Zoe Shipley v NDIS Quality and Safeguards Commission
[2023] FWC 3015
•17 NOVEMBER 2023
| [2023] FWC 3015 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Zoe Shipley
v
NDIS Quality And Safeguards Commission
(C2023/5937)
| COMMISSIONER SIMPSON | BRISBANE, 17 NOVEMBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 6 October 2023, Zoe Shipley (the Applicant) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute. NDIS Quality and Safeguards Commission is the Respondent in the matter (NDIS / the Respondent).
The matter was listed for a private conference on 23 October 2023 however did not go ahead due to the Respondent requesting the matter move straight to arbitration. Directions were issued for the filing of evidence and submissions and the matter was agreed to be heard on the papers.
The Applicant relied on her Outline of Submissions filed on 26 October 2023 and the Respondent relied on its Outline of Submissions filed on 9 November 2023, and also a statement filed by Anne Fleischer, Assistant Commissioner, Finance and People. I am satisfied that having reviewed the material that the evidence in the statement of Anne Fleischer does not disclose factual disputes that would require the conduct of a hearing in order to be able to determine the matter, and on that basis, I have concluded it is appropriate to proceed to deal with the dispute on the papers as the parties have agreed.
Question for arbitration
This dispute concerns a question as to whether the Applicant was entitled to a credit of 10 days personal/carer's leave pursuant to clause 6.19 of the NDIS Quality and Safeguards Commission Enterprise Agreement 2019 to 2022 (the Agreement), when she moved from another Australian Public Service (APS) agency to the Respondent, which is also an APS Agency.
The question for arbitration has not been formally formulated between the parties, however, will be summarised as:
“Does clause 6.19 of the Agreement operate to provide the Applicant with 10 personal leave credits upfront upon her commencement with the Respondent (in addition to the leave transferred from the other APS agency), given that she was previously employed with and transferred directly from another APS agency?”
Clause 6.19, 6.20 and 6.2 of the Agreement reads as follows:
“PERSONAL/CARER’S LEAVE
Accrual of personal/carer’s leave credits
6.19 Ongoing employees will receive a credit of 10 days personal/carer’s leave (pro-rata for part-time employees) on engagement and then be entitled to accrue 8 days personal/carer’s leave (pro-rata for part-time employees) in their first year of employment. They will then accrue 18 days for each subsequent year of service accruing daily (pro-rata for part-time employees) and credited at the completion of each month.
6.20 Non-ongoing employees will accrue 18 days personal/carer’s leave (pro-rata for part-time employees) per year of service, accruing daily and credited at the completion of each month.
PORTABILITY OF LEAVE
6.2 Where an employee moves (including on promotion or for an agreed period) from another agency where they were an ongoing APS employee, the employee’s unused accrued annual leave and personal/carers leave (however described) will be transferred, provided there is no break in continuity of service.”
Submissions and Evidence
The Respondent submitted that the reference to "engagement" is a reference to engagement in the APS, consistent with the language used in section 22 of the Public Service Act 1999 (PS Act). Section 22(1) of the PS Act provides:
“22 Engagement of APS employees
(1) An Agency Head, on behalf of the Commonwealth, may engage persons as employees for the purposes of the Agency.”
The Respondent submitted that clause 6.19 is intended to provide an entitlement for employees who would not otherwise have a personal/carer's leave balance on engagement. The Respondent submitted that once an employee is engaged by the Commonwealth, section 26 of the PS Act contemplates that an APS employee may move between APS Agencies without a new engagement needing to occur. That section provides:
“26 Voluntary moves between Agencies
(1) An Agency Head may enter into an agreement in writing with an APS employee for the employee to move to the Agency Head's Agency from another Agency.”
The Respondent submitted that a move between Agencies pursuant to section 26 of the PS Act does not involve the exercise of the power of engagement. This is because there is not a cessation of the employee's employment with the Commonwealth when the employee moves between APS Agencies. The employee's employment with the Commonwealth remains on foot and their service continues.
In the Respondent’s submission, clause 6.19 does not apply where an employee moves to the Respondent (which is an APS Agency) from another APS Agency. In that circumstance, clause 6.2 provides that the employee's unused accrued personal/carer's leave balance will be transferred from the other APS Agency to the Respondent.
The Respondent submitted that each clause is intended to deal with distinct circumstances. It is not the case that both clauses have work to do with respect to a single employee. An employee is either "engaged" pursuant to section 22 of the PS Act and entitled to the upfront credit provided by clause 6.19, or they "move" to the Respondent pursuant to section 26 of the PS Act (in which case they are not separately "engaged") and they are entitled to the benefit provided by clause 6.2. If that were not the case, an employee who moves would receive the benefit of both:
· the transfer of personal/carer's leave which was accrued but not used during their period of continuous service as an APS employee; and
· an upfront credit of 10 days personal/carer's leave following their move, in circumstances where the employee had already had the opportunity to accrue personal/carers leave during their earlier continuous service in the APS.
The Applicant submitted that based on her reading of the Agreement, as a lay person she concluded that as a “new” ongoing employee, clause 6.19 would apply to her, and that she would be entitled to 10 days on engagement as stated. She submitted that her interpretation of clause 6.2 is that it just states what happens to accrued leave, not future leave. And the reference to “unused accrued” and not “future” leave is clear. Therefore, she concluded that clause 6.2 has no bearing on, or relevance to clauses 6.19 and 6.20.
The Applicant submitted that as a new starter with the Respondent, there is no way she could have interpreted the Agreement in the way the Respondent has.
Consideration
The principles of Enterprise Agreement clause construction are as follows:
· The starting point is the ordinary meaning of the words read as a whole and in context.[1]
· The aim of the interpretation is to divine and give effect to the meaning of the words that their authors intended them to convey.[2]
· The words of an enterprise agreement ought not to be interpreted divorced from its industrial realities[3] or from how a reasonable person in the position of the parties would have understood it.[4]
· Regard must be had to the manner of the enterprise agreement’s expression, the context in which it operates and the industrial purpose it serves.[5]
· Generous and purposive construction are to be preferred over literal or narrow constructions.[6]
The Applicant talks in terms of “future leave,” meaning applied on engagement, compared with what could be termed “current leave” or the accrued entitlements she brought with her from the prior employment. It is understandable that the Applicant’s understanding of the term “engagement” was in relation to her new role at a new agency, and it is not immediately apparent that engagement is with the Public Service and not with the specific agency.
However in the broader context of clause 6, direct reference is made to the PS Act which provides the definition of employee. Therefore, even though the term “engagement” is not itself specifically defined by reference to the PS Act in clauses 6.19 and 6.20, the authors of the Agreement clearly had it in their contemplation and intended this for readers also.
If the Applicant’s interpretation is to be accepted, this leaves open that there could be a situation where employees of APS agencies with clauses such as 6.19, could commence with one agency and move to another agency within a very short period and have accrued 20 days of personal leave without the requisite periods of service. This seems highly unlikely to be the intention of the clauses and therefore cannot be the interpretation of them.
Therefore, I accept the Respondent’s submission that only one of the three clauses is applicable to any new employee of the Respondent, and in this case, as the Applicant was transferring from one APS agency to another, the leave she had already accrued would move with her and she is not entitled to any leave credits.
All that being said, I understand the Applicant’s concern regarding the expression of future accrual of leave in these clauses. The way clause 6.19 is drafted rolls the two issues of general accrual and of leave balance on engagement for new employees into one. There is no clause applicable to the Applicant or others in her situation, which sets out clearly how she will accrue personal leave as an ongoing employee transferring from another agency. It is implied from the final sentence of clause 6.19 how accrual will operate for ongoing employees, however as it commences with circumstances specific to new employees, interpretations such as the Applicant’s may arise. I understand this is an issue currently before the APS wide bargaining team for consideration.
Conclusion
Based on the above reasoning, the answer to the question for arbitration is no.
COMMISSIONER
[1] James Cook University v Ridd (2020) 278 FCR 566, [56(i)]; Treasury Wine Estates Vintners Ltd v Pearson [2019]
FCAFC 21, [73].
[2] BioGiene Pty Ltd v Mullan [2022] FCAFC 73, [26] (BioGiene); One Key Workforce Pty Ltd v Construction, Forestry,
Mining and Energy Union (2018) 262 FCR 527, [190].
[3] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426, [57] cited in
BioGiene, [36].
[4] Treasury Wine Estates Vintners Ltd v Pearson [2019] FCAFC 21, [75].
[5] Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, [2], [96].
[6] James Cook University v Ridd (2020) 278 FCR 566, [56(ii) and (iv)].
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