute the National Employment Standards entitlement to long service leave for those employees. Given the long service leave provisions of the Agreement are equal to or more generous that the applicable award-derived long service leave entitlements, I am satisfied that it is consistent with the National Employment Standards.” 2

[8] I agree with the Deputy President’s analysis and his conclusion that the long service leave entitlements under the Victorian Public Service Award 2005 3(the award-derived long service leave entitlement) constitute the NES entitlement to long service leave for the employees. I observe Clause 25.6.2 of the Victorian Public Service Award 2005 provides that recognised service for the purposes of long service leave is “subject to 25.6.3”, which itself outlines:

“Recognised service does not include any period of service….

(d) during any absence from duty when the employee was in receipt of weekly payments of compensation under the Accident Compensation Act 1985 (Vic) or any corresponding previous enactment, other than the first 12 months of that period”. (my emphasis)

[9] This is mirrored in Clause 62.6(a)(iii) of the 2020 Agreement. There is no NES entitlement to accrue and be paid long service leave in accordance with Victorian legislation. Ms White accrued long service leave for the first 12 months of the compensation period as the Agreement required, and to the extent Ms White contends there is a dispute about the application of the NES and its interaction with the 2020 Agreement for the purpose of clause 13, I reject this.

[10] Ms White’s dispute regarding long service leave is really about the operation of Victorian workers’ compensation law. She relies on s.130(2) of the FW Act, which says that a person is ‘not prevented’ from accruing leave during a compensation period if this is ‘permitted by a compensation law’. She says that s.130 is part of the NES. Ms White is correct in this but the dispute she seeks to agitate has nothing to do with s.130, or the NES more generally, or the Agreement. Ms White’s dispute is a dispute about the meaning and effect of a Victorian workers’ compensation law, and whether this law permitted her to continue to accrue leave beyond an initial 12-month period. Such a dispute is not one arising under clause 13 of the Agreement. It is a dispute that Ms White may take to a Victorian court.

[11] Ms White also relies on Clause 6.1 of the 2020 Agreement, which provides:

“This Agreement operates to the exclusion of all previous awards and orders of the FWC and replaces all previous industrial instruments under the FW Act and replaces all previous industrial instruments under the FW Act in respect of the Employees. However any entitlement in the nature of an accrued entitlement to an individual’s benefit which has accrued under any such previous industrial instrument will not be affected by the making of this Agreement.”

[12] Ms White submits that the effect of Clause 6 of the Agreement is that entitlements she has to long service leave and annual leave under the 2020 Agreement cannot be any less generous than the Award that applied to her when she commenced employment because these have been preserved through the series of Awards, Acts of Parliament and Enterprise Agreements that have applied during the course of her employment.

[13] The Department submits that the effect of the savings provision in Clause 6.1 of the 2020 Agreement is that it does not extinguish entitlements that have already accrued to the Applicant (such as previous annual and long service leave accruals). The Department submits that the savings provision does not preserve entitlements beyond accrued entitlements, and does not preserve the wording of clauses in previous instruments to the negation of terms and conditions of industrial instruments that currently apply to the Applicant. The Department submits that in any event, previous enterprise agreements and awards applicable to the Applicant have also included the exclusion to accruing long service leave beyond the initial 12 months of a workers’ compensation period, including:

•  clause 32.7.3(d) of the Victorian Public Service (Non Executive Staff) Agreement 2000;

•  clause 7.5.6(d)(i) of the Public Service (Non Executive Staff – Victoria) Interim Award 2001;

•  clause 50.10.3(d) of the Victorian Public Service Determination 2012; and

•  clause 54.9(c)(iv) of the Victorian Public Service Enterprise Agreement 2016.

[14] I consider the effect of Clause 6.1 is clear on its terms and it does not operate in the manner contended by Ms White. The clause does not incorporate the terms of previous awards and orders of the Commission and nor does it incorporate the terms of all previous industrial instruments under the FW Act in respect of employees. Similarly, while any accrued entitlements may be unaffected, they too are not incorporated. As such, to the extent Ms White is agitating for entitlements arising from clauses in prior agreements, awards and other industrial instruments, orders and legislation, their operation does not fall within the scope of Clause 13 of the 2020 Agreement.

[15] Ms White also asserts an entitlement to an accrual of annual leave while she was on workers’ compensation between 24 July 2001 and 1 January 2010. The entitlement to accrued annual leave during workers’ compensation is derived from s.130 of the FW Act and it may be observed that the Full Court of the Federal Court in Anglican Care v NSW Nurses and Midwives Association 4 has held that s.130(2) of the FW Act does not operate as a bar to accruing leave if the relevant State workers’ compensation legislation allows for the accrual of annual leave while in receipt of workers’ compensation payments. This interpretation has been adopted in subsequent Full Bench decisions of the Commission, which have held that Victorian workers’ compensation legislation does not bar an employee in receipt of workers’ compensation from accruing annual leave under s.130(2) of the FW Act.5 However, s.130 of the FW Act commenced operation on 1 January 2010 so that annual leave entitlements pursuant to s.130 of the FW Act can only commence accruing from 1 January 2010. Ms White’s accrued annual leave while in receipt of workers’ compensation can only be backdated to 1 January 2010. I have noted the Department’s assertion that it has already adjusted and backdated Ms White’s accrued annual leave in line with the authorities I have cited and her entitlements under the NES. As to Ms White’s claim for annual leave entitlements arising under the repealed Workplace Relations Act 1996 (Cth), this does not fall within the scope of Clause 13 of the 2020 Agreement.

[16] Ms White has also previously asserted that the predecessor to Clause 62.6 is inconsistent with a policy document of the Department which until recently stated that long service leave accruals are not limited to the first 12 months. The Department has previously said that this was a typographical or other error and that the policy in question has been corrected and republished. I would simply observe that such a policy is not part of the Agreement and any dispute about it is not a dispute arising under the Agreement. Clause 62.6 of the Agreement itself is unambiguous. There are no accruals for long service leave beyond the first year of a period during which an employee is absent from duty and in receipt of workers’ compensation payments. There cannot be any dispute that this is what the Agreement says.

Conclusion

[17] For the reasons outlined above, I am satisfied Ms White’s claims do not relate to matters arising under the 2020 Agreement or the National Employment Standards (NES) and therefore the Commission does not have jurisdiction to deal with this dispute. As I have found the Commission does not have jurisdiction to deal with Ms White’s dispute, her application must be dismissed. An Order to this effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Ms L White on her own behalf assisted by Mr H Kop.
Mr J Maddison for the Respondent.

Hearing details:

2021.
Melbourne (via Microsoft Teams).
February 8.

Printed by authority of the Commonwealth Government Printer

<PR728329>

 1   [2020] FWCA 5215.

 2   Ibid at paras [6] – [7].

 3   AP841792.

 4 [2015] FCAFC 81.

 5   Australian Nursing and Midwifery Federation v Alfred Health[2017] FWCFB 4420, United Firefighters Union of Australia v Emergency Services Telecommunications Authority T/A ESTA[2017] FWCFB 4537.