Ryan Kershaw v St John Ambulance Western Australia Ltd - [2023] FWC 2861

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ryan Kershaw v St John Ambulance Western Australia Ltd

Details

AGLC: Ryan Kershaw v St John Ambulance Western Australia Ltd [2023] FWC 2861
Case: [2023] FWC 2861
Decision Date: 12 NOVEMBER 2023

CaseChat Overview and Summary

The Fair Work Commission, under Commissioner Schneider, has considered a dispute between Ryan Kershaw and St John Ambulance Western Australia Ltd regarding Mr Kershaw's entitlement to paid leave under the St John Ambulance Western Australia Ltd Transport Officers Enterprise Agreement 2020. Mr Kershaw, who was not the primary caregiver for his newborn child, sought eight days of paid leave pursuant to clause 27.10(e) of the Agreement. The Respondent denied his application on the basis that he had not completed 12 months of continuous service as required by section 67 of the Fair Work Act 2009. The Commission was tasked with determining whether Mr Kershaw was entitled to the leave under clause 27.10(e) of the Agreement.

The central legal issue before the Commission was the interpretation of clause 27.10(e) of the Agreement and whether it required Mr Kershaw to meet the 12 months continuous service condition stipulated in the Fair Work Act. Both parties submitted detailed arguments on this point. The Applicant argued that clause 27.10(e) should be interpreted independently of other clauses and statutory requirements, focusing on its specific conditions for eligibility. Conversely, the Respondent contended that clause 27.10(e) must be read in conjunction with clause 27.10(a) and section 67 of the Act, thereby imposing the 12 months service requirement on all leave entitlements under clause 27.10.

The Commission examined the principles of interpretation set out in the case of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Limited. The analysis began with the ordinary meaning of the words in the relevant clauses, the plain meaning of the Agreement, and a review of the text as a whole. The Commission found that clause 27.10(e) provided a distinct type of paid leave to non-primary caregivers, separate from the entitlements under the Act. This leave, limited to eight days, was an additional benefit with its own specific conditions. The Respondent’s argument that clause 27.10(e) must be read in light of the 12 months service requirement was rejected. The deliberate exclusion of this requirement in clause 27.10(e) supported the Applicant’s interpretation. The Commission concluded that clause 27.10(e) did not import the conditions of section 67 of the Act and that interpreting it otherwise would contradict the plain language of the Agreement.

The Commission determined that Mr Kershaw was entitled to the eight days of paid leave under clause 27.10(e) as he met the specific conditions outlined in that clause. The decision was made on the basis that the leave entitlement in clause 27.10(e) is distinct and additional to any entitlements under the Fair Work Act, and therefore, not subject to the 12 months continuous service requirement.

Orders