Fair Work Act 2009

s.739 - Dispute resolution

Alleged dispute about any matters arising under the enterprise agreement and the NES [s186(6)]

• [1] Ms Hannah Jane Wilkinson is an Associate Nurse Unit Manager of Outpatient Specialist Clinics employed by Eastern Health and is in dispute with her employer about an entitlement to be paid personal leave for the period from 28 October 2021 pursuant to the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 (Agreement). The Agreement applies to Eastern Health and to Ms Wilkinson in relation to her employment with Eastern Health. The dispute is the subject of an application under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with the dispute in accordance with the dispute settlement term of the Agreement.

• [2] The relevant factual background is not in dispute and is briefly set out below.

• [3] Ms Wilkinson is pregnant with her second child. She commenced employment with Eastern Health, as a Graduate Nurse, in or around February 2012. Since May 2021, Ms Wilkinson has been working in a part-time position of Associate Nurse Unit Manager of Outpatient Specialist Clinics. Ms Wilkinson experienced complications throughout her pregnancy with her first child and during the child's birth.

• [4] On 8 October 2021, the Victorian Chief Health Officer's COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 6) came into effect. The direction required that Eastern Health take all reasonable steps to ensure that, on or after the relevant date, a worker who is unvaccinated (other than an excepted person) does not enter, or remain on, the premises of a specified facility for the purposes of working at the facility. The "relevant date" was 15 October 2021. However, Eastern Health could, between the relevant date and the "first dose deadline", permit a worker who was unvaccinated and had a booking to receive, by the "first dose deadline", a dose of COVID-19 vaccine that will cause the worker to become partially vaccinated to enter, and remain on, the premises of the facility for the purposes of working at the facility. Relevantly the first dose deadline was 29 October 2021.

• [5] On 15 October 2021, Ms Wilkinson obtained a medical certificate from her general practitioner certifying that she was unfit for work because of an illness from 15 October 2021 to 12 November 2021. She provided Eastern Health with the certificate on the same day. On 19 October 2021, Ms Wilkinson was told by a representative of Eastern Health that as she did not provide the evidence of vaccination or evidence of a vaccination booking by 15 October 2021, she would be stood down and consequently, she was not entitled to sick leave. Later that day Ms Wilkinson received a letter by email from Eastern Health requiring her to show cause why her employment should not be terminated.

• [6] On 21 October 2021, Ms Wilkinson provided Eastern Health with confirmation that she had made a booking to receive a COVID-19 vaccination for 27 October 2021. Later that day Ms Wilkinson received an email from Eastern Health confirming that she was no longer stood down, and that she would be paid sick leave. Ms Wilkinson did not attend her vaccination appointment, has not been vaccinated and is not an exempt person.

• [7] On 25 October 2021, Ms Wilkinson received written advice from her general practitioner to the effect that she was suffering from severe anxiety 'as a result of the imposition of the COVID-19 vaccination requirements' and that she should work from home 'for the sake of her physical/mental health and until the birth of her child'. Ms Wilkinson provided this advice to Eastern Health and asked it to confirm by midday Tuesday 26 October 2021 that it would make reasonable adjustments to accommodate her consistently with the medical advice. No response was provided.

• [8] Ms Wilkinson remained on paid sick leave until 28 October 2021 the date by which she was required by Eastern Health to provided evidence of her vaccination status. She had earlier been advised that if she did not provide such evidence by 28 October 2021, Eastern Health would consider that she was unable to perform the inherent requirements of her position and she would no longer be paid. Earlier related disputes under s 739 and s 526 were separately lodged by Ms Wilkinson. Each was the subject of conferences facilitated by the Commission and each later withdrawn. In connection with the latter dispute, Eastern Health advised the Commission and Ms Wilkinson on 11 November 2021 that Ms Wilkinson was not stood down under the provisions of the Act, that Ms Wilkinson's role was required but could not be performed from home and that she was not entitled to paid sick leave. It is this advice that is the catalyst for this dispute.

• [9] On 12 November 2021, Ms Wilkinson provided Eastern Health with a medical certificate from her general practitioner certifying that she was medically unfit for work from 12 November 2021 to 10 December 2021.

• [10] The earlier mentioned directions lapsed on 21 October 2021 and have been replaced on several occasions by further directions or orders substantially to the same effect and relevantly requiring Eastern Health to take all reasonable steps to ensure that a worker who is unvaccinated (other than an exempt person) does not enter, or remain on, its premises for the purposes of working at the premises. Since 15 December 2021 and at the time of the hearing the relevant operative order was Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2021 (No 1) which relevantly provided that if a worker is or may be scheduled to work at a specified facility after the commencement of the order, the operator of the facility must collect, record and hold vaccination information and must take all reasonable steps to ensure that a worker does not enter, or remain on, the premises for the purposes of working at the specified facility if the worker is unvaccinated or partially vaccinated. The order makes clear that if an operator does not hold vaccination information about a worker, the operator must treat the worker as if the worker is unvaccinated. Ms Wilkinson has not provided Eastern Health with vaccination information, she is not permitted to attend the workplace until the information is provided, she remains absent from the workplace, she has provided medical certificates to Eastern Health certifying that she is unfit to attend for work and she has not been paid for any period of absence after 28 October 2021.

• [11] The underlying issue in dispute is whether Ms Wilkinson is entitled be paid personal leave for the period from 28 October 2021 under clause 61.2 of the Agreement. The competing contentions of the parties may be briefly stated. Ms Wilkinson says that on a proper construction of the personal leave provisions of the Agreement she is entitled to access paid personal leave if the leave must be taken due to personal illness or injury, and pursuant to clause 61.3(a) she complies with the evidentiary requirements in clause 61.5(c), by providing either a medical certificate from a registered health practitioner or a statutory declaration. It is not in dispute that Ms Wilkinson has provided medical certificates referable to the period of absence in issue. Accordingly, Ms Wilkinson contends she was lawfully entitled to access paid personal leave from 15 October 2021 to 10 December 2021. Ms Wilkinson says that as Eastern health has failed or refused to pay her for the paid personal leave taken from 29 October 2021, it is in breach of clause 61.2 of the Agreement.

• [12] Ms Wilkinson also contends as she is on paid personal leave, she is thus excused from attending for work and performing her duties. She contends that in these circumstances the obligation imposed on Eastern Health to preclude her from attending the workplace unless she is vaccinated is not engaged and this will continue to be the case for so long as she is on personal leave. She contends that until she is fit and able to perform work at Eastern Health's facility it is not necessary for Eastern Health to require proof of vaccination and its obligations under the relevant operative direction or order are irrelevant.

• [13] Eastern Health contends that Ms Wilkinson's entitlement to be paid for personal leave under clause 61.2 of the Agreement is "based on the number of ordinary hours the Employee would have worked on the day or days on which the leave was taken". It says that to carry out the duties of her position, Ms Wilkinson cannot work remotely from home and must attend its facility. During the relevant period of absence, Eastern Health was not permitted to allow Ms Wilkinson to attend at work because she was not vaccinated. Thus, for the period at issue, the number of ordinary hours Ms Wilkinson would have worked while she was certified as sick was zero. Accordingly, Eastern Health contends that Ms Wilkinson does not have an entitlement under the Agreement to paid personal leave for the relevant period.

• [14] The resolution of the issue in dispute turns on the proper construction of the Agreement applied to the facts in this case. The construction of provisions of 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 being considered 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.[1]

• [15] Sections 95 through 101 of the Act set out an employee's paid personal/carer's leave entitlements under the National Employment Standards (NES). Subsections 55(4) and (5) relevantly permit enterprise agreements to include terms that are ancillary or incidental to, that supplement in a way that is not detrimental to an employee, and that have the same or substantially the same effect as, provisions of the NES. Pursuant to subsection 55(1) an enterprise agreement must not exclude the NES or any term thereof. And by s 56, a term of an enterprise agreement has no effect to the extent that it contravenes s 55.

• [16] Subclause 6.3 of the Agreement provides that the Agreement is not intended to exclude any part of the NES or to provide any entitlement which is detrimental to an employee's entitlement under the NES and for the avoidance of doubt, the NES prevails to the extent that any aspect of the Agreement would otherwise be detrimental to an employee.

• [17] Clause 61 of the Agreement contains provisions relating to personal leave and relevantly provides as follows:

This clause does not apply to casual Employees. The entitlements of casual Employees are set out in clause 62 (Casual Employment - Caring Responsibility).

(a) An Employee is entitled to the following amount of paid personal leave:

(i) 91 hours and 12 minutes in the first year of service;

(ii) 106 hours and 24 minutes in each year in the second, third and fourth years of service;

(iii) 152 hours in the fifth and following years of service.

(b) Paid personal leave accrues progressively during a year of service according to the Employee's ordinary hours of work (excluding overtime) and accumulates from year to year.

(a) Payment will be made based on the number of ordinary hours the Employee would have worked on the day or days on which the leave was taken.

(b) An Employee utilising personal leave may take leave for part of a single day. Leave will be deducted on a time for time basis from the Employee's accrued personal leave.

Subject to the conditions set out in this clause, an Employee may take paid personal leave if the leave is taken:

(a) due to personal illness or injury (sick leave); or

(b) to care for or support a member of the Employee's immediate family or household because of:

(i) a personal illness or injury affecting them; or

(ii) an unexpected emergency affecting them (carer's leave).

61.4 In normal circumstances an Employee must not take carer's leave under this clause where another person has taken leave on the same occasion to care for the same person.

An Employee may take personal leave for the reasons described at subclause 61.3 above and 61.5(b) below.

An Employee may use up to five days personal leave, in aggregate, in any year of service on account of a disability or where the Employee is required to attend a registered health practitioner.

An Employee taking sick leave will give the Employer evidence that would satisfy a reasonable person the Employee is absent due to personal illness or injury, in the case of leave taken to attend an appointment (see subclause 61.5(b)) evidence of attendance. Evidence that would satisfy a reasonable person that the Employee is absent due to personal illness or injury includes:

(i) a medical certificate from a registered health practitioner; or

(ii) a Statutory Declaration signed by the Employee with respect to absences on three occasions in any one year not exceeding three consecutive working days each.

(d) Exception to evidence requirement - single day absences

An Employee may be absent for a single day without evidence of personal illness or injury as required at subclause 61.5(c) above, on not more than three occasions per year of service. However, an Employee will not be entitled to this benefit if the Employee fails to notify the Employer pursuant to health service procedure of the single day absence as set out at subclause 61.5(f) below.

(e) Single Day Absences Without Certificate - Additional Leave

Where the one day absences referred to in subclause 61.5(d) are not taken for a period of five years, an additional 38 hours personal leave will be added to the Employee's accrued entitlement.

(i) An Employee should inform the Employer of their absence no less than 1.5 hours prior to the commencement of the rostered shift or as soon as reasonably practicable to allow the Employer to take necessary steps to backfill the absence. This provision does not apply where an Employee could not comply because of circumstances beyond the Employee's control.

(ii) The Employer will inform Employees of the procedure for notification by Employees of their inability to attend work due to illness or injury. All such notifications will be registered, detailing the time of notification and the name of the Employee.

Personal leave will not be withheld by an Employer until all reasonable steps have been taken to investigate the Employee's lack of advice as required by subclause 61.5(f) regarding the absence from duty. Such an investigation must provide the Employee with an opportunity to give reasons as to why notification was not given.

• [18] I consider that Eastern Health's construction is correct. On its plain terms clause 61.2(a) of the Agreement gives an employee an entitlement to be paid based on the number of ordinary hours the employee would have worked on the day or days on which the leave was taken. The evident purpose underpinning this provision is to ensure that an employee is paid for absences because of illness (and subject to sufficient accrual) for the period the employee would otherwise have been required or permitted, and been ready, willing or able to work ordinary hours. Thus, for example, an employee who has agreed and is required to work overtime hours but falls sick is not entitled to payment for the overtime period because the employee would not have worked "ordinary hours" during the period. Ms Wilkinson contended that the personal leave provisions of the Agreement allow an employee to be absent from work (and presumably to be paid). The example given immediately above shows that is not correct in every case. Moreover, the suggestion that the provision "allows an employee to be absent from work" presupposes an obligation or requirement to attend for work. Ms Wilkinson says that if there is no obligation to attend work on a particular day, then there is no purpose to taking personal leave on such a day. So much is self-evident. However, simply put, that is in effect what has occurred. Ms Wilkinson was not required to attend for work after 29 October 2021 because Eastern Health could not permit her to work at its facilities. Nor was she ready, willing or able to attend the facility to work ordinary hours because she did not meet the externally imposed condition which would have permitted Eastern Health to permit Ms Wilkinson to perform work.

• [19] Here, it is uncontroversial that Ms Wilkinson was not vaccinated and had not furnished Eastern Health with the requisite proof of vaccination during the relevant period. Eastern Health was thus prevented from allowing Ms Wilkinson to attend its facility and to perform work whilst ever that situation pertained. It therefore did not require Ms Wilkinson to perform any ordinary hours of work, nor could it lawfully permit her to do so. Because of the effect of the operative direction or order during the period, Ms Wilkinson would therefore not have worked any ordinary hours on the day or days the purported leave was taken since 28 October 2021 because she was not ready, willing or able to perform work at Eastern Health's facility in accordance with the externally imposed condition.

• [20] Ms Wilkinson's contentions that while she was on personal leave, she is excused from attending for work and performing her duties and that in these circumstances the obligation imposed on Eastern Health to preclude her from attending the workplace unless she is vaccinated is not engaged, fails to grapple with the effect of clause 61.2(a) of the Agreement. While it is true that as Ms Wilkinson was unfit to work and could not thereby attend at the workplace, Eastern Health need not take any further "reasonable step" to ensure that Ms Wilkinson, an unvaccinated worker who was not an exempt person did not enter, or remain on, its premises for the purposes of working at the premises, that does not resolve the question of what payment should be made to Ms Wilkinson for the absence. As payment for personal leave is the only payment sought in this dispute, that answer is found in the exacting terms of clause 61.2(a). To ascertain what payment is to be made, one must first ascertain the number of ordinary hours Ms Wilkinson would have worked but for the absence during the period or days claimed. For the reasons already stated the answer to that question is none.

• [21] Moreover, Ms Wilkinson's submission set out in the previous paragraph presupposes that her absence from work since 29 October 2021 was because of the exercise of a leave entitlement. It is a question of construction of the facts as to whether her absence from work in that period was, in substance, the exercise of a leave entitlement. Plainly it was not. Ms Wilkinson was not permitted to attend for work at the workplace because Eastern Health was required to comply with the operative direction or order and she was not ready, willing or able to perform work in accordance with the externally imposed condition required by the operative direction or order.

• [22] Ms Wilkinson was paid for personal leave taken up to 28 October 2021. Under the direction then in force, Eastern Health was permitted (subject to compliance with certain safety requirements) between 15 October 2021 and 29 October 2021, to allow Ms Wilkinson to enter, and remain on, the premises of its facility for the purposes of working at the facility if she had a booking to receive, by 29 October 2021, a dose of COVID-19 vaccine that will cause her to become partially vaccinated. Ms Wilkinson had a booking for 27 October 2021. But for the fact that Ms Wilkinson was medically certified as unfit for work, she would have worked ordinary hours during that period. There was no prohibition in place preventing Ms Wilkinson working ordinary hours during that period. At that point, Ms Wilkinson had complied with the externally imposed condition. But for the incapacity to attend for work on account of illness, Ms Wilkinson was, during this period, ready, willing or able to perform work in accordance with the externally imposed condition because she had a vaccination booking as required by the operative direction. The entitlement to be paid for personal leave by reference to those ordinary hours pursuant to clause 61.2(a) of the Agreement arose and was discharged. Thereafter, no payment entitlement arises for the purported personal leave taken during the relevant period under the Agreement for the reasons stated.

• [23] For completeness, as earlier noted, s 55 of the Act relevantly prohibits an enterprise agreement excluding the NES or any term thereof and permits enterprise agreements to include terms that are ancillary or incidental to, that supplement in a way that is not detrimental to an employee, and that have the same or substantially the same effect as, provisions of the NES. Agreement terms which contravene s 55 are of no effect. Subclause 6.3 of the Agreement provides the NES prevails to the extent that any aspect of the Agreement would otherwise be detrimental to an employee.

• [24] It is necessary to consider whether the effect of clause 61.2(a) of the Agreement is detrimental to Ms Wilkson compared to the NES. Section 99 of the Act provides that if, in accordance with Subdivision A of Division 7 in Part 2-2 of the Act, an employee takes a period of paid personal/carer's leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period. It seems to me that clause 61.2(a) of the Agreement is to the same effect as s 99 in that it provides for payment, in effect at the employee's base rate of pay, for the employee's ordinary hours of work in the period of absence. In my view the words "ordinary hours of work in the period" in s 99 condition the payment to the number of ordinary hours the employee would have worked but for the absence in the relevant period claimed. If an employer cannot lawfully require an employee to work in a period because it cannot permit the employee to work because of an operative direction or order, the employee has no ordinary hours in that period. Similarly, as Ms Wilkinson was not ready, willing or able to perform work in accordance with the externally imposed condition in the relevant period she had no ordinary hours in that period. There is thus no relevant detriment to the employee. But even if I am wrong, the absence must still have been the exercise of a leave entitlement under s 97. Ms Wilkinson was not absent during the relevant period because she was exercising a leave entitlement. She was absent because she was not permitted to attend for work at the workplace as Eastern Health was required to comply with the operative direction or order, and she was not ready, willing or able to meet the requirements of the operative direction or order which would have permitted Eastern Health to allow her to attend for work.

• [25] Both parties made submissions about the effect of the judgment of Flick J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited[2] on the issue in dispute. I do not consider the judgment to be of any assistance in resolving this issue in dispute. As the Majority of the Full Court made clear in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited[3] an entitlement to take leave during a period of a statutorily permitted stand down of an employee turned on the Full Court's construction of s 525 of the Act to the effect that an employer is not required to pay for leave during a stand down unless the exercise of the entitlement is authorised.[4] That arose from the words in s 525(a). No question of authorisation of leave arises in this case.

• [26] On a proper construction of the Agreement Ms Wilkinson has no entitlement under clause 62 of the Agreement to be paid for purported leave taken after 29 October 2021. The dispute is determined accordingly. The orders sought by Ms Wilkinson are refused.

[1] WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197] and the authorities referred to therein; see also King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [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 FCAFC 123, 308 IR 171 at [40]- [43])

[2] [2020] FCA 656

[3] [2020] FCAFC 205

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