Fair Work Act 2009

s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - where a public holiday falls within a period of paid parental leave

• [1] On 11 November 2024, the Police Federation of Australia (the Applicant) made an application for the Commission to deal with a dispute under s.739 of the Fair Work Act 2009 (the Act) concerning the application of Clause 150.2 of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (the Agreement) with the employer, Victoria Police / Chief Commissioner Of Police (the Respondent).

• [2] The Questions for determination originally proposed by the parties were varied by consent during the course of the Hearing to:

1. Is a part-time employee with a roster pattern similar to that of Senior Constable Logan entitled to a day off in lieu of all public holidays that fall within their period of paid parental leave?

• [3] It is agreed Ms Logan is on a part-time arrangement (0.9 FTE), works 4 days per week (Tuesday - Friday), has Monday(s) off and was on paid parental leave from 17 December 2023 - 27 July 2024 which is the relevant period in dispute.

• [4] The parties agree that the Commission has jurisdiction to arbitrate this dispute pursuant to Clause 10 of the Agreement.

• [5] The material filed by the parties in accordance with the Directions was compiled into a Digital Court Book (DCB) and received by the Commission.

• [6] Confidentiality orders were made in respect of the addresses of serving Victoria Police Members recorded on transcript.

• [7] This decision requires the interpretation of Clause 150.2 of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019. The relevant clause of the Agreement states:

"Where a Public Holiday occurs during a period of paid parental leave, the Public Holiday is not to be regarded as part of the paid parental leave and the employer will grant the employee a day off in lieu, to be taken by the employee immediately following the period of paid parental leave."

• [8] The principles of interpretation to be applied are contained in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[1] & WorkPac Pty Ltd v Skene.[2]

• [9] The Applicant submits that a literal interpretation of Clause 150.2 should be applied and that a plain reading of the words conveys an entitlement to day(s) off in lieu for all public holidays that occur during a part time employee's period of paid parental leave.

• [10] A literal interpretation of the clause therefore results in all employees who are on paid parental leave receiving the same entitlement to time off in lieu, regardless of their roster or working arrangement. In my view, such a proposition results in an absurdity, which would be inconsistent with Clause 33.10 of the Agreement (which provides part-time employees receive entitlements on a pro-rata basis).

• [11] The Respondent submits that a purposive approach should be applied to the interpretation of Clause 150.2 having regard to the context, and that the intention was that the clause does not operate to provide a part-time employee with a day off in lieu in circumstances where a public holiday occurs on a day where an employee would ordinarily not be at work.

• [12] In terms of context, the following matters are relevant to the interpretation of the disputed provision:

• Clause 33.6 requires the ordinary hours of work for a part-time employee to be documented.

• Ms Logan's evidence that her part-time hours were worked Tuesday - Friday and that she had not worked on Mondays in the relevant period, and that it would be unlikely for her to do so without her consent.

• Clause 33.10 of the Agreement provides that part-time employees shall receive salary, leave and other entitlements on a pro-rata basis.

• Neither the Agreement nor any extraneous material suggested that part-time employees would receive a benefit in respect of public holidays that they were not rostered to work.

• [13] Having considered the submissions, I prefer the Respondent's approach in so far as there must be a nexus between an employee taking parental leave and the period in which they would have been required to perform work.

• [14] I find that the intention of the Clause 150.2 is to compensate employees who are on parental leave with time off in lieu, in circumstances where they would have otherwise been required to perform work on the day when the public holiday fell.

• [15] Turning to the Question for consideration, Ms Logan as a part time employee would not be entitled to a day off in lieu for all public holidays that fall on Mondays within her period of paid parental leave. Time off in lieu would only apply to the public holidays that fall within her part time working arrangement, being Tuesday - Friday.

[1] (2017) FWCFB 3005.

[2] [2018] FCAFC 131; (2018) 264 FCR 536.

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