Ryan Kershaw v St John Ambulance Western Australia Ltd
[2023] FWC 2861
•12 NOVEMBER 2023
| [2023] FWC 2861 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Ryan Kershaw
v
St John Ambulance Western Australia Ltd
(C2023/3697)
| COMMISSIONER SCHNEIDER | PERTH, 12 NOVEMBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
Background
On 27 June 2023, the United Workers Union (the UWU) applied, on behalf of Mr Ryan Kershaw (Mr Kershaw) (the UWU and Mr Kershaw are jointly referred to as the Applicant), under section 739 of the Fair Work Act 2009 (Cth) (the Act), for the Fair Work Commission (the Commission) to deal with a dispute.
The application has been lodged in relation to Mr Kershaw’s employment with St John Ambulance Western Australia Ltd (the Respondent).
The dispute arises in accordance with the dispute resolution clause under the St John Ambulance Western Australia Ltd Transport Officers Enterprise Agreement 2020 (the Agreement).[1]
The parties confirmed, at an initial conference before the Commission, that all reasonable attempts to resolve the dispute between the parties had been exhausted, prior to the Applicant lodging the dispute with the Commission.
The parties advised the Commission that they were seeking arbitration of the dispute, in accordance with the Agreement.
The parties agreed that there were no issues of contested evidence and that the dispute largely concerned the interpretation of parental leave entitlements under the Agreement.
Accordingly, the parties confirmed their preference to have the matter determined on the papers.
The parties provided a statement of agreed facts, for the benefit of the Commission. Both parties filed submissions in compliance with the Commission’s Directions.
Mr Kershaw commenced employment with the Respondent, on 6 November 2022, as a Medic, on a permanent full-time basis. The terms and conditions of Mr Kershaw’s employment are governed by the Agreement.
On 6 December 2022, Mr Kershaw sent an email, to his manager, enquiring about his leave entitlements concerning the birth of his child. The Applicant’s manager directed him to clause 27.10(e) of the Agreement.
On 21 March 2023, Mr Kershaw put in a leave request for eight shifts of paid leave, under clause 29.10(e) of the Agreement. Mr Kershaw confirmed the expected commencement date for the leave was 1 June 2023 and provided a medical certificate in support of his application for leave.
At the time of making the application, and at no time since that date, Mr Kershaw has not been the primary care giver. Mr Kershaw did not have 12 months continuous service either at the time of making the leave request or at the time of his child’s birth.
On 21 March 2023, the Respondent refused the application for leave. The position of the Respondent is that the Applicant is not entitled to paid leave, under clause 27.10(e) of the Agreement, as he had not completed 12 months continuous service.
Between 23 May 2023 and 6 June 2023, the parties took steps to resolve the dispute, consistent with the dispute resolution procedure contained within the Agreement. However, clearly, the parties have been unable to reach an agreement.
Question for arbitration
The parties agreed on the below question to be arbitrated:
“Is the Applicant entitled to a period of paid leave or absence, pursuant to clause 27.10(e) of the St John Ambulance Western Australia Ltd Transport Officers Enterprise Agreement 2020?”
Relevant Legislation and Instruments
In accordance with the dispute clause in the Agreement, the Applicant has brought this dispute to the Commission noting section 738 of the Act which allows for an application, under Part 6-2, Division 2 of the Act, to be made in such circumstances:
“738 Application of this Division
This Division applies if: …
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); …”
The application has been brought under section 739 of the Act, which allows for the Commission to assist the parties to resolve a dispute:
“739 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.”
Clause 33 of the Agreement contains the dispute resolution clause, detailing the procedure that must be followed in actioning a dispute and the scope of the Commission’s involvement in resolving such dispute:
“33 DISPUTE SETTLING PROCEDURE
Subject to this clause, any dispute relating to the NES or any grievance, dispute or matter which is raised by St John, an employee or group of employees, except disputes relating to the termination of an employee's employment or disciplinary procedures, will be settled according to the following procedure:
(a)The complainant will document the dispute in writing and it will then be discussed between the employee(s) and the relevant supervisor in an attempt to resolve it.
(b)If the dispute is not resolved as outlined in clause 33(a) above within five (5) week days of being raised with the relevant supervisor, the dispute will be referred to the relevant line manager, who will attempt to resolve it.
(c)If the dispute is not resolved as outlined in clause 33(b) above within five (5) week days of being raised with the relevant line manager, the dispute will be referred to the Chief Executive Officer or their nominee, who will attempt to resolve it.
(d)If the dispute is not resolved as outlined in clause 33(c) above within five (5) week days of being raised with the Chief Executive Officer or his/her nominee, and the dispute relates to a matter arising under this Enterprise Agreement or relating to the NES, any party to the dispute may refer it to Fair Work.
(e)Fair Work may deal with the dispute in two (2) stages:
(i)Fair Work will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, an opinion or making a recommendation; and
(ii)if Fair Work is unable to resolve the dispute at the first stage, Fair Work may then:
(A)arbitrate the dispute; and
(B)make a determination that is binding on the parties.
(f)The parties to the dispute will abide by the decision of Fair Work subject to any party to the dispute exercising a right of appeal against the decision in accordance with the Fair Work Act.
(g)The period for resolving a dispute may be extended by agreement between the parties.
(h)At all stages of the procedure set out above, either party may appoint or be accompanied by a representative of their choice.
(i)While the dispute is being dealt with, or while any conciliation or arbitration is progressing, the employee(s) concerned will continue to work in accordance with this Agreement.”
Leave entitlements are detailed in Clause 27 of the Agreement. Specifically, as it relates to the dispute currently before the Commission, Clause 27.10 of the Agreement details Parental Leave entitlements:
“27 .10 Parental Leave
(a)Subject to this clause, each employee is entitled to parental leave in accordance with the Fair Work Act. Parental leave includes paid leave, maternity leave, paternity leave and adoption leave.
(b)Employees (except casual employees) who are the Primary Care Giver are entitled to 12 weeks' paid parental leave at the weekly base rate of pay, subject to:
(i)the employee completing and providing all appropriate documentation; and
(ii)if immediately before the date of adoption or expected date of birth of the child the employee has, or will have, completed at least 12 months' continuous service with St John.
(c)The entitlement to paid parental leave and unpaid parental leave will be concurrent.
(d)St John will not unreasonably refuse any application for extended unpaid parental leave.
(e)Employees (except casual employees) who are not, or will not be, the Primary Care Giver for a child will be entitled to leave of eight (8) calendar days off work without loss of pay subject to the following;
(i) the leave must commence within 21 days of the birth or adoption of the
child;
(ii) the employee must provide as much notice as possible; and
(iii) the employee must complete and provide all appropriate
documentation.”
For clarity, any references to “subclause”, in this Decision, relate to the points contained within Clause 27.10 of the Agreement, as quoted above.
Division 5 of the National Employment Standards (the NES) details the requirements relating to Parental leave and related entitlements under the Act.
Section 67 of the Act, which falls within Division 5 of the NES, contains the rule regarding length of service for employees seeking to take parental leave:
“67 General rule—employee must have completed at least 12 months of service
Employees other than casual employees
(1) An employee, other than a casual employee, is not entitled to leave under this Division (other than unpaid pre‑adoption leave or unpaid no safe job leave) unless the employee has, or will have, completed at least 12 months of continuous service with the employer immediately before the date that applies under subsection (3).
(1A) For the purposes of applying subsection (1) in relation to an employee who has
had their employment converted under Division 4A of Part 2‑2, any period for
which the employee was a regular casual employee of the employer is taken to be
continuous service for the purposes of that subsection.
…
Date at which employee must have completed 12 months of service
(3) For the purposes of subsections (1) and (2), the date that applies is:
(a)if the leave is:
(i)birth‑related leave starting before the birth of the child; or
(ii)unpaid special parental leave;
the expected date of birth of the child; or
(b)in any other case—the date on which the employee’s period of leave is to start…”
Submissions
Applicant
The Applicant submits that the Respondent has incorrectly sought to re-write the Agreement, by applying the condition that the requirements of subclause 27.10(a) need to be met in order for an employee to have benefit of the paid leave provided for under subclause 27.10(e).
The Applicant submits that the Agreement should not be read in such a way that an employee wishing to access the leave under subclause (e) needs to first satisfy the requirements of subclause (a). The Applicant submits that subclause (e) does not require the conditions of subclause (a) to be satisfied for its use.
The Applicant submits that subclause (e) has three clear conditions that an employee, who is a permanent employee and is not the primary care giver, needs to meet in order to be eligible for eight days of paid leave. The Applicant submits these three conditions are the only ones that must be satisfied and there is no additional requirement for the conditions under other subclauses to be met. The three conditions under subclause (e) are:
· The leave must commence within 21 days of birth;
· As much notice as possible is provided; and
· All appropriate documentation is completed and provided.
The Applicant submits that its construction and interpretation of the intent of subclause (e) is supported by the overall text of Clause 27.10. Subclause 27.10(e) includes a set of self-contained requirements, without additional restrictions imported from the Act or other parts of the Agreement.
The Applicant notes that subclause (b) provides for 12 weeks of “paid parental leave”. Subclause (b)(ii) states that an employee must have 12 months of continuous service to access the leave under that subclause. The Applicant submits that if the intended construction of Clause 27.10 was to incorporate general requirements and other restrictions, such as those under the NES, then subclause (b)(ii) would be entirely unnecessary. The Applicant concludes that, if such interpretation were correct, the requirement for 12 months service to access paid parental leave under subclause (b) would be automatically imported from section 67 of the Act. Therefore, the Applicant submits, the very existence of subclause (b)(ii) suggests such an interpretation would be incorrect.
The Applicant submits that, what it contends to be the proper construction of the Clause, gives effect to the plain meaning of Clause 27.10 when read as a whole, as well as the plain language of each subclause. It is a construction, in the Applicant’s opinion, that gives purpose to all parts of Clause 27.10. The Applicant submits that this interpretation aligns with the context of the clause within the Agreement. The Applicant submits that its interpretation results in a construction that is not excessively technical.
The Applicant submits its construction is supported by the text of the Agreement, when viewed as a whole. The other parts of Clause 27.10 align with the legislative context of Division 5 of the Act. The drafting of the Clause does not call for the Commission to read in additional words, rewrite the Agreement, or alter the plain meaning of any term.
Respondent
The Respondent submits that; subclause (a) of the Agreement provides that an employee is entitled to parental leave in accordance with the Act and is therefore subject to any conditions under the Act.
The Respondent outlines that, under the Agreement, “Parental leave” is specified as including “paid leave, maternity leave, paternity leave and adoption leave”.
The Respondent submits that the purpose of Clause 27.10 is to provide paid parental leave entitlements in accordance with the qualifying requirements set out in the Act, unless otherwise expressly provided for in the Agreement.
The Respondent submits that subclause (e) must be read in conjunction with subclause (a). The Respondent submits that subclause (e) cannot be read in a vacuum and is subject to the criteria contained within subclause (a), which adopts the qualifying requirements and eligibility criteria set out in the Act.
The Respondent outlines that section 67 of the Act contains the eligibility requirements for parental leave under the Agreement. Section 67(1) of the Act requires that, in order for an employee to be eligible to take parental leave, the employee must have completed at least 12 months of continuous service as at the date, or expected date, of birth of the child.
It is the position of the Respondent that the Applicant is not eligible for parental leave, in accordance with section 67 of the Act. Accordingly, the Respondent concludes that the Applicant failing to meet this requirement under the Act means there was no such entitlement for leave under subclause (e).
The Respondent submits that the interpretation outlined by the Applicant is not logical when considering the context and industrial reality of the Agreement’s application. The industrial reality in this matter, the Respondent asserts, is that the Agreement provides paid parental leave entitlements to its employees arising from the entitlement to unpaid parental leave, as established in the Act.
The Respondent submits that the construction championed by the Applicant gives rise to an anomaly. Specifically, an employee who is the primary care giver of the child, but has not completed 12 months continuous service, is unable to access leave entitlements but the non-primary care giver, irrationally, is not restricted by such condition.
The Respondent submits that the same employee, the primary care giver with service under 12 months, would also not be eligible for leave pursuant subclause (e) of the agreement, because such leave is only available to non-primary care givers.
The Respondent outlines that such construction of subclause (e) of the Agreement, consistent with the construction supported by the Applicant, would mean that an employee with less than 12 months of continuous service who was not the primary care giver of the child would be eligible for leave, while an employee who was the primary care giver, and arguably more deserving of such leave, would not be eligible.
In addition to the general principles of interpretation, the Respondent highlights four other matters it believes are relevant for the Commission’s consideration:
· First, in relation to industrial instruments context is not confined to the words of the instrument surrounding the expression to be construed and extends to “… the entire document of which it is a part, or to other documents with which there is an association”.[2] In this context of an enterprise agreement, this may include the Act.
· Second, it is a very long standing principle that in construing an industrial instrument “one must always be careful to avoid too literal an adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavor to give it a meaning consistent with the general intention of the parties to be gathered from the whole award”.[3]
· Third, it is a general principle of interpretation that when the purpose of a provision is clear, it may be justifiable to give the provision “a strained construction” to achieve that purpose provided that the construction is neither unreasonable nor unnatural.[4] In the context of industrial instruments in particular, meanings which avoid inconvenience or injustice may reasonably be strained for. Similarly, an interpretation which accords with common sense will be preferred to one which does not.[5]
· Fourth, and relatedly, there are many cases in which the Courts have adopted a construction of industrial instruments which do not necessarily accord with the most obvious literal meaning of their words.[6]
Applicant (Reply)
The Applicant, as it relates to subclause (a), disagrees with the interpretation of the Respondent. In particular, the Applicant submits that, if the Respondent were correct in stating subclause (a) of the Agreement imports all the general requirements for access to the leave under Clause 27.10, the question arises of why the Agreement expressly includes references to the conditions under the Act in subclause (b). The Applicant submits such inclusions would surely be redundant if the Respondent’s interpretation were correct. Further, in support of the Applicant’s interpretation, such express mention of the service condition is notably absent in subclause (e).
The Applicant submits that the leave arising under subclause (e) is an entitlement to eight shifts without loss of pay. The Applicant notes that such leave is not a type that arises under Division 5 of the Act; it is an additional entitlement that arises from the Agreement and is not subject to the general rule under the Act. An employee cannot request 8 shifts’ absence in accordance with the Act, as that leave does not exist within the Act. The Applicant submits that the leave in question can only be taken in accordance with subclause (e) by an employee who is not the primary caregiver (and not a casual employee), in accordance with the three further restrictions contained in the subclause. The Applicant submits that it is incorrect to import requirements from the Act, as those requirements are explicitly framed as applying to the type of leave under Division 5 of the NES within the Act.
The Applicant submits that subclause (b) provides for 12 weeks of “paid parental leave” and that (b)(ii) adds the additional requirement that an employee must have 12 months of continuous service to access that leave. The Applicant asserts that, if the Respondent’s construction was correct, subclause (b)(ii) would not be necessary, as the requirement for 12 months of service to access such parental leave would be imported from the Act. The Applicant submits that stating the requirement, as is done in subclause (b)(ii) would be wholly unnecessary if the Respondent’s interpretation is correct. The Applicant submits that, if such an interpretation were correct, both subclause (b) and (e) would not need to expressly exempt casuals from accessing the leave arising under them, as section 67 of the Act already contains such restrictions on casuals.
The Applicant rejects the Respondent’s position that the requirement for 12 months continuous service to access 12 weeks’ paid leave for primary carers and no such requirement in subclause (e) for eight shifts’ leave for a non-primary carer is an anomaly. The Applicant submits that there is no such anomaly arising from this difference. Rather, in the Applicant’s opinion, such difference can be attributed to the relative difference in amount of leave afforded to the differing caregiver types.
The Applicant submits that there is a significant difference in the period of leave offered to primary and non-primary caregivers. As a result of the significant length of leave available to primary caregivers, there are, understandably, additional restrictions on the access to that leave, like the 12 months service. The Applicant submits that such additional restrictions, logically, arise from the potential impact on the Respondent’s business if new employees could immediately take three months’ leave. Hence, there is a clear requirement for 12 months service expressly included in subclause (b) and such condition is not required for the smaller amount of leave offered under subclause (e).
Consideration
The relevant principles of interpretation can be drawn from Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Limited (Berri).2
I adopt the Berri principles. Consequently, it is necessary to,
· begin the analysis with a consideration of the ordinary meaning of the words of the relevant clauses in the Agreement;
· determine whether the Agreement has a plain meaning;
· review the text of the Agreement as a whole;
· not rewrite the Agreement to achieve what might be regarded as a fair or just outcome;
· (in determining the objective intention of the parties) do so by reference to what a reasonable person would understand by the language used in the Agreement;
· not adopt an overly technical approach to the interpretation of the Agreement; and
· not contradict the plain language of the Agreement.
Having considered the submissions provided by the parties to this dispute, my decision to the question for arbitration is Yes. My reasons for this conclusion follow.
To put it simply:
· The Respondent asserts that, for an employee to qualify for the 8 shifts of paid leave under subclause (e), an employee must have completed 12 months service to access the entitlement in question; whereas,
· The Applicant asserts that an employee qualifies for the 8 shifts of leave if they satisfy the conditions contained within subclause (e).
There is no dispute that Mr Kershaw has complied with the criteria listed in subclause (e). He is not a casual employee, he was not and is not the primary care giver, he intended to take leave immediately following the birth, he provided advanced notice (in December 2022), he made a formal application (in March 2023), and he provided medical evidence in support of his application.
After careful consideration, I find the submissions of the Applicant more compelling and accurate than that of the Respondent. Subclause 27.10(e) of the Agreement does not offer “parental leave”, similar to that under the Act. Rather, the leave on offer under subclause 27.10(e) is a distinct type of paid leave that is provided to the non-primary care giver.
The Applicant is correct, the period of eight days paid leave, provided for under subclause (e), is an additional benefit. This benefit sits outside of and is additional to the leave contained within the Act. The eight (8) days of paid leave in question are an additional entitlement which does not form part of any entitlement under the NES, rather this is an additional benefit provided to employees of the Respondent outside of any statutory entitlement in the NES.
I agree with the Applicant’s submission, that the leave under subclause (e) is a modest benefit. Such modest benefit has its own separate set of conditions that, accordingly, are modest when compared to the leave and conditions for primary caregivers.
Such a conclusion is also logical in consideration of the context and industrial reality of the matter. As the Applicant noted, the leave offered to primary care givers imposes a larger operational threat to the Respondent over that of the comparatively brief period offered to non-primary caregivers.
I agree that the conditions, contained within subclause (e), are the only ones which act as a barrier to an employee accessing such leave. I am satisfied that it would be incorrect to interpret the Agreement in such a way that would impose further and additional requirements on the unique benefit provided for in subclause (e). I am not satisfied that subclause (a) imports all of the conditions within section 67 of the Act on employees accessing any leave arising from Clause 27.10. I agree with the position of the Applicant that subclause (a), simply, for the sake of clarity, states that the NES entitlements regarding parental leave apply subject to the variations contained within Clause 27.10.
I also agree with the Applicant’s argument concerning the deliberate inclusion and exclusion of conditions, being those contained within section 67 of the Act, within Clause 27.10 of the Agreement. Notably, subclause (b) expressly mentions the service requirement while such requirement is not included under subclause (e). In contrast, the restriction relating to casual employees was included in both subclauses. I am inclined to conclude that such inclusions and exclusions are inconsistent with the Respondent’s position; that subclause (a) acts to impart conditions under the Act on accessing leave under Clause 27.10 without the need for such conditions to be stated in subclause (e).
I prefer the construction of the Applicant and find that such construction is consistent with the relevant principals outlined in Berri. Further, I believe this interpretation of the construction of the Clause is also consistent with the other matters highlighted by the Respondent. I am not persuaded there is reason to depart from such conclusion regarding this interpretation of Clause 27.10. On the plain reading of Clause 27.10, the Applicant’s interpretation is logical, and accounts for the broader context of the matter, as well as the principles of interpretation, and guidance provided in relevant authorities.
Conclusion
Accordingly, in response to the question:
“Is the Applicant entitled to a period of paid leave or absence, pursuant to clause 27.10(e) of the St John Ambulance Western Australia Ltd Transport Officers Enterprise Agreement 2020?”
I answer, Yes.
COMMISSIONER
Determined on the papers.
[1] [AE515271].
[2] [2020] FCAFC 123 (382 ALR 8), [65].
[3] [1929] AR (NSW) 498, 503-504.
[4] [1997] HCA 53; (191 CLR 85).
[5] [2014] FCA 829 (318 ALR 54), 58.
[6] [2014] FCA 829 (318 ALR 54); [2006] FCA 616 (151 FCR 513); [2011] FCAFC 67.
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