| [2020] FWC 2846 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Sarah Prime
v
Federation University Australia
(C2019/7763)
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 1 JUNE 2020 |
Alleged dispute about a matter arising under an enterprise agreement - whether the dispute arose under the current enterprise agreement- finding that it did not and that the Commission therefore had no jurisdiction to determine the dispute- parties sought the view of the Commission as to whether the Applicant had an entitlement under the previous enterprise agreement to a return-to-work bonus following a period of maternity leave– Commission’s view expressed in the Applicant’s favour.
[1] Ms Sarah Prime has filed an application under s.739 of the Fair Work Act 2009 (the Act) notifying a dispute under the Federation University Australia Union Enterprise Agreement (2019-2021) (the current Agreement).
[2] Ms Prime claims an entitlement to be paid a return to work bonus pursuant to clause 52.3 of the current Agreement, after having taken a period of maternity leave.
[3] At a preliminary telephone conference held before me on 30 January 2020, a possible jurisdictional issue became apparent. At the time she both commenced and completed her maternity leave, Ms Prime’s employment was covered by the Federation University Australia Union Enterprise Agreement (2015-2018) (the 2015 Agreement). Ms Prime did not notify a dispute before the 2015 Agreement ceased to operate. The current Agreement commenced operation on 12 September 2019 and Ms Prime’s application under s.739 was filed on 20 December 2019.
[4] Ms Prime and the University were therefore directed to make submissions on whether the Commission has jurisdiction to determine the dispute under the current Agreement. The parties were asked to indicate whether, in the event I determined that the Commission does not have jurisdiction to determine the dispute under the current Agreement, they nonetheless wanted me to express a view in relation to the matter in dispute. Both Ms Prime and the University requested that in the event I determined the Commission did not have jurisdiction, I nonetheless express a view as to whether Ms Prime was entitled to the return to work bonus.
[5] Accordingly, the questions to be determined are as follows:
(a) Does the Commission have jurisdiction to determine the dispute?
(b) Is Ms Prime entitled to a return to work bonus under the relevant enterprise agreement?
[6] In May 2016, Ms Prime began work at the University as a ‘Scholarship Officer’ (HEW 5.1) on a fixed-term contract. It was a part time, .6 full time equivalent (FTE) role. Ms Prime continued in this role until she commenced maternity leave in December 2017. By this time she was classified at the HEW 5.2 level and worked part time hours equivalent to 0.8 FTE on a fixed term contract which required her to divide her time between the University’s Churchill and Berwick campuses. Pursuant to clause 52.3.2 i) of the 2015 Agreement, Ms Prime received 14 weeks of maternity leave on full pay.
[7] Ms Prime did not however make application for the return-to-work bonus also provided for in clause 52.3.2 i) of the 2015 Agreement at the time she commenced her maternity leave. She says she thought at that time it would be best to see how she adjusted to parenthood and she did not wish to risk having to repay the bonus if she chose not to return to work. Ms Prime’s fixed term contract was due to expire on 22 December 2017 and in an email dated 21 November 2017 to the University, Ms Prime stated she had no definitive plans for returning to work given she was unsure of the status of her contract.
[8] On 28 November 2017, the University wrote to Ms Prime advising her that her contract was extended to 22 March 2018. This extension incorporated 14 weeks’ paid parental leave at full pay from 16 December 2017 to 22 March 2018. A further extension of the contract from 23 March 2018 to 31 December 2018 was subsequently communicated to Ms Prime on 21 March 2018.
[9] On 28 April 2018, Ms Prime submitted a request to extend her unpaid parental leave from 1 July 2018 to 16 December 2018. This was approved by the University on 1 May 2018. The University wrote to Ms Prime, stating “the University is committed to supporting employees returning to work after parental leave. Therefore, if you return to work at the University you will be entitled to the return to work bonus equivalent to 12 weeks salary payable at your pre maternity leave (0.8) time fraction. In order to access this bonus you should advise in writing of your intention to return no later than eight weeks prior to the expected return date”.
[10] Between 27 August 2018 and 7 September 2018, Ms Prime undertook 20 hours of work for the Scholarship Office of the University. In a University internal memo dated 20 August 2018 between the Scholarship Office and the University’s Human Resources team (HR) requesting that Ms Prime be employed during her maternity leave, it was stated that there was a database requiring some upgrades and modifications outside the knowledge range of existing staff and Ms Prime had agreed to perform this work. It was put by the Scholarship Office that HR had previously advised that Ms Prime’s maternity leave could be paused for limited periods of time.
[11] In a letter dated 23 August 2018 the University wrote to Ms Prime confirming the temporary work arrangements, setting out that Ms Prime would temporarily cease her unpaid maternity leave arrangement while undertaking this work and once this period was completed, she would continue her “previous unpaid maternity leave arrangement and return to work on 17 December 2018”.
[12] In September 2018, a casual position was advertised as a project officer in the Business Partnerships team at the University’s Churchill Campus. Ms Prime stated that her understanding was that her previous department had undergone some structural and staffing changes and that the Scholarships Officer role was no longer available. Ms Prime stated she saw this as an opportunity to utilise her skills in a new area within the University.
[13] On 3 October 2018, during the initial interview process for this casual position, Ms Prime flagged via an email to the University that she was still on maternity leave and that she needed to speak with HR to ensure that she was following correct protocols.
[14] By return email the same day, Ms Prime was advised by the Coordinator of Business Partnerships at the University that HR had confirmed Ms Prime was able to cease her maternity leave and accept the Project Officer position.
[15] On 6 October 2018, Ms Prime advised HR that she wished for her unpaid maternity leave to cease. She also asked “is there anything else I need to be aware of when returning to work after maternity leave? From memory, there is a return to work incentive, however I am not sure I qualify.”
[16] There was no response prior to Ms Prime commencing in the Project Officer role under a 12-week casual contract on 11 October 2018.
[17] On 17 October 2018, Ms Prime followed up her email of 6 October 2018 with a further email to HR. She requested clarification in relation to the maternity leave contract and asked what she needed to do, given her casual contract was to expire on 31 December 2018. Ms Prime also sought clarification on the qualification process for the return to work bonus if she remained on a casual contract for a certain period of time and asked whether there were any issues she needed to be aware of that might impact her decision making in the next few months. There was no response.
[18] On 25 October 2018, Ms Prime wrote to the Director of Human Resources, seeking clarification as to the process of claiming the return to work bonus, outlining her understanding that she needed to work for a minimum of 12 months to maintain her eligibility. Ms Prime stated that she understood she would be required to pay the sum back on a pro-rata basis if her employment ceased before the 12 month period was worked and asked whether she was permitted to request payment of the bonus while working under a 12 week contract.
[19] It was not until 7 November 2018 that Ms Prime received a response to her questions concerning the return-to-work bonus. This response came from Mr Andrew Wright, Manager of Industrial Relations at the University. Mr Wright’s advice was:
“With regards to the return to work payment, there are some clear criteria which need to be met to be eligible to receive this payment. Firstly, the payment is not available to casual employees (clause 52.3.1 of the UCA applies). There is capacity for a fixed term employee to receive the payment, however, the employee must commit in writing their intention to return to work for a period of at least 12 months (clause 52.3.2 (ii) applies). It would not be unreasonable for a period of casual employment to count as service towards the 12 months criteria, however a period of 12 months as a casual would not apply, as per 52.3.1 above.
In essence, should a fixed term contract be offered to Sarah which will take her into October 2019, she would be able to make a commitment to return to work for a period of 12 months (taking into account the short period of casual employment currently undertaken).”
[20] On 8 November 2018, Ms Prime acknowledged Mr Wright’s email and advised that it was her intention to return to work for 12 months as per clause 52.3.2 (ii). Ms Prime says she was undecided as to whether Mr Wright’s interpretation of the clause was correct, although she also stated she naively felt that the project officer position would move beyond casual given the growing workload she was managing and the working arrangements she was undertaking in terms of the days and location of work. As such, Ms Prime says she did not challenge Mr Wright’s reasoning at that time.
[21] On 3 July 2019, having accepted two further engagements of causal employment at 2.5 days per week and having signed a third causal contract covering 7 July 2019 to 30 September 2019, Ms Prime wrote to Mr Wright requesting confirmation of how much of her casual service would be considered towards her eligibility for the return-to-work bonus. She stated:
“I understand I would need to be offered a fixed term contract or similar to become eligible for the payment – it would just be beneficial if I had a clear understanding of where I currently stand”.
[22] Ms Prime did not receive a response from Mr Wright and her three further attempts to contact him between 18 July and 30 July 2019 did not receive a response.
[23] On 22 August 2019, Ms Prime wrote to her manager, requesting her assistance in obtaining information from HR regarding her eligibility for the return to work bonus. Her manager contacted Ms Foster, HR Business Partner for the University, on 26 August 2019 and discussions took place over the next month.
[24] On 12 September 2019, the Current Agreement commenced operation replacing the 2015 Agreement.
[25] On 9 October 2019, Ms Foster confirmed that she had spoken to Mr Wright and the position was that Ms Prime could apply for the return to work bonus after 15 October 2019, as by that time she would have been performing regular and systematic hours that were at least equal to 50% of ordinary weekly hours, for 12 months.
[26] Accordingly, Ms Prime wrote to Ms Foster on 17 October 2019 formally applying for the return to work bonus on the basis that she had completed 12 months of service after returning from maternity leave. There was no response.
[27] On 12 November 2019, Ms Prime wrote to Ms Foster seeking an update on this request and between 14 November and 5 December 2019, Ms Prime spoke with Ms Foster on a number of occasions concerning access to the required payroll data and clarification of her working pattern as her position was being considered for conversion to part-time alongside her claim for the return to work bonus.
[28] By 12 December 2019, Ms Prime had worked five consecutive 12-week casual employment contracts with regular hours and days each week.
[29] On 12 December 2019, Ms Prime received a phone call from Ms Foster advising that she was not eligible for the return to work bonus, nor was the position eligible for a part-time conversion. Ms Prime advised Ms Foster that she required this decision in writing as a priority because she intended to lodge a dispute.
[30] On 12 and 13 December 2019, Mr Wright provided written explanations as to why Ms Prime’s position was not eligible for part-time conversion and why Ms Prime was not eligible for the return-to-work bonus. He advised that “12 months service as a casual employee does not count as service for a payment of the Return to Work bonus” and “clauses 52.3.1.and 52.3.2 of the Agreement specifically exclude a casual employee from eligibility to a payment of the return to work bonus.”
[31] On 12 December 2019, Ms Prime lodged a formal dispute in accordance with the dispute resolution process of clause 70 of the Current Agreement.
[32] On 19 December 2019, Ms Prime received a response from Mr Wright regarding her dispute. While this email provided some additional detail, it reiterated the University’s previous stance that Ms Prime was not eligible for the return to work bonus.
[33] On 20 December 2019, Ms Prime filed this Application.
[34] Clause 52.3 of the 2015 Agreement provides:
“52.3.2 i) Where the employee (other than a casual employee) has completed twelve months service at the time the leave is to begin, fourteen weeks of this maternity, adoption or permanent care leave will be on full pay and an additional return-to-work bonus of the equivalent of twelve weeks’ salary will be paid. The return-to-work bonus is repayable if the employee does not return to work.
52.3.2 ii) Staff members must provide a written undertaking of their intention to return to work for a period of at least twelve (12) months following the staff member’s return to work in order the receive the bonus.
52.3.2 iii) Where a staff member does not remain in the employ of the University for a period of at least twelve (12) months after returning to work following a period of maternity, adoption or permanent care leave, the twelve week return to work bonus must be repaid to the University on a proportional basis. The amount to be repaid will be reduced on the basis of a proportional reduction for each completed month of service during the initial twelve months of the employee’s return to work.
52.3.3 The return to work bonus will be used to facilitate re-entry into the workplace and may be used in any of the following ways:
i) Paid as equal instalments over six fortnights;
ii) To offset associated costs, such as childcare;
iii) Working reduced hours on a graduated return to work program;
iv) As a cash grant to re-establish an academic or professional career.
52.3.4 the employee may apply to access all or part of the return-to-work bonus prior to returning to work
……
52.6.8 If requested by an employee, any paid portion of parental leave may be paid as a lump sum.
[35] Clause 52.3 of the current Agreement provides an almost identical clause.
“…..
52.3.2 Where the employee (other than a casual employee) has completed twelve months service at the time the leave is to begin, fourteen weeks of this maternity, adoption or permanent care leave will be on full pay and an additional return-to-work bonus of the equivalent of twelve weeks’ salary will be paid. The return-to-work bonus is repayable if the employee does not return to work.
52.3.3 Where a staff member does not remain in the employ of the University for a period of at least twelve (12) months after returning to work following a period of maternity, adoption or permanent care leave, the twelve week return to work bonus must be repaid to the University on a proportional basis. The amount to be repaid will be reduced on the basis of a proportional reduction for each completed month of service during the initial twelve months of the employee’s return to work.
52.3.3 The return to work bonus will be used to facilitate re-entry into the workplace and may be used in any of the following ways:
(i) paid as equal instalments over six fortnights;
(ii) to offset associated costs, such as childcare;
(iii) working reduced hours on a graduated return to work program; or
(iv) as a cash grant to re-establish an academic or professional career.
52.3.5 The employee may apply to access all or part of the return-to-work bonus prior to returning to work.
……
52.6.9 If requested by an employee, any paid portion of parental leave may be paid as a lump sum.
[36] The difference between the two clauses is that there is no equivalent clause 52.3.2(ii) in the current Agreement requiring an employee to provide a written undertaking of their intention to return to work for a period of at least 12 months following the staff members’ return to work in order to receive the bonus.
[37] As set out above, the current Agreement came into operation on 12 September 2019.
[38] Ms Prime submits that the while she commenced maternity leave when the 2015 Agreement was in operation, Clause 52.3 did not stipulate that she was required to claim the return to work bonus at the time of commencing maternity leave, so she chose to wait until she had a clearer understanding of her capacity to work once she had become a mother.
[39] Ms Prime says that acting on the advice from Ms Foster from the University, she did not apply for the return to work bonus until she had completed 12 months of service which was at 17 October 2019. Further, upon being advised that her application was not successful on 12 December 2019, Ms Prime says she immediately commenced the dispute resolution process in accordance with the current Agreement.
[40] Ms Prime submits that while it appears that her right to apply for the bonus first arose under the 2015 Agreement, this right did not cease with the ending of the 2015 Agreement. Ms Prime states that there is no reference to an application deadline in the relevant clause of either the 2015 Agreement or the current Agreement, therefore she believes her entitlement continues to exist under the current Agreement.
[41] The University says that the dispute is properly characterised as being a dispute in relation to an agreement no longer in operation. It submits that the application made by Ms Prime is purported to have been brought under the current Agreement, which commenced operation on 12 September 2019. The University contends that by virtue of s.58 of the Act, the 2015 Agreement ceased to operate from that time.
[42] The University maintains that Ms Prime’s purported entitlement to a return to work bonus arose under the 2015 Agreement, her parental leave having commenced on 16 December 2017. The University asserts Ms Prime resigned from her employment effective 10 October 2018 and on 11 October 2018, commenced a casual engagement.
[43] Relying on clause 52.3 of the 2015 Agreement, which deals with the return to work bonus and clause 52.3.4, which provides that an employee may apply to access all or part of the return-to-work bonus prior to returning to work, the University submits that the inference to be drawn is that while the starting point is that an employee will be paid the return to work bonus when they return to work, she may be paid prior to that time upon request. With regard to Ms Prime, the University submits the entitlement arose either when she returned to work on 27 August 2018 or 11 October 2018, or it could have arisen earlier if she had made a request under clause 52.3.4. In either case, the entitlement to the bonus arose under the 2015 Agreement but given the 2015 Agreement no longer operates, the University submits the Commission is not empowered under s.739 of the Act to determine the dispute.
[44] Noting that the primary remedy sought by Ms Prime is payment of the return to work bonus, the University submits that the Commission is unable to make such an order. It submits making such an order would be a clear exercise of judicial power, as it would seek to enforce past rights and liabilities. The University submits the Commission is unable, as private arbitrator exercising a dispute resolution function, to make such an order. 1
[45] The University submits that the appropriate ‘mechanism’ available to Ms Prime is to seek an order from a court to enforce the agreement, taking into account sections 50, 539, 540 and 544 of the Act. The University contends the structure of the Act is clear that any enforcement relating to a breach of an enterprise agreement is dealt with by the courts, rather than by the Commission.
[46] As this dispute involves the operation of two enterprise agreements, the operation of sections 51(2), 52(1), 54(2) and 58 of the Act is brought into focus and these provisions operate on the facts of this case in the following manner:
• The 2015 Agreement had an expiry date of 31 March 2018;
• Ms Prime’s maternity leave commenced on 16 December 2017 and ceased on 11 October 2018;
• The current Agreement commenced operation on 12 September 2019;
• The current Agreement has essentially the same coverage as the 2015 Agreement and it covers the employment of Ms Prime;
• Section 58(1) of the Act provides that only one enterprise agreement can apply to an employee at a particular time;
• Section 58(2) of the Act provides that if an enterprise agreement that applies to an employee in relation to particular employment has passed its expiry date and a later agreement that covers the employee in relation to the same employment comes into operation, then the earlier agreement ceases to apply to the employee;
• Section 54(2) of the Act confirms that an enterprise agreement ceases to operate on the day on which s.58 first has the effect that there is no employee to whom the agreement applies;
• As such, pursuant to s.54(2) the 2015 Agreement ceased to operate on 12 September 2019 and no longer applied to Ms Prime from that date (s.52(1) of the Act);
• An enterprise agreement does not confer any entitlements on a person unless the agreement applies the person (s.51(2) of the Act); and
• Ms Prime filed her application pursuant to s.739 of the Act on 20 December 2019 under the dispute resolution process in the current Agreement.
[47] The first question to be resolved is whether the entitlement to the return-to-work-bonus which Ms Prime claims arises under the current Agreement or whether it instead arose under the 2015 Agreement which, while in operation when her maternity leave began, is no longer in operation.
[48] As outlined above, clause 52.3.2 of the current Agreement provides:
“52.3.2 Where the employee (other than a casual employee) has completed twelve months service at the time the leave is to begin, fourteen weeks of this maternity, adoption or permanent care leave will be on full pay and an additional return-to-work bonus of the equivalent of twelve weeks’ salary will be paid. The return-to-work bonus is repayable if the employee does not return to work.” (my emphasis)
[49] In the case of Ms Prime, an entitlement to these conditions is not capable of arising under the current Agreement. It is clear Ms Prime’s maternity leave neither began nor concluded under the current Agreement. These things occurred while the 2015 Agreement was in operation. As such, any entitlement Ms Prime had or may have had to paid maternity leave and a return to work bonus arose under clause 52.3 the 2015 Agreement, an agreement that is no longer in operation and which no longer applies to her.
[50] This being the case, the question then becomes whether or not the Commission has jurisdiction to arbitrate a dispute arising from the 2015 Agreement, being an enterprise agreement that is no longer in operation, and in respect of which no dispute was notified during its operation. For the reasons that follow, the Commission does not have jurisdiction.
[51] The general proposition is that as the 2015 Agreement is no longer in operation, the dispute resolution process in the 2015 Agreement is no longer a source of authority for the Commission to deal the dispute Ms Prime has raised. 2
[52] It is noted that the current Agreement preserves some rights under the 2015 Agreement but only if the circumstances in clause 71.11 of the current Agreement prevail:
“A dispute formally notified under the Federation University Australia Union Collective Agreement 2015-2018 but not concluded at the time at which this Agreement commences shall continue to be dealt with in accordance with clause 70 of the Federation University Australia Union Collective Agreement 2015-2018, which, for the purposes of this sub-clause, is a provision of this Agreement.”
[53] However, as the factual background to this dispute makes clear, the circumstances in clause 71.11 of the current Agreement do not exist in this case. The dispute was not formally notified by Ms Prime until after the current Agreement commenced operation. This being the case, the general proposition outlined at [51] above applies.
[54] Therefore, my conclusion on the question of jurisdiction is that as the dispute is a matter arising under the operation of the 2015 Agreement, the Commission no longer has the power to arbitrate in relation to it.
[55] Notwithstanding this conclusion, I wish to make it clear that I am in no way critical of Ms Prime for not having raised a dispute until 20 December 2019. This is because, as the factual background to this dispute illustrates:
• for almost a year prior to the commencement of the current Agreement, Ms Prime sought clarity from the University in relation to her entitlement to the return to work bonus;
• the University was, in my view, inexcusably unresponsive to her regular enquiries;
• Ms Prime was advised 10 months prior to the commencement of the current Agreement that there was a way in which she would be eligible to the return to work bonus; and
• It was not until after the 2015 Agreement ceased to apply to Ms Prime that the University advised her that it instead held the view that she was not eligible for the return to work bonus.
[56] The University, while adopting the position that the Commission does not have jurisdiction to determine the dispute, has nonetheless agreed to the Commission expressing a view as to whether Ms Prime is entitled to the return to work bonus under the 2015 Agreement. The University does not ask the Commission to express a view in relation to whether the bonus includes a superannuation component.
[57] Ms Prime also requested that in the event I determine that the Commission does not have jurisdiction to arbitrate this matter, I nonetheless express a view on the question of her eligibility for the return to work bonus under the 2015 Agreement.
[58] Ms Prime made written submissions on each relevant sub-clause of clause 52.3 of the current agreement as follows:
(a) With respect to clause 52.3.2, at the time Ms Prime’s maternity leave commenced in December 2017, Ms Prime was a fixed-term staff member. She had worked at the University for more than 12 months and subsequently received 14 weeks of maternity leave with full pay. Clause 52.3.2 does not state that there is a requirement to return to work in a particular capacity in order to be eligible for the return to work bonus, only that an employee returns to work at the University for a minimum of 12 months.
(b) With respect to clause 52.3.3, Ms Prime says she returned to work on 11 October 2018 as an Administration Officer (casual) in the Business Partnerships team and remained in this position until her fifth consecutive 12-week casual contract expired on 20 December 2019, thus satisfying clause 52.3.3.
(c) With respect to clause 52.3.5 which permits an employee to access all or part of the return to work bonus prior to returning to work, Ms Prime submits that she chose not to apply for the return to work bonus at the time of commencing maternity leave. She submits that she always anticipated she would go back to paid employment but wanted to give herself time to adjust to having a family before considering the possibility of returning to work.
(d) With respect to clause 52.3.6 which sets out the rate of pay for the paid portion of the leave, she states that at the time of commencing maternity leave she was simultaneously contracted 0.6FTE as Scholarship Officer (Gippsland Campus) and 0.2FTE as Scholarship Officer (Berwick Campus).
[59] The University submits that Ms Prime is not entitled to a return to work bonus under clause 52.3.2 i) of the 2015 Agreement.
[60] The University submits that the plain wording and a contextual reading of clause 52.3 supports the view that casual employees are not entitled to paid parental leave under clause 52, and in particular are not entitled to the return to work bonus referenced at clause 52.3.
[61] It is the view of the University that the wording in brackets in sub-clause 52.3.2 i) – “other than a casual employee” – apply to the entirety of the paragraph. It submits the clear intent of the words is that casual employees are not entitled to the benefits set out in the paragraph. Specifically, a casual employee is not entitled to fourteen weeks’ leave on full pay and the additional return to work bonus of the equivalent of twelve weeks’ pay. The University submits that Ms Prime was not entitled to the return to work bonus because she was a casual employee at the time of applying for the return to work bonus.
[62] The University submits this position is reinforced by a contextual and purposive reading, including the relevant surrounding clauses, referencing them as follows:
(a) Clause 52.3.3(iii) provides that the return to work bonus may be used to work reduced hours on a graduated return to work program. The nature of casual employment is that each shift constitutes an individual engagement, and that there is no expectation of ongoing employment. Given this, it is difficult to see how clause 52.3.3(iii) could operate in practice in relation to a casual employee.
(b) Clause 52.3.5 deals specifically with how the paid portion of leave is to be calculated for part-time employees. The fact that there is no corresponding provision for casual staff members supports the view that casual employees are not entitled to the paid benefits set out in clause 52.3.
(c) The preamble to clause 52 defines an “eligible casual employee”. This term is then reflected in clauses 52.1 and 52.2, which provide that eligible casual employees are entitled to unpaid leave in certain circumstances. The fact that certain casual employees are expressly called out in clause 52.1 and 52.2 as being entitled to unpaid leave, and expressly included in the opening sentence of clause 52.3.1, reinforces that casual employees are not entitled to the return to work bonus.
[63] In addition to the submissions filed, Mr Wright also made an additional argument referring to clause 52.7 of the 2015 Agreement.
[64] The Full Bench of the Commission in AMWU v Berri Pty Limited (Berri) 3 concluded as follows in relation to the interpretation of a single enterprise agreement:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
[65] Further, the Full Bench of the Commission in United Firefighters Union of Australia v Emergency Services Telecommunications Authority T/A ESTA, 4 stated:
“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.”
[66] The principles outlined above from Berri make clear that the interpretation process begins with a consideration of the ordinary meaning of the relevant words and the Full Bench emphasised that the resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. That context may appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.
[67] The University’s case is very much based around the proposition that the term “(other than a casual employee)” in clause 52.3.2 i) has “work to do” beyond that particular clause and limits language such as “work”, “employ” and “service” that is used in the clauses that immediately follow.
[68] I firstly observe that one of the stated aims of parental leave clause in the 2015 Agreement was to attract and retain female employees (clause 52).
[69] Next, I note the purpose of clause 52.3 which, as its heading makes clear, was to outline the conditions that pertained to maternity, adoption leave and permanent care leave.
[70] Clause 52.3.1 established that paid maternity leave existed for employees (other than casual employees) who had completed less than twelve months service at the time their maternity leave is to begin. Therefore, this clause established an eligibility criteria for certain employees.
[71] Clause 52.3.2 i) followed, and provided:
“Where the employee (other than a casual employee) has completed twelve months service at the time the leave is to begin, fourteen weeks of this maternity, adoption or permanent care leave will be on full pay and an additional return-to-work bonus of the equivalent of twelve weeks’ salary will be paid. The return-to-work bonus is repayable if the employee does not return to work.”
[72] I consider this clause, like clause 52.3.1, established the eligibility criteria for the prescribed benefits that followed. In the case of clause 52.3.2 i), the prescribed benefits were fourteen weeks of paid maternity leave and an additional return-to-work bonus of the equivalent of twelve weeks’ salary.
[73] Both clause 52.3.1 and clause 52.3.2 i) provided that in order to be eligible for the particular benefits, one must have been an employee other than a casual employee at the time the maternity leave was to begin. Clause 52.3.2 i) however placed no particular significance on the status of an employee’s employment when she applied for the return-to-work bonus.
[74] I regard it as significant that eligible employees could receive the return-to-work bonus in whole or part prior to returning to work following their maternity leave (clause 52.3.4). This confirms that it was the qualification for the return-to-work bonus by virtue of being an employee (other than a casual employee) who had completed twelve months service, that gave rise to the entitlement to be paid it. In my opinion, clause 52.3.2 i) established the right to receive the return-to-work bonus.
[75] Accordingly, I consider that as a fixed term employee who had completed approximately 18 months service at the time her maternity leave was to begin, Ms Prime was eligible to receive both the fourteen weeks of paid maternity leave and the return-to-work bonus and that had she wanted to, she could have accessed all or part of the return-to-work bonus prior to her return to work from maternity leave.
[76] The 2015 Agreement outlined that an employee eligible to receive the return-to-work bonus was required by clause 52.3.2 ii) to provide a written undertaking of their intention to return to work for a period of at least twelve months following their return to work. The term “work” in clause 52.3.2 ii) was not further defined. It was not, for example, stated that the “work” was to be of a particular type or that it be other than in casual employment and nor was the term “staff members” qualified in any way. On 8 November 2018, Ms Prime gave notice of her intention to return to work for a minimum of 12 months.
[77] The next clause, 52.3.2 iii), provided that where a “staff member” did not remain “in the employ of the University” for a period of at least twelve months after returning to work following a period of maternity leave, the return-to-work bonus was required to be repaid to the University on a proportional basis. The amount to be repaid would depend on how many month’s “service” an employee had completed during the initial twelve months following her return to work. As things transpired in this matter, Ms Prime returned to work on 11 October 2018 in casual employment as an Administration Officer in the Business Partnerships team and by 20 December 2019, she had completed five consecutive contracts, each of 12-week’s duration.
[78] In clause 52.3.2 iii), there was no qualifying language attached to either “the employ of the University” or the term “service.” Neither clause 52.3.2 ii) nor clause 52.3.2 iii) adopted the qualifying language that was used in clause 52.3.2 i). Neither clause used the phrase “other than as a casual employee.” I consider this reflects the difference between clause 52.3.2 i) on the one hand and clause 52.3.2 ii) and 52.3.2 iii) on the other. The former clause established the entitlement to receive the return-to-work bonus. The latter two clauses established what eligible employees were obliged to do in order to retain the return-to-work bonus.
[79] The parties could have chosen to use the same restrictive language that applied to the eligibility to receive the return-to-work bonus to the requirements to be fulfilled in order to retain it, but they did not. I consider the different language used reflected the different functions of the respective clauses and that this was consistent with the context and purpose of the parental leave clause.
[80] In this respect, as stated above, an aim of clause 52 was to retain female employees and I also attach significance to the language “The return-to-work bonus will be used to facilitate re-entry into the workplace” and “a graduated return to work program” used in clause 52.3.3. This language demonstrates the return-to-work bonus had a facilitative purpose and employees who qualified for it at the time their maternity leave began were not going to be restricted in the type of employment they undertook upon their return, in order to retain the benefit of the return-to-work bonus.
[81] Ms Prime earned the right to receive the return-to-work bonus by virtue of her greater than twelve months service as a fixed term employee at the time her maternity leave was to begin. In order to retain it, Ms Prime was required to complete at least a twelve-month period “in the employ” of the University. She fulfilled this requirement and the University received the benefit of her service. There was no requirement for Ms Prime’s service during that period to be of a particular type of employment.
[82] The balance of the sub clauses within clause 52.3 do not in my view provide guidance. They were not concerned with the return-to-work bonus. That they dealt with the manner in which the paid maternity leave could be paid and taken is not, in my view, of significance. Clause 52.3.2 i) already established that the quantum of the return-to-work bonus was to equate to the equivalent of twelve weeks’ salary as at the time the employee qualified and clause 52.3.3 i) provided that one way in which the return-to-work bonus could be paid was via equal instalments over six fortnights.
[83] I also do not consider the requirement that there be 12 months employment following an employee’s return to work from maternity leave weighed against casual employment being counted as part or all of that 12 months of employment. This is because I have noted the following other clauses in the 2015 Agreement:
• Clause 52, which provided for the notion of regular and systematic casual employment for several periods of employment or on a regular and systematic basis for an ongoing period of at least twelve months in order for a casual employee to be eligible to up to 52 weeks of maternity leave;
• Clause 9.4.2 iii), which contemplated casual employment extending across a semester or a period of weeks, in respect of which equalised fortnightly salary payments could be made; and
• Clause 9.4.3 iii), which contemplated scenarios in which casual employees could have been engaged on a regular and systematic basis in a position or positions over periods of 12 months, and up to 24 months.
[84] Finally, I note that while the University relied on clause 52.7, I was not persuaded this clause lent any assistance in the interpretation process.
[85] I have been asked by the parties to express a view and will do so. I consider that clause 52.3.2 of the 2015 Agreement had a plain meaning. Taking into account the ordinary meaning of the text of the provision in the context of the 2015 Agreement as a whole, I consider that clause 52.3.2 of the 2015 Agreement applied to Ms Prime and she was entitled to be paid a return-to-work bonus.
[86] I decline to express a final view on the method of calculation of the return to work bonus. Further, noting that the University has previously offered to provide Ms Prime with the advice it has received from the Australian Taxation Office and UniSuper in relation to the entitlement to superannuation in scenarios involving the return-to-work bonus, I also decline to express a view in relation to the question of whether superannuation is payable on the return-to-work bonus.
DEPUTY PRESIDENT
Appearances:
Ms Sarah Prime on her own behalf
Mr Andrew Wright on behalf of the Respondent
Hearing details:
2020.
Melbourne.
15 April.
Printed by authority of the Commonwealth Government Printer
<PR719792>
1 See for example Proud v Monash University [2018] FWC 2973 at [77] per Bissett C.
2 See Robert Battye v John Holland Pty Ltd (JHPL) t/as Teritoria Civil [2019] FWCFB 8678 at [23]; Boeing Aerostructures Australia Pty Ltd v Michael Gualano: Nathan Tuddenham; Glenn Rowlands [2018] FWC 7490 at [9]; Johnson v Finance Sector Union of Australia [2018] FWC 1035 at [15] - [18]; and BlueScope Steel (AIS) Port Kembla v AWU, AMWU and another [2018] FWCFB 856.