O'Neill v Commissioner of the Australian Federal Police

BROMWICH J: 1 The applicant, Ms Claire O'Neill, is a police officer and an employee of the Australian Federal Police (AFP). The respondent is the Commissioner of the AFP, who employs staff on behalf of the Commonwealth of Australia, and therefore represents the Commonwealth: see s 24 of the Australian Federal Police Act 1979 (Cth). For convenience, the respondent is referred to as the AFP in these reasons. This proceeding is a dispute over maternity leave entitlements insofar as they are taken to count towards Ms O'Neill's period of service, and thereby her career progression by way of time-served annual advancements and salary increments. 2 Ms O'Neill was entitled to 16 weeks paid maternity leave, the first 12 weeks of which was a statutory entitlement under s 6 of the Maternity Leave (Commonwealth Employees) Act 1973 (Cth) (Maternity Leave Act), with the further four weeks being an entitlement under the AFP enterprise agreement then in force. She elected, in accordance with that enterprise agreement, to spread the payment of that maternity leave over 32 weeks at half pay. On 13 April 2015, Ms O'Neill was advised in writing of her approved maternity leave as follows: (1) the first part for 16 weeks at half pay, to commence on 3 July 2015, to count as service; and (2) the second part for 16 weeks at half pay, to commence on 23 October 2015, not to count as service. The AFP delayed her advancement and salary increment date because the second part of her maternity leave was not treated as service, in accordance with the above advice. 3 Ms O'Neill's baby was born on 30 June 2015. She took maternity leave beginning on 3 July 2015, as approved. She was required to return to work on 1 July 2016. She received half pay between 3 July 2015 and 11 February 2016, and thereafter took other paid leave until 30 June 2016. She therefore did not have any period of maternity leave during which she was not in receipt of payment. It is therefore only necessary to focus on the 32 weeks of paid maternity leave from 3 July 2015 to 11 February 2016. 4 Ms O'Neill asserts that the full period of 32 weeks that she was on maternity leave at half pay counts towards her period of service, contrary to the advice provided to her as described at [2(2)] above that it did not. She brings this proceeding to obtain declaratory relief to the effect that she was entitled to have the full 32 weeks of maternity leave on half pay count towards her period of service, by reason of s 7B(1)(a) of the Maternity Leave Act. She also seeks a declaration that the part of the enterprise agreement provisions providing to the contrary are invalid. 5 The AFP, in opposing the grant of declaratory relief, contends that the period of service arising from maternity leave is confined to the period of entitlement to full time maternity leave payments, irrespective of when and how the payments are in fact made.

Overview 6 The statutory entitlement to, and the obligation to take, maternity leave for federal government employees, including those employed by the AFP, arises from s 6 of the Maternity Leave Act. Section 6(1)(a) provides a right to 52 weeks maternity leave, commencing on the date upon which an employee is required to be absent from duty under s 6(1)(b). Left on its own, s 6(1)(b) would compel a pregnant woman to absent herself from duty six weeks before the expected date of birth of her child, and remain off duty until six weeks after confinement (s 3 relevantly defines "confinement" as the date of birth if it is not more than 20 weeks before the expected date of birth). However, s 7 provides for a pregnant woman to continue working within the six week period up to the expected date of birth if medically certified to be fit to do so. Ms O'Neill's date of confinement was 30 June 2015, and she was apparently certified to be able to work up to that date. Her maternity leave commenced three days later, on 3 July 2015. 7 Section 6(3), subject to certain exclusions that are not presently relevant, provides that an employee who has been confined and who has been absent from duty for a period, or periods, in accordance with s 6, is entitled to pay for the first 12 weeks of that absence (unless there is a shorter period of absence than 12 weeks, in which case the entitlement to pay is for that shorter period). 8 Section 6(5) provides that where an employee is entitled to pay in respect of a period under s 6(3), the pay that the employee is entitled to receive is what they would have received if, for that period, the employee had been granted leave of absence for illness on full pay. 9 The combined effect of s 6(3) and (5) is an entitlement to receive payment, on full pay, for up to the first 12 weeks of absence from work on maternity leave. There is no provision in the Maternity Leave Act as to how and when such payments are required to be made. 10 Section 7B of the Maternity Leave Act was originally introduced in 1978 to address the effect of maternity leave on continuity of service and on periods of service. Section 7B(1) reads as follows: 7B Grant of maternity leave not to affect continuity of service (1) Where an employee is, in accordance with section 6, absent from duty for a period: (a) if she has been paid, whether under subsection 6(3) or otherwise, in respect of the period or of a part of the period - the period, or the part of the period, of absence for which she has been so paid forms part of her period of service or employment for all purposes of this Act, of any other Act and of any Ordinance; and (b) subject to subsection (2), if she has not been so paid in respect of the period or of a part of the period - the period, or the part of the period, of absence for which she has not been so paid does not form part of her period of service or employment for the purposes of this Act, or of any other Act or of any Ordinance, but shall not be taken to have broken the continuity of her service or employment. 11 In the statement in the second reading speech for the amendments that introduced s 7B, the responsible Minister said (Senate, 14 November 1978, p 1948): Any period of maternity leave that is without pay - that is, any period of leave after the first 12 weeks paid leave - will not count as service for any purpose although it will not break continuity of employment. Under the present provision, unpaid maternity leave counts as service for all purposes. The change proposed will bring maternity leave into alignment with leave without pay for other private purposes. 12 Thus, the stated intention behind the introduction of s 7B was that maternity leave would not break continuity of service, but only paid maternity leave would count as service, aligning unpaid maternity leave with other kinds of unpaid leave. Whether that was achieved is a matter of statutory construction, with aspirational statements of intent to change, or not to change, the existing law generally not being of much assistance, at least when there is a comprehensive legislative scheme: R v JS [2007] NSWCCA 272; 230 FLR 276 at [142]-[144]. 13 The stated intention was sought to be achieved by drawing a distinction between: (1) periods of maternity leave "for which" payment was made, which forms part of the period of service: s 7B(1)(a); and (2) periods of maternity leave "for which" payment was not made, which does not form part of the period of service: s 7B(1)(b), irrespective of whether that payment was under s 6(3) "or otherwise". 14 An employee who had not been employed for 12 months before confinement, and thus was not entitled to paid maternity leave, still had the first 12 weeks of absence count as part of her period of service: s 7B(2). 15 Clause 47 of the Australian Federal Police Enterprise Agreement 2012-13 (2012 EA), in force during the time that Ms O'Neill took maternity leave, relevantly provided as follows: 47 Maternity Leave (1) Employees are entitled to maternity leave as provided in the Maternity Leave (Commonwealth Employees) Act 1973. (2) Where an Employee would be eligible for a period of 12 weeks paid maternity leave under the Maternity Leave (Commonwealth Employees) Act 1973, the Employee will be entitled to be paid for a further four weeks of the maternity leave period in addition to that conferred under the Maternity Leave (Commonwealth Employees) Act 1973. (3) An Employee may apply to spread the payment of paid maternity leave over a maximum period of 32 weeks by taking all or part of the leave at half Base Salary, including Core Composite (if applicable). Any paid maternity leave beyond the first 16 weeks does not count as service for any purpose. … 16 Clause 47(1) and (2) of the 2012 EA therefore acknowledged an entitlement to maternity leave under the Maternity Leave Act, noted that this entitlement included 12 weeks paid maternity leave, and provided an entitlement to an additional four weeks paid maternity leave. Clause 47(3) provided for an application to be made to spread the payment of paid maternity leave over a maximum of 32 weeks by taking all or part of it at half pay. The second sentence in cl 47(3) provided that any paid maternity leave after the first 16 weeks did not count as service. 17 Clause 46 of the Australian Federal Police Enterprise Agreement 2017-2020 (2017 EA) provides much the same as cl 47 of the 2012 EA, adding the qualification that the limit on paid maternity leave after the first 16 weeks not counting as service was subject to any legislative requirement to the contrary. The 2017 EA did not apply to Ms O'Neill's 2015-16 maternity leave, and therefore consideration of the 2017 EA cannot form any part of the ratio of this decision. As a matter of logic, however, the issues raised, and consideration given, in relation to the 2012 EA arise equally to that later agreement. 18 To the extent of any inconsistency between ss 6 and 7B(1)(a) of the Maternity Leave Act and cl 47(3) of the 2012 EA (or the equivalent cl 46(3) of the 2017 EA), the statute prevails, both as a matter of ordinary construction and legislative predominance, but also because s 40(1) of the Fair Work Act 2009 (Cth) expressly provides that "public sector employment law prevails over a fair work instrument that deals with public sector employment, to the extent of any inconsistency". 19 The substance of Ms O'Neill's case is that the correct way to read s 7B(1)(a) is that it provides that the full period of absence on maternity leave for which she was paid counted as part of her period of service. Ms O'Neill submits that the reference in the chapeau to s 7B(1) to "in accordance with s 6" is expressed in the past tense, to mean that if a woman has been absent from duty in accordance with s 6, s 7B(1) is enlivened, even if she has moved on to an additional paid maternity leave entitlement under a contract or enterprise agreement. According to Ms O'Neill, s 6(3) provides a minimum standard, but does not cap the period of service entitlement, as the words "or otherwise" in s 7B(1)(a) refer to rights beyond those bestowed by the Maternity Leave Act. 20 Ms O'Neill emphasises that s 7B(1) creates a clear distinction between paid and unpaid leave. She therefore submits that the simple fact that she was paid for each and every week of her 32 weeks of maternity leave means that this full period must count as service under s 7B(1)(a). On this argument, cl 47(3) of the 2012 EA, in providing that maternity leave paid after 16 weeks does not count towards service, is inconsistent with s 7B(1)(a) of the Maternity Leave Act, as is cl 46(3) of the 2017 EA to the same effect. Ms O'Neill takes the additional step of asserting invalidity of the last sentence of cl 47(3) of the 2012 EA and the last part of cl 46(3) of the 2017 EA, by reason of the asserted conflict with s 7B(1)(a) of the Maternity Leave Act. 21 The substance of the AFP's primary case, as developed during the course of the hearing, is that s 7B(1)(a) only requires the paid maternity leave for which the Act provides to form part of the period of service. The AFP submits that this is because the chapeau to s 7B(1) refers to absence from duty "in accordance with section 6". On this argument, when read with s 6(3) and (5), and by referring to the period of absence "for which" an employee has been paid, the period of paid maternity leave that is to count towards Ms O'Neill's period of service by reason of s 7B(1)(a) is the statutory benefit of 12 weeks maternity leave on full pay, irrespective of how and when it is in fact paid. 22 The AFP additionally, and for completeness, submits that the reference in s 7B(1)(a) to payment under s 6(3) "or otherwise" is a reference to the other circumstances where a woman might be paid while on maternity leave as contemplated by s 6, and not a reference to payment under other instruments such as an enterprise agreement. To support this argument, the AFP points to s 6(4C) and (7) as creating other entitlements to pay under s 6. However, as Ms O'Neill submits, s 6(4C) provides that a woman cannot be paid if she is on unauthorised leave immediately before she is absent in accordance with her expected confinement under s 6(1), unless an Agency Head determines there are extenuating circumstances. Section 6(7) provides that if a woman applies for a paid leave of absence to cover some of the 52 weeks of leave provided for in s 6(1)(a) (or s 6(1)(c)), apart from the period in respect of which there is payment under s 6(3), it must be granted. That entitlement to payment does not come from s 6(7), but from the contract or award applicable to the employee. The AFP therefore did not identify a provision within s 6, other than s 6(3), under which maternity leave is paid, which is the subject matter of s 7B(1). 23 Ms O'Neill's response, consistently with the immediately preceding observations, is that "or otherwise" in s 7B(1)(a) cannot be referring to payments under s 6 other than s 6(3), because s 6(3) is the only subsection that provides an entitlement to be paid. The AFP's alternative argument to meet this interpretation of "or otherwise" is that even if s 7B(1)(a) does require paid maternity leave entitlements provided for outside of the Maternity Leave Act to count towards Ms O'Neill's period of service, that provision picks up the additional maternity leave benefit only as it appears in its source. On this reading, "the period … of absence for which she has been so paid" that must count as service under s 7B(1)(a) is the statutory benefit of 12 weeks plus the additional four weeks provided for by cl 47 of the 2012 EA (and by cl 46 of the 2017 EA), regardless of whether or not she chose to spread payment of this leave at half the normal salary. 24 On either reading, the AFP characterises cl 47 of the 2012 EA as being intended to complement and supplement the Maternity Leave Act, acknowledging the entitlement to maternity leave, enhancing it by providing an additional four weeks maternity leave, and allowing the full 16 weeks (12 weeks from the Maternity Leave Act and the additional four weeks from the 2012 EA) to be spread out, by taking some or all of it at half pay. 25 The AFP further submits that even if these arguments are incorrect, any inconsistency between, on the one hand the last sentence of cl 47(3) of the 2012 EA or the last part of cl 46(3) of the 2017 EA, and on the other hand s 7B(1)(a) of the Maternity Leave Act, does not give rise to invalidity, with s 7B(1)(a) simply prevailing as provided by s 40(1) of the Fair Work Act.

Consideration 26 The resolution of this dispute turns on the meaning to be given to the text of s 7B(1) of the Maternity Leave Act, and thereby the scope of paragraph (a). Section 7B(1)(a), reproduced at [10] above, provides that where an employee, in accordance with s 6, is absent from duty for a period and has been paid in respect of that period, whether that payment is under s 6(3) "or otherwise", the period of absence for which she has been so paid forms part of her period of service. If she has not been paid for that period of absence, s 7B(1)(b) provides that the unpaid period does not form part of her period of service, but does not break continuity of service or employment. 27 Ms O'Neill supports her argument by suggesting, correctly, that the AFP's argument in substance turns upon construing the minimum entitlement of 12 weeks maternity leave in s 6(3) of the Maternity Leave Act as governing the meaning of s 7B(1)(a). She submits that this cannot be so, because s 7B(2) expressly addresses the minimum 12 week entitlement in s 6(3). With respect, that argument entails a misreading of s 7B(2). The purpose of that provision is to ensure that women who are not entitled to any maternity leave payment, by reason of not being an employee for 12 months prior to their expected confinement or confinement, nonetheless have their mandatory unpaid maternity leave of up to 12 weeks count as service. 28 To make sense and retain a coherent reading of the Maternity Leave Act, I accept Ms O'Neill's submission that the words "or otherwise" in s 7B(1)(a) must refer to entitlements beyond paid maternity leave bestowed by that Act, because s 6 contains no paid maternity leave entitlement other than in s 6(3). Additionally, although the AFP contends that the words "in accordance with s 6" in the chapeau to s 7B(1) limit the scope of the words "or otherwise" to paid entitlements arising under the Maternity Leave Act, it is only the absence from duty that must be "in accordance with s 6" for the provision to be enlivened, not the payment itself, or even the entitlement to be paid. Even though Ms O'Neill was receiving additional paid entitlements under the 2012 EA, her absence was still within the 52 weeks envisaged by s 6(1)(a). The scope of s 7B(1)(a) is therefore governed by an absence from duty under s 6 "for which" a woman is paid, whether the entitlement to that paid absence arises under s 6 or a source external to the Maternity Leave Act. 29 Stripped of surplus text, s 7B(1)(a) provides that if an employee has been absent from duty for a period in accordance with s 6 and has been paid in respect of that period, whether or not under s 6(3), the period "for which" she has been so paid forms part of her period of service. The key question is whether the "for which" attaches: (1) as the AFP contends, to the entitlement to paid absence according to its source, being 12 weeks at full pay under s 6(3) and a further four weeks at full pay under cl 47(2) of the 2012 EA, with cl 47(3) only directed to how both entitlements may be paid by being spread out (on the AFP's primary argument, s 7B(1)(a) does not attach to the additional four weeks at all, but this has been shown to be incorrect); or (2) as Ms O'Neill contends, to the period of absence "for which" payment attaches. 30 The period "for which" Ms O'Niell was paid was the 12 weeks provided for in s 6(3) and the four weeks provided for in cl 47(2). That is the source of the entitlement to which s 7B(1)(a) refers, and provides must be counted as service. Clause 47(3) merely allowed payment for those periods "for which" she was paid to be spread. It provided for a means and timing of payment of an entitlement provided for independently of that clause, not any separate entitlement to payment. 31 In support of this conclusion, drawn from the text and context of s 7B(1)(a), without regard to the 2012 EA or 2017 EA, it seems unlikely, as pointed out by the AFP, that the period of service that is counted would fluctuate according to whether a quite separate enterprise agreement provision for spreading payment of entitlements sourced elsewhere was taken advantage of. Two employees of the same rank, absent from duty on maternity leave for the same period of time and receiving the same amount of paid maternity leave, would be in a different position as to their period of service according to an entirely collateral arrangement that was foreign to the Maternity Leave Act. Express language or necessary intendment would be required for such a result. Section 7B(1)(a), by the use of the phrase describing the source of the payment as being "under subsection 6(3) or otherwise" expressly contemplates a source of an entitlement to paid maternity leave outside of, and therefore in addition to, the Maternity Leave Act that is to count towards the period of service. But it goes no further. It is quite another thing for an enterprise agreement provision as to how and when such entitlements may be paid and over what duration to affect the period of service. That cannot be seen to be within the express or implied contemplation of s 7B(1)(a). 32 The express effect of s 7B(1)(a) is therefore that Ms O'Neill, having being absent from duty in accordance with s 6, and paid in accordance with s 6(3), was entitled to that 12 week period of absence forming part of her period of service. By the 2012 EA, and by the 2017 EA, the AFP agreed to increase the paid maternity leave entitlement by four weeks, and for that additional period to also count towards service. Even if the 2012 EA (and for that matter, the 2017 EA) did not expressly provide that the additional four weeks would count towards service, s 7B(1)(a) would have had that effect because the additional four weeks fell within the phrase "or otherwise" in that provision. Yet, in allowing the payment for that absence to be spread, cl 47(3) does not, through s 7B(1)(a), require that this longer period also form part of Ms O'Neill's period of service. 33 It follows that the only difference between s 7B(1)(a) and either enterprise agreement was to exceed the statutory benefit of 12 weeks counting towards her period of service by four weeks, and to allow for payment of those entitlements to be spread at half pay over up to double the period. Neither party ultimately contended that this was an inconsistency captured by s 40(1) of the Fair Work Act. It follows that no material inconsistency arises. Even if there had been such an inconsistency, it would not have resulted in invalidity, but merely a provision that was, to that extent, subordinate to s 7B(1)(a) and of no effect. 34 Ms O'Neill's amended originating application must therefore be dismissed. There will be no order as to costs because I cannot see any reason why s 570 of the Fair Work Act should not apply. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.