Thai Truong v City of Wanneroo

[2016] FWC 5255

[2016] FWC 5255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Thai Truong
v
City of Wanneroo
(C2016/4165)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 3 AUGUST 2016

Application to deal with a dispute – paid parental leave – Agreement interpretation.

[1] On 17 June 2016, Mr Truong lodged an application pursuant to s.739 of the Fair Work Act 2009 (the FW Act) and the dispute resolution procedures of the City of Wanneroo Salaried Officers Collective Enterprise Agreement 2012 (the Agreement). In this application, Mr Truong described the issue in dispute as the City of Wanneroo’s (the City) refusal to grant him one week’s paid parental leave pursuant to clause 27.5 of the Agreement.

[2] Mr Truong’s application was the subject of a conciliation conference on 7 July 2016. There was no argument that the matter in dispute was properly referred to the Fair Work Commission (the FWC) consistent with the dispute resolution procedure set out at clause 9 of the Agreement. However, the parties were unable to reach any agreed position with respect to Mr Truong’s claim and accepted that the matter should be referred to the FWC for arbitration consistent with clause 9.1, Stage 3 of the Agreement.

[3] In Directions issued on 7 July 2016 I described the issue in dispute in the following terms:

“[3] The issue in dispute is whether Mr Truong, who has less than 12 months continuous service, is entitled to paid parental leave consistent with clause 27.5, and specifically, clause 27.5.3, of the Agreement. Mr Truong asserts that clause 27.5 provides for an entitlement to paid parental leave which is not constrained by a requirement for a minimum period of employment. The City of Wanneroo asserts that the entitlement to paid parental leave in clause 27.5, including clause 27.5.3 is limited by the eligibility requirements set out earlier in clause 27.”

[4] Consistent with the agreed approach, the parties were required to provide written material in support of their respective positions and had the opportunity to provide submissions in reply. The rights of both parties to request a hearing were preserved.

[5] In these Directions I referred the parties to the principles articulated in AMIEU v Golden Cockerel Pty Ltd 1 (Golden Cockerel). I have subsequently received written submissions and submissions in reply from both parties. Neither party has requested that a hearing be convened in the matter.

[6] For the sake of completeness, I have set out clause 27 of the Agreement in its entirety. This clause states:

“27 PARENTAL LEAVE

27.1 The provisions of this clause only applies to full-time, regular part-time employees and eligible casual employees (as defined by the Act). Employees are able to access pro-rata unpaid parental leave.

27.2Subject to the terms of this clause employees are entitled to Parental Leave (formerly known as maternity, paternity and adoption leave) and to work part-time in connection with the birth or adoption of a child.

27.3 Definitions

27.3.1 For the purpose of this clause "child" means a child of the employee under school age except for adoption of a child where 'child' means a person under the age of five years who is placed with the employee for the purposes of adoption, other than a child or step-child of the employee or of the spouse of the employee or a child who has previously lived continuously with the employee for a period of six months or more.

27.3.2 Subject to 27.3.3, in this clause, "spouse" includes a de facto or former spouse.

27.3.3 In relation to Clause 27.6, "spouse" includes a de facto spouse but does not include a former spouse

27.3.4 Primary care giver is the employee who will assume the· principal role for the care and attention of a child.

27.4 Basic entitlement

27.4.1 After twelve months continuous service, employees are entitled to a combined total of 52 weeks unpaid parental leave on a shared basis in relation to the birth or adoption of their child.

27.5 Paid Parental Leave

27.5.1 Six weeks paid parental leave will be available to full time and part time employees eligible for parental leave on a shared basis.

27.5.2 Employees who are the primary care giver of a newborn child, or of an adopted child under the age of 5 years are entitled to take 6 weeks paid parental leave. This will form part of the 52 weeks parental leave entitlement.

27.5.3 Employees who are NOT the primary care giver of a new-born child or of an adopted child under the age of 5 years are entitled to take one weeks paid parental leave upon the birth or adoption of the child.

.27.5.4 Part time employees are entitled to paid parental leave paid on a pro-rata basis. The payment for the leave will be determined on the basis of the average weekly hours worked in the twelve months proceeding the period of leave.

27.5.5 All existing entitlements will accrue during the period of paid leave.

27.5.6 Paid parental leave can be taken at half pay (i.e. 12 weeks leave).

27.5.7 Subject to Clause 27 .5.2, parental leave is to be available to only one parent at a time, in a single unbroken period, except that both parents may simultaneously take:

27.5.7.1 an unbroken period of up to one week's unpaid leave at the time of the birth of the child;

27.5.7.2 for adoption leave, an unbroken period of up to three weeks unpaid leave at the time of placement of the child.

27.5.7.3 not withstanding the above, an employee may request up to eight weeks unpaid leave.

27.6 Application for Parental Leave

27.6.1 An employee must provide notice to the employer in advance of the expected date of commencement of parental leave. The notice requirements are:

27.6.1.1 Of the expected date of confinement ·(included in a certificate from a registered medical practitioner confirming the pregnancy) - at least ten weeks prior to the expected date;

27.6.1.2 Of the date on which the employee proposes to commence parental leave and the period of leave to be taken - at least four weeks prior to the leave:

27.6.1.3 Confirmation that they will be the Primary Care Giver of the child.

27.6.2 When the employee gives notice under Clause 27.6.1.1 the employee must also provide a statutory declaration stating particulars of any period of parental leave sought or taken by their spouse and that for the period of parental leave they will not engage in any conduct inconsistent with their contract of employment.

27.6.3 An employee will not be in breach of this clause if failure to give the stipulated notice is occasioned by confinement occurring earlier than the presumed date.

27.6.4 Subject to Clauses 27.5.1 and 27.6 unless agreed otherwise between the employer and employee, an employee may commence parental leave at any time within six weeks immediately prior to the expected date of birth.

27.6.5 Where an employee is pregnant or has been and continues to work within the six week period immediately prior to the expected date of birth, or where the employee elects to return to work within six weeks after the birth of the child, an employer may require the employee to provide a medical certificate stating that she is fit to work on her normal duties.

27.7 Special Parental Leave

27.7.1 Where the pregnancy of an employee who is not on maternity leave at the time, terminates after 28 weeks other than by the birth of a living child, then the employee may take unpaid special maternity leave of such periods as a registered medical practitioner certifies as necessary.

27.7.2 Where an employee is suffering from an illness not related to the direct consequences of the confinement, an employee may take any paid sick leave to which she is entitled in lieu of, or in addition to, special maternity leave.

27.7.3 Where an employee not then on maternity leave suffers illness related to her pregnancy, she may take any paid sick leave to which she is then entitled and such further unpaid special maternity leave as a registered medical practitioner certifies as necessary before her return to work. The aggregate of paid sick leave, special maternity leave and parental leave, including parental leave taken by a spouse, may not exceed 52 weeks.

27.7.4 Where leave is granted under Clause 27.5, during the period of leave an employee may return to work at any time, as agreed between the employer and the employee provided that time does not exceed four weeks from the recommencement date desired by the employee.

27.8 Parental Leave - (Adoption leave)

27.8.1 The employee will notify the employer at least ten weeks in advance of the date of commencement of adoption leave and the period of leave to be taken.

27.8.2 An employee may commence adoption leave prior to providing such notice; where through circumstances beyond the control of the employee, the adoption. of a child takes place earlier.

27.8.3 Before commencing adoption leave, an employee will provide the employer with a statutory declaration stating:

27.8.3.1 The employee is seeking adoption leave to become. the primary caregiver of the child;

27.8.3.2 Particulars of any period of adoption leave sought or taken by the employee's spouse; and

27.8.3.3 That for the period of adoption leave the employee will not engage in any conduct inconsistent with their contract of employment.

27.8.4 An employer may require an employee to provide confirmation from the appropriate government authority of the placement.

27.8.5 Where the placement of child for adoption with an employee does not proceed or continue, the employee will notify the employer immediately and the employer will nominate a time not exceeding four weeks from receipt of notification for the employee's return to work.

27.8.6 An employee will not be in breach of this clause as a consequence of failure to give the stipulated periods of notice if such failure results from a requirement of an adoption agency to accept earlier or later placement of a child, the death of a spouse, or other compelling circumstances.

27.8.7 An employee seeking to adopt a child is entitled to unpaid leave for the purpose of attending any compulsory interviews or examinations as are necessary as part of the adoption procedure. The employee and the employer should agree on the length of the unpaid leave. Where agreement cannot be reached, the employee is entitled to take up to two days unpaid leave. Where paid leave is available to the employee, the employer may require the employee to take such leave instead.

27.9 Variation of period of parental leave

Unless agreed otherwise between the employer and employee, an employee may apply to their employer to change or extend the period of parental leave on one occasion. Any such change is to be notified, in writing, at least four weeks prior to the commencement of the changed arrangements.

27.10 Parental leave and other entitlements

An employee may in lieu of or in conjunction with parental leave, access any annual leave or long service leave entitlements, which they have accrued subject to the total amount of leave not exceeding 52 weeks.

27.11 Transfer to a safe job

27.11.1 Where an employee is pregnant and, in the op1mon of a registered medical practitioner, illness or risks arising out of the pregnancy or hazards connected with the work assigned to the employee make it inadvisable for the employee to continue at her present work, the employee will, if the employer deems it practicable, be transferred to a safe job at the rate and on the conditions attaching to that job until the commencement of maternity leave.

27.11.2 If the transfer to a safe job is not practicable, the employee may elect to commence parental leave for such period as is certified necessary by a registered medical practitioner.

27.12 Returning to work after a period of parental leave

27.12.1An employee will notify of their intention to return to work after a period of parental leave at least four weeks prior to the expiration of the leave.

27.12.2 An employee will be entitled to the position, which they held immediately before proceeding on parental leave. In the case of an employee transferred to a safe job pursuant to Clause 27.11, the employee will be entitled to return to the position they held immediately before such transfer.

27.12.3 Where such position no longer exists but there are other positions available which the employee is qualified for and is capable of performing, the employee will be entitled to a position comparable in status and pay to that of their former position.

27.12.4 An employee may request part time work until the child reaches school age. Approval will be dependent on operational requirements.

27.12.5 An employee may request an extension of their unpaid parental leave of up to a further 12 months.

27.13 Replacement employees

27.13.1 A replacement employee is an employee specifically engaged or temporarily promoted or transferred, as a result of an employee proceeding on parental leave.

27.13.2 Before an employer engages a replacement employee the employer must inform that person of the temporary nature of the employment and of the rights of the employee who is being replaced.

27.14 Communication during Parental Leave

27.14.1 Where an employee is on parental leave and a definite decision has been made to introduce significant change at the workplace, the employer shall take reasonable steps to:

27.14.1.1 make information available in relation to any significant effect the change will have on the status or responsibility level of the position the employee is entitled to return to after parental leave; and

27.14.1.2 provide an opportunity for the employee to discuss any significant effect the change will have on the status or responsibility Level of the position the employee is entitled to return to after parental leave.

27.14.2 The employee shall take reasonable steps to inform the employer about any significant matter that will affect the employee's decision regarding the duration of parental leave to be taken, whether the employee intends to return to work and whether the employee intends to request to return to work on a part-time basis.

27.14.3 The employee shall also notify the employer of changes of address or other contact details which might affect the employer's capacity to comply with Clause 27.14.1.

27.15 An employer must not fail to re-engage a casual employee because:

27.15.1 The employee or employee's spouse is pregnant; or

27.15.2 The employee is or has been immediately absent on parental leave.

27.16 Government Paid Parental Leave Scheme

The paid parental leave entitlement provided to employees in this Agreement by the employer, is in addition to any paid parental leave available under a Government Paid Parental Leave Scheme, for which the employee may qualify.”

[7] Mr Truong’s position that he is entitled to one week’s paid leave even though he has not completed a year’s continuous service, is based on the following arguments:

• His supervisor initially approved his application for one weeks’ leave from 15 December 2015 following the birth of his twin sons. That application was later rejected by the City.



• The plain words of clause 27.5.3 enable him to take one weeks’ paid parental leave.



• Clause 27.5.3 cannot be considered to be a sub-clause of clause 27.4 which refers to unpaid parental leave.



• A new agreement, The City of Wanneroo Salaried Officers Enterprise Agreement 2016, makes specific reference to the possibility of contested claims for unpaid leave such that this new agreement recognises the potential for confusion in the existing Agreement.



• Clause 27.1 refers to the capacity to access pro-rata unpaid leave.

[8] Mr Truong asserts that his construction of clause 27.5 is consistent with the principles of interpretation set out in Golden Cockerel.

[9] The City asserts that Mr Truong was advised of the reasons for the rejection of his application. The City asserts that it has consistently applied the Agreement such that the qualifying service requirement of 12 months must be achieved before any employee is entitled to take paid parental leave. The City asserts that this approach has been followed in each of its agreements, since 2001 and that the provisions of the new agreement simply reflect the renumbering of clauses without any change in their meaning. The City asserts that the provisions of clause 27.5 must be read on the plain words, on the basis that an employee would first need to satisfy the 12 months continuous service requirement. Further, the City asserts that the 52 weeks leave specified in clause 27.4.1 is a combined total which includes the one weeks’ pay entitlement for employees who are not the primary care giver. The City distinguishes between the provision of paid parental leave pursuant to clause 27.5 and other forms of leave, based on annual accrual arrangements.

[10] In Golden Cockerel a Full Bench of the FWC summarised the principles relative to the construction and interpretation of agreements in the following terms:

“[41]From the foregoing, the following principles may be distilled:

1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”

[11] I have applied these principles to the consideration of clause 27 of the Agreement.

[12] Clause 27.1 establishes the employees to whom the entire clause applies. Clause 27.2 defines those employees who are entitled to parental leave. Significantly, this sub-clause does not differentiate between paid and unpaid parental leave. Clause 27.4 refers to the maximum of 52 weeks unpaid parental leave available after an employee has completed 12 months continuous service.

[13] The provisions of clause 27.5 allow for paid parental leave. Whilst the wording of this sub-clause is less than perfect in terms of its clarity, it must be construed as providing for a paid parental leave entitlement which is part of the 52 weeks overall entitlement set out in clause 27.4. That is made absolutely clear in clause 27.5.2 and, whilst I accept that it is not as patently clear in clause 27.5.3, a proper construction of that provision would require the adoption of a consistent approach. Indeed, if clause 27.5.3 is read in the manner contended by Mr Truong, the entitlement to one weeks’ paid parental leave for employees who are not the primary caregivers would be more readily available than would be the case under clause 27.5.1 and 27.5.2, for primary care givers.

[14] Consequently, on its plain words, clause 27.5 must be construed as providing for a paid parental leave entitlement, within the overall parental leave provisions of clause 27, which is available to employees who have completed at least 12 months continuous service. To the extent that the provisions of clause 27.5.3 are imperfectly phrased and could be argued to create ambiguity in terms of eligibility for that leave entitlement, the adoption of a different set of criteria for eligibility for the one weeks’ leave in clause 27.5.3 would produce an inequitable and inconsistent outcome.

[15] I do not consider that the provisions of the replacement agreement indicate acknowledgement of any fundamental inconsistency or normally in the approach applied by the City.

[16] Consequently, I am not satisfied that the Agreement establishes an entitlement to one weeks’ leave pursuant to clause 27.5 .3 for Mr Truong.

[17] Further, I am not satisfied that the approval process adopted by the City was such that, notwithstanding that the Agreement does not provide for access to one weeks’ paid leave in his circumstances, that leave should be granted in these circumstances.

Conclusion

[18] Consideration of the Agreement provisions in the context of the principles set out in Golden Cockerel requires that I conclude that clause 27.5.3 provides for an entitlement to paid parental leave which is constrained by a requirement for a minimum period of 12 months continuous service.

Appearances:

T Truong on his own behalf.

L Piper and A Parsons on behalf of City of Wanneroo.

 1   [2014] FWCFB 7447

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