United Firefighters' Union of Australia v Transfield Services (Australia) Pty Ltd T/A Transfield Services
[2015] FWC 3100
•5 MAY 2015
| [2015] FWC 3100 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
United Firefighters' Union of Australia
v
Transfield Services (Australia) Pty Ltd T/A Transfield Services
(C2014/1055)
COMMISSIONER WILSON | MELBOURNE, 5 MAY 2015 |
Application for the Fair Work Commission to deal with a dispute. Accrual of personal leave entitlements under an enterprise agreement..
[1] Peter Atkinson started employment with Transfield Services (Australia) Pty Ltd on 24 June 1999 and is now a Senior Firefighter, working full-time for Transfield Services in association with services the company provides at the RAAF Pearce Air Base in Western Australia. His employment is covered by the Transfield Services (Australia) Pty Ltd GSS (WA) and United Firefighters’ Union of Australia (WA Branch) Fire and Rescue Enterprise Agreement 2011 1 (referred to as the “2011 Agreement”) and has previously been covered by four other enterprise agreements, referred to as the 1999, 2002, 2005 and 2009 Agreements.2
[2] The application before the Fair Work Commission (FWC) made by his union, the United Firefighters’ Union of Australia (West Australia Branch) (referred to as “UFU WA”) is made pursuant to s.739 of the Fair Work Act 2009 (“the Act”), and concerns the correct accrual of personal leave for Mr Atkinson, and in particular in the period between 24 June 2011 and 21 June 2012. The UFU WA makes two claims as follows;
“a. Claim 1: Peter is owed 116.31 hours of sick leave for the period between 24 June 2011 and 21 June 2012.
b. Claim 2: On 23 May 2012, Transfield deducted 0.96 hours of sick leave from Peter. This is despite Peter not actually taking 0.96 hours of sick leave. Transfield should re-credit Peter with 0.96 hours of sick leave.” 3
[3] The 2011 Agreement provides the following for the resolution of disputes arising between the parties;
“8. DISPUTE RESOLUTION
8.1. There shall be effective means of consultation between the employer, its employee(s) and the Union or other employee representatives on all matters pertaining to the employment relationship and the following procedure shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance:
Step 1 The dispute or grievance shall be submitted by the employee representative and/or employee(s) to the employee's immediate supervisor.
Step 2 If not settled at Step 1, the matter shall be submitted to the FSM.
Step 3 If not settled at Step 2, the matter shall be recorded. The matter shall be submitted to the Technical Services Manager for consultation.
Steps 1 - 3 must be concluded within a period of ten consecutive days.
Step 4 If the matter is not settled at Step 3, the dispute or grievance shall be formally submitted in writing to the Manager responsible for Industrial Relations, setting out details of the dispute or grievance and, where appropriate, with supporting documentation. The Manager shall convene a meeting of the parties within a period of one (1) week of receipt of such submissions and endeavour to reach a satisfactory settlement.
Step 5 If the matter is not settled following progression through the disputes procedure it shall be referred, to Fair Work Australia for conciliation and if necessary for determination.
8.2. While the above procedures are being followed, the status quo shall be maintained until the matter is resolved . No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause.
8.3. Notwithstanding anything contained in this clause, the parties shall be free to exercise their rights if the dispute is not finalised without delay.
8.4. This clause shall not apply to a dispute on a bona fide health and safety issue.”
[4] Section 739 of the Act provides for the FWC to deal with a dispute if a term such as clause 8 requires or allows such dealing. Subsection 739(6) requires that the FWC may only deal with a dispute on application by a party to the dispute, which threshold is met by the UFU WA’s application. In addition, s.739(3) requires the FWC not exercise any powers limited by the Dispute Resolution Procedure; and s.739(4) provides the FWC may arbitrate the dispute in accordance with the term if the parties agreed that such may be done. Subsection 739(5) provides the FWC must not make a decision that is inconsistent either with the Act or with the 2011 Agreement.
[5] The material before the FWC in this matter consists of the outlines of submissions of both parties, a witness statement and oral evidence from Mr Atkinson and a spreadsheet provided by Transfield Services.
[6] As indicated above, the UFU WA’s first claim on behalf of Mr Atkinson is that Transfield Services have failed to credit him with 116.31 hours of personal leave that should have otherwise been accrued in the period between 24 June 2011 and 21 June 2012. 4 Two agreements applied to that period. The first is the 2009 Agreement, which provided for an entitlement to sick leave of 96 hours pay for each completed year of service, and which continued in operation until 24 January 2012.5 The second is the 2011 Agreement, which commenced operation on 1 February 2012 and provides for an entitlement to personal leave of 126 hours for each completed year of service.6
[7] The second of the claims concerns a deduction of 0.96 hours of sick leave from Mr Atkinson’s leave credit on 23 May 2012. That aspect of the UFU WA’s claim falls away with the concession by Transfield Services that the deduction was an error on their part. 7
[8] The 2009 and 2011 Agreements provide the following for the accrual of sick leave. In both cases, the fundamental accrual is for an amount of time that may be used for personal ill health or injury, or that of a family or household member. The provisions of the 2009 Agreement are within a clause entitled “Personal Leave” and more particularly a sub-clause entitled “Sick Leave”. The provisions of the 2011 Agreement are within a clause entitled “Personal/Carer’s Leave”, with the relevant sub-clause re-titled “Personal Leave”. The relevant provisions of the two agreements are these;
2009 Agreement;
31.2 Sick Leave
(i) An employee shall be entitled to payment for non attendance on the ground of personal ill health or injury for 96 hours pay for each completed year of service. This is based on 8 shifts of leave averaged at 12 hours per shift. (4 day and 4 night shifts)
(ii) Where an employee does not have any entitlement to sick leave, an advance of sick leave may be granted equal to the expected amount of sick leave to accrue at the anniversary of the employee's initial employment. Payment hereunder may be adjusted at the end of each calendar year, or at the time the employee leaves the service of the employer in the event of the employee being entitled by service, subsequent to the sickness of a greater allowance than that made at the time the sickness occurred.
(iii) The unused portion of the employee's entitlement shall be allowed to accumulate and may be used in the next or any succeeding year.
(iv) The employee shall, as soon as reasonably practicable, advise the employer of their inability to attend for work, the nature of their illness or injury and the estimated duration of the absence.
(v) An employee shall produce to the employer proof that would satisfy a reasonable person (Doctor’s Certificate or statutory declaration) of the entitlement to paid leave under this Clause. Proof is not required for absence of less than two consecutive working shifts unless the total of such absence exceeds five full or part shifts in any one accruing year.
2011 Agreement
32.2. Personal Leave
32.2 1. An employee shall be entitled to payment for non-attendance on the ground of personal ill health or injury for 126 hours pay for each completed year of service. Personal leave will accrue at the rate of 9.69 hours every four (4) weeks of continuous service.
32.2.2. Where an employee does not have any entitlement to personal leave, an advance of personal leave may be granted equal to the expected amount of personal leave to accrue at the anniversary of the employee's initial employment. Payment hereunder may be adjusted at the end of each calendar year, or at the time the employee leaves the service of the employer in the event of the employee being entitled by service, subsequent to the sickness of a greater allowance than that made at the time the sickness occurred.
32.2.3. The unused portion of the employee's entitlement shall be allowed to accumulate and may be used in the next or any succeeding year.
32.2.4. The employee shall, as soon as reasonably practicable, advise the employer of their inability to attend for work, the nature of their illness or injury and the estimated duration of the absence.
32.2.5. An employee shall produce to the employer proof that would satisfy a reasonable person (Doctor's Certificate or statutory declaration) of the entitlement to paid leave under this Clause. Proof is not required for absence of less than i:'No consecutive working shifts unless the total of such absence exceeds five full or part shifts in any one accruing year.
32.2.6. The entitlement of personal leave for unanticipated or planned matters is only accessible for matters that cannot be rescheduled and are of a pressing or urgent nature (usually a medical or legal matter). Evidence that would satisfy a reasonable person must be supplied.”
[9] Mr Atkinson’s sick or personal leave accrual has progressed through the years, on his evidence, in the following manner;
1. On his first anniversary of employment date, being 24 June 2000, he had “around 34 hours sick leave accrued”; 8
2. He did not check his accruals on 24 June 2001 or 24 June 2002; 9
3. His payslips did not show leave accruals until 2005 and instead only showed the leave that he had taken; 10
4. The first payslip that includes his accumulated leave accruals was the payslip for the week ending 22 May 2009. That payslip shows an accrual of sick leave of 150.20 hours, which Mr Atkinson believes was an accurate reflection of his leave entitlement at that date; 11
5. The payslip issued to Mr Atkinson referring to the pay period ending 24 June 2011 shows his personal leave entitlement at that date to be 239.70 hours, which was also agreed on his behalf to be correct 12;
6. The amount of leave accrued to 24 June 2011 had moved to 158.43 hours by 22 June 2012. This movement is after making allowances for leave accrued and leave taken, as well as an adjustment resulting from an acknowledged error in the payslip for the week ending 18 May 2012 13;
7. The payslip issued for the pay period ending 28 June 2013 shows an accrual of 137.4 hours, and the payslip issued for the pay period ending 27 June 2014 shows an entitlement of 227.37 hours, again after making allowances for leave accrued and leave taken. 14
[10] The accrual of sick leave is dealt with in earlier enterprise agreements to the 2009 and 2011 Agreements as follows;
• 2005 Agreement – clause 6.2;
• 2002 Agreement – clause 23;
• 1999 Agreement – clause 28.
[11] The 2009 and 2011 Agreements provide for an accrual of leave on the basis of “each completed year of service”, with leave able to be advanced to employees on the basis of a grant “equal to the expected amount of personal leave to accrue at the anniversary of the employee's initial employment”. 15 Similar provisions are to be found in the 2005 Agreement.16
[12] The 1999 and 2002 agreements contain different provisions for the accrual and advancement of leave to those within the 2005, 2009 and 2011 Agreements.
[13] The relevant clauses of each of the 1999, 2002 and 2005 Agreements are set out below;
1999 Agreement;
“28. PERSONAL LEAVE
Amount of paid personal leave
Paid personal leave is available to an employee when he or she is absent due to:
• personal illness or injury (sick leave); or
• for the purposes of caring for an immediate family or household member that is sick and requires the employee's care and support (carer's leave); or
• because of bereavement on the death of an immediate family or household member (bereavement leave).
The amount of personal leave to which an employee is entitled depends on how long he or she has worked for the employer and accrues as follows:
Length of time | Personal Leave |
less than 1 month | 16 |
1 month to less than 3 months | 32 |
3 months to less than 6 months | 48 |
6 months to less than 12 months | 92 |
Each year thereafter | 92 |
In any year unused personal leave accrues by the lesser of:
• 76 hours less the total amount of sick leave and carer's leave taken during the year; or
• the balance of the year's unused personal leave.
Personal leave may accumulate to a maximum of 760 hours.
Immediate family or household
The entitlement to carer's or bereavement leave is subject to the person in respect of whom the leave is taken being either:
• a member of the employee's immediate family; or
• a member of the employee's household.
The term immediate family includes:
• spouse (including a former spouse, a de facto spouse and a former de facto spouse) of the employee. A de facto spouse means a person of the opposite sex to the employee who lives with the employee as his or her husband or wife on a bona fide domestic basis; and
• child or an adult child (including an adopted child, a step child or an ex-nuptial child), parent, grandparent, grandchild or sibling of the employee or spouse of the employee.
Sick Leave
Definition
Sick leave- is to which an employee other than a casual is entitled without loss of pay because of his or her personal illness or injury.
Entitlement
The amount of personal leave an employee may take as sick leave depends on how long he or she has worked for the employer and accrues as follows:
Length of time | Rate of accrual of paid sick leave (Hours) |
less than 1 month | 0 |
1 month to less than 3 months | 16 |
3 months to less than 6 months | 32 |
6 months to less than 12 months | 76 |
Each year thereafter | 76 |
After the first six months of service, an employee must be paid for any sick leave to which he or she was not entitled, due to insufficient service, up to a maximum of 76 hours.
Accumulated personal leave may be used as sick leave if the current sick leave entitlement is exhausted.” (remainder of clause omitted)
2002 Agreement
“23. Personal Leave
Paid Personal Leave is available to an employee when he or she is absent due to:
• Personal illness or injury (Sick Leave); or
• For the purposes of caring for an immediate family or household member that is sick and requires the employee's care and support (Carer's Leave).
Sick Leave
Definition
Sick leave is leave to which an employee is entitled without loss of pay because of his or her personal illness or injury.
Entitlement
The amount of sick leave an employee may take depends on how long he or she has worked for the employer and accrues as follows:
Length of Time | Rate of Accrual of |
Less than 1 month | 0 |
1 month to less than 3 months | 16 |
3 months to less than 6 months | 32 |
6 months to less than 12 months | 76 |
Each year thereafter | 76 |
After the first six months of service, an employee must be paid for any sick leave to which he or she was not entitled, due to insufficient service, up to a maximum of 76 hours.
In any year sick leave accrues by seventy six (76) hours less the total amount of sick leave and carer's leave taken during the year.
Sick leave may accumulate to a maximum of 760 hours.” (remainder of clause omitted)
2005 Agreement 17
“6.2 Sick Leave
(i) Paid Leave Entitlement
An employee shall be entitled to payment for non attendance on the ground of personal ill health or injury for 76 hours pay for each completed year of service.
(ii) Where an employee does not have any entitlement to sick leave, an advance of sick leave may be granted equal to the expected amount of sick leave to accrue at the anniversary of the employees initial employment. Payment hereunder may be adjusted at the end of each calendar year, or at the time the employee leaves the service of the employer in the event of the employee being entitled by service, subsequent to the sickness of a greater allowance than that made at the time the sickness occurred.
(iii) The unused portion of the employee's entitlement shall be allowed to accumulate and may be used in the next or any succeeding year.” (remainder of clause omitted)
[14] The Full Bench summarised the principles for interpretation of an enterprise agreement in the matter of The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 18 setting them out as follows;
“[41] From the foregoing, the following principles may be distilled:
1. The AI Act [Acts Interpretation Act 1901] does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.” 19
[15] In relation to its “claim 1”, for rectification of an incomplete accrual in the period of 24 June 2011 to 21 June 2012, the union placed into evidence Mr Atkinson’s payslips for the relevant period, which show there was no change to his personal leave balance in the period, except when he took leave and when the error, which is the subject of the UFU WA’s claim 2, came about.
[16] Transfield Services rejects the UFU WA claim and “submits that the confusion that has arisen in this matter is due to the Company crediting sick leave of 76 hours to Mr Peter Atkinson at the commencement of his employment.” 20 The company does not offer a reason why there was no accrual made to Mr Atkinson in the relevant period of 24 June 2011 to 21 June 2012. However, a spreadsheet submitted by Transfield Services as part of its submissions purports to show leave accrual records for a large number of employees, including Mr Atkinson.21 The spreadsheet was not the subject of evidence, and there was no formal evidence provided on behalf of Transfield Services.
[17] The spreadsheet indicates an “hours balance” for Mr Atkinson of 110.2 hours at 27 October 2000, derived as an “Entitlement - Hours” of 152 hours less “Taken year-to-date - Hours” of 41.8 hours, noting that the spreadsheet does not identify the period to which that “year-to-date” relates. The spreadsheet contains a note to the effect that “[f]or Peter Atkinson to have 152 hours entitlement WEF 27 Oct 2000 - leave accrual must have been on joining”. I take this to be a submission on the part of Transfield Services that Mr Atkinson must have been credited with 76.0 hours leave on the day he commenced employment, 24 June 2009, followed by a further amount of 76.0 hours credited on 24 June 2000.
[18] Holding such a view might explain why there was an incomplete accrual for the period of 24 June 2011 to 21 June 2012. That is, in the absence of any alternative explanation from the Respondent, the incomplete accrual appears to have come about because Transfield Services took the view there had been an over-accrual in Mr Atkinson’s accrual up to that date.
[19] Mr Atkinson’s evidence addresses the proposition that he was, at some time, credited in advance with a year’s sick leave entitlement, with his evidence confirming the making of an annual credit on his employment anniversary, but with the credit being for the previous year, and disputing the possibility as well that the credit was for the year ahead;
“20. On 24 June 2010, my eleventh anniversary date, Transfield credited me with 96 hours of sick leave.
21. If Transfield was correct, and on each of my anniversary dates they were crediting my sick leave for the year in advance, then this would mean that when the 2009 Agreement was registered, Transfield should have credited me with an additional 14.58 hours of sick leave for the 24 June 2009 to 23 June 2010 period. I reviewed my pay slips and I know that I was not credited with 14.58 hours after the registration of the 2009 Agreement.
22. For every other anniversary date between 24 June 2010 and 24 June 2012, I was credited with 96 hours of sick leave. Aside from the increased amount of sick leave, it was credited in the same way as it was under the previous agreements. That is, it accrued on each anniversary date for the previous year worked.” 22
[20] This is a case where resolution of the dispute before the Commission “will turn on the language of the Agreement understood having regard to its context and purpose”. 23 Such analysis will require a consideration of the different accrual processes under each of the agreements that applied during Mr Atkinson’s employment.
1999 Agreement
[21] The 1999 Agreement sets out four relevant propositions. Firstly, clause 28 provides that “[t]he amount of sick leave an employee may take depends on how long he or she has worked for the employer” and then sets out a table for accrual of leave in the first year of employment and subsequently. The clause then refers to how much sick leave accrues from year to year, and finally, it limits how much personal leave may be accumulated by any person.
[22] The way these things are expressed sets out a scheme in which an employee, employed, say, on 1 January would have available to them no sick leave in their first month of employment; would have up to 16 hours available in the second and third month of employment and by July would have available to them 76 hours leave, which would carry them through to the end of December.
[23] To the extent that the information contained within the spreadsheet MFI-1 might relate to the surrounding circumstances of the 1999 Agreement, it does not rise as far as either determining whether an ambiguity exists or aiding the interpretation of the agreement.
[24] The spreadsheet does not identify either that there was a practice of crediting an employee with 76.0 hours leave on the commencement of their employment and again on the anniversary of their employment. Nor does the spreadsheet identify that is what happened with Mr Atkinson. At its highest it merely records the inference that, because the balances in 2000 show a certain quantum, “leave accrual must have been on joining”. The spreadsheet is therefore not evidence of surrounding circumstances for the 1999 Agreement.
[25] Mr Atkinson’s evidence about his leave accruals during the period of his employment in 1999 include that;
“4. In 1999, in my first six months of employment, I asked my station manager, Dave Whelldon ("Whelldon"), about how sick leave accrued. This was because I was taking a lot of sick leave at the time to look after my sick daughter.
5. Whelldon told me that sick leave accrued as per the agreement. He explained that this meant that at my first anniversary date I would have 76 hours of sick leave, minus any leave that I took in the previous year.” 24
and further;
“7. In my first 12 months with Transfield, I took around 60 hours of sick leave to look after Jessica. Transfield did not take issue with me taking this time off.
8. On my first anniversary date, 24 June 2000, I had around 34 hours of sick leave credited to me by Transfield.” 25
[26] I accept this evidence, which confirms Mr Atkinson’s recollection of his use of leave. He was not presented with a contrary account in the course of giving evidence and it was not put to him that his recollection of having around 34 hours of leave credited to him on 24 June 2000 was faulty, or not consistent with the records held by Transfield Services. The account put forward by Transfield Services in its spreadsheet shows a sick leave balance of 110.2 hours at 27 October 2000, however there is no substantiation of how that balance was derived and no contemporary source documents have been provided to the Commission.
[27] Such evidence of the surrounding circumstances as there is leads only to the conclusion that the parties knew and understood the 1999 Agreement to provide for the progressive accrual of leave during each year of employment. The 1999 Agreement uses the formulation that the amount of leave that may be taken by an employee “depends on how long he or she has worked for the employer”. 26 The general principle within that formulation, and which is supported by the available evidence, is that only the leave accrued at a particular date is available to be taken as paid sick leave. The general principle is modified with the provision of retrospective payment after 6 months service for leave taken but not paid due to insufficient service, up to the maximum of the annual entitlement of 76 hours.27
[28] While it is possible - perhaps even likely - that Transfield Services made a mistake in how and when it credited leave to Mr Atkinson, such mistake of itself neither evidences an ambiguity in the construction of the 1999 Agreement, or that the proper construction of the agreement is to provide for anything other than a progressive accrual of leave.
2002 Agreement
[29] The 2002 Agreement provides for similar arrangements for the accrual and taking of sick and personal leave as the 1999 Agreement and continues to use the formulation that the amount of leave that may be taken by an employee “depends on how long he or she has worked for the employer”. 28
2005 Agreement
[30] The 2005 Agreement and later agreements moved away from the 1999 Agreement formulation about how much leave would be available to an employee at a particular time. Instead of providing that the amount of leave available to an employee “depends on how long he or she has worked for the employer”, the 2005 Agreement refers instead to a quantum of leave “for each completed year of service”. 29 In particular, the 2005 Agreement provides that an employee is “entitled to payment for non attendance on the ground of personal ill health or injury for 76 hours pay for each completed year of service” and provides for an expanded advancement of leave in the course of a year.30 There is no material before me that would explain why the parties considered it necessary to change the formulation, especially given that the quantum of available annual leave did not change at that time.
[31] Examination of the provisions in question leads either to the possibility that the parties thought the earlier formulation was imprecise, or to the possibility that the focus of their drafting efforts was on the insertion of a more detailed subclause dealing with the advancement of leave in the course of the year.
2009 Agreement
[32] The 2009 Agreement increased the annual entitlement of leave to 96 hours, and provided for the advancement of leave in the course of a year. 31
2011 Agreement
[33] The 2011 Agreement further increased the annual entitlement, to 126 hours and maintained the provision for the advancement of leave in the course of a year. 32 It also provided explicitly for how leave will be accrued in the course of each year through the following provision;
32.2 1. An employee shall be entitled to payment for non-attendance on the ground of personal ill health or injury for 126 hours pay for each completed year of service. Personal leave will accrue at the rate of 9.69 hours every four (4) weeks of continuous service.
[34] While the 2011 Agreement explicitly provides for how leave will be accrued in the course of each year, it is within the context of a clause that also contains detailed provisions for the advancement of leave in the course of the year, which is within sub-clause 32.2.2, as follows;
32.2.2. Where an employee does not have any entitlement to personal leave. an advance of personal leave may be granted equal to the expected amount of personal leave to accrue at the anniversary of the employee's initial employment. Payment hereunder may be adjusted at the end of each calendar year, or at the time the employee leaves the service of the employer in the event of the employee being entitled by service, subsequent to the sickness of a greater allowance than that made at the time the sickness occurred.
[35] This subclause was contained within the 2005 and 2009 Agreements, and an earlier provision allowing for retrospective adjustment of otherwise unpaid leave for sick leave purposes was within the 1999 and 2002 Agreements, which provided as follows;
“After the first six months of service, an employee must be paid for any sick leave to which he or she was not entitled, due to insufficient service, up to a maximum of 76 hours.” 33
[36] Together, and in context, these two forms of clause appear to deal with the same subject matter - of an employee in ongoing employment without access to sick leave for the reason they had not yet been employed for long enough to have access to all the paid leave they needed. Notwithstanding this, it should also be observed that the formulation in the 1999 Agreement provides that “an employee must be paid”, 34 whereas the provisions of the 2011 Agreement are that “an advance of personal leave may be granted”.35
[37] This context provides important confirmation of the proper construction of the first and fundamental part of the provision of each of the agreements under consideration, which is clause 32.2.1 in the case of the 2011 Agreement, that only the leave accrued at a particular date is available to be taken as paid sick leave, albeit that leave may be advanced on the terms set out in the clause. The context which this provides is that the provisions allowing for the advancement of leave either because “an employee does not have any entitlement to personal leave” or for reason of “insufficient service” would most likely be redundant in many, if not the majority of cases, if a year’s entitlement were to be credited on the first day of employment.
[38] In the case of the 1999 Agreement, if a year’s entitlement were to be credited at the start of employment there simply would be no need for a provision such as the table in clause 28 providing for an increasing amount of leave as the first year goes by. An employee would not be restricted to zero hours paid sick leave in their first month of employment, or 32 hours if they had worked for 3 months, since they would in all cases have 76 hours. An employer would not have to bother paying an employee “for any sick leave to which he or she was not entitled, due to insufficient service, up to a maximum of 76 hours” since the employee would have had 76 hours available to them from the first day.
[39] The construction of the 1999 Agreement to provide for leave in advance in the first year is therefore not one available on the agreement’s plain meaning.
Conclusion
[40] After consideration of the totality of the submissions, evidence and agreements that have applied to Mr Atkinson’s employment, I have concluded that the relevant terms of the 2011 Agreement and its predecessors have a plain meaning and do not contain an ambiguity;
• From the commencement of the 1999 Agreement and at all times since, the general principle which is supported by the available evidence, is that only the leave accrued at a particular date is available to be taken as paid sick leave;
• The general principle is modified to the extent that each of the agreements has allowed the advancement of leave to an employee due to insufficient service or accrual, up to the maximum of the annual entitlement then prevailing.
• Any mistake on the part of Transfield Services about how and when it credited leave to Mr Atkinson does not evidence an ambiguity in the construction of the agreements.
[41] I have formed my views about the question of ambiguity by taking into account the evidence given by Mr Atkinson in the form of his payslips, and the evidence he gave and referred to above about how and when leave was credited to him, including that in certain periods it was credited annually, in arrears. 36 I accept these things as being admissible evidence of the surrounding circumstances, as they are evidence of the objective framework of fact. This evidence has assisted in my determination that an ambiguity does not exist within the relevant terms.
[42] While I do not regard the spreadsheet submitted by Transfield Services 37 as being admissible evidence of the surrounding circumstances, I note that its contents in any event do not rise to offering the analysis sought. While I was informed the spreadsheet is a report generated from a payroll or other database38, absent the inference contained within a non-contemporaneous note, it is merely a record of employees’ leave and other balances at certain dates. In its proper context, the note contained within the spreadsheet that “[f]or Peter Atkinson to have 152 hours entitlement WEF 27 Oct 2000 - leave accrual must have been on joining” must be treated only as a submission. I place no reliance on any part of the spreadsheet.
[43] As a result of the foregoing analysis, I make the following findings;
• For the duration of the 1999 Agreement, Mr Atkinson was entitled to accrue 76 hours of sick leave for each year he worked under the agreement (that is, until 11 September 2002);
• For the duration of the 2002 Agreement, he was entitled to accrue 76 hours of sick leave for each year he worked under the agreement (that is, from 12 September 2002, until 6 December 2005);
• For the duration of the 2005 Agreement, he was entitled to accrue 76 hours of sick leave for each year he worked under the agreement (that is, from 7 December 2005, until 1 September 2009);
• For the duration of the 2009 Agreement, he was entitled to accrue 96 hours of sick leave for each year he worked under the agreement (that is, from 2 September 2009, until 31 January 2012);
• From the commencement of the 2012 Agreement, he is entitled to accrue 126 hours of sick leave for each year he has worked under the agreement (that is, from 1 February 2012), which is to be accrued on the basis of 9.69 hours for every four (4) weeks of continuous service.
[44] Obviously, from the above accruals, there must be deductions of leave authorised and actually taken in accordance with the relevant provisions of the respective agreements.
[45] I also find that the evidence given by Mr Atkinson about his accruals of sick leave at relevant dates is plausible and capable of acceptance. Contrary evidence was not brought forward by the Respondent and such brief cross-examination of Mr Atkinson that occurred did not elicit alternative answers. As a result, I accept Mr Atkinson’s evidence that;
• On his first anniversary date, being 24 June 2000, he had “around 34 hours sick leave accrued”; 39
• The payslip for the pay period ending 22 May 2009 accurately reflects a sick leave accrual of 150.20 hours; 40
• The payslip for the pay period ending 24 June 2011 accurately reflects a sick leave accrual of 239.70. 41
[46] I also accept Mr Atkinson’s evidence that he was credited for a full year’s personal leave entitlement, in arrears, in June 2011, 42 but not in June 2012. The question of the non-application of the provisions of an agreement is therefore confined to the 2011 Agreement, which commenced on 1 February 2012, being after the June 2011 credit.
[47] Having made these findings, I further find that the proper application of the 2011 Agreement does not permit Transfield Services to unilaterally stop the accruals provided for under the 2011 Agreement.
[48] The UFU WA submit that Mr Atkinson should be credited with the higher amount of personal leave for the whole year commencing on 24 June 2011 notwithstanding that the 2011 Agreement did not commence operation until 1 February 2012. Its submissions on this point were as follows;
“16. Between 24 June 2011 and 31 January 2012 Peter's employment was covered by the 2009 Agreement. Notwithstanding this, Peter's sick leave entitlement for that period should be credited at the 2012 Agreement rate. This is because Peter's sick leave entitlement for the period between 24 June 2011 and 31 January 2012 did not accrue until the registration of the 2011 Agreement on 1 February 2012.
17. For the entire period between 24 June 2011 and 21 June 2012 Peter's sick leave entitlement accrued in accordance with the operation of clause 32.2.1 of the 2011 Agreement.” 43
[49] I disagree with this proposition. There is nothing within the 2011 Agreement or the decision of the Commission that approved it, 44 that would support this proposition.
[50] The Act deals with the operation of enterprise agreements in s.54, which provides the following;
“54 When an enterprise agreement is in operation
(1) An enterprise agreement approved by the FWC operates from:
(a) 7 days after the agreement is approved; or
(b) if a later day is specified in the agreement—that later day.
(2) An enterprise agreement ceases to operate on the earlier of the following days:
(a) the day on which a termination of the agreement comes into operation under section 224 or 227;
(b) the day on which section 58 first has the effect that there is no employee to whom the agreement applies.
Note: Section 58 deals with when an enterprise agreement ceases to apply to an employee.
(3) An enterprise agreement that has ceased to operate can never operate again.”
[51] The provisions of what are now s.54 are dealt with in the Explanatory Memorandum to the Fair Work Bill 2008, in which the following was identified, (with particular reference to clause 196 of the following);
“Clause 54 – When an enterprise agreement is in operation
188. The NES apply to national system employees at all times, whether as a direct source of entitlements or as a minimum standard underpinning their entitlements under a modern award, enterprise agreement or contract of employment. The remaining provisions of this Part deal with when a modern award or enterprise agreement applies to an employee (or employer, organisation or outworker entity) to provide a direct source of entitlements (such that the term providing the entitlement cannot be contravened). Subdivisions C and D contain provisions dealing with the concepts which govern the operation and effect of modern awards and enterprise agreements.
Operate
189. Clauses 49 and 54 deal with when modern awards and enterprise agreements ‘operate’. Awards and agreements do not necessarily start to operate when (in the case of awards) they are made or (in the case of agreements) they are approved by FWA. Further, once they operate, they may or may not apply to determine entitlements of any person (or any particular person). For instance, an agreement in operation may be displaced by another agreement in operation (see clause 58).
190. For modern awards, the general rule is that an award starts operating on 1 July in the financial year after it is made (or on the day it is made if the award is made on 1 July) (subclause 49(1)). This timing is consistent with when changes to modern award minimum wages commence (see Part 2-6), and is designed to ensure certainty and predictability for employers and employees.
191. However, if FWA is satisfied that it is appropriate to specify a different date then it has power to do so (subclause 49(2)). This date may not be earlier than the day on which the modern award is made (subclause 49(3)).
192. Subclauses 49(4) and (5) provide for the revocation of modern awards. If FWA makes a determination to revoke a modern award the determination will come into operation on the date that is specified in the determination (subclause 49(4)). This cannot be earlier than the day on which the revocation determination was made (subclause 49(5)).
193. A modern award or a determination revoking a modern award does not take effect in respect of a particular employee until the start of an employee’s first full pay period that starts on or after the day the award or determination comes into operation.
194. Subclause 49(7) provides that a modern award continues in operation until it is revoked.
195. On the other hand, an enterprise agreement operates from seven days after the agreement is approved by FWA or from a later date specified in the agreement (subclause 54(1)).
196. The terms of an agreement can only have any effect when an agreement commences operation. However, this does not preclude an agreement from including a term that has retrospective effect (e.g., a backdated wage increase).”
[52] The 2011 Agreement is unambiguous about accrual, providing that “[p]ersonal leave will accrue at the rate of 9.69 hours every four (4) weeks of continuous service”. 45 Given that the agreement was explicitly approved to commence from 1 February 2012,46 and in the absence of any contrary indicator in the agreement about the back-dating of entitlements, the increased quantum of personal leave and the changed accrual arrangements should not be regarded as having any retrospective operation. This is not a term that, on its face, is intended to have retrospective effect.
[53] It follows, therefore, that in the period between the date of Mr Atkinson’s anniversary date in 2011, 24 June, and the date of commencement of the 2011 Agreement, 1 February 2012, his accrual entitlement in that period is only to a pro-rata amount of the annual entitlement applicable under the 2009 Agreement, being 96 hours.
[54] As a result of the foregoing, in respect of the claims advanced by the UFU WA, I make the following findings;
Claim 1: Peter is owed 116.31 hours of sick leave for the period between 24 June 2011 and 21 June 2012.
FINDING: Mr Atkinson is entitled to be credited 9.69 hours of sick leave for every four (4) weeks of continuous service under the 2011 Agreement, which accrual is to commence on the date on which the agreement commenced operation.
Between 24 June 2011, and the date of commencement of the 2011 Agreement, 1 February 2012, Mr Atkinson is entitled to accrue a pro-rata amount of the annual entitlement applicable under the 2009 Agreement, being 96 hours.
The proper construction of the 2009 and 2011 Agreements allow that he should now be credited these amounts, to the extent that such amounts have not been credited to him so far.
Claim 2: On 23 May 2012, Transfield deducted 0.96 hours of sick leave from Peter. This is despite Peter not actually taking 0.96 hours of sick leave. Transfield should re-credit Peter with 0.96 hours of sick leave.”
FINDING: Transfield Services have conceded that this deduction made is an error on their part, 47 and it is unnecessary for me to make a finding on this aspect of the UFU WA claim.
[55] The parties are directed to confer and agree upon a suitable draft Order reflecting these findings and the amounts due under them, and to submit the draft to the Commission within 14 days of the date of this decision.
COMMISSIONER
Appearances:
Mr T Kucera (paid agent), Mr T Nolan (paid agent), Mr P Atkinson, Mr K Jolly, Mr K Luckhurst and Ms L Anderson for the Applicant
Mr N Koletsis, Mr P Darling and Mr K Cieslik for the Respondent
Hearing details:
2015.
Melbourne:
12 March
1 See [2012] FWAA 820; AE891300, operative date - 1 February 2012
2 Transfield Western Australia Fire and Rescue Service Certified Agreement 1999, AG800923, Print R4462 ("1999 Agreement"), operative date - 5 May 1999; Transfield Services (Australia) Pty Ltd Western Australian Fire and Rescue Services Certified Agreement 2002, AG818397, ("2002 Agreement"), operative date - 12 September 2002; Transfield Services (Australia) Pty Ltd and United Firefighters Union of Australia (Western Australian Branch,) Fire and Rescue Services Certified Agreement 2005, AG844993, ("2005 Agreement"), operative date - 7 December 2005; Transfield Services GSS (WA) and United Firefighters’ Union of Australia (WA Branch) Fire and Rescue Agreement 2009, AE871431, ("2009 Agreement"), operative date - 2 September 2009
3 UFU WA Outline of Submissions, para 3
4 Ibid, para 3
5 2009 Agreement, cl. 31.2
6 2011 Agreement, cl. 32.2.1
7 Submission of Transfield Services, Exhibit R1, para 6
8 Witness Statement of Peter Mark Atkinson, Exhibit A1, para 8
9 Ibid, para 11
10 Ibid, paras 9, 13 and 16
11 Exhibit A1, Attachment PMA 5, p 91 of bundle; Transcript, PN 86 - 87
12 Exhibit A1, Attachment PMA 8, p 175 of bundle; Transcript, PN 127 - 128
13 UFU WA Outline of Submissions, para 3b; Exhibit A1, Attachment PMA 8; Exhibit A1, para 29; Exhibit A1, PMA 9
14 Further payslips submitted by the Applicant, by email dated 16 March 2015
15 2011 Agreement, cl.32.2.2
16 2005 Agreement, cl.6.2(i) and (ii)
17 Exhibit A1, Attachment PMA-4; 2005 Agreement commenced operation on 7 December 2005;
18 [2014] FWCFB 7447
19 Ibid, at [41]
20 Exhibit R1, para 3
21 Document MFI-1
22 Exhibit A1, paras 20 - 23
23 AMIEU v Golden Cockerel[2014] FWCFB 7447, at [41]
24 Exhibit A1, paras 4 - 5
25 Ibid, paras 7 - 8
26 1999 Agreement, cl.28
27 Ibid
28 2002 Agreement, cl.23
29 2005 Agreement, cl.6.2(i)
30 Ibid, and cl.6.2(ii)
31 2009 Agreement, cl.31.2
32 2011 Agreement, cl.32.2
33 1999 Agreement, cl.28
34 Ibid, emphasis added
35 2011 Agreement, cl.32.2.2, emphasis added
36 Exhibit A1, paras 20 - 23
37 Document MFI-1
38 Transcript, PN 159 - 162
39 Exhibit A1, para 8
40 Exhibit A1, Attachment PMA 5, p 91 of bundle; Transcript, PN 86 - 87
41 Exhibit A1, Attachment PMA 8, p 175 of bundle; Transcript, PN 127 - 128
42 Exhibit A1, paras 20 - 23
43 UFU WA Outline of Submissions, paras 16 - 17
44 [2012] FWAA 820
45 2011 Agreement, cl.32.2.1
46 [2012] FWAA 820, at [6]
47 Exhibit R1, para 6
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