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[2020] FWC 1426
General information, not legal advice.
Fair Work Commission
2020-03-19
Original judgment source is linked above.
s.739 - Dispute resolution
Commonwealth of Australia represented by the Department of Human Services T/A Department of Human Services
Application to deal with a dispute regarding the application of clause G13.1 of the Department of Human Services Enterprise Agreement 2017-2020 - determined that a dispute concerning clause G13.1 of the Agreement is not a matter arising arising under the Agreement and that the Commission is therefore not empowered to deal with the dispute in so far as it relates to clause G13.1 - also determined that Commission is able to deal with the dispute to the extent that it relates to clause G13.2 of the Agreement - that aspect of the dispute to be listed for conference.
[1] On 28 February 2019 CPSU, the Community and Public Sector Union (CPSU) made an application under s.739 of the Fair Work Act 2009 (Cth) (the Act) on behalf of Ms Nina David-Milne (the Applicant) and in accordance with the dispute resolution process of the Department of Human Services Enterprise Agreement 2017-2020 (the Agreement)[1]. The dispute concerns the application of clause G13.1 - Maternity Leave of the Agreement.
[2] The Commonwealth of Australia as represented by the Department of Human Services (DHS - the Respondent) wrote to the CPSU on 20 February 2019 disputing that the Applicant's claim she was entitled to maternity leave under the Maternity Leave (Commonwealth Employees) Act 1973 (Cth) (the ML Act) constituted a dispute "relating to a matter arising under the Agreement" as per clause A10.1 of the Agreement. As such, the Respondent contended, the dispute resolution procedure contained in clause A10 of the Agreement had no application in this case.
[3] The application was the subject of conferences on 1 and 15 March 2019 which failed to resolve the dispute. At the latter conference the Respondent confirmed that it wished to press its jurisdictional objection to the application. Against that background, the parties were directed to confer on proposed directions for the Fair Work Commission (the Commission) to deal with that jurisdictional objection. Directions were subsequently issued on 25 March 2019, with the parties advising the Commission in early May 2019 that the jurisdictional objection could be determined 'on the papers.'
[4] For the reasons set out below, I find that:
(i) clause G13.1 of the Agreement does not create an entitlement to maternity leave which is enforceable as a term of the Agreement;
(ii) the ML Act is not incorporated into the Agreement by reference as a result of clause G13.1 of the Agreement; and
(iii) a dispute concerning clause G13.1 of the Agreement is not a matter arising arising under the Agreement as required by clause A10.1 of the Agreement; and
(iv) the Commission therefore is not authorised to deal with the application in so far as it relates to clause G13.1 of the Agreement.
[5] However, I also find the dispute in so far as it relates to clause G13.2 of the Agreement is a dispute relating to a matter arising under the Agreement and therefore capable of being dealt with by the Commission. That aspect of the dispute will be now listed for a further conference.
[6] The Applicant began working for the Respondent in February 2016, initially as a casual employee and later as a non-ongoing employee. On 10 January 2019 the Applicant was offered an extension of her non-ongoing employment with the Respondent. The extension was until 28 February 2019, which was one month before she was due to give birth. The Applicant accepted the offer on 11 January 2019.
[7] In September 2018 the Applicant applied for 28 weeks of maternity leave at half pay and a further four weeks of unpaid parental leave. The Applicant was granted and commenced) maternity leave beginning on 21 February 2019. However, the Respondent did not approve maternity leave beyond 28 February 2019 on the basis the Applicant's employment would cease on that date.
[8] Clause G13 of the Agreement which deals with maternity leave provides as follows:
G13.1 An employee is entitled to maternity leave (paid and/or unpaid) in accordance with the Maternity Leave (Commonwealth Employees) Act 1973.
G13.2 An employee who is entitled to paid maternity leave under the Maternity Leave (Commonwealth Employees) Act 1973 is entitled to access an additional two weeks paid maternal leave immediately following paid maternity leave. These two weeks will count as service for all purposes.
G13.3 An employee eligible to receive paid maternity leave (including additional maternal leave) in accordance with this clause G13 may access that leave at half pay by spreading the payments over a maximum of 28 weeks. Only the first 14 weeks of leave will count as service."
[9] Other relevant provisions of the Agreement are set out below:
A4.1 The terms and conditions of employment of the employees covered by this Agreement, other than terms and conditions applying under relevant Commonwealth laws, are stated in this Agreement.
(a) a matter arising under the Agreement; or
(b) the National Employment Standards;
this clause sets out procedures to settle the dispute.
G14.4 Where an employee has at least 12 months service (as defined under the Maternity Leave (Commonwealth Employees) Act 1973), they are entitled to access 14 weeks paid leave under this clause G14. This leave may be taken at half pay over 28 weeks only the first 14 weeks of leave will count as service.
G15.1 An employee whose partner has given or is giving birth to a child, or an employee whose partner is the primary caregiver for an adopted or fostered child, is entitled to two weeks supporting partner leave. This leave:
(a) will be paid leave, where the employee has at least 12 months service (as defined under the Maternity Leave (Commonwealth Employees) Act 1973);
(b) will be unpaid leave, where the employee does not have at least 12 months service (as defined under the Maternity Leave (Commonwealth Employees) Act 1973);
(c) ...
G16.2 An employee who is not eligible to access paid leave under clauses G13 or G14 because they do not have the required length of service or they are not the primary caregiver of the child is entitled to access leave under this clause G16.
G16.6 Nothing in this Agreement affects an employee's entitlements to paid or unpaid parental leave (however described) under Commonwealth legislation, including the Fair Work Act 2009, the Maternity Leave (Commonwealth Employees) Act 1973, and the Paid Parental Leave Act 2010."
[10] In short, the Respondent contended that the Commission should dismiss the application as it did not have jurisdiction to deal with the dispute under s.739 of the Act. More particularly, the Respondent submitted among other things that:
this was not a matter relating to the National Employment Standards, adding that to invoke the Commission's jurisdiction under clause A10 of the Agreement the Applicant therefore had to establish that the dispute concerned a matter arising under the Agreement;
on any objective assessment the dispute concerned the interpretation and application of the ML Act and was not a dispute about a matter arising under the Agreement;
the ML Act was not incorporated into the Agreement by virtue of clause G13 of the Agreement;
clause G13.1 of the Agreement simply confirmed the source of employees' entitlements in respect of maternity leave, adding that the Agreement did not confer on employees an entitlement to maternity leave nor did it impose an obligation on it to grant maternity leave as asserted by the Applicant;
the meaning of clause G13.1 of the Agreement was clear and unambiguous, i.e. it provides that an employee is entitled to maternity leave in accordance with the ML Act;
• consistent with the principles regarding the construction of enterprise agreements as outlined in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri)[2], there was no need for the Commission to enquire further into the meaning of clause G13.1 and no work for clause A10 of the Agreement to do; and
[11] Key aspects of the Respondent's reply submissions included that:
clause G13.1 of the Agreement did not create a separate entitlement to maternity leave;
there was no necessity to consider the "intention of the parties" as clause G13.1 of the Agreement was unambiguous;
clause G16.6 of the Agreement recognised that the source of the entitlement to paid and unpaid maternity leave was the ML Act;
clause G13.1 of the Agreement did not purport to apply the ML Act beyond its legislative effect;
the entitlement to additional paid maternity leave under clause G13.2 was a separate and distinct entitlement to any entitlement employees may have under the ML Act and should be treated as such;
• the Applicant had not been able to point to decisions of the Commission which were supportive of her argument, distinguishing the circumstances in Shop, Distributive and Allied Employees Association v Big W Discount Department Stores (Big W)[3] and Australian Municipal, Administrative, Clerical and Services Union and Australian Taxation Office and another (ATO)[4] relied on by the Applicant from those in this case;
[12] The Applicant submitted that the Respondent's failure to provide maternity leave to her was a matter arising under the Agreement because clause G13 of the Agreement established an entitlement to maternity leave by incorporating the terms of the ML Act by reference and establishing entitlements beyond those provided for in the ML Act. The Applicant further submitted that the interpretation of clause G13 of the Agreement or the incorporated Act did not require the Commission to exercise judicial power but rather private arbitral power under s.739 of the Act. As such, the Applicant posited, the Commission had jurisdiction to resolve the dispute.
[13] Beyond that, the Applicant submitted inter alia that:
the meaning of clause G13 of the Agreement was plain on its face, i.e. employees covered by the Agreement had an entitlement under the Agreement to maternity leave in a manner conforming with the ML Act;
clause G13 appeared in Part G of the Agreement which dealt with employees' leave entitlements;
the heading to clause G13 (i.e. MATERNITY LEAVE), when read in the context of Part G of the Agreement, seemed to indicate that the clause dealt with and created maternity leave entitlements;
the Oxford English Dictionary defined the term "in accordance with" which appeared in clause G13.1 of the Agreement as meaning "in a manner conforming with";
the Respondent ascribed a meaning to clause G13.1 of the Agreement which it did not and could not have, adding that the provision created an entitlement to maternity leave under the Agreement itself;
clause G13.1 was redundant and had no purpose at all if it did not create an entitlement to maternity leave which was enforceable under the Agreement;
clause G13.3 of the Agreement, which provides that an "employee eligible to receive paid maternity leave (including additional maternal leave) in accordance with this clause G13 may access that leave at half pay ...", made it clear that clause G13 created an enforceable entitlement to maternity leave over and above that contained in the ML Act;
clause G16.2 of the Agreement, which provides that an "employee who is not eligible to access paid leave under clauses G13 ...", reinforced the obvious meaning of clause G13, i.e. it contained an entitlement to access paid leave and was not simply a signpost to the ML Act;
drawing on the principles in Berri, the preferable view was that clause G13 of the Agreement gave rise to an enforceable entitlement to maternity leave under the Agreement and that this entitlement was in accordance with the ML Act;
clause G13 of the Agreement could be contrasted against the language used elsewhere in the Agreement which explicitly and deliberately excluded certain extrinsic material from incorporation into the Agreement, e.g. clause 4.2 of the Agreement which provides that "[p]olicies and guidelines will not form part of this Agreement";
the ML Act was incorporated into the Agreement by virtue of the references to that Act in clauses G13.1, G13.2, G13.3, G14.4 and G15.1(a) and (b) of the Agreement;
clauses G13.2 and G13.3 of the Agreement provided entitlements over and above what were provided for in the ML Act, adding that those clauses relied on the incorporated terms of the ML Act to establish eligibility for those additional entitlements;
regardless of whether the Commission found that the ML Act was incorporated into the Agreement, the dispute with respect to her entitlement to the additional two weeks' maternal leave under clause G13.2 of the Agreement was sufficient to bring the dispute within the jurisdiction of the Commission;
• having regard to the High Court's decision in Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission (and Another)[5], the resolution of this dispute required the exercise of private arbitral power and not judicial power; and
[14] The Applicant cited the decisions in Big W and ATO in support of her submissions.
[15] The principles relating to the interpretation of enterprise agreements were set out in Berri. While it is not necessary to set out the principles below, suffice to say that the starting point for interpretation of an enterprise agreement is the ordinary meaning of the relevant words. Further, as noted in Berri, the resolution of a disputed construction of an agreement turns on the language of the agreement having regard to its context and purpose.
[16] Applying the principles in Berri in this case and also drawing on the decision in ATO, I note that the language used in clause G13.1 of the Agreement does not evince an intention to create an entitlement to maternity leave which is distinct from that established by the ML Act or which is enforceable as a term of the Agreement. In other words, the language used in the clause points to the ML Act being the source of an employee's entitlement to maternity leave as opposed to the Agreement itself. Several factors support that conclusion, including that:
clause G13.1 of the Agreement does not include any details about the entitlement itself, e.g. what, if any, eligibility requirements apply and the period of maternity leave available to eligible employees;
clause A4.1 of the Agreement, which appears under the heading 'CLOSED COMPREHENSIVE AGREEMENT') provides that "[t]he terms and conditions of employment of the employees covered by this Agreement, other than terms and conditions applying under relevant Commonwealth laws, are stated in this Agreement" (underlining added) - the reference to Commonwealth laws, which would include the ML Act, points to those laws sitting outside the Agreement and does not suggest an intention to incorporate the ML Act into the Agreement;
clause 13.2 of the Agreement which provides that "[a]n employee who is entitled to paid maternity leave under the Maternity Leave (Commonwealth Employees) Act 1973 ..." (underlining added) - the word 'under' reinforces an interpretation that it is the ML Act which governs the entitlement to maternity leave rather than the Agreement;
clause G13.3 of the Agreement provides that "[a]n employee eligible to receive paid maternity leave (including additional maternal leave) in accordance with the clause G13 ..." (underlining added) - the words 'eligible to receive' do no more than define the requirement to access the entitlement provided for in clause G13.3, i.e. the entitlement to elect to take paid maternity leave (included maternal leave) at half pay);
clause G16.2 which provides that "[a]n employee who is not eligible to access paid leave under clauses G13 and G14 because ..." (underlining added) - again the words 'not eligible to access' do no more than define the requirement to access the entitlement provided for in clause G16, i.e. the entitlement to General Parental Leave; and
clause G16.6 of the Agreement which provides that "[n]othing in this Agreement affects an employee's entitlements to paid or unpaid parental leave (however described) under Commonwealth legislation, including ... the Maternity Leave (Commonwealth Employees) Act 1973 ..." (underlining added) - the words 'nothing in this Agreement' reinforces an interpretation that it is the ML Act as opposed to the Agreement which provides the entitlement to maternity leave. As to the word 'under', I reiterate the above comments regarding that word in clause 13.2 of the Agreement.
[17] Further, clauses G13.2 and G13.3 of the Agreement are distinguishable from clause G13.1 in that they both create an entitlement which is in addition to that provided by the ML Act. Specifically, clause G13.2 provides access to an additional two weeks paid maternal leave for eligible employees and clause G13.3 entitles employees eligible to receive paid maternity leave to take that leave at half pay. Accordingly, disputes regarding the entitlements set out in clauses G13.2 and G13.3 would be disputes relating to a matter arising under the Agreement as required by clause A10.1 of the Agreement.
[18] Finally, I do not accept the Applicant's contention that clause G13.1 would be redundant if it did not create an entitlement. In my view it serves a useful purpose as a sign post to the source of the entitlement to maternity leave. In this regard I observe that clause G18.1 of the Agreement, which provides that "[a]n employee is eligible for long service leave in accordance with the Long Service Leave (Commonwealth Employees) Act 1976", similarly sign posts the source of the entitlement to long service leave for employees covered by the Agreement.
[19] For all the above reasons, I find that when regard is had to the ordinary meaning of the words in clause G13.1 of the Agreement and the text of the Agreement as a whole that:
(i) clause G13.1 of the Agreement does not create an entitlement to maternity leave which is enforceable as a term of the Agreement;
(ii) the ML Act is not incorporated into the Agreement by reference as a result of clause G13.1 of the Agreement; and
(iii) a dispute concerning clause G13.1 of the Agreement is not a matter arising arising under the Agreement as required by clause A10.1 of the Agreement; and
(iv) the Commission therefore is not authorised to deal with the application in so far as it relates to clause G13.1 of the Agreement.
[20] Lastly, the Applicant submitted that the dispute with respect to her entitlement to the additional two weeks' maternal leave under clause G13.2 of the Agreement was sufficient to bring the dispute within the jurisdiction of the Commission. As stated above, a dispute regarding the entitlement set out in clause G13.2 of the Agreement would be a dispute relating to a matter arising under the Agreement and is therefore capable of being dealt with by the Commission. That aspect of the dispute will now be listed for a further conference.
Printed by authority of the Commonwealth Government Printer
Nina David-Milne
Commonwealth of Australia represented by the Department of Human Services T/A Department of Human Services [2020] FWC 1426
(2001) 203 CLR 645