Timothy Barker v Alstom Australia Pty Limited
[2022] FWC 2686
•25 OCTOBER 2022
| [2022] FWC 2686 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Timothy Barker
v
Alstom Australia Pty Limited
(C2022/4073)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 25 OCTOBER 2022 |
Alleged dispute about any matters arising under the enterprise agreement
The dispute and outcome
This decision concerns an application made by Mr Timothy Barker under s 739 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (the Commission) to deal with a dispute about whether Mr Barker was entitled to access or receive ‘pandemic self isolation leave’ under clause 29 of the Alstom Transport Australia Pty Limited Perth Metronet Enterprise Agreement 2021 (the Agreement).[1]
Alstom Australia Pty Ltd (Alstom) had been engaged by the Public Transport Authority of Western Australian to manufacture railcars for the Western Australian Government’s METRONET project (the Project).[2]
As part of its team working on the Project, Alstom employed Mr Barker, an Electrical Fitter, to work on the Project at is Bellevue site in Western Australia. Mr Barker started his employment with Alstom on 29 November 2021[3] and it is uncontroversial that the Agreement applies to Mr Barker and to Alstom.
Mr Barker is a permanent full-time employee and due to the physical nature of his job, it is not possible for him to work from home.[4]
The COVID Transition (Testing and Isolation) Directions issued under the Emergency Management Act 2005 (WA) required a person who had tested positive for COVID-19 (diagnosed person) to isolate for seven days (Schedule 3), and a person who was a ‘close contact’ to isolate for seven days (Schedule 2).[5]
On 13 March 2022, Mr Barker advised his Supervisor that his girlfriend’s daughter had tested positive for COVID-19.[6] He did not attend for work in the period 14 March to 21 March 2022.[7]
On 17 May 2022, Mr Barker applied for pandemic self isolation leave under clause 29 of the Agreement for the abovementioned period (Request). It is accepted by the parties that Mr Barker had informed Alstom on 1 June 2022, he had contracted COVID-19 ‘in March’ and did not contract it at work.[8]
Clause 29 of the Agreement reads:
Where the Australian government has notified of a pandemic and an employee is required by Alstom to self-isolate because of potential exposure through the workplace, and they cannot work from home, Alstom will provide up to 15 working days Special Leave.
This leave is intended to cover the period of self-isolation as dictated by health authorities as well as time for testing to be done and results achieved.
This leave will be available to permanent and fixed task employees only and will be paid at the employee’s ordinary rate of pay (ie shift loadings will not be paid) plus applicable allowances.
Approval of this leave will be granted by the HR Director only and will be correctly recorded in the payroll system by HR.
The Request for pandemic self isolation leave was declined by Alstom on 24 May 2022.[9]
Alstom’s justification for declining the Request is premised on Mr Barker having not contracted COVID-19 at work. The parties accept that there were no positive cases in the workplace at the Bellevue site prior to 14 March 2022.[10] However, Mr Barker holds the view that where he contracted COVID-19 is irrelevant to the operation of clause 29. Understandably, the parties agree that the question to be arbitrated is as follows:
Was the Applicant entitled to access pandemic self isolation leave under clause 29 of the Agreement?
For the following reasons, my answer to the question asked is no.
Background
It is uncontroversial that: (a) there is a dispute between Mr Barker and Alstom, (b) the dispute has been properly notified to the Commission; and (c) the requirements of the dispute settlement procedure have been complied with.
The resolution of the dispute by reference to the question posed turns on the proper construction of the Agreement, in the context of largely uncontested facts. Whilst Mr Barker intended to give evidence at hearing, it was agreed between the parties he was not required for cross examination. Alstom called one witness, a Ms Alanna Billington, HR Director, Australia and New Zealand. Ms Billington formed part of Alstom’s team who had negotiated with the Electrical Trades Union and the Australian Manufacturing Workers’ Union (AMWU) for a proposed greenfields agreement. Ms Billington presented her evidence in a candid manner, informing the Commission when she could, or could not, recall certain detail.
Ms Billington stated that negotiations for a greenfields agreement began around the time the COVID-19 pandemic was starting in Australia.[11] In the early part of 2020, Ms Billington said that the AMWU raised that it wanted Alstom to include in the greenfields agreement provision for paid leave connected with COVID-19.[12]
Ms Billington said that at the time of the negotiations, Alstom already had a clause in its leave procedure that provided for special leave in certain circumstances related to COVID-19 in the workplace. Ms Billington stated the business was therefore agreeable to including an appropriate leave clause in the greenfields agreement.[13]
Following the issue of pandemic leave being raised by the AMWU in a bargaining meeting, Ms Metaxas, of Alstom, sent an email to bargaining representatives (copied to Ms Billington), which provided Alstom’s proposed wording for the special leave clause.[14] Ms Billington said the proposed wording was consistent with Alstom’s leave procedure. The proposed clause read the same as that included in clause 29 of the Agreement and Alstom’s leave procedure, with the exception that Alstom’s leave procedure referred to the ‘COVID-19 pandemic’, not ‘pandemic’.[15]
Ms Billington provided evidence that she recalled discussing the pandemic self isolation leave clause on 27 August 2020, at a bargaining meeting following Ms Metaxas’ email.[16] Whilst the discussions in the meeting about the clause were said to be brief, Ms Billington recalled having said words to the effect that the purpose of the clause was to provide paid leave where an employee was required to self-isolate, either because they had contracted COVID-19 in the workplace or because they were a close contact of someone in the workplace who had contracted COVID-19, the result of which was Alstom requiring the employee to isolate.[17]
The parties accepted that as of 13 March 2022, the operative health direction in Western Australia which was relevant to self-isolation was the Covid Transition (Testing and Isolation) Directions (No 4) (Transition Direction No 4), which was made at 17:45 (AWST), 9 March 2022 and came into effect at 12:01 am (AWST), 10 March 2022. Transition Direction No 4 revoked the Covid Transition (Testing and Isolation) Direction (No 3) (Transition Direction No 3) and remained in effect until 17:24 (AWST), 16 March 2022 when it was revoked by the Covid Transition (Testing and Isolation) Direction (No 5) (Transition Direction No 5).
Under Transition Direction No 4, Mr Barker was defined as a ‘Close Contact’ as of 13 March 2022. Under s 20(b), a ‘Close Contact’ included a person who has had a ‘Close
Personal Interaction’ with a ‘Diagnosed Person’. Under s 21, a Close Personal Interaction
included face to face contact for more than 15 minutes where neither person is wearing a
mask. Mr Barker contends that his girlfriend’s daughter was a diagnosed person and he had
frequently been in the same room as her since at least 11 March 2022. Mr Barker submits that under s 2 of the Transition Direction No 4, he was required to isolate for a period of at least seven days from 13 March 2022.
Mr Barker said he took a COVID-19 test on 13 March 2022 and tested negative.[18] He took a COVID-19 test again on 16 March 2022 and tested positive for the first time.[19] Mr Barker asserts that for the purposes of Transition Direction No 4, he was a diagnosed person and was required to isolate for 7 days from 16 March 2022. Transition Direction No 5 did not come into effect until the evening of 16 March 2022, and in Mr Barker’s view is unlikely to have applied to him. In any event, said Mr Barker, Transition Direction No 5 had substantially similar requirements as Transition Direction No 4, at least in respect of Diagnosed Persons.
Alstom has a policy with respect to COVID-19 which is contained in its Environmental Health and Safety Policy (the policy).[20] The policy came into effect on 6 December 2021 and was in effect during Mr Barker’s period of self-isolation.[21]
Mr Barker contended that with respect to self-isolation, Alstom’s policy incorporated any applicable local health regulations. In support of his contention, Mr Barker relied upon the following clause in Alstom’s policy (Incorporation Clause):
Measures vary from country to country according to local regulations. Each country/site must refer to their local regulations and apply them if they are more stringent.[22]
According to Mr Barker, through the operation of its policy, Alstom required Mr Barker:
a) to self-isolate from 13 March 2022 for a period of seven days because he was a close contact for the purpose of Transition Direction No 4; and
b) self-isolate from 16 March 2022 for a period of seven days because Mr Barker was a diagnosed person for the purposes of Transition Direction No 4.
Mr Barker contended that the stated purpose of Transition Direction No 4 (which he says was incorporated into Alstom’s policy by virtue of the Incorporation Clause) was to ‘prevent the importation of COVID-19 into the Western Australian Community and to otherwise limit the spread of COVID-19 in Western Australia’.[23]
Mr Barker argues that Alstom required him to self-isolate by means of a direction issued from his Supervisor on 13 March 2022. The text message between Mr Barker and his Supervisor read as follows:
Sunday, 13 March 2022
Hi mate.
I have just found out I’m a close contact for covid. But I am testing neg Just seeking clarification if we are essential workers and hence still need to work or if I need to isolateYou need to follow government guidelines if you fall into any of the close contract categories you need to isolate but these have been relaxed in the last few weeks. There is a help line you can call
Yeah. Looking at them if I’m an essential worker its just test in the morning and charge on but if not its isolation for 7 days.
I don’t think we fall into category of essential worker. Has someone in your house tested positive?
Yeah girlfriends daughter just did. Have been with them all weekend.
Sounds like your close contact mate gonna need to isolate
Roger then won’t be in this week[24]
Mr Barker observed that the relevant health directions in effect at the time the Agreement was made were the Isolation (Diagnosed) Directions (No 2) and the Quarantine and Isolation (Undiagnosed) Directions (No 2) (collectively the December Directions). The December Directions both came into effect on 4 December 2020.
Principles of construction
The principles of construction relevant to interpreting an enterprise agreement have been articulated in the judgment of the Full Federal Court in WorkPac Pt Ltd v Skene (Skene).[25] This Commission has repeated these principles at first instance and on appeal,[26] in the terms traversed in the next paragraph.
Interpreting an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made, or in which it operates, may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the agreement remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach. [27]
The submissions
The parties filed written submissions which edged toward an apt descriptor of prolix. For this reason, I considered it preferable to deal with their submissions when examining the relevant sentences of clause 29. However, I have extracted some of their more general submissions under this part.
4.1Mr Barker’s submissions
Mr Barker framed the dispute as being one about the proper construction of clause 29 of the Agreement. He noted that clause 29 imposed a requirement upon Alstom to provide pandemic self isolation leave in circumstances where an employee is required either by health authorities or the employer to self-isolate, in order to limit the spread of COVID-19.
Mr Barker said that this construction was clear when one considered: (a) the plain reading of the clause when taken as a whole; and (b) the context of the Agreement.
In the alternative, Mr Barker pressed for the following construction of clause 29. Namely, it imposed upon Alstom a requirement to provide pandemic self isolation leave in the following circumstances:
a) the employer requires an employee to self-isolate; and
b) the reason for the requirement is the potential exposure of any person to COVID-19 within the workplace.
Mr Barker submitted that either of the above two constructions result in him being entitled to pandemic self isolation leave, because:
a) he was required to self-isolate by health authorities in order to limit the spread of COVID-19;
b) he was in the circumstances also required to self-isolate by Alstom; and
c) a reason for the employer’s requirement was the potential exposure of any person to COVID-19 within the workplace.
Mr Barker pointed out that the Commission’s task is to consider the ordinary meaning of the words in clause 29, but ultimately, and as per the second and third principles in AMWU v Berri Limited, the Commission’s task is to give effect to the objectively ascertainable intention of the parties.[28] Mr Barker submitted that the Commission cannot adopt an overly pedantic approach, and it is appropriate for it to adopt a purposive approach. Regard was also to be had to the disputed provision’s place in the Agreement.
Mr Barker observed that clause 29 was particularly helpful because it explicitly states its purpose and intended application, noting at the second paragraph:
This leave is intended to cover the period of self-isolation as dictated by health authorities as well as time for testing to be done and results achieved.
Mr Barker argued that the Commission must give a meaning to the second paragraph first, and construe other ones in light of it. This was because, said Mr Barker, the second paragraph determined the objective intention of clause 29, which the Commission must take into account when construing the provision as a whole. Mr Barker acknowledged that the Commission could not simply rewrite the other parts of clause 29 if the only meaning to which they are susceptible contradicts the second paragraph. But, if those other parts were susceptible to more than one meaning, the Commission must opt for the meaning which best gives effect to the objective intention of the parties.
Alstom’s submissions
Alstom’s first observation about Mr Barker’s construction of clause 29, was that despite Mr Barker accepting that the Commission should not take an overly pedantic approach in interpreting clause 29, he had done just that. Alstom submitted that Mr Barker’s submissions had descended into deconstructing phrases and words, in search of an interpretation of clause 29 that is not open.
Alstom submitted that it was useful to first consider the structure of clause 29 as a whole. It asserted:
a) the first sentence is directed at circumstances in which an entitlement to pandemic special leave arises;
b) the second sentence identifies the purposes of the leave, assuming an entitlement has arisen;
c) the third sentence qualifies the entitlement to certain employees, and identifies the rate of pay for an employee accessing the leave; and
d) the fourth sentence prescribes a process for applying the leave.
Consideration
Alstom submitted that the sensible starting point is the first sentence of clause 29. I do not disagree with this proposition, but before providing a detailed consideration of clause 29, it is necessary to deal briefly with two points.
First, clause 29 is located within the ‘leave’ provisions of the Agreement. It is apparent that the type of leave is not one provided for under the National Employment Standards, albeit from around 2020, modern awards provided access to unpaid pandemic leave. It is further observed that clause 29 does not mirror the clause included in modern awards which conferred such unpaid leave. In its submissions, Alstom highlighted the difference between the content of the unpaid leave provision in the modern awards and clause 29 of the Agreement. [29] Alstom drew the conclusion that given clause 29 was materially different to the clause within the modern awards, this objectively demonstrated that the intention of the parties was to entitle employees to access paid leave in far narrower circumstances.
Alstom’s submission is speculative. It is drawn perhaps from a presumption that those that bargained for the Agreement were aware of the unpaid leave provision in the modern award, discussed the same during the course of bargaining and reached a position where the parties included a clause of different wording to evince the purported intent that Alstom advances. However, there is little in the way of objective evidence to support such contention, and on this basis, I consider Alstom’s submissions do little to advance its case.
Second, Ms Billington gave evidence that at a bargaining meeting on 27 August 2020, she conveyed to those in attendance that the purpose of the proposed clause, which later became clause 29, was to provide paid leave in circumstances where an employee was required to self-isolate because they had contracted COVID-19 in the workplace or because they were a close contact of someone in the workplace who had contracted COVID-19, resulting in Alstom now requiring the employee to isolate.[30]
I do not consider that Ms Billington’s evidence can legitimately aid the construction of clause 29 since it does no more than describe what she understood the purpose of the clause to be. Whilst Ms Billington noted that none of the attendees at the meeting raised any concern about the intent of the clause as she had articulated it to them or the proposed drafting, there is again no objective evidence adduced such as minutes of the bargaining meeting or the like, which would shed light on a common understanding – were there one.
Turning then to the text of the clause 29 and its first sentence, which reads:
Where the Australian government has notified of a pandemic and an employee is required by Alstom to self-isolate because of potential exposure through the workplace, and they cannot work from home, Alstom will provide up to 15 working days Special Leave.
Conceivably the first ‘clause’ of clause 29, is the statement, ‘[W]here the Australian government has notified of a pandemic’. Briefly stated, the clause appears to be a sentence fragment on the basis it expresses an incomplete thought. It sets the scene however that clause 29 operates when the Australian government has notified of a pandemic, but does no more than that.
The word ‘and’ is next encountered. In my view, its purpose is to join the first clause, a sentence fragment, with the next clause, which is a complex clause. To that end, it can be seen as simply a coordinating conjunction. Mr Barker referred to the conjunction as a cumulative conjunction, an observation to which I hold no opposition. Shortly stated, a cumulative conjunction exists as a type of coordinating conjunction. However, I doubt that those negotiating the agreement had that thought at front of mind and I make no suggestion that they should have.
The next clause starts with, ‘an employee is required by Alstom to self-isolate’. I am loathe to dislocate this part of the clause from ‘because of potential exposure through the workplace’ because I consider in doing so, I am removing a dependent adverb clause from the independent clause. However, the parties opted to frame their submissions in this manner and for ease of reading I have done the same. Both were at odds as to what to make of this clause, with Mr Barker pressing two arguments regarding its construction.
Mr Barker proposed that the phrase ‘required by Alstom’, can be read in the passive voice whereby Alstom is the subject and performs the action of requiring. When used as a transitive verb, ‘require’ can be either dynamic (e.g. ‘my employer required me to come into work early today’) or stative (‘the employer requires employees to come into work at 7 am every day’). Mr Barker submitted that clause 29 refers to a situation where the employer requires an employee to self-isolate by means of an active direction or existence of an employer policy, custom or practice.
The words ‘required by Alstom’ are plain and unambiguous, said Alstom. Alstom identified that clause 29 imposes a requirement on the employee to isolate, and that Alstom imposes that requirement. Alstom pressed that this interpretation is in conformity with the ordinary meaning of the phrase ‘required by Alstom’ and the use of the word ‘required’ in each of clauses 10, 23 and 34.
However, Mr Barker submitted that the phrase ‘required by Alstom’, can also be read as itself imputing a requirement on Alstom by the overall operation of clause 29. Mr Barker continued, that the word ‘require’ is used in this way in other parts of the Agreement, and provided the following examples:
a) Clause 10 states: ‘prior to any absence from work, employees are required to notify their direct supervisor as early as practicable’.
b) Clause 23 states: ‘Employees are required to promptly notify their immediate supervisor of any illness or injury that will cause the employee to be absent’.
c) Clause 34 states: ‘Employee shall be required to provide proof of attendance at the
Red Cross Blood Centre upon return to work.’
Regarding clauses 10 and 23, Mr Barker submitted that the subject of the requirement is the supervisor notwithstanding the actions of the supervisor were irrelevant. Mr Barker continued that the supervisor may not require an employee to do anything, but a requirement is imputed by operation of the clause. In the case of clause 34, Mr Barker emphasised that the subject of the requirement is the employer but again the action of the employer is irrelevant. The requirement per se is imputed where there is a particular circumstance.
According to Mr Barker, this sense of ‘required by Alstom’ becomes apparent when one considers the preceding phrase ‘where the Australian government has notified of a pandemic’. The conjunction ‘and’ can be used cumulatively to express two preconditions. However, ‘and’ can also be used as a correlative whereby it connects two concepts.
Mr Barker submitted that in its ordinary meaning, the first sentence can also be read as meaning the same as: ‘where the Australian government has notified of a pandemic and an employee is therefore required by Alstom.’ Mr Barker stated that this is not reading words into the Agreement. Rather, it is an alternate expression of the sentence when assuming that ‘and’ is used to subordinate one clause to the other.
Mr Barker continued that read this way, Alstom’s requirement for an employee to self-isolate becomes a state of affairs imputed by the Agreement, by virtue of there being a pandemic notified by the government. That requirement is then circumscribed by the rest of the clause to one of self-isolation, as dictated by health authorities. Mr Barker added that whilst this may prove to be a strained reading, it was, nonetheless, the only reading available that did not contradict the second paragraph.
Alstom pointed out that to construe the sentence as meaning ‘where the Australian government has notified of a pandemic and an employee is therefore required by Alstom’ (as urged by Mr Barker at paragraph [49] of his submissions), involved reading words into the clause. Alstom further noted that such construction imposed a requirement on Alstom inconsistent with the plain meaning of clause 29 and the text of the Agreement more broadly.
Alstom argued that Mr Barker’s construction rendered the words ‘by Alstom’ redundant. Alstom observed that this is apparent from Mr Barker’s submissions at paragraphs [49] and [50], where Mr Barker contended that Alstom's requirement to isolate was ‘imputed’ because of government directives in place at the time that mandated isolation. Alstom perceived that the effect of Mr Barker’s construction is that any employee who contracted COVID-19 or was a close contact (whether by reason of being in the workplace or otherwise), was ‘required by Alstom’ to isolate even if Alstom had not directed them to do so. According to Alstom that construction requires words to be read in, other words ignored, and is otherwise entirely inconsistent with the plain and ordinary meaning of the words used in clause 29.
Alstom further contended that where the Agreement refers to 'requirements' it does so in two ways. First, it can refer to 'standing' requirements, for example, the requirement to promptly notify a supervisor of absence due to illness or injury (clause 23(b)). Second, it can refer to a requirement being imposed by Alstom after another event, for example if the Alstom shuts down or all or part of its business it can require employees to take leave (clause 22).
In clause 29 'require' is used in the latter sense, said Alstom. Alstom submitted that it is apparent from the clause that the 'requirement' is a consequence of another event – that is, potential exposure in the workplace. Because the requirement is contingent on the happening of another event, the word 'require' in clause 29 refers to a response by Alstom (namely a direction or requirement) upon the occurrence of a potential exposure event in the workplace.
In my view, the use of the passive voice may render the clause somewhat difficult to read. Effectively, the clause may be construed as, ‘Alstom requires an employee to self-isolate’. The clause is an independent clause. The word ‘requirement’ connotes that Alstom provides an instruction to the employee to isolate. There is no qualification as to whether the instruction is to be verbal or written. Further, if written, there is no requirement that the written instruction is to be situated in a code of conduct, procedure, contract, policy, warning, file note, or text message. As to Mr Barker’s construction that Alstom’s requirement for an employee to self-isolate becomes a state of affairs imputed by the Agreement by virtue of there being a pandemic notified by the government, I am not so persuaded.
This independent clause is then followed by the subordinating conjunction ‘because’.
…an employee is required by Alstom to self-isolate because of potential exposure through the workplace…
It is the next part of the clause that perhaps bears responsibility for the controversy now on foot. That part reads ‘because of potential exposure through the workplace,’. As noted, it is a subordinate clause to the independent clause of an ‘employee is required by Alstom to self-isolate’. It modifies the word ‘required’, as it informs why the requirement is enlivened.
Mr Barker acknowledged that there must be some causal connection between the requirement to self-isolate and potential exposure through the workplace. However, he noted that clause 29 did not say that potential exposure is the only reason. Mr Barker pressed that if ‘required by Alstom’ were read as meaning a government requirement imputed to Alstom, there must be some connection between that requirement and the potential exposure of a pandemic disease through the workplace.
Proceeding on the basis that the ordinary meaning of the words must be considered, Mr Barker submitted that the word ‘potential’ is used in clause 29 as an adjective for the noun ‘exposure’. Referring to the definition attributed to the word by the Australian Concise Oxford Dictionary, Mr Barker stated that ‘potential’ meant, ‘capable of coming into being or action; latent’.[31]
Regarding the word ‘exposure’ and ‘expose’, Mr Barker provided the following definitions, again drawn from the Australian Concise Oxford Dictionary:
Exposure
1. Noun (foll by to) The act or condition of exposing or being exposed (to air, cold, danger, etc);
2. Noun. The condition of being exposed to the elements, esp. in severe conditions (died from exposure).[32]
Expose
1. Transitive. Leave uncovered or unprotected, esp. from weather
2. Transitive. (foll by to):
a. put at risk of (was exposed to great danger).
b. lay open, subject or introduce to (an influence etc)
3. Adjective (as ‘exposed’ foll by to)
a. open to; unprotected from (exposed to the east)
b. vulnerable; risk.[33]
Mr Barker submitted that given the context of the Agreement and its intention, ‘exposure’ must be understood in the first sense, and ‘expose’ in the second sense or third sense.
Mr Barker observed that the noun ‘exposure’ had been modified in only two ways, by the adjective ‘potential’ and by the prepositional phrase ‘through the workplace’. Mr Barker added that the prepositional phrase ‘through the workplace’ locates exposure in the workplace while the adjective ‘potential’ gives it the quality of latency or capability. In other words, said Mr Barker, ‘potential exposure through the workplace’ cannot refer to an actual exposure to the disease. Instead, it referred to an exposure to the disease that was capable of coming into being.
Alstom pressed that the words ‘because of’ necessitate a causal connection between the requirement by Alstom that the employee isolate, and potential exposure through the workplace. Alstom observed that whilst Mr Barker had accepted that proposition, his contention was that potential exposure need not be the only reason, and that, said Alstom, should be rejected.
Regarding the use of the word ‘because’, Alstom said that the word mandated an inquiry into the reason for the requirement to self-isolate, that is, why did Alstom require the employee to self-isolate? Alstom continued that to be entitled to pandemic special leave, the answer to that question must be ‘because of potential exposure through the workplace’.
As to what is meant by the phrase ‘potential exposure through the workplace’, Alstom referred to the Macquarie Dictionary meaning of ‘exposure’ – ‘Noun 1, the act of exposing… 8. a state of being exposed’. Alstom then referred to the context in which clause 29 operates, which it said sheds light on the meaning to be attributed to the word.
With respect to context, Alstom stated that during the pandemic, particularly early on in the pandemic, governments, including Western Australia, kept records of ‘exposure sites’. The Exposure Site (Western Australia) Directions (No 2) (Exposure Site Directions) referred to a website at which details of exposure sites were recorded. Those directions referred also to ‘tier 1’ and ‘tier 2’ exposure sites. Reference was made by Alstom to the definition given to ‘exposure site’ under the Exposure Site Directions and ‘exposure period’.
Alstom contended that in that context, it is apparent that the word ‘exposure’ is used in the sense of the ‘act of exposing’ or ‘state of being exposed’ having already occurred (past tense).
On this basis, Alstom concluded that the words ‘potential exposure through the workplace’ in clause 29, refer to a situation where an employee may have been exposed in the workplace, and as a result of which, Alstom requires that employee to isolate and provides them with paid leave.
Alstom argued that Mr Barker’s construction is inconsistent with the ordinary meaning of the words of the clause, and requires words to be read in. It continued that Mr Barker contends that the clause should be construed as ‘… an employee is required by Alstom to self-isolate because of, or to avoid, potential exposure through the workplace…’. Alstom again argued such construction is not open.
Alstom proffered a further reason why its construction should be preferred. It said that the effect of Mr Barker's construction is that any employee who was a positive case or a close contact (regardless of how that position came about) was entitled to paid pandemic special leave. Alstom noted that if that was the intention of the clause it would simply say, ‘Employees who are required to isolate in accordance with local health directives are entitled to 15 days paid special leave’.
By way of example, Alstom referred to a circumstance where the construction of clause 29 led to an outcome that an employee, who having disregarded health advice and travelled to a hotspot in their personal time, contracted COVID-19 or became a close contact, and received 15 days paid special leave. Alstom said that plainly this is not the intention of clause 29, and it is objectively inconceivable that an employer would commit to providing 15 days paid leave to employees in such circumstances.
Returning to the text of the first paragraph in clause 29, and as previously noted, the independent clause ‘an employee is required by Alstom to self-isolate’ is followed by the subordinating conjunction ‘because’, which introduces the phrase– ‘of potential exposure through the workplace’. That phrase modifies the independent clause, telling those covered by the Agreement, that the reason why they are required to self-isolate is ‘because of potential exposure through the workplace’. As to the operation of that phrase (adverbial clause), I consider Alstom’s construction to be correct.
As stated earlier, Alstom referred to the Macquarie Dictionary meaning of ‘exposure’, defining the word as ‘Noun 1, the act of exposing… 8. a state of being exposed’. It is that latter part of the definition, which sits in conformity with the use of the word ‘potential’ in this context. In this way, the clause conveys that the requirement to self-isolate is because the employee has potentially been exposed (a state of being exposed) through the workplace.
I observed that clause 29 sits within the leave provisions in the Agreement. The Agreement prescribes an entitlement to be absent from work ‘due to personal illness or injury (sick leave)’ see clause 23(a)(i). Understandably, clause 23, personal/carer’s leave, makes no attempt to set parameters regarding the aetiology of the illness or injury. This sits in contrast to clause 29, which stipulates the origin or cause of the requirement to ‘self-isolate’. The word ‘because’ is absent from clause 23(a)(i). Yet, clause 29 sets about prescribing with particularity, why the requirement to self-isolate has been triggered. In this light, the word ‘because’ can be seen to limit the availability of pandemic self isolation leave to a circumstance of ‘potential exposure through the workplace’.
Clause 29 again limits the availability of pandemic self isolation leave to a circumstance where an employee cannot work from home. The phrase ‘because of potential exposure through the workplace’ is followed by another coordinating conjunction – ‘and’. The limitation is cumulative upon the preceding limitation.
However, the construction of the first paragraph in clause 29 is informed by the remaining sentences in clause 29. The second paragraph reads:
This leave is intended to cover the period of self-isolation as dictated by health authorities as well as time for testing to be done and results achieved.
Mr Barker referred to the context in which the Agreement was made, noting at that time the December Orders were in place. Mr Barker submitted that regard could be had to extrinsic evidence to determine whether an ambiguity existed and in this respect the December Orders and the circumstances of the pandemic were appropriate considerations. Mr Barker noted that the December Orders stipulated the circumstances in which people had to isolate and identified a clear purpose, of limiting the spread of COVID-19 in light of a declaration of emergency. Mr Barker highlighted that it was clearly known to the parties at the time of making the Agreement that health authorities may require parties to isolate for a period of two weeks, and it was also known that such ‘orders’ were liable to sudden and unexpected change.
Insofar as clause 29 referred to the phrase ‘as dictated by health authorities’, Mr Barker stated that the Australian Concise Oxford Dictionary gives the following definition of ‘dictate’ when used as a verb:
1. Transitive: say or read aloud (words to be written down or recorded)
2. Transitive: prescribe or lay down authoritatively (terms, thing to be done)
3. Intransitive: to lay down the law; give orders[34]
Mr Barker submitted that the word ‘dictate’ is used as a transitive verb in the clause, with health authorities being the subject and ‘period of isolation’ being the direct object. Mr Barker further submitted that as the subject is essentially the Government, the context requires ‘dictate’ to be read in the sense of meaning to ‘prescribe’. Mr Barker stated, in other words, the ordinary meaning of the word ‘dictate’, is an act of writing or speaking of binding effect.
Mr Barker concluded that the plain and ordinary meaning of ‘period of self-isolation as dictated by health authorities’ is the legally required period of isolation which is stipulated in a legally binding government direction or regulation. According to Mr Barker, clause 29 is intended to apply to a situation where a person is legally required, by virtue of a legally binding direction or regulation, to isolate, and where the purpose of that direction or regulation is to limit the spread of a pandemic.
In respect of that part of the clause that referenced ‘testing to be done and results received’, Mr Barker submitted that these were requirements under the relevant direction in any event, and notwithstanding, the use of the conjunction ‘and’ implied that the ‘period of isolation as dictated by health authorities’, is merely the minimum period it is intended to cover.
In his submissions in reply, Mr Barker explained that there were only two readings available to the Commission with respect to clause 29. They were:
a)an employee is entitled to special paid pandemic leave where the employer requires
them to isolate because of a potential exposure through the workplace; or
b)an employee is entitled to special paid pandemic leave where they are required to
self-isolate due to government health directives about potential exposures.
Mr Barker pressed that if the Commission were to accept Alstom’s submissions, the second construction requires a strained reading of the words ‘where the Australian government has notified of, and an employee is required by Alstom’. However, Mr Barker continued that the first reading requires an even more strained reading of clause 29 as a whole. This is because it requires the Commission to completely ignore and read out an entire paragraph which explicitly stated the intended operation of the preceding one. According to Mr Barker, this is more drastic than merely adopting a strained but nonetheless available reading.
It is uncontroversial that clause 29 identifies the purpose of the leave in its second paragraph (or second sentence). It confirms that the leave is intended to cover, the ‘period of self-isolation as dictated by health authorities’, and the ‘time for testing to be done and the results received’. According to Alstom, that plainly contemplates that the requirement by Alstom is imposed prior to confirmation that the employee has returned a positive result or is required to isolate – that is, the requirement is imposed by Alstom after it becomes aware of a potential exposure event in the workplace. When that requirement is imposed, the employee is required to self-isolate, and receives paid leave to permit them to obtain a test, to isolate awaiting the results of the test, and if necessary, to remain in isolation.
It has been said that the framers of documents such as enterprise agreements were likely of a ‘practical bent of mind’ and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.[35] When one considers the text of the second paragraph of clause 29, it is evident that the words ‘as well as time’ indicates a period in addition to the period of ‘self-isolation’ dictated by health authorities. The construction of the second paragraph as advanced by Alstom, accords with the plain and ordinary meaning of the words within that paragraph and the context of clause 29 as a whole.
With respect to the remaining two paragraphs of clause 29, they do not assist with discerning what was meant by the framers of the Agreement in respect of the preceding two paragraphs.
Conclusion
To conclude, I consider that on first blush clause 29 may prove difficult to comprehend and it is by all accounts ambiguous. However, I consider there was little by way of probative extrinsic evidence that illuminated the clause’s construction – hence my focus on the text of the Agreement and the adoption of a purposive approach to interpretation.
Counsel for Mr Barker alerted this Commission that the enterprise agreement under scrutiny is a greenfields agreement and that this may have bearing on the principles of construction as articulated in Skene. The principles that govern the interpretation of enterprise agreements are well-established and at this point, it is not apparent that such principles have been modified or otherwise departed from when it comes to the construction of a greenfields agreement.
Alstom advanced an argument that the text from Mr Barker’s Supervisor failed to constitute an instruction to self-isolate. Insofar as it is relevant, I am not persuaded that this is the case. I consider the statement ‘[s]ounds like your [sic] close contact mate gonna need to isolate’, to constitute an instruction to Mr Barker that he needed to isolate. That instruction came from Mr Barker’s Supervisor, and there was no evidence before me to suggest that the Supervisor was absent authority to provide such instruction. Mr Barker thereafter confirmed his compliance with the instruction, by the text message – ‘Roger then won’t be in this week’.
However, as alluded, this point proves irrelevant in all the circumstances because Mr Barker was not potentially exposed to COVID-19 through the workplace and therefore was ineligible for pandemic self isolation leave.
To conclude, clause 29 of the Agreement operates in circumstances where an employee has been potentially exposed to a pandemic disease in the workplace, in this case COVID-19, and as a result of which, Alstom requires that employee to self-isolate for the purpose of complying with the period of self-isolation as dictated by health authorities and for the time for testing to be done and results achieved.
DEPUTY PRESIDENT
Appearances:
Mr A. Aghazarian of the ETU on behalf of the Applicant;
Mr P. Lawler of Ashurst on behalf of the Respondent.
Hearing details:
Tuesday, 11 October 2022
Video (Via Microsoft Teams)
Final written submissions:
Applicant - 5 October 2022;
Respondent – 27 September 2022.
[1] [2021] FWCA 1133; AE510620; PR727439.
[2] Statement of Agreed Facts, [1] (SOAF).
[3] Ibid [2].
[4] Ibid [3].
[5] Ibid [5].
[6] Ibid [6].
[7] Ibid [7].
[8] Ibid [10].
[9] Ibid [9].
[10] Ibid [11].
[11] Witness Statement of Ms Alanna Billington, [11] (Billington Statement).
[12] Ibid [12].
[13] Ibid [13].
[14] Ibid [14].
[15] Ibid [14], Annexure A.
[16] Ibid [16].
[17] Ibid [17].
[18] Witness Statement of Mr Timothy Barker, [8] (Barker Statement).
[19] Ibid.
[20] Ibid [4]-[6].
[21] Ibid.
[22] Ibid, Annexure TB-1.
[23] Covid Transition (Testing and Isolation) Directions (No 4) s 1 (Transition Direction No 4).
[24] Barker Statement (n 18), Annexure TB-2; Digital Hearing Book, 35.
[25] WorkPac Pty Ltd v Skene (2018) 264 FCR 536, [197] (Skene) and the authorities referred to therein; see also King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173, [122]-[130] and the authorities referred to therein (The analysis of the principles of construction set out therein were not disturbed on appeal: see King v Melbourne Vicentre Swimming Club Inc (2021) 308 IR 171, [40]-[43]).
[26] The Australian Workers’ Union as authorised representative of several employees covered by the Agreement v Orica Australia Pty Ltd[2022] FWCFB 90, [18] (Orica); Jetstar Airways Pty Ltd T/A Jetstar Airways v Australian Licenced Aircraft Engineers Association, The[2021] FWCFB 1696 (Jetstar); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) & Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australiav KDR Victoria Pty Ltd T/A Yarra Trams[2021] FWC 6160 (KDR Victoria).
[27] Orica (n 26) [18]; Jetstar (n 26); KDR Victoria (n 26).
[28] AMWU v Berri Limited [2017 FWCFB 3004, [114].
[29] [2020] FWCFB 1760; AM2020/12; PR718005.
[30] Billington Statement (n 11) [17].
[31] The Australian Concise Oxford Dictionary of Current English (3rd Ed, 1997) ‘Potential’.
[32] The Australian Concise Oxford Dictionary of Current English (3rd Ed, 1997) ‘Exposure’.
[33] The Australian Concise Oxford Dictionary of Current English (3rd Ed, 1997) ‘Expose’.
[34] The Australian Concise Oxford Dictionary of Current English (3rd Ed, 1997) ‘Dictate’.
[35] Kucks v CSR Ltd (1996) 66 IR 182, 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67, [16] (Marshall, Tracey and Flick JJ); Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, [96] (Kirby J).
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