Fair Work Commission|2025-07-03

The Australian Workers' Union [2025] FWC 1379 (3 July 2025)

s.739 - Application to deal with a dispute

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Adelaide Brighton Cement Limited trading as Adbri Cement SA

ADELAIDE BRIGHTON CEMENT BIRKENHEAD WORKS ENTERPRISE AGREEMENT 2022

Dispute about matters arising under the enterprise agreement - dispute to be determined by the Commission - personal leave and salary maintenance provisions - how operate together and whether NES-based personal leave must be exhausted first - whether salary maintenance provisions only available for more serious illness and injury - objective meaning applied taking the provisions and the agreement as a whole and read in context - determination made.

[1] The Australian Workers' Union (AWU), "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively the Applicant Unions) have made an application[1] under s.739 of the Fair Work Act 2009 (FW Act) seeking that the Commission determine a dispute concerning the proper application of the Adelaide Brighton Cement Birkenhead Works Enterprise Agreement 2022 (Agreement).

[2] The Respondent is Adelaide Brighton Cement Limited trading as Adbri Cement SA (Adbri Cement), which is covered by the Agreement, and is a manufacturer of cement, lime and pre-packaged dry blended products in Birkenhead, near to the Port of Adelaide. The Agreement applies to the production and related employees at the Birkenhead facility. The Respondent also operates facilities in Angaston and Klein Point in regional South Australia. These facilities are covered by their own respective enterprise agreements.[2]

[3] The parties in this matter are in dispute as to the proper meaning of the Agreement with respect to its personal leave, carers leave and salary maintenance provisions.

[4] Section 739(4) of the FW Act provides, in effect, that the Commission may arbitrate a relevant dispute if an enterprise agreement includes a term that provides this function and power under a procedure for dealing with such disputes.

[5] It is common ground that the dispute resolution procedure in the Agreement contains such a procedure in clause 13, the subject of the dispute falls with the scope of that provision, and the procedure has been followed. Further, it is agreed that as a result of subclause 13(h), the Commission is empowered to determine the resolution of this dispute by arbitration.

[6] The immediately relevant provisions of the Agreement are as follows:

Full-time and Part-time employees will be entitled to personal leave for the purposes of personal illness or injury, subject to the conditions set out in this clause.

Personal Leave payments are made at the employees Annual Salary rate.

To ensure that production is not affected, and to avoid having to call employees in, shift employees who are unable to attend work due to illness or a non-work related injury are required to notify the Shift Supervisor on duty prior to, or as soon as practicable to the commencement of the employees normal rostered shift.

Day workers are required to notify their Supervisor at the commencement of their rostered shift or as soon as practicable.

Generally evidence is not required to establish the genuine nature of the illness or injury but may be required at the discretion of the Company if the employees attendance record is poor or inconsistent.

Satisfactory attendance is a condition of employment and will be monitored.

Evidence in the form of a Medical certificate or statutory declaration is required in accordance with the Act and will be requested when:

The employee is or has been absent on personal/carer's leave for greater than 2 consecutive days;
The employee has been absent for more than 10 days on personal/carer's leave in a calendar year;
On request where the taking of sick leave forms a pattern.

The intention of providing salary maintenance, is to provide some financial security to employees when they are unfit to attend work and where there is a genuine expectation that the employee will be able to return to their pre-injury/ or illness role and can meet the inherent requirements of that role.

Salary maintenance payments are made at the employees Annual Salary rate.

Employees within their first 12 months of employment have a maximum of 10 days salary maintenance/personal leave.

A medical certificate stating the medical diagnosis and anticipated period of absence will be required when accessing salary maintenance. Salary maintenance payments will be limited to the period specified on the medical certificate.

In the event of a prolonged absence extending beyond 4 weeks, the Company reserves the right to seek a medical opinion from a medical practitioner of the Company's choice as to the ability of the employee to return to work under some capacity and the employees' ability to meet the inherent requirements of their role.

The Company appointed medical practitioner will work in conjunction with the employees treating medical practitioner to achieve a return to work.

In the event of conflicting medical opinions, the employer may seek a third medical opinion.

Personal leave to provide care or support for a member of the employee's immediate family or household member who are sick and require care and/or support is entitled to 10 days leave a year and accrues progressively during a year of service according to the employee's ordinary hours of work in accordance with the Act.

The entitlement is subject to the employee being responsible for the care and support of the person concerned. In normal circumstances an employee is not entitled to take leave for this purpose where another person has taken leave to care for the same person.

Employee must give notice when taking leave to care for members of their immediate family or household who are sick and require care and support, or who require care due to an unexpected emergency, the notice must include:

The name of the person requiring care and support and their relationship to the employee

Reasons for taking such leave; and

Estimated length of absence;

The company will request the production of a medical certificate or statutory declaration where the employee is taking leave to take care of members of their immediate family or household.

The employee will be entitled to take unpaid personal leave to care for members of their immediate family or household who are sick and require care and support or who require care due to an unexpected emergency. The company and the employee shall agree on the period subject to the provisions of the Act."

[7] Having conducted a hearing in this matter and considered the terms of the instrument in the context of the relevant evidence and submissions provided by the parties, I have determined the proper construction of the Agreement and resolved the dispute accordingly. The basis of that determination is set out in the decision that follows.

[8] The Applicant Unions and Adbri Cement provided the following agreed questions[3] for determination:

Does an employee to whom the Adelaide Brighton Cement Birkenhead Works Enterprise Agreement 2022 (Agreement) applies:

have an unlimited entitlement to "personal leave for personal injury or sickness" ("personal leave"), as provided under clause 36, after 12 months of employment; or

accrue personal leave in accordance with section 96 of the Fair Work Act 2009; or

accrue or have an entitlement to personal leave on some other basis and, if so, what is that basis?

Is access to "salary maintenance" under clause 36 of the Agreement by an employee to whom the Agreement applies preconditioned by the employee exhausting their accrual of personal leave?

Is access to "salary maintenance" under clause 36 of the Agreement by an employee to whom the Agreement applies preconditioned by the employee experiencing a requisite level of illness or injury and, if so, what is the requisite level of illness or injury?

Does carers leave, as provided in clause 37 of the Agreement, accrue as a separate and distinct entitlement to personal leave, as provided in clause 36 of the Agreement?

[9] I observe that the parties have a joint position on questions 1 and 4. However, the implications of that position for the broader dispute and the competing propositions concerning the contested questions 2 and 3 are very much in contest.

[10] The Applicant Unions submit that clause 36 has a plain and unambiguous meaning that is not susceptible to more than one interpretation. That is, clause 36 provides employees with two separate entitlements, Personal Leave and Salary Maintenance. The Personal Leave clause provides employees with their personal leave entitlement consistent with that provided by s.96 of the FW Act.

[11] Further, they contend that on the plain wording of clause 37, the provision entitles workers to 10 days leave a year and accrues progressively during a year of service according to the employee's ordinary hours of work in accordance with the FW Act. That is, the Agreement provides that personal leave in clause 37 accrues as per the FW Act, which provides personal/carers leave as one combined entitlement.

[12] The Applicant Unions also submit that the plain meaning of Salary Maintenance in clause 36 of the Agreement provides for a separate entitlement to Personal Leave which provides employees with paid sick leave if they meet the evidentiary requirements being: "A medical certificate with a medical diagnosis and a specified period of illness or injury." That is, there are two entitlements, the personal leave under the FW Act, and salary maintenance, which has a higher evidentiary bar but is otherwise capable of applying to the same illness or injury. In addition, the two related entitlements still have work to do, given the evidentiary differences.

[13] Further, they contend that clause 36 is silent regarding any other pre-requisites required to access Salary Maintenance. In particular, Salary Maintenance is silent on explicitly or impliedly requiring personal leave to be exhausted or the employee suffering from a requisite level of injury or illness. They emphasise that the inability of Adbri Cement to define with any certainty the (more serious) level or nature of the injury or illness tells strongly against the proposition that such should be implied.

[14] The Applicant Unions contend (in the alternative) that should it be determined that the wording regarding Salary Maintenance in clause 36 is ambiguous, the context of Salary Maintenance in previous agreements, as well as the "common agreed interpretation between parties" confirms their proposed interpretation. That is:

Prior to 2008, the Enterprise Agreement historically referred only to "Salary Maintenance for Genuine Illness" or "Sick Leave" which the Applicant submits have the same meaning and will be referred to as "Salary Maintenance". The first mention of Salary Maintenance is in the Adelaide Brighton Cement Birkenhead Works Certified Agreement 1996 (1996 Agreement). Clause 15 of the 1996 Agreement provides employees with an entitlement to leave of absence in circumstances where they cannot attend for duty due to personal illness.

Clause 15 of the 1996 Agreement is silent regarding a limit to the entitlement, except for: "Any absence extending beyond four (4) consecutive weeks will be subject to review by the Company which reserves the right to cease payment."

The entitlement to Salary Maintenance in the 1996 Agreement was in effect an entitlement to unlimited sick leave. This is confirmed by the Company Response to Birkenhead Log of Claims in 2005.

The Salary Maintenance Clause from 1996 to 2022 has remained substantially the same regarding the entitlement that the employees receive and the evidentiary requirements. Adbri Cement has acknowledged and applied Salary Maintenance as unlimited sick leave since 1993 which means that Salary Maintenance has the same application in 2022 as it did in any other previous Agreement but for small evidentiary requirement changes.

Salary Maintenance has never required a requisite level of injury or illness which is evidenced by the wording which was specifically rejected by the Unions in negotiations for the (2022) Agreement and not included in the current clause.

[15] The Applicant Unions also contend that in light of unsuccessful claims made by Adbri Cement to change the provisions as part of the negotiations leading to the Agreement, the Respondent was now improperly seeking to win through this dispute what it could not gain through bargaining. The limitations now claimed by Adbri Cement are not found in the Agreement.

[16] In relation to the recent changes made in the Agreement, the Applicant unions contend that these were intended to close the door on the possibility of some unlimited sick leave entitlement, where there was no prospect of a return to work. This, they contend, was not a fundamental change to the entitlement, but rather a particularisation of the outer limits that enabled the company to seek an assessment by reference to the capacity to ultimately return to work.

[17] Further, they contend that the fact that the provision properly applied is favourable to employees does not make that result absurd. It is the product of bargaining.

[18] In relation to the NES, the Applicant Unions contend that the FW Act does not require that the personal leave be taken prior to other forms of leave, except for the taking of unpaid carer's leave. This, they posit, is not supportive of the Respondent's position and the enterprise agreement may provide further benefits, which it has done.

[19] As a result, the Applicant Unions contend that the answers to questions 2 and 3 is 'No'.

[20] The Applicant Unions led evidence from the following:
- • Gary Henderson - Acting AWU Branch Secretary[4]
- • Peter Moncrief - Control Room Operator and former AWU Delegate at the Birkenhead Plant[5]
- • Shaun O'Callaghan - Shift Electrician and CEPU Delegate at the Birkenhead Plant.[6]

[21] The witnesses were not required for cross-examination.

[22] Adbri Cement agrees with the Applicant Unions in terms of the correct answers to questions 1 and 4. That is, an employee to whom the Agreement applies accrues personal leave (including carer's leave) in accordance with section 96 of the FW Act. There is one accrual and the two provisions should be read together.

[23] However, Adbri Cement contends that on a proper application of the principles of interpretation, the answer to each of the contested questions 2 and 3 should be "Yes".

[24] This approach is founded on the position that the provisions of the Agreement are ambiguous and have not been drafted with any precision. In that light, Adbri Cement submits that the Commission should adopt a purposive approach and favour a sensible and practical industrial result. This, it contends, is also what a reasonable person would understand from the language adopted by the parties.

[25] As to clause 36, Adbri Cement contends that it confers two different entitlements for employees to receive pay while they are absent for reasons of injury or illness: personal leave and salary maintenance. This, it posits, is supported by the text of clause 36 itself which separately describes that "personal leave payments" and "salary maintenance payments" will be made at the employee's Annual Salary rate. In circumstances where they are two distinct entitlements, they must be treated as performing two different functions.

[26] The purpose of the personal leave provision was stated by Adbri Cement to be:

It is an entitlement of an employee to be absent from work for a period without loss of the remuneration that would ordinarily be earned in that period. It is protective of employees against the hardship associated with the loss of earnings they would have expected to earn had they been well. The National Employment Standards is seen as establishing a "statutory form of income protection" for all national system employees, other than casual employees.

It is not an entitlement that can be saved and used at an employee's election. Pursuant to section 89(2) of the FW Act, personal leave must be used in preference of annual leave if the two periods overlap. Similarly, pursuant to section 103(3) of the FW Act, an employee is prohibited from taking unpaid carer's leave if that employee could instead take paid personal leave. These provisions highlight the legislative intention that, where an employee may be absent for a multitude of reasons, personal leave is to be exhausted prior to other forms of leave being available.

[27] Adbri Cement contends that the purpose of the salary maintenance provision is set out in the Agreement, which is "to provide some financial security to employees when they are unfit to attend work". This is the same general purpose behind personal leave, with the same practical outcome being achieved: an employee does not have to suffer financial hardship as a result of being unwell. However, they are two different entitlements and each must be given work to do.

[28] Further, it contends that by adopting a purposive approach, and interpreting the clause with industrial sensibility, the only way in which salary maintenance can achieve its stated intention (of providing financial security) is where an employee does not have any accrued personal leave available to be taken. That is, personal leave is enshrined in statute as the relevant income protection for employees who are ill or injured. Under the FW Act, if that entitlement is available to an employee, it must be taken in preference to other forms of leave such as unpaid carer's leave. The same scheme should apply under the Agreement (being an instrument made in the context of the FW Act) and this it contends would be the orthodox way to exhaust the personal carers leave first, and then access the more generous entitlement. That is the sensible and practical construction.

[29] Adbri Cement also posits that if salary maintenance was available to an employee with a personal leave balance, the entire intent of the salary maintenance entitlement would be rendered nugatory. It would not provide any financial security to an employee who could access personal leave, because they would already have that security by operation of the personal leave entitlement. It follows that an employee must exhaust their personal leave balance before accessing salary maintenance.

[30] This it also contends is supported by the nature of the entitlement and the structure of the provision in clauses 36 and 37. Further, it describes that outcome as achieving an industrial balance. And the Applicant Unions' approach would be "an absurd interpretation of the Agreement to, in effect, allow employees to take unlimited sick leave - at their election and without having exhausted their personal leave accrued entitlements - based solely upon whether they acquire a medical certificate or not. If that were the case, the "personal leave" entitlement would be effectively otiose."

[31] In relation to question 3, Adbri Cement contends that Clause 36 provides that salary maintenance is only available to an employee if they provide a medical certificate "stating the medical diagnosis and anticipated period of absence." The intention of the clause is to provide financial security to employees who are unfit for work but have a "genuine expectation" that they will be able to return, and "can meet the inherent requirements of that role."

[32] Further, it posits that if salary maintenance were available to any illness or injury, the intent and fundamental requirement behind the entitlement would be meaningless. An employee would not need a "diagnosis", nor would there be any question about an expectation of returning, or confirmation that they can still meet the inherent requirements of their role, if they could access salary maintenance for the most minor of illnesses or injuries. That is, if there were no precondition on the level of injury or illness required to access salary maintenance, there would be no discernible distinction as to the nature of personal leave as opposed to salary maintenance. The only difference is whether an employee provides a medical certificate or not. This it submits would not be correct.

[33] In support of that proposition, Adbri Cement pointed to the evidence of Peter Moncrieff as highlighting the "absurdity" of the position contended by the Applicant Unions. That is, Mr Moncrieff's evidence is that he had a cough for a day. It suggests that on the basis of that evidence, there was no question that he could still perform the inherent requirements of his role, and there was no requirement for a medical practitioner to confirm this. Further, given he presented simply with a symptom of a nonproductive cough, no diagnostic steps were taken (nor were they necessary).

[34] Finally, Adbri Cement contends that it would be an absurd interpretation of the Agreement to, effectively, provide employees with "unlimited sick leave" that can be characterised at their election depending on whether they obtain a medical certificate or not - no matter how minor the injury or illness. If that were the case, there would be no point to having the 'personal leave' entitlement. This, it contends, also ignores the full text of the provision.

[35] Adbri Cement did not lead evidence in this matter.

4.1 The principles relevant to the construction of an Enterprise Agreement

[36] There are many formulations of the relevant principles, however, the following summary provided by the Full Court of Federal Court of Australia in James Cook University v Ridd[7] is apposite:

"[65] The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:

(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (City of Wanneroo v Holmes); City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at [53] (City of Wanneroo v AMACSU); WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536; 280 IR 191 at [197] (WorkPac v Skene)).

(ii) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind" (Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Kucks v CSR); Shop Distributive and Allied Employees Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac v Skene at [197]). The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose" (Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241; 138 IR 286 at [2]).

(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v AMACSU at [53]). It may extend to " ... the entire document of which it is a part, or to other documents with which there is an association" (Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Short v FW Hercus); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth [1998] FCA 249; (1998) 82 FCR 175 at 178; 80 IR 345 at 346-347).

(iv) Context may include " ... ideas that gave rise to an expression in a document from which it has been taken" (Short v FW Hercus at 518; 134).

(v) Recourse may be had to the history of a particular clause "Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form ... " (Short v FW Hercus at 518; 135).

(vi) A generous construction is preferred over a strictly literal approach (George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; City of Wanneroo v AMACSU at [57]), but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties" (City of Wanneroo v Holmes at 380).

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes at 378-379; WorkPac v Skene at [197])."

[37] In the High Court review[8] of that decision, the Court stated:

" ....... In that process of interpretation, an important matter of context is the industrial nature of the instrument. Industrial instruments are not always drafted carefully by lawyers or professional drafters, and hence the literal words of a provision might more readily be understood to have a meaning other than their ordinary meaning if the context so suggests."[9]

[38] See also "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Limited,[10] and the more detailed statement of the principles in the earlier part of that decision. In particular, the caution given[11] about the weight that might be given to the positions of the bargaining representatives in light of the scheme of the FW Act and the nature of an enterprise agreement, is relevant.

[39] The Commission[12] has also more recently stated that the principles of interpretation of enterprise agreements are well established.[13] In summary, the starting point is the ordinary meaning of the words, read as a whole and in context. Context may be found in the provisions of the entire enterprise agreement, or in the arrangement and place of the words in the enterprise agreement and may extend to other documents with which there is an association. The statutory framework under which the enterprise 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 relevant, as is the evident purpose of the provisions or expressions being construed. A purposive approach is preferred to a narrow or pedantic approach, as such documents "are not always drafted carefully by lawyers or professional drafters" and the framers of the agreement may not have paid attention to "legal niceties and jargon".[14] However, the task remains one of interpreting the document, and not to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the instrument or what the Commission might consider to be the preferrable outcome.[15]

[40] To the extent that the parties relied upon the broader approach to the consideration of the common intention of the bargaining representatives in Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union,[16] this involved a s.217 application to vary an enterprise agreement and did not fundamentally involve the interpretation of the instrument sought to be varied.[17]

[41] I also observe that, as is common with applications of this kind, although the parties generally agree upon the principles to be applied, how they are to be applied is disputed.

[42] In setting out the context of the matter, it is appropriate to outline the history of the provisions, particularly given the alternative basis upon which the Applicant Unions have run their case. I will return to whether all of the context is relevant for present purposes in the consideration of the proper meaning of the provisions. However, given the required approach to the construction of an enterprise agreement and what follows, limited weight should be given to custom and practice in this matter given the changes made to the enterprise agreements over the years and the fact that the Agreement under consideration here is differently worded.[18] Further, no weight is to be given to the subjective views of the bargaining representatives, the management or the individual employees regarding the intended outcome. Finally, limited or no weight should be given to the back and forth of bargaining in the direct negotiations for the Agreement between the bargaining representatives except to the extent that the employees were advised of the impact of the proposed terms of the agreement as part of the employee approval explanation required[19] by the FW Act.

[43] Despite the caveats above, the history of the provisions that preceded the relevant terms of the Agreement and the statutory context in which they were made and operated are broadly relevant.

[44] The 1996 Agreement contained a sick leave provision in clause 15 which provided employees with an entitlement to a leave of absence in circumstances where they cannot attend for duty due to personal illness. There was no express cap on the amount of sick leave that could be taken and it provided that any absence extending beyond four (4) consecutive weeks would be subject to review by the Company, which reserved the right to cease payment.

[45] The Adelaide Brighton Cement Birkenhead Works Certified Agreement 2002 (2002 Agreement) introduced the term 'Salary Maintenance' in its clause 6.2. The provision was repeated in the Adelaide Brighton Cement Birkenhead Works Certified Agreement 2005 (2005 Agreement) and it contained an almost identical clause to the 2002 Agreement including its reference to 'unlimited sick leave' in the following terms:

a) The intention of providing salary maintenance in the event of genuine personal illness or injury is to provide employees with some financial security. Salary maintenance payments are made at the employee's Annual Salary rate.

b) In the event of illness or injury unlimited sick leave will be granted, except for the first twelve (12) months of employment where a limit of ten (10) days will be observed. In the event of a prolonged absence extending beyond eight (8) weeks, the Company reserves the right to review the continuance of such leave. This review may occur earlier if there is only a remote chance of a successful return to work.

To ensure that production is not affected and to avoid having to call employees in, employees who are unable to attend work due to illness or a non work related injury are required to notify their Supervisor (or nominee) prior to the commencement of the employee's normal rostered shift.

d) Except in exceptional circumstances, should an employee fail to provide such notification as early as practicable prior to the commencement of their normal rostered shift they may not be entitled to receive salary maintenance for that absence.

e) Generally, evidence is not required to establish the genuine nature of the illness or injury but may be required at the discretion of the Company if notified in advance and the employee's attendance record is poor or inconsistent. Satisfactory attendance is a condition of employment and will be monitored.

f) In any case of extended or recurrent injury or illness, a Company appointed rehabilitation representative may provide advice on a return to work program in consultation with the employee and a Company nominated medical practitioner."

[46] The notion of 'Personal Leave' was first enshrined in legislation in 2006 in the Workplace Relations Act 1996 (Cth) (Workplace Relations Act) where s.246 provided for employees to accrue a total 76 hours of paid personal leave per year for an employee working 38 hours per week. The legislated personal leave included what had previously been described as sick leave and the new notion of carer's leave and the legislation set out different notice and other arrangements for 'sick' and carer's leave as part of the Australian Fair Pay and Conditions Standard.

[47] The Adelaide Brighton Cement Birkenhead Works Union Collective Agreement 2008 (2008 Agreement), introduced the term 'Personal Leave' and included substantially the same entitlement as found in the 2005 Agreement in terms of Salary Maintenance, but with the introduction of some higher evidentiary requirements to access that entitlement. The provision also replaced the term 'unlimited sick leave' with the notion that 'sick leave would be granted for the duration of the illness or injury, except for the first 12 months of employment where a limit of 10 days will be observed'. The 2008 Agreement also provided for Personal Leave to care for an immediate family or household member and compassionate leave as part of the personal leave provision. This aspect was consistent with the requirements of the Workplace Relations Act.

[48] The subsequent enterprise agreements applying to the parties at Birkenhead were then for a period relevantly consistent up to and including the making of the Adelaide Brighton Cement Birkenhead Works Enterprise Agreement 2017 (2017 Agreement). The relevant terms of the 2017 Agreement were as follows:

a) Personal leave for personal injury or sickness

Full-time permanent employees will be entitled to personal leave for the purposes of personal illness or injury, subject to the conditions set out in this clause.

(i) The intention of providing salary maintenance in the event of genuine personal illness or injury is to provide employees with some financial security. Salary maintenance payments are made at the employee's Annual Salary rate.

(ii) In the event of illness or non-work related injury sick leave will be granted for the duration of the illness or injury except for the first 12 months of employment where a limit of 10 days will be observed. In the event of a prolonged absence extending beyond 4 weeks, the Company reserves the right to seek a medical opinion from a medical practitioner of the Company's choice as to the ability of the employee to return to work under some capacity. In the event of conflicting medical opinion between the two practitioners the two practitioners will agree upon a third practitioner to give an opinion.

(iii) To ensure that production is not affected and to avoid having to call employees in, shift employees who are unable to attend work due to illness or a non-work related injury are required to notify the Shift Supervisor on duty prior to or as soon as practical to the commencement of the employee's normal rostered shift. Day workers are required to notify their Supervisor at the commencement of their normal rostered period or as soon as practicable.

(iv) Generally, evidence is not required to establish the genuine nature of the illness or injury but may be required at the discretion of the Company if notified in advance and the employee's attendance record is poor or inconsistent. Satisfactory attendance is a condition of employment and will be monitored. Evidence in the form of a doctor's certificate or statutory declaration is required in accordance with the act and will be requested when:

a) The absence is for a period greater than 2 consecutive days

b) The sick leave taken is greater than 10 days in a calendar year

On request, where the taking of sick leave forms a pattern of absence

(v) In any case of extended or recurrent injury or illness, a Company appointed rehabilitation representative may provide advice on a return to work program in consultation with the employee and a Company nominated medical practitioner and a union representative or nominated supporter if requested.

6.9 Personal Leave to care for an immediate family or household member

a) Personal leave to provide care or support for a member of the employee's immediate family or household member who are sick and require care and/or support is entitled to 10 days leave a year, and accrues progressively during a year of service according to the employee's ordinary hours of work in accordance with the Act.

b) The entitlement is subject to the employee being responsible for the care and support of the person concerned. In normal circumstances an employee is not entitled to take leave for this purpose where another person has taken leave to care for the same person.

Employee must give notice when taking leave to care for members of their immediate family or household who are sick and require care and support, or who require care due to an unexpected emergency, the notice must include:

(i) The name of the person requiring care and support and their relationship to the employee

The company will request the production of a medical certificate or statutory declaration where the employee is taking leave to take care of members of their immediate family or household.

[49] I observe that each of the enterprise agreements up until and including the 2017 Agreement contained no separate personal leave for the purposes of personal illness or injury (sick leave) provisions and relied entirely upon the terms of the salary maintenance provisions to confirm any notice or medical requirements and the rate to be paid whilst on such leave.

[50] Each of the enterprise agreements made after the 2008 Agreement up to and including the 2017 Agreement, were made and approved under the terms of the FW Act. The scheme of the FW Act differed in some relevant respects from the Workplace Relations Act and provided, in effect, a series of minimum standards including those relating to personal leave as part of the national employment standards (NES).[20] Under s.55, each workplace instrument made under the FW Act, including enterprise agreements, must contain provisions that do not exclude NES,[21] but may contain terms that are the same as, ancillary or incidental, or are supplementary[22] to those minimum standards

[51] Section 56 of the FW Act provides that a term of a modern award or enterprise agreement has no effect to the extent that it contravenes s.55.

[52] In very general terms, the Personal Leave provisions of the NES relevantly provide the following:

• Paid personal (for illness and injury) and carer's leave are in effect, dealt with together and the entitlement is combined - 10 days per year accruing progressively during a year of service for employees other than casuals.[23]

An employee may take paid personal/carer's leave if the leave is taken:

(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or

(b) to provide care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because of:

(i) a personal illness, or personal injury, affecting the member; or

(ii) an unexpected emergency affecting the member.[24]

• There are certain interaction rules which provide that an employee will not be taken to be on personal/carer's leave when the day in question falls on a public holiday or coincides with a period of family and domestic violence leave.[25]

• An employee on this paid leave must be paid (at least) the employee's base rate of pay.[26]

• There is provision for unpaid carer's leave.[27]

• There are notice requirements that may be supplemented by a modern award or enterprise agreement.[28]

[53] The personal leave and related provisions were the subject of negotiations during the bargaining for what is now the Agreement. The evidence reveals that during these negotiations, Adbri Cement initially sought the removal of the salary maintenance provision and later advanced a number of claims including:

[Salary Maintenance] could be made once all leave entitlements have been exhausted, rather than just personal leave.

The intention of providing salary maintenance, is to provide some financial security to employees when they are unfit to attend work for extended periods of time.

In addition to personal leave, employees may have access to salary maintenance in the event of personal illness or injury which prevents an employee from attending work for an extended period. An extended period will be considered as 2 or more weeks.

[54] These changes were rejected by the Applicant Unions and not included in the final proposed agreement that was put to the employees for approval. I observe that the draft of the Agreement that was approved by a majority of the employees was proposed by Adbri Cement without in-principle agreement from the Applicant Unions.

[55] The relevant terms of the present Agreement have been set out earlier in this Decision.

[56] The written explanation provided to the employees as part of the agreement approval process did not expressly highlight any significant changes and merely put the two provisions side by side.[29]

[57] However, there were some changes to the provisions by comparison to the 2017 Agreement including what both parties described as a substantial or significant change to the statement of intent in the Personal Leave clause as follows:

"The intention of providing salary maintenance, is to provide some financial security to employees when they are unfit to attend work and where there is a genuine expectation that the employee will be able to return to their pre-injury/ or illness role and can meet the inherent requirements of that role." (new element is bolded)

[58] I observe for completeness that there is absolutely no indication in the evidence that the bargaining representatives held a common view that this amended provision would achieve the same results as the changes sought by Adbri Cement, which were rejected in the negotiations. Although it is common ground that some significance was intended by the revised intention provision, the evidence does not reveal a common intention, even amongst the bargaining representatives. For reasons set out earlier, this absence is of limited relevance in the determination of this matter.

[59] The Agreement also differed from the 2017 Agreement in two other respects, namely:

The salary maintenance provision remains part of the personal leave clause, however there are now some conditions under the personal leave heading including the basis of the payments (employee's Annual Salary rate) and the notification of absence requirements that were previously set out under the salary maintenance heading are now under the personal leave heading; and

The commitment that the 'sick leave' will be granted for the duration of the illness of the injury' (with the exception of the first year) has been replaced with the provision that the 'salary maintenance payments will be limited to the period specified on the medical certificate'.

[60] I will return to the implications of these provisions below.

[61] Clause 4 of the Agreement provides as follows:

The NES contains the minimum conditions of employment for employees covered by this agreement. The employer must ensure that copies of the National Employment Standards (NES) are available to all employees to whom they apply either on a noticeboard which is conveniently located at or near the workplace or through electronic means, whichever makes them more accessible."

[62] The Agreement was approved by the Commission on the basis of a number of undertakings provided by Adbri Cement under s.190 of the FW Act. These included the following (NES undertaking):

This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency."[30]

[63] The effect of s.191 of the FW Act is that this undertaking is now taken to be a term of this Agreement.

[64] The evidence about how the various provisions have been applied is limited and should be seen in the context of the changing provisions that have been made between the parties over the years. The notion in the evidence that there was "unlimited sick leave" reflects a term that was used in the 2002 and 2005 enterprise agreements, and in a general sense broadly consistent with the later agreements where there was no express overall limit on any payments made under the salary maintenance provisions, except in the first 12 months of service. However, that expression of itself is not particularly helpful in the present context. The evidence[31] is that in practice there did not appear to have been any differentiation by the parties between personal leave and salary maintenance claims or payments, including in the manner in which Adbri Cement administered the provisions, and that this applied, up to and including the first 2 years of the present Agreement. This included that personal leave/salary maintenance claims were paid when the employees had a 'negative' leave balance.

[65] In August 2024, Adbri Cement commenced differentiating the claims and treating short-term illness as (only) a (NES-based) personal leave matter. In the case of Mr Moncrief, he had a "negative" personal leave balance and was refused paid leave and salary maintenance, in part due to the nature of the medical certificate.

[66] I begin as is appropriate with the text of the Agreement, read as a whole and in context.

[67] The drafting of the relevant provisions in the Agreement is less than ideal. It does not always expressly define entitlements and the placement of its provisions under various headings is not consistent and probably not a reliable indicator of the objective intention. For instance, it is evident that both clauses 36 and 37 are intended to deal with personal leave and should be read together. It is also tolerably clear, more so under the Agreement than its predecessors, that the personal leave for personal injury or sickness and the carer's leave provisions are intended to represent the required NES provisions. This is consistent with the statutory context, and clause 4 of the Agreement reinforced by the NES undertaking, removes any doubt about this element.

[68] The salary maintenance provision is also intended to deal with the circumstances where an employee is unfit to attend work due to their injury or illness. Conceptually, it is therefore also dealing with the same circumstances that may give rise to a NES-based personal leave entitlement. The complete absence of any notification and related requirements in the salary maintenance provisions is also likely to be an indicator that this provision is to be read in conjunction with the whole of clause 36. This is reinforced by the reference to 'salary maintenance/personal leave' as substitute concepts in the third paragraph of the salary maintenance provision and consistent with the heritage of the provision.

[69] The stated purpose of the salary maintenance provision within the text is an important indicator of its objective intention. The sentence concerned has been set out above. It should be read as a whole and has three related elements as follows:

to provide some financial security to employees;

where there is a genuine expectation that the employee will be able to return to their pre-injury/ or illness role and can meet the inherent requirements of that role.

[70] Adbri Cement seeks to rely upon the notion of 'some financial security' as a basis for the proposition that this works where the employees have already exhausted their NES-based personal leave entitlements. However, this notion is also consistent with the fact that having the salary maintenance benefits available to the employees in any context where they are unfit to attend work, either as an additional or alternative benefit, provides some financial security, that they would not otherwise have. The benefit is also subject to certain prerequisites and is limited in the first year, therefore providing some (not absolute) financial security. In the end, I do not consider that this element, when read in context assists Adbri Cement's case in the manner contended.

[71] I have already dealt with the second element above.

[72] The third notion, that it is intended to provide (some financial security) where there is a genuine expectation that the employee will be able to return to their pre-injury or illness role and can meet the inherent requirements of that role, is an indicator that some limitations on the operation of the benefit is intended to apply. The difficulty is that this concept is also open to interpretation and the provision itself defines some parameters but not those that provide any express basis to confirm that it is to apply only to more serious injuries or illness.

[73] That is, the differing contentions regarding the statement of intent include that posited by Adbri Cement; namely that the provision is intended to deal with circumstances where the injury or illness is serious enough that the question of their (full) return to the role is likely to be an issue. However, the Applicant Unions contend that this notion is intended to indicate that the benefits are to apply where the expectation of a resumption of work exists, which would be the case in most claims, but not where the injury or illness is such that it becomes clear that there is no genuine expectation of a full return to duties. In other words, to apply to circumstances except where it is or becomes clear that the injury or illness is so serious that the employee may not ever be able to perform the inherent requirements of the job. Either approach would represent a significant change on the previous version of the provisions. As stated earlier, there is no common expressly stated meaning of the intent provision or the modified clause as a whole, either between the bargaining representatives or more importantly, as communicated to the employees ahead of their vote to adopt the Agreement.

[74] It is the words of the provision itself when considered as a whole and in context that must be assessed for present purposes. The parameters that are contained in the provision itself are as follows:

Salary maintenance payments are made at the employees Annual Salary rate.

Employees within their first 12 months of employment have a maximum of 10 days salary maintenance/personal leave.

A medical certificate stating the medical diagnosis and anticipated period of absence will be required when accessing salary maintenance. Salary maintenance payments will be limited to the period specified on the medical certificate.

In the event of a prolonged absence extending beyond 4 weeks, the Company reserves the right to seek a medical opinion from a medical practitioner of the Company's choice as to the ability of the employee to return to work under some capacity and the employees' ability to meet the inherent requirements of their role.

The Company appointed medical practitioner will work in conjunction with the employees treating medical practitioner to achieve a return to work. In the event of conflicting medical opinions, the employer may seek a third medical opinion.

[75] The level of the payment is the same as applying to personal leave more generally.

[76] The limit in the first 12 months of employment to a maximum of 10 days "salary maintenance/personal leave" is consistent with both provisions being intended to generally provide a benefit in similar circumstances, and does not expressly inform the disputed approaches.

[77] There is some significance in the fact that a medical certificate is required that states both a 'medical diagnosis' and an anticipated period of absence, and that this establishes the duration of the payments. I will return to this shortly.

[78] The fact that the provision contemplates particular additional arrangements for a "prolonged absence" that extends beyond 4 weeks is an indication that the provision is intended to also apply to absences (illnesses or injury) of a shorter duration. This is also more consistent with the view that the intent of the clause is not limited to illness or injury where there is any serious doubt about whether the employee will be able to return to the work role. The function of the appointed medical practitioner is intended to (only) operate for the prolonged absence and this also tends to reinforce that a range of seriousness in injuries and illness is comprehended with the salary maintenance benefit, including the more serious. This is also the mechanism that provides a practical means of giving effect to the revised statement of intent. However, as it is directed at only the prolonged absences, it also does not, when read in context, mean or imply that the salary maintenance provision is only intended to apply to longer term more serious illnesses or injuries.

[79] Turing to the evidentiary requirements, the personal leave section of clause 36 states that "evidence in the form of a medical certificate or statutory declaration is required in accordance with the Act and will be required when ... " certain defined circumstances apply. The requirements of the FW Act in this regard are set out in s.107 as follows:

(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.

(2) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period, of the leave.

(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

(a) if it is paid personal/carer's leave - the leave is taken for a reason specified in section 97; or

(b) if it is unpaid carer's leave - the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or

(c) if it is compassionate leave - the leave is taken for a permissible occasion in circumstances specified in subsection 105(1); or

(d) if it is paid family and domestic violence leave, and the employee has met the requirement specified in paragraph 106B(1)(a) - the leave is taken for the purpose specified in paragraph 106B(1)(b), and the requirement specified in paragraph 106B(1)(c) is met.

(4) An employee is not entitled to take leave under this Division unless the employee complies with this section.

Modern awards and enterprise agreements may include evidence requirements

(5) A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer's leave, unpaid carer's leave or compassionate leave.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988."

[80] The Agreement here specifies the kind of evidence that may be required as contemplated by s.107(5) of the FW Act.

[81] Adbri Cement contends that when read in conjunction with the intention provision and the clause as a whole, the additional evidentiary requirements in the salary maintenance provision means that it is objectively intended to apply only to the more serious illnesses or injuries.

[82] Although accepting that the salary maintenance provision has a higher evidentiary bar,[32] the Applicant Unions contend, in effect, that there is no particular significance to this term other than it requires the requisite medical certificate.

[83] I consider that the requirement in the salary maintenance provisions that in each case a medical certificate is required that states both a 'medical diagnosis' and an 'anticipated period of absence', informs the proper construction of the provisions when read in the context of the provision as a whole. This is a different requirement than operates for NES-based personal leave where generally evidence is not required under the Agreement to establish the genuine nature of the illness or injury, but may be required at the discretion of the Company if the employee's attendance record is poor or inconsistent, or where other stated circumstances apply. Further, subject to medical evidence where required, the personal leave is limited to the NES-based accruals and entitlements, whereas under the salary maintenance provision, subject to the role of the medical certificate establishing the length of the entitlements to absence and payments, the provision contains no per claim, overall or cumulative limit.

[84] I observe that, correctly in my view, it is accepted[33] by Adbri Cement that there might be more than one diagnosis (certificate) in relation to an injury or illness under the salary maintenance provisions.

[85] Although care should be taken to avoid placing too much emphasis upon the choice of language here, I also consider that the notion of the required medical certificate stating a 'medical diagnosis', introduced for the first time in the present Agreement, must be considered. That is, whilst a medical certificate provided for the purposes of the NES-based entitlements might state the general nature of the illness or injury, or more likely the existence of an illness or injury which makes the employee unfit for work, it would not generally be necessary to state the medical diagnosis. In the sense that this expression is used here, it might reasonably be understood as meaning that the medical certificate required by the salary maintenance provision must identify the actual disease, medical disorder or injury following a proper examination of the symptoms, and the anticipated period before the employee will be fit to resume their work duties. To the extent that there is an intended demarcation between the NES-based personal leave provision and the salary maintenance term, it is the requirement that, in effect, the illness or injury be such that a proper medical diagnosis is undertaken and expressed into the medical certificate that is provided to the employer. This would, by reasonable implication, not extend to the very minor illnesses or injury where no formal medical diagnosis is to be made and disclosed. This approach is also consistent with the statement of intent and the other provisions of the clauses in question.

[86] Although the Commission is not determining the request made in January 2025 by Mr Moncrief for salary maintenance, I observe that a medical certificate which indicates that "... the above named patient of this practice states suffering from nonproductive cough which renders him unfit for: WORK on 05/01/2025"[34] may meet the requirements for the NES-based personal leave provision, but is unlikely to meet the enhanced requirements for a medical certificate under the salary maintenance provisions.

[87] I accept that s.103(3), which is part of the NES provision in the FW Act, in effect, prioritises the exhaustion of paid personal leave entitlements over unpaid carer's leave. However, this relates to the priority for taking paid leave given the unpaid nature of the alternative. Further, s.89(2) of the FW Act provides, in effect, that if an employee takes a period of personal leave during a period of what would otherwise have been annual leave, they are not considered to be on annual leave for that period. As a result, there is some priority given to personal leave claims. However, this applies to forms of paid leave under the NES dealing with matters other than sickness or illness and operates, in effect, at the election of the employee who makes the claim for personal leave in that period, rather than relying upon the annual leave. In any event, this arrangement does not provide a solid basis to read a requirement, that the NES-based personal leave must be exhausted prior to any salary maintenance claims, into the Agreement.

[88] In summary, I consider that the proper application of the salary maintenance provisions, when read as a whole and in context, is that it is intended to provide a supplementary benefit to the NES-based personal leave entitlement. Where the salary maintenance provisions apply, and subject to the provision of an appropriate medical certificate, the extent of the entitlement will be established by the anticipated absence period set out in the medical certificate(s). Subject to that condition, and provided that the illness or injury is such that there is a genuine expectation that the employee will be able to return to their pre-injury or illness role and can meet the inherent requirements of that role, there is no other limit on the period over which the payments are to be made.

[89] The fact that the salary maintenance as set out in the text is generous does not make a beneficial construction absurd, particularly given the history and context. Further, whilst I accept that the parties could have agreed for that provision to operate beyond and only after the NES-based entitlements have been utilised, this does not mean that the Commission can imply or import those requirements. It is well established that terms are not easily implied into enterprise agreements.[35] This is reinforced by the approach adopted in AMWU v Berri, and the implications of s.739(5) of the FW Act that prevents the Commission from making a determination that is inconsistent with the terms of the approved enterprise agreement and the scheme of the legislation that permits variations only in certain defined circumstances. Implied terms must satisfy a number of prerequisites,[36] and I consider that several are absent in this case including the requirement that the implied term is reasonable and necessary for the effective operation of the clause and would not be an obvious reflection of the apparent intention of the parties to the Agreement.

[90] As to the notion that the approach contended by Adbri Cement is necessary for the provisions to operate effectively, there would be simplicity in the notion that the NES-based personal leave entitlement should be exhausted first; however, the provision is capable of sensible application without importing that requirement. This includes that there is some demarcation between the two provisions, based upon the implications of the medical certificate and related requirements, and that the accrual of personal leave remains relevant as paid carer's leave only draws upon that entitlement. I would also observe that based upon either approach to question 3, some imprecision remains. Despite this, for reasons set out earlier, the Commission must apply the Agreement as made by the parties and not rewrite the provision as part of an interpretation exercise to give effect to the Commission's view as to what would be fair and just, without regard to the actual terms agreed by the parties.[37] In any event, I would not consider that Adbri Cement's proposition that the NES-based personal leave be exhausted first was fair and just given the history and the particular terms of the provisions in the Agreement.

[91] In light of the above, I turn now to the questions for determination.

Questions 1 and 4 - The basis of the personal leave for personal injury or sickness and carer's leave

The Australian Workers' Union [2025] FWC 1379 (3 July 2025)

At a glance

Court

Decision date

Source

Judgment (245 paragraphs)

The Australian Workers' Union [2025] FWC 1379 (3 July 2025)

Legislation Cited (2)

Cases Cited (11)