New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union on behalf of Christine Clark v Uralla Shire Council

Factual context

1. On 4 February 2008 Ms Clark commenced employment with the Council as a casual cleaner. On 28 April 2008 she secured employment to the Council Chambers Cleaner position. She was assigned employee number 40226 in the Council's payroll system.
2. In May and June 2017, whilst still performing the duties of Cleaner, Ms Clark "filled in" as the CTA Officer, following the departure of the previous incumbent. She was paid the permanent part-time rate for that position, in addition to her wages as a Cleaner, under employee number 40226.
3. On or about 8 May 2017 Ms Clark received a letter from the Council, dated the same day, advising of a change to her working hours in respect of the CTA Officer position. That letter was signed by Trisk Kirkland, the Council's Director Community & Governance. That letter made reference to the position being "a separate and distinct employment engagement from your employment as a Cleaner with Council".
4. The CTA Officer position was subsequently advertised and, after a merit-based selection process, Ms Clark was successful in applying for appointment to that role. She was provided with a letter dated 20 June 2017 from the Council confirming her appointment to the position, effective 27 June 2017. She was assigned an employee number for the CTA Officer role of 40582 against which wage payments for the position were subsequently made.
5. Ms Clark continued to be employed in the Cleaner position and received payments in respect of that role under her existing employee number of 40226.
6. On 9 March 2018 Ms Clark sent an email to Ms Logan which stated: "I made an enquiry to Louise earlier in the week in regards to my leave balances and I'm hoping you're able to clarify. If I were to cease employment in my Cleaning Position what would happen to my annual, long service and sick leave balances[?] Both positions I hold are under the same award. My employee numbers are 40582 for the TCT admin role and 40226 for the cleaning role."
7. Later on 9 March 2018 Ms Logan sent an email in response to Ms Clark in these terms: "You are employed by Council in two distinct and separate positions; one as Cleaner and one as Admin Officer TCT. Should you resign from the position as Cleaner you would be paid your accrued annual and long service leave. Sick leave balance is not paid out."
8. There was some further email correspondence in which the Council clarified its position regarding Ms Clark's enquiry. It is not necessary to traverse that evidence other than to note that it contained no express reference to cl 29 of the Award.
9. On 7 February 2019 Ms Clark filled out a document titled "USU Grievance Notification Form". In that document she described her grievance in these terms: "I have previously enquired with HR at Uralla Shire Council into how the leave balances in my current cleaning position would be dealt with upon resignation from that position. I am not satisfied with the response that my leave balances will be paid out and not transfer to my admin position - a second position I hold within Uralla Shire Council under the same Award."
10. On 14 February 2019 and 7 March 2019 Ms Clark attended meetings with representatives of the Council. She was accompanied by Mr Shane Evans, an organiser with the USU. A resolution to Ms Clark's grievance could not be reached.
11. On 28 March 2019 the USU filed with the Office of the Industrial Registrar a notification of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Act").

Submissions

1. The USU's written submissions placed particular emphasis on the use of the word "may" in cl 29 of the Award, meaning that whether or not an employee was to be regarded as being in "multiple employment" was a matter of discretion. The submissions observed that the Council's letter to Ms Clark of 20 June 2017 contained no reference to the position being a multiple employment position for the purposes of cl 29 of the Award. The submissions stated: "6. It is unreasonable that Council offer Ms Clark the position in 2017 without disclosing that the position for all purposes would be considered a separate and distinct employment contract. 7. The evidence of Ms Clark will be that there was no discussion between the parties as to the position being offered as being a multiple employment position. 8. There was no documentation highlighting to Ms Clark that the position was being considered as a multiple employment position when Ms Clark signed the letter of offer. 9. Ms Clark was of the view that her service start date was, and would continue to be, 4 February 2008 and for the purpose of accumulating entitlements including but not limited to leave. 10. It is grossly unfair to Ms Clark that Council can now suggest that the position is a multiple employment position particularly when there was no discussion prior to and immediately after the offer and acceptance of the position in 2017."
2. The Council's submissions included the following contentions: 1. The question to be answered is whether Ms Clark's part-time roles as Cleaner and CTA Officer apply cumulatively for the purpose of calculating Ms Clark's entitlement to long service leave, in accordance with the Award. 2. The duties of the CTA Officer differ substantially from those required of Cleaner. As such there is no overlap of duties between the roles which would give rise to the argument that Ms Clark is engaged in one contract of employment which encompasses both roles. There are two separate and distinct contracts of employment, one covering the duties as a Cleaner and the other covering the duties performed as a CTA Officer. 3. The conditions in cl 29(i) of the Award are met through an analysis of the functions performed in each role. 4. In respect of cl 29(ii) of the Award the Council's submissions stated: "18. … Mrs Clark applied for the role of Administration Officer and was successfully appointed to the role. There was an understanding between Mrs Clark and Council that she would continue to perform the duties associated with the Cleaner position. 19. As Mrs Clark performed both roles, an inference can be drawn that Mrs Clark was well aware that both positions would be treated as separate and distinct engagements." 1. There is no provision under the Award for Ms Clark's long service leave entitlement which was accrued in the Cleaner position to be transferred over to the CTA Officer position, in the event that she resigns from the Cleaner position. 2. The Council is exempt from the obligations under the Long Service Leave Act 1955 (NSW) by virtue of the operation of s 5(1)(a) of that Act. This is because the long service leave provisions conferred by the Award are more favourable when viewed against the corresponding provisions of the Long Service Leave Act.

Consideration

1. The crux of the dispute between the parties is whether Ms Clark's employment is subject to cl 29 of the Award. There was no argument that were it to apply, the approach proposed to be taken by the Council outlined in Ms Logan's email to Ms Clark of 9 March 2018 would be correct having regard to the terms of the Award. It was also agreed that the Long Service Leave Act has no application in this case.
2. Clause 29 is reproduced above. If an employee is employed in two positions with the one employer the second position may, for all purposes of the Award, be regarded as a separate and distinct employment engagement from the from the first position if the positions involve different duties or are in different work function areas, and the employee agreed to the employment in the second position.
3. It was common ground that through the use of the word "may" the clause confers a discretion as to whether appointment to a second position would be regarded as "multiple employment" within the meaning of the clause. If that discretion is exercised, each position would stand apart for all purposes of the Award, including for the accrual of leave entitlements.
4. I digress to observe that cl 29 is somewhat curious. There was no evidence led as to the history of the clause or its intended purpose. Clearly it is designed to accommodate a person being employed by an employer in more than one role. One can presume that the discretion to treat the roles as separate and distinct anticipates a situation such as the present one - to provide a means by which to avoid an employee taking a second, higher-paid position and arguing that any leave accruals gained under the first position should be paid at the higher rate.
5. The Award does not appear to provide any guidance as to how the clause would apply in practice. By way of example, on the Council's case cl 29 applies to Ms Clark's employment. She has accrued long service leave in respect of the Cleaner role but not that of CTA Officer. To take long service leave Ms Clark would presumably require a leave of absence from the CTA Officer position, but the Award does not seem to contemplate or provide for this in the context of cl 29. There is at least the theoretical possibility that an employer could refuse such a leave of absence, which would effectively deprive the employee of the practical ability to avail themselves of the long service leave which has been accrued. This cannot have been the intention of the drafters of the clause.
6. As already stated, I digress. These matters were not ventilated before me and I will say no more about them.
7. The parties presented competing constructions of cl 29. The USU contended that the clause had to be "invoked" at the time the employee is appointed to the second position. That is, if it was intended to exercise the discretion in the clause there needed to be an agreement between the employer and employee at the time of the second appointment that cl 29 would apply. If this were not the case, the employer could exercise the discretion in a way which imposed an unfair outcome on the employee that was not contemplated at the time of the second appointment. This, it was submitted, had happened in the case of Ms Clark.
8. The Council submitted that even if the USU's construction was accepted, through the terms of the letter from Ms Kirkland dated 8 May 2017 Ms Clark should have been aware that cl 29 applied to the CTA Officer position.
9. Even if this were not the case, the Council contended that the clause should be construed strictly in accordance with its terms. Once the requirements of cl 29(i) and 29(ii) are met, the discretion in cl 29 is enlivened and reposes in the Council.
10. The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument): s 175 of the Act. The Award is an industrial instrument: s 8 of the Act.
11. The language of s 175 makes it clear that the powers of the Commission under the section do not stand alone, permitting applications for declaratory relief simpliciter. The power to provide an interpretation of a clause in an award must be associated with the exercise of the Commission's other powers under the Act: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10] (Seymour C), citing Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 at [67] and Health Services Union v Director-General, Department of Health (NSW) (2010) 193 IR 359; [2010] NSWIRComm 42 at [57] - [58].
12. In the recent decision of New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 at [21]-[24] the Full Bench restated the principles of award interpretation. I will not reproduce those passages but I adopt them and will apply the principles outlined in them in the disposition of this matter.
13. The Council's position essentially requires cl 29 to be read as providing that once it is established that the employee is employed in a second position, that the roles involve different duties or are in different function areas, and the employee agreed to take up the second position, the employer can elect to treat the second position "as a separate and distinct engagement". On this analysis the employee's agreement to that outcome would not be required.
14. During the hearing I pressed Mr Robson as to the outer limits of that position. If the discretion reposes in the employer once the requirements of cl 29(i) and 29(ii) are met, on a simple and literal construction of those provisions, when must it be exercised, if not at the time of the employee's appointment to the second position? Mr Robson suggested that it would depend on the circumstances, although with respect I received little assistance as to when and in what circumstances the employer might later invoke cl 29. I was left with the uncomfortable impression that the Council would regard the matter as entirely within its discretion, which would allow for it unilaterally to change an employee's position, possibly to the employee's detriment, whenever it perceived that the circumstances warranted such a change.
15. The parties are in agreement that cl 29 does not mandate that if the conditions in cll 29(i) and 29(ii) are met the employee must automatically be taken to be in a position of "multiple employment". The use of the word "may" enables, but does not mandate, that consequence.
16. The clause does not on its terms repose any discretion on the employer only. That is, it does not state that only the employer can decide whether or not to apply cl 29. There is nothing in the clause to preclude this having to be a mutual, agreed position.
17. That said, the clause equally does not state that the employee must agree in advance that cl 29 will apply following their appointment to the second position. The USU relied on the evidence of Ms Waters under cross-examination that she would expect that the conditions of a person's employment would be in writing to submit that this is what should have happened, but which did not happen, in respect of Ms Clark. However, while this might be good practice it is not a requirement under cl 29.
18. In the present case, it is not in dispute that the positions held by Ms Clark "involve different duties". The requirements of cl 29(i) are satisfied.
19. It is also common ground that Ms Clark agreed to becoming employed as a CTA Officer. On one view, this would satisfy cl 29(ii).
20. That said, it is difficult to envisage a situation in which, on a purely factual level, cl 29(ii) would not be satisfied. Simply by agreeing to take the role the employee could be said to have "agreed to the employment in the second position". I am not aware of any provision in the Award or elsewhere that would entitle an employer to force an employee into a second role against their will.
21. Further, the opening words of the clause refer to an employee "being employed in a second position". Whether they are so employed will be a matter of fact. If it is assumed that the employee is voluntarily "employed in a second position", what work does cl 29(ii) have to do? It must require more than simply establishing that the employee has agreed to being employed in the second position.
22. Having regard to the language of the clause as a whole, the requirements of cl 29(ii) are properly to be seen as requiring that the employee agree to employment in the second position in the sense of acknowledging that the employment would be a "separate and distinct employment engagement" within the meaning of cl 29, and accept all of the consequences that entail. That is, the employee must make a fully informed decision as to the implications of taking up employment in the second position.
23. Ms Clark maintained that she was never directly told that the position of CTA Officer was being offered to her as a "second position" within the meaning of cl 29. This evidence was not controverted. There is no evidence that she was told during the selection and recruitment process that cl 29 would apply to her employment if she was successful in her application for the CTA Officer position. The letter of 20 June 2017 made no reference to cl 29. There was no mention of the clause in the email from Ms Logan to Ms Clarke dated 9 March 2018 and in the ensuing email exchange.
24. Ms Logan deposed that at about the time that Ms Clark was appointed permanently to the CTA Officer role she had a conversation with Ms Clark who queried the need to fill out a new tax file declaration. Ms Logan stated that she told Ms Clark that it was necessary because the CTA Officer position was a "new and separate position from her Council Chambers Cleaner role". The Council relied on this as evidencing Ms Clark having been told that cl 29 would apply following the appointment, or that at least Ms Clark should have been aware of that fact.
25. However, there is no evidence that Ms Logan mentioned cl 29, or sought to explain to Ms Clark the implications of cl 29 applying. In fact, the evidence does not demonstrate that Ms Logan was necessarily referencing cl 29 at all.
26. As already noted, the Council relied on the letter issued to Ms Clark on 8 May 2017 advising her of a change in her working hours in the CTA Officer role. Ms Logan deposed that through the reference to the role being a "separate and distinct engagement" from Ms Clark's role of Cleaner she should have been aware that cl 29 applied to the position. There are several things to say about this evidence.
27. Firstly, the letter of 8 May 2017 does not reference cl 29. Ms Kirkland was not called to give evidence as to her purpose in using the language she did. While an inference can be drawn that the language of the letter derives from cl 29, there is no direct evidence that the Council was "invoking" cl 29.
28. Secondly, and further in this regard, the letter does not explain to Ms Clark the context in which the words "separate and distinct engagement" are used. There was no evidence that Ms Clark was aware or ought to have been aware that this was a reference to cl 29, much less of the consequences of that reference. As with the conversation between Ms Logan and Ms Clark referred to above, the Council appears to have assumed that Ms Clark was or should have been aware of the existence and effect of cl 29, such that oblique references to the language of the clause would be sufficient for her to have understood Council's asserted intentions. The basis on which this assumption was formed has not been explained.
29. Thirdly, the letter was issued to Ms Clark whilst she was acting in the position of CTA Officer. It was more than a month later that she was offered the position on a permanent basis, following a recruitment process in which cl 29 was not directly raised by the Council, and through a letter which similarly made no reference to cl 29, whether directly or otherwise.
30. Fourthly, at the time she received the letter of 8 May 2017 Ms Clark was being paid for both roles under her original employee number. While this might have been the result of nothing more than administrative processes, which I understand to be the effect of Ms Waters' evidence, it is relevant when painting a picture of the context in which the Council submits that an inference can be drawn that Ms Clark was "well aware that both positions would be treated as separate and distinct engagements".
31. Once Ms Clark was appointed to the CTA Officer position on a permanent basis, she was allocated a new employee number for that role. She gave evidence that she noticed that she was issued with a second payroll number but did not question it as she thought it "was purely for administration purposes". There is nothing before me which would suggest that this was an unreasonable conclusion for her to have drawn. Indeed, it would seem to be a sensible one, given Ms Waters' evidence as to the "manual overrides" that need to be put in place when an employee is relieving in a position and is being paid at two different rates.
32. The Council further relied on the fact that the letter of appointment of 20 June 2017 stated that the employment in the CTA Officer role would be "in accordance with the Local Government (State) Award 2014 and Council's policies and procedures as varied from time to time". It was submitted that this reference meant that Ms Clark was made aware that all relevant terms of the Award, including cl 29, applied. The Council argued that it could not be expected to outline all of the relevant terms of the Award and each policy.
33. I accept the last proposition. However, not all of the terms of the Award will apply to every employee, and some will vary in their operation depending on an employee's classification. Where a particular provision is intended to apply which could have a material bearing on an employee's decision whether to accept the position or not it is not unreasonable to expect that the employer will bring that provision in particular to the employee's attention.
34. On all of the evidence, I am not satisfied that Ms Clark agreed to the CTA Officer position being "separate and distinct" within the meaning of and in accordance with cl 29. That is, while she might properly be taken to have been aware that it was a separate role, she had not agreed to it being separate and distinct for the purposes of cl 29 with all that that entailed.
35. In the absence of such agreement, the Council cannot unilaterally determine that Ms Clark is to be treated as being in "multiple employment" within the meaning of cl 29.
36. I find that Ms Clark's employment is not subject to cl 29 of the Award.

Direction and orders

1. In light of my finding, and pursuant to s 136(1)(a) of the Act, I direct the parties to confer with a view to resolving how Ms Clark's accrued leave entitlements are to be treated, consistent with the Award, in the event she resigns from her position as Cleaner with the Council.
2. I make the following orders: 1. The matter is adjourned to 31 October 2019. 2. Liberty is reserved to the parties to have the matter re-listed on reasonable notice. 3. If that liberty is not exercised by 31 October 2019 the matter will be closed administratively. Damian Sloan Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2019