The Maritime Union of Australia v DP World Sydney Limited

[2014] FWC 2682

[2014] FWC 2682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application for the Fair Work Commission to deal with a dispute in accordance with a Dispute Settlement Procedure

The Maritime Union of Australia
v
DP World Sydney Limited
(C2013/3702)

COMMISSIONER CAMBRIDGE SYDNEY, 24 APRIL 2014

Dispute settlement procedure - dispute as to interpretation of particular words in enterprise agreement - meaning of “back dated medical certificates” - logical and practical application of the words “back dated” - distinction drawn between evidence requirements for payment in respect of personal leave as opposed to operation of employer’s scheme to reduce absenteeism - finding as to interpretation - further consideration of s.107 of the Act - caution expressed about any unilateral rejection of evidence that may satisfy a reasonable person.

[1] This matter involves an application made pursuant to section 739 of the Fair Work Act 2009 (the Act), for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was lodged at Sydney on 25 March 2013. The application was made by the Maritime Union of Australia(the MUA) and taken against DP World Sydney Limited (the employer).

[2] The Commission is empowered to deal with the matter by virtue of a DSP found at Clause 24 of the DP World Sydney Enterprise Agreement 2011 (the Agreement). The question in dispute involves a claim by the MUA, that the words “In all these circumstances no backdated medical certificates will be accepted” which appear in Appendix 1 of the Agreement, have been wrongly interpreted and applied by the employer.

[3] The matter was the subject of unsuccessful conciliation and a Recommendation was made by Booth DP on 11 April 2013. Subsequently, the arbitration of the substantive matter in dispute has involved a Hearing conducted in Sydney on 5 and 6 March 2014.

[4] At the Hearing, the MUA was represented by Ms L Doust, counsel, who appeared with Mr A Jacka. The MUA provided evidence from three witness and a further four witness statements where admitted as evidence without contest. Mr D Perry, solicitor, together with Mr M Stokes, solicitor, from Seyfarth Shaw Australia appeared for the employer and adduced evidence from two witnesses, one of whom appeared in the Hearing via video link.

Background

[5] On 4 May 2012, the Commission issued a Decision which approved the Agreement. The Agreement has a nominal expiry date of 30 June 2014.

[6] The Agreement contains Clause 16.0 PERSONAL LEAVE and relevantly sub-clauses 16.0 to 16.3 inclusive are in the following terms:

“16.0 PERSONAL LEAVE

This clause shall be read in conjunction with clause 23 of the Stevedoring Award, and shall apply to the extent of any inconsistency.

16.1 Amount of Personal Leave

16.1.1 Yearly Amount

A Permanent Employee shall be entitled to 13 days’ personal leave per year which shall consist of sick leave (up to 10 days per year) and carer’s leave.

16.1.2 Accumulation of Personal Leave

In any year, unused personal leave accrues at the rate of 10 days less:

● the amount of sick leave taken from the current year's personal leave entitlement; and

● the amount of carer’s leave taken, in excess of 3 days, from the current years’ personal leave entitlement.

16.2 For the purpose of this clause “year” means the period between 1 July in one year and 30 June the following year.

16.3 The requisite evidentiary requirements and absence management process are outlined in Appendix 1.”

[7] Appendix 1 to the Agreement contains, inter alia, the following provisions which are directly relevant to the dispute in this matter:

“APPENDIX 1. ABSENCE MANAGEMENT

DP World understands that from time to time, Employees are unable to attend work due to illness or injury. In these circumstances, Employees have the right to access their sick leave entitlement provided for under the Agreement provided this is for genuine illness. Employees should be aware however of the impact unplanned absences have on the business and the Company's ability to properly service its customers. For these reasons and to ensure sick leaveis used for genuine

illness or injury the Company requires Employees to provide the following evidence to substantiate their absences in any of the following circumstances:

(a) 5 days absence in the year may be uncertified;

(b) The 6th uncertified day of absence requires production of a statutory declaration;

(c) Any absence in excess of 6 uncertified days must be accompanied by a medical certificate;

(d) Sick leave absences for each day prior to or following a public holiday must be accompanied by a medical certificate;

(e) Employees who are subject to an Absence Management Plan (AMP) must provide a medical certificate for any absence:

In the cases where medical certificates must be provided as outlined, the certificates will only be accepted in the following circumstances:

(a) Prior to the day of the absence;

(b) On the day of the absence;

(c) On the next rostered shift immediately following the absence (provided certificate is not backdated).

In all these circumstances no backdated medical certificates will be accepted.” [Emphasis added]

[8] In this instance, it is very important that Appendix 1 also contains the following note: “Note: Providing an Employee has an entitlement to sick leave it will be paid.”

[9] The provisions contained in Appendix 1. Absence Management were introduced into the Agreement during the negotiations which preceded the making of the Agreement. The previous agreement, which the Agreement replaced, did not contain provisions which were in any way similar to Appendix 1. Absence Management.

[10] Appendix 1. Absence Management was introduced into the Agreement at the request of the MUA which had sought to include several of the employer’s policies as terms of the Agreement. There was no evidence of any discussion during the Agreement negotiations concerning the meaning of a “backdated medical certificate”.

[11] During 2013, the MUA raised concern about the employer’s interpretation and application of the terminology “backdated medical certificate” as referred to in Appendix 1. Absence Management of the Agreement. The employer has considered that a “backdated medical certificate” is one that has been signed and dated by a medical practitioner on a day after the day (or days) of illness to which the certificate relates. The MUA has rejected the employer’s interpretation of a “backdated medical certificate” and instead contended that a “backdated medical certificate” is one which has been signed and dated by a medical practitioner on a day after the day that the certificate is dated.

[12] The fundamental difference between the competing interpretations of a “backdated medical certificate” is directed at whether the certificate is made in respect to a retrospective period of illness or alternatively, it has been falsely dated to indicate that the medical practitioner examined the person on a day earlier than the actual date of consultation.

The MUA Case

[13] The MUA has challenged the employer’s interpretation of “backdated medical certificate” which has, in practice, encompassed any period of retrospective operation of a certificate. The MUA has urged that the Commission find that Appendix 1 of the Agreement permits the provision of medical certificates which certify a period of illness prior to the date of the certificate.

[14] The submissions made by Ms Doust on behalf of the MUA, firstly noted that the provisions of the Agreement which were in contention related to the evidence requirements in respect to Personal Leave. Ms Doust submitted that it was therefore relevant to consider the applicable terms of the National Employment Standards (NES), and in particular she referred to s. 107 of the Act. Ms Doust referred to subsection (3) of s. 107 of the Act and to the requirement that an employee give the employer evidence that would satisfy a reasonable person as the basis for the taking of Personal Leave.

[15] Ms Doust submitted that the interpretation that the employer had adopted as the meaning of “backdated medical certificates” which involved the rejection of any medical certificate made in respect to a retrospective period of illness, represented the rejection of evidence that would satisfy a reasonable person. Consequently, according to the submissions made by Ms Doust, what was said to be the ordinary meaning of “backdated” as promulgated by the MUA, should be adopted by the Commission.

[16] The submissions made by Ms Doust stressed that the term “backdated” should be given its ordinary and plain meaning as opposed to what she said was the less obvious meaning that had been adopted by the employer. Ms Doust referred to a Decision of Cargill C in the case of V Tagamalitsky and Commonwealth Bank of Australia 1as support for the MUA position regarding the ordinary and plain meaning of the word “backdated” as it might apply in respect to a medical certificate.

[17] Ms Doust made further submissions which referred to documents produced by Comcare, the Medical Council of New South Wales, and guidelines of the Australian Medical Association, which she said all provided further support for the plain and ordinary meaning which should be given to the term “backdated medical certificate.” Further, Ms Doust submitted that there was evidence of various examples where the particular circumstances surrounding a person's illness established an entirely reasonable basis for a medical practitioner to issue a certificate which encompassed a period of retrospective operation.

[18] It was also submitted by Ms Doust that there was insufficient evidence to establish that the meaning of “backdated medical certificate” as advanced by the employer, was widely and notoriously understood so as to support a conclusion that the plain and ordinary meaning of the word “backdated” should not be adopted. Ms Doust said that there was no evidence of widespread adoption of the employer's rejection of earlier backdated medical certificates and this strongly supported the proposition that there was not a shared understanding by the parties to the Agreement of the meaning as adopted by the employer.

[19] Ms Doust acknowledged that the impact of the employer’s rejection of “backdated medical certificates” as it interpreted the term, was confined to potential for disciplinary action and loss of promotional opportunities and did not involve any actual refusal of payment for any period of personal leave for which an individual had an entitlement.

[20] In conclusion, Ms Doust urged that the Commission reject the interpretation that the employer had adopted for the words “backdated medical certificates” appearing in Appendix 1 of the Agreement, and instead, determine that the provision of medical certificates which apply to a period of illness prior to the date of the certificate should not be rejected by the employer.

The Employer’s Case

[21] Mr Perry commenced his submissions on behalf of the employer by stressing that the dispute in this instance did not involve any contest about evidence requirements which impacted upon the Personal Leave entitlement of employees. Mr Perry said that the contest about the particular provisions of the Agreement dealt with the employer’s absentee management processes and did not involve any aspect of Personal Leave entitlements or the related evidence requirements established by the NES.

[22] Mr Perry said that Appendix 1 of the Agreement represented a separate and additional regime which had been negotiated between the Parties as a means to deal with the significant problems of absenteeism at Port Botany. According to Mr Perry, Appendix 1 of the Agreement had no impact upon whether an employee was paid Personal Leave as it was clear that Personal Leave was paid if a person had a leave entitlement.

[23] In further submissions, the Macquarie Dictionary definition of “backdate” was referred to by Mr Perry. This definition included both of the meanings that were advanced in the contest in this instance. The Dictionary meaning stated: to date (something) earlier; apply retrospectively. Consequently, Mr Perry submitted that the ordinary meaning of the word could be applied in support of either Party's argument in the present matter. According to the submissions of Mr Perry, there was no plain and ordinary meaning of “backdated” as had been advanced on behalf of the MUA.

[24] Mr Perry submitted that in circumstances where any plain or ordinary meaning of the word “backdated” could support either of the contested interpretations, it was appropriate to examine the commonsense and practical implications that arose from the interpretation urged upon the Commission by the MUA. In this regard, Mr Perry said that the interpretation advanced by the MUA would confine the application of the Agreement provisions to the issuing of a medical certificate which was an instrument of fraud. This interpretation would lead to a perverse outcome, according to the submissions made by Mr Perry.

[25] The perverse outcomes identified by the submissions of Mr Perry included that it would be unnecessary for the Agreement to state that an employer would not accept an instrument of fraud. There would simply be no commonsense basis to include such a statement in any industrial instrument. Mr Perry said that a further perverse outcome would arise where it would be unlikely that the employer would be able to identify that it had been given an instrument of fraud and generally speaking it can be assumed that medical practitioners do not fraudulently date medical certificates. Consequently, Mr Perry said that there would be very little, if any, work for these words to do.

[26] Mr Perry also submitted that there was no evidence of any discussions between the Parties at the time that they were negotiating the agreement which in any way clarified the terminology of “backdated medical certificates.” Further, according to the submissions of Mr Perry, there was important evidence which supported the interpretation that had been adopted by the employer. In particular,and in addition toevidence provided by the employer’s witnesses, Mr Perry referred to the evidence contained in the witness statement of Michael Elphick (Exhibit 5). This evidence included a medical certificate provided by Mr Elphick dated 12 September 2011 and which had retrospective operation for 11 September 2011, and this medical certificate was referred to by both the employer and Mr Elphick as being “backdated.”

[27] By way of further submissions, Mr Perry rejected evidence regarding particular circumstances of individuals who had seemingly been unable to provide anything other than a medical certificate which was retrospective in its operation. Mr Perry submitted that rather than picking out a particular occasion when there may have been some genuine difficulty for an employee to obtain a medical certificate on the day of the illness, a broader examination of these circumstances was relevant. In this regard, Mr Perry stressed that any implications for an individual would only arise if they had such a significant number of absences in a relevant yearly period so as to activate the prospect for inclusion on an absentee management plan.

[28] In summary, Mr Perry submitted that the words “backdated medical certificate” appearing in Appendix 1 of the Agreement were capable of multiple meanings. However, according to Mr Perry, the meaning proposed by the MUA would give rise to perverse and nonsensical outcomes, and was not supported by the evidence of the way in which the employer had historically treated the terminology. In addition, Mr Perry said that the interpretation adopted by the employer did not give rise to any deprivation of any entitlement but only had consequences in the realms of potential disciplinary action or possible loss of promotional opportunity.

[29] Mr Perry concluded his submissions by stating that the employer had adopted an interpretation of the words “backdated medical certificates” as a means to endeavour to address a very serious problem of absenteeism at the Port Botany site, and in the absence of any employees being denied any leave payment, the Commission should not disturb the rigorous certification requirements which had been adopted as a means to address serious absenteeism.

Consideration

[30] The dispute in this matter has involved a contest about the meaning that should be given to particular words which appear in an industrial agreement. The approach to interpretation of industrial instruments is not a matter of strict statutory interpretation. Although the words in an industrial instrument may be given their plain literal meaning, it is well established that often it is appropriate to adopt a contextual and purposive approach broadly based upon authority established by a body of decision-making which is well summarised in a Decision of a Full Bench of Fair Work Australia in,Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd  2(Silcar).

[31] It is of particular importance in this case to repeat an extract from the Judgement in Kucks v CSR 3 (Kucks) which was cited in a more expansive extract contained in the Silcar Decision:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.”

[32] In this case, the Parties respectively advocated two relatively straightforward but fundamentally different interpretations to be applied to the words “backdated medical certificate” which appeared in Appendix 1 to the Agreement.

[33] The MUA asserted that a “backdated medical certificate” was one which had been falsely dated so that the date that appeared on it was earlier than the date on which the medical practitioner examined the person and made the certificate. The employer contended that a “backdated medical certificate” was one that certified illness in respect to a period before the date that the medical practitioner examined the person and made the certificate.

[34] As I advanced during the Hearing, and in order to simplify the distinction between the two competing propositions, I shall refer to the MUA interpretation as a backdated certificate and the employer’s interpretation as a retrospective certificate.

[35] Adopting a consideration which is cognisant of the “practical bent of mind” identified in the Kucks Judgment, the interpretation of the terms “backdated medical certificate” as asserted by the MUA, manifests an obvious difficulty. As a matter of logic and commonsense, there would be very limited practical purpose obtained from the interpretation that the MUA has advocated for the words “backdated medical certificate.” If a “backdated medical certificate” was confined to a certificate which had been falsely dated by a medical practitioner there would be, (a) very limited capacity for the employer to identify the falsification; and (b) such infrequent occurrence of such misrepresentation that it would be an issue of negligible consequence.

[36] Conversely, there was convincing evidence particularly including that provided by the MUA in Exhibit 5, which demonstrated that on various occasions the term “backdated medical certificate” had been used to describe what I have referred to as a retrospective certificate. In addition, there is a clear practical utility which can be identified if the term “backdated medical certificate” is interpreted to mean a retrospective certificate. It must be recognised that the practical utility of this provision in Appendix 1 is a benefit provided to the employer but which requires some further contemplation.

[37] The corollary of the proper interpretation to be applied to the words “backdated medical certificate” appearing in Appendix 1 of the Agreement is that the employer obtains a capacity to reject a retrospective certificate. Importantly however, the evidence has established that this rejection does not affect any employees’ claim for payment in respect of an absence for which a Personal Leave entitlement exists.

[38] Further, it is important to make it clear that any rejection of retrospective medical certificates which operated to deprive an employee of payment in respect to a Personal Leave entitlement would, in my view, contravene section 107 of the Act. The provisions of Appendix 1 of the Agreement, or any terms of the employer's policy, which purported to provide the employer with the unilateral right to reject any and all retrospective medical certificates as evidence for the purposes of Personal Leave would be a term of the Agreement which conflicted with the provisions of section 107 of the Act.

[39] Specifically, sub-section 107(5) of the Act does not provide for a term relating to the kind of evidence that an employee must provide which would by way of unilateral and universal operation, determine that retrospective medical certificates do not represent evidence that would satisfy a reasonable person for the purposes of sub-section 107(3) of the Act.

[40] To the extent that there may be a tension that could arise between the provisions of sub-section 107(3) and 107(5) of the Act, if the terms of Appendix 1 of the Agreement operated to unilaterally and universally reject retrospective medical certificates as evidence for payment in respect to Personal Leave entitlement, such a term would be unreasonable, oppressive, and self evidently inapplicable in cases which for example, involve hospitalisation for more than one day. Consequently, if the provisions of Appendix 1 of the Agreement were to operate so as to provide the employer with the right to unilaterally reject retrospective medical certificates as unacceptable evidence upon which a Personal Leave entitlement was denied, such an Agreement term would be invalid.

[41] The employer has emphatically stated that the Agreement provisions contained in Appendix 1 which enable it to reject retrospective certificates, have implications only in respect to potential disciplinary processes and/or promotional opportunities. However, any disciplinary action taken against an individual on the basis that the employer had rejected a retrospective medical certificate would proceed upon an unstable foundation. The employer may have some difficulty accepting as a general proposition, that a medical practitioner could certify an illness for a period before any examination of the individual occurred. However, the adoption of a unilateral rejection of retrospective medical certificates represents something of a dangerous intrusion by the employer into an area which, with respect, it has little expertise.

Conclusions

[42] The determination of this dispute has involved the interpretation of particular words in Appendix 1 of the Agreement. The words “backdated medical certificate” were the subject of competing interpretations advanced by the respective Parties. These words should be interpreted having regard for the logical, practical, and commonsense implications which follow from any meaning which they are ascribed.

[43] My consideration leads me to conclude that the words “backdated medical certificates” appearing in Appendix 1 of the Agreement should be interpreted to mean any medical certificate that certified illness in respect to a period before the date that the medical practitioner examined the person and made the certificate. I believe that a more accurate description of what was intended by the terms “backdated medical certificate” is a retrospective medical certificate.

[44] Given the interpretation that is provided for the words “backdated medical certificate”, I have expressed caution and concern about the rejection of any retrospective medical certificates. In summary, a unilateral rejection of retrospective medical certificates which deprived an employee of a Personal Leave entitlement would breach section 107 of the Act. Further, any unilateral rejection of retrospective medical certificates for some other purpose, such as an absentee management plan, represents an action that would be open to challenge and likely successful impeachment.

[45] I note that the nominal expiry date of the Agreement is 30 June 2014. In these circumstances, the Parties are encouraged to:

(A) Clarify the terminology regarding retrospective medical certificates as may be adopted in any instrument which replaces the Agreement; and

(B) Recognise that any absence management plan should include stated mechanisms for case by case considerations regarding the provision of any retrospective medical certificates and any challenge that may be made to the authenticity or validity of such certificates; and

(C) Give consideration to agreeing to alter the cashing out provisions of any replacement for clause 16.9.1(d) of the Agreement from 28 to 15 days in synchronisation with the provisions of sub-section 101(2) of the Act.

[46] The application is determined accordingly and the proceedings are concluded.

COMMISSIONER

Appearances:

Ms L Doust, counsel, together with Mr A Jacka, appeared on behalf of the MUA;

Mr D Perry, solicitor, together with Mr M Stokes, solicitor, from Seyfarth Shaw Australia, appeared on behalf of the employer.

Hearing details:

2014.

Sydney:

March, 5 & 6.

 1   V Tagamalitsky and Commonwealth Bank of Australia AIRC, Cargill C, U No 20757 of 1998, (10 Feb 1999), Print R1709.

 2   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd [2011] FWAFB 2555.

 3 Kucks v CSR Limited [1996] IRCA 166 (19 April 1996), 66IR182.

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