Thomas v Gold Coast Hospital and Health Service
[2018] QMC 14
•8 March 2018
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Thomas v Gold Coast Hospital and Health Service [2018] QMC 14
PARTIES:
Christina Thomas
(Applicant)
v
Gold Coast Hospital and Health Service
(Defendant)
FILE NO/S:
MAG-00183723/17
DIVISION:
Magistrates Courts
PROCEEDING:
Application claiming for paid maternity leave
ORIGINATING COURT:
Brisbane Magistrates Court
DELIVERED ON:
8 March 2018
DELIVERED AT:
Brisbane Magistrates Court
HEARING DATE:
31 January 2018
MAGISTRATE:
AC Thacker
ORDER:
CLAIM GRANTED. The defendant to pay the applicant maternity leave in respect of her employment at the Robina Hospital for the period from 1 March 2016 to 7 June 2016.
CATCHWORDS:
Claim for paid maternity leave – definition of maternity leave and paid and unpaid maternity leave – ambiguity in and between industrial instruments.
COUNSEL:
Ms Garner for the claimant
Mr Murdoch for the defendant
SOLICITORS:
Robertson Kane solicitors for the claimant
Crown Law solicitors for the defendant
The claimant says that the defendant is liable to pay her paid maternity leave in respect of her employment at the Robina Hospital for the period from 1 March 2016 to 7 June 2016.
Chronology
The agreed chronology of events that leads the defendant to deny liability for this claim is as follows:
22 February 2015 Claimant commenced employment with the defendant
10 December 2015 Claimant requested from the defendant:
(a) recreation leave from 1 February 2016 to 29 February 2016 - granted; and
(b) paid maternity leave from 1 March 2016 for 14 weeks – refused
31 January 2016 Midwifery certificate certified the claimant fit for duties as a registered nurse to this day and provided to the defendant
1 February 2016 Claimant commenced her recreation leave
11 February 2016 Claimant gives birth to her child
15 February 2016 Claimant’s “expected date of delivery” of her baby as certified by medical certificate and provided to the defendant
23 February 2016 Claimant has been in “continuous service” with the defendant for 12 months
29 February 2016 Last day of claimant’s recreation leave
1 March 2016 Claimant seeks to commence paid maternity leave
Applicable industrial instruments
The parties agree that the applicable legislation and industrial instruments that bound the defendant in relation to the claimant’s employment and her entitlement to maternity leave were:
a) Industrial Relations Act 2016 (QLD) (“IRA 2016”) and its predecessor Industrial Relations Act 1999 (QLD) (“IRA 1999”);
b) Nurses and Midwives’ (Queensland Health) Certified Agreement (EB8) 2012 (“Certified Agreement”);
c) Queensland Health Nurses and Midwives Award – State 2012 (QHNM Award”);
d) Family Leave (Queensland Public Sector) Award (“Family Leave Award”);
e) Queensland Health Parental Leave Human Resources Policy – C26 (“the Parental Leave Policy”)
f) Paid Parental Leave Directive No. 26 / 10 (“the Directive”)
(hereafter referred to collectively as “the relevant industrial instruments”).
The parties also agree generally about the relationship and hierarchy of applicability as between the relevant industrial instruments. Without opposition Ms Garner for the claimant explained the complexities of the framework within which the relevant industrial instruments operate.
Briefly, there is no contest that the relevant industrial instruments provide that “maternity leave” is a type of “parental leave” and that “maternity leave” includes both paid and unpaid maternity leave. The framework generally provides for a scheme for eligible employees to take up to 14 weeks’ paid maternity leave and unpaid maternity leave up to a total of 52 weeks. To be eligible for paid maternity leave, an employee must have at least 12 months recognised service: see clause 7.3 Parental Leave Policy. There is no qualifying service period to access unpaid parental leave: see clause 2.2 Family Leave Award. All maternity leave must generally finish no later than the first birthday of the child born: see clause 8.1 Parental Leave Policy and clause 4.6 Family Leave Award.
The Family Leave Award is the instrument that really contains the essence of the concept of maternity leave being an acceptable form of proper leave from work. Later then, the Parental Leave Policy develops the maternity leave concept. The parties agree that the certified agreement incorporating the Parental Leave Policy is, to the extent of any inconsistency, the prevailing instrument. However, the parties are in contest because of competing interpretations of the relevant industrial instruments when reading each one as a whole, in particular the Parental Leave Policy, as well as when they are considered together.
Caselaw
The contest over interpretation requires resolution which the parties generally agree can be done by application of the legal principles identified by the full bench of the Fair Work Commission in the case Australian Meat Industry Employees Union v Golden Cockrel Limited [2014] FWCFB 7447 (albeit that case was interpreting an enterprise agreement). Each of the guidelines distilled in that case is useful in the matter before me which is why I set them out in full, as follows:
[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 views 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 intention 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.
Interpretation contested
Reading the chronology of events (at paragraph 2 above) it is plainly noticeable that by 1 March 2016 when the claimant sought to commence paid maternity leave, she had complied with the requirement she be in continuous service with the defendant for 12 months to access paid maternity leave.
The defendant submits that the relevant industrial instruments can operate together with no inconsistency between them. The defendant submits that the 12 months continuous service requirement has however been modified such that the plain chronology cannot operate.
The modification to which the defendant turns involves a more complex rationale of the different and yet sometimes overlapping relevant industrial instruments and their hierarchy of applicability to the claimant. The defendant’s position rests on an interpretation that required the claimant to commence her paid maternity leave at some point in time during the six week period before the certified expected date of delivery of her baby - that being 15 February 2016. The defendant submits it follows that date being prior to 23 February 2016, the claimant had not completed at least 12 months continuous service and so the claim for paid maternity leave was correctly denied.
The parties agree the relevant industrial instruments reveal there are two issues in dispute, namely: whether or not an employee’s maternity leave must commence within the six-week period before the employee’s certified “expected date of delivery” of her baby; and whether or not an employee’s paid maternity leave can commence on a date after her “expected date of delivery” as certified by a medical certificate and provided to her employer.
Looking at the Parental Leave Policy itself I find elementary frustrations caused by lax language and a failure to cross-reference to ensure a consistent application of language. The example of this that perhaps causes most frustration can be found within the Parental Leave Policy at clause 8. It is headed MATERNITY LEAVE with sub-clauses as follows:
8.1 Maternity Leave
8.2 Paid maternity leave
8.3 Paid pre-natal leave
8.4 Unpaid maternity leave
8.5 Period of maternity leave
As I understand the defendant’s submission, clause 8.1 must relate only to unpaid maternity leave because of the inclusion of the phrase “irrespective of the period of service” which phrase the defendant says is only applicable to unpaid maternity leave. However, if that were truly the case why separate clause 8.1 from clause 8.5? This question is posed in the context where there is a clear difference between the terms “maternity leave”, “unpaid maternity leave” and “paid maternity leave” with the phrase “maternity leave” incorporating both unpaid and paid maternity leave as required by the definition at chapter 13 of the Parental Leave Policy. There is no other provision that defines the phrase “maternity leave” as distinct from “unpaid maternity leave” and “paid maternity leave”.
There are other examples that show the drafting of the Parental Leave Policy has not been undertaken to the highest degree of accuracy care that might be expected of such an important instrument. For example, in clause 8 at 8.1 the phrase “a female employee” is used whereas in clause 8.5 the phrase for the same person is “a woman”. At clause 8.6 the same person is referred to as “a pregnant employee”. This does not support reliance on the text without more when reading this instrument.
The hierarchy framework of applicability as between the relevant industrial instruments supports understanding that management of pregnancy and parental responsibilities with work arrangements has undergone significant change that has resulted in changed management through updated industrial instruments. In this exercise it is not difficult to find ambiguity as between the relevant industrial instruments that evidence a change in direction or flexibility culminating in the Parental Leave Policy position. I also notice that overall, as between the relevant industrial instruments, the Parental Leave Policy comes later chronologically and demonstrates a more flexible approach to maternity leave than earlier instruments.
Consequently, I find (by applying various guidelines espoused in the Golden Cockrel case) there is ambiguity of interpretation of the Parental Leave Policy caused by its modification of some earlier instruments where the earlier instruments were far more prescriptive than is the Parental Leave Policy as well as by internal ambiguities within especially the flow of clause 8 itself.
Whether or not an employee’s maternity leave must commence within the six-week period before the employee’s certified “expected date of delivery” of her baby.
The defendant submits that the claimant’s period of maternity leave must commence before 15 February 2016 which is less than 12 months into her continuous service with the defendant by going straight to and relying on clause 8.5 of the Parental Leave Policy and combining a strict reading of the text in clause 8.5 with the provision in clause 8.2 which prescribes that paid maternity leave is to be taken as the initial absence regardless of when the leave is accessed. The effect of clauses 8.1, 8.2 and 8.5 when read together can only reach the interpretation the defendant contends if clause 8 is read by ignoring clause 8.1 in favour of the later sub-clauses.
The claimant submits for a straightforward reading of clause 8.1 commencing with clause 8.1 before moving to the sub-clauses to attach additional clarification only. Under the heading “Maternity Leave” clause 8.1 states:
“A female employee is entitled to take approved maternity leave in one unbroken period at any time after she becomes pregnant…
Maternity leave is to finish no later than the first birthday of the child in relation to who the leave is granted….”
Obvious by its omission in this clause, there is no qualification or restriction to the words “at any time after she becomes pregnant” until the child born turns one.
Clause 8.1 does not apply to any maternity leave. Rather, it speaks of “approved maternity leave”. The claimant submits this is relevant because approval can only relate to what is applied for and she applied for maternity leave commencing 1 March 2016 - a time that was after the claimant had complied with the eligibility requirement she complete “at least more than 12 months recognised service” in accordance with clause 7.3 immediately beforehand which states as follows:
To be eligible for paid maternity … leave, an employee…is to meet the qualifying service period of at least 12 months recognised service.
In clause 7.3 (misquoted as clause 7.2 when it is referenced in clause 8.2) there is no qualification or restriction to this eligibility. Furthermore, the next clause -7.4 headed “Eligibility exceptions” is also mute of any relevant additional qualification or restriction on paid maternity leave. Indeed, at each point from clause 7.3 to clause 8.5 opportunity is available to prescribe eligibility in terms of requiring for some applicants for maternity leave that they would be required to comply with something different from a plain “qualifying service period of at least 12 months recognised service” to obtain their paid maternity leave and yet there is nothing to that effect.
Clause 8.2 headed “Paid maternity leave” provides:
An eligible employee… whose expected date of birth has been confirmed in writing by a medical practitioner is entitled to 14 weeks paid maternity leave, to be taken as the initial absence on such leave regardless of when the leave is accessed.
I notice the clause does not go on to make reference as to when paid maternity leave is to commence. Absence of reference supports that commencement has already been set in clause 8.1. Consequently, the purpose of clause 8.2 is to simply add the condition necessary for paid maternity to be taken as the first period of any maternity leave taken and nothing more than that.
Further evidence clause 8.2 refers back to the entitlement set out in clause 8.1 is the use of the phrase “on such leave” in clause 8.2. This phrase can only sensibly be referrable to clause 8.1. If there was to be prescription to the paid maternity leave one would expect to find it here and so it is instructive that the clause is not only mute on this point but contains reference back to clause 8.1
Clause 8.4 was not referred to by the parties in any detail. However, it is instructive insofar as it too shows that it is only aspects of the fundamental or what might be called the primary entitlement provided for in clause 8.1 that are addressed and not new or different provisions qualifying the entitlement established in clause 8.1.
Clause 8.5 is headed “Period of maternity leave”. Having previously had specific reference made to “Paid” and “Unpaid” (and other maternity leave) it is instructive that the heading draws the reader’s attention once again to the overarching “maternity leave”. Clause 8.5 states:
A woman may start a period of maternity leave at any time within the six week period immediately before the expected date of birth. When she continues to work within that period, she is to provide a medical certificate stating that she is fit to work.
My attention is drawn to two aspects of clause 8.5 in particular: Firstly, the inclusion of the word “may” which raises discretion as to when a period of any maternity leave might start. The claimant submits that clause 8.5 does nothing more than simply permit the “woman” to commence her maternity leave at any time within the six week period immediately before “the expected date of birth” unless she gets a medical certificate enabling her to work on. It does not go further, as the defendant suggests, to compel her to take the leave at no other time than within the six-week period. To achieve that interpretation the defendant has engaged in application of inference.
Secondly, I take into consideration there are no other words in clause 8.5 to manage what happens if “the woman” was on some other approved leave in that six week period. As the claimant points out there are a number of reasons why an employee might commence her maternity leave later and at any time up to the child born turning one year old. For example, she may work right through both her pregnancy and the early days immediately following the birth because there were no complications or disruptions to her work caused by these events. It rather makes sense to refer to clause 8.1 making for smooth comprehension that the entitlement is to be undertaken “in one unbroken period at any time after she becomes pregnant” and that that period may be before the birth “within the six-week period immediately before the expected date of birth” unless she properly works on.
I also take into consideration, especially if she does work on, that flexibility of parental leave from work is also supported in line with the clause 7.1 purpose of the Parental Leave Policy as expressed under the heading “POLICY” which states:
Queensland Health acknowledges the importance of supporting employees with parental responsibilities and the need for flexible work arrangements to facilitate this support.
Furthermore, this flexibility intention is supported when regard is had to the “notorious fact” (using the Australian Meat Industry Employees Union v Golden Cockrel Limited guideline 6 catch-phrase) that pregnancy and young life are not as predictable as might be hoped and /or planned for and so ability for parents to take leave as the employee requires is a first principle of the Parental Leave Policy overall.
Finally, I consider the chronology of the clauses themselves: the prescriptive inferences of interpretation submitted for by the defendant fly in the face of the plain chronological structure of the Parental Leave Policy at clause 7.1 being followed by clause 8.1 being followed by clause 8.5 containing the word “may”.
The problem with the defendant’s selective reading of the Parental Leave Policy is that it ignores the clause 8 heading MATERNITY LEAVE and then continues to ignore clause 8.1 in favour of the later sub-clauses. This is done without any express instruction directing or permitting the reader to do so anywhere within Clause 8.
The defendant seeks to strengthen its position by reference to the Family Leave Award (at clauses 4.10 and 4.11 which deal with minimum period of maternity leave and reducing the minimum period of maternity leave) and combining Family Leave Award clauses with a preference to focus on clause 8.5 Parental Leave Policy instead of commencing application at clause 8.1. Of course the two instruments can operate together but not in such a way as to defeat the accepted hierarchy giving precedence to the Parental Leave Policy. I find no evidence to support such a combination, especially when it relies on a priority to clause 8.5 within clause 8 of the Parental Leave Policy. In any event, it is in the Family Leave Award that recreation leave is permitted to be used instead of (unpaid and paid) maternity leave: see clauses 2.9 and 4.9.1.
Furthermore, the changed or developed position on maternity leave as compared with the prescription of the Family Leave Award is underpinned by the general conditions of clause 11 in the Parental Leave Policy which provides for an overarching principle that an application should not be “unreasonably refused”. When this principal is coupled with the clause 7 “flexible work arrangements” policy the only reasonable way to manage an employee is to firstly, acknowledge they are properly due recreation leave for 12 months continuous work and secondly that all employees seeking maternity leave should be treated similarly unless there are express words requiring a deviation. One must question why is it reasonable for more prescription to be read into the eligibility of an applicant for paid maternity leave without express words detailing that requirement? The answer I find is that there is no reasonable justification (which is why the defendant did not attempt to proffer one).
If special provision was intended for paid maternity leave in the face of these plain efforts to maintain a flexible and reasonable approach to work arrangements one would expect the Parental Leave Policy to say so in either the arrangement of clause 8 (without more, the intentions of the clause should flow chronologically from clause 8.1 rather than overriding clause 8.1) or in express words contained in clause 8.1 and / or clause 8.2 and / or clause 8.5 but certainly not as suggested by the defendant’s fragmented reading of pieces of clause 8 in its sub-clauses.
More specifically within clause 8.5 itself, I consider the placement of the second sentence immediately following upon the first (instead of in a new paragraph, for example) and also including the phrase “within that period” to refer to the first sentence. This composition lends support to clause 8.5 continuing the secondary function to clause 8.1 and meaning only that if the woman continues to work she is to provide a medical certificate rather than trying to say something more than that as the defendant would have the court accept. As Ms Garner pointed out, not being able to work unless the employee has got a medical certificate saying she is fit for duty does not actually compel her to take maternity leave.
It is very clear from clause 8.1 Parental Leave Policy that a female employee is entitled to take approved maternity leave at any time after she is pregnant. It is very clear from the use of the word “may” in clause 8.5 that it is discretionary, not mandatory, for a female employee to commence maternity leave at any time within the six week period immediately before the expected date of delivery and that clause 8.5 is merely clarifying the extra procedure required if the employee wants to continue to work in the six weeks period immediately before the expected date of the birth she is to provide a medical certificate stating that she is fit to work.
My inevitable conclusion is that the sub-clauses of clause 8 after 8.1 merely manage various aspects of the fundamental maternity leave entitlement provided for in clause 8.1
Whether or not an employee’s paid maternity leave can commence on a date after her “expected date of delivery” as certified by a medical certificate and provided to her employer.
There are a number of considerations that influence whether or not the claimant’s paid maternity leave could commence on a date after her expected date of delivery.
Firstly, following the findings above, the Parental Leave Policy provides clearly that she is entitled to take approved maternity leave at any time after she becomes pregnant per clause 8.1.
Apart from the submissions already considered above the defendant does not point to any other parts of the relevant industrial instruments to support there is a prohibition on an employee from working within six weeks of the certified expected date of birth.
To the contrary, overall the relevant industrial instruments show movement towards accommodating management for an employee requiring flexibility of work arrangements to support parental responsibilities and away from mandatory prescription such as prohibiting an employee from working within the six weeks period before the baby’s expected arrival.
The Parental Leave Policy clause 8 requirements for a doctor’s certificate stating an “expected date of birth” and / or that the employee is fit to continue her duties past the six weeks before expected date of delivery is merely a professional calculation of expectations and is not and could not be an accurate mathematical calculation of the date of birth or ongoing fit for duty expectation. An inference placing superior reliance on a medical certificate rather than on what an employee requires for themselves, would contradict the flexible work arrangement aim in Parental Leave Policy at clause 7.1. In these circumstances if it were the intention to all but stop a woman from working within six weeks of the expected date of birth there would need to be very clear words expressing that effect (such as there are in the Family Award but which are overridden by the Parental Leave Policy). As the defendant itself warns, construction which is so curious ought to be eschewed unless clearly expressed by the words used: Amcor Ltd v CFMEU (2005) CLR 241 at 249;
It is also significant that the Family Leave Award at clause 2.9 states:
An employee may take any annual leave or long service leave to which the
employee is entitled instead of or together with parental leave….
and that clause 4.9.1 of the same award states:
An employee may take any annual leave and / or long service leave to which the employee is entitled instead of or together with maternity leave.
These provisions support that the claimant was properly on recreation leave until 29 February 2016. Her recreation leave is of course counted as part of her continuous service. It follows she is in more than 12 months continuous service (from her commencement on 23 February 2015) and could rightly choose (as she did) to take her maternity leave from 1 March 2016. The effect of the requirement she take paid maternity leave first (per clause 8.2 Parental Leave Policy) sits logically then with her taking paid maternity leave from 1 March 2016.
These considerations all support the conclusion that paid maternity leave could commence on a date after the expected date of birth.
The inevitable conclusion is that the defendant unreasonably withheld claimant’s paid maternity leave and should have permitted it to commence on 1 March 2016 by granting approval to her application for it. I Order in favour of the claimant’s claim.
I ORDER:
The defendant to pay the applicant maternity leave in respect of her employment at the Robina Hospital for the period from 1 March 2016 to 7 June 2016.
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