[2021] FWC 5972

The attached document replaces the document previously issued with the above code on 2 November 2021.

Amended ‘publish’ to ‘published’ in paragraph 44

Associate to Commissioner Johns

Dated 9 November 2021.

Fair Work Act 2009
s.739—Dispute resolution

Community and Public Sector Union
v
Commonwealth of Australia (represented by the Department of Home Affairs)
(C2021/3433)

Dispute about a matter arising under a workplace determination

Introduction

[1] On 23 April 2021 the Department of Home Affairs (Department) published a procedural instruction entitled the Unplanned Leave Procedural Instruction (PI). This decision deals with a dispute about whether the PI is compliant with clause 4.68 of the Department of Home Affairs Workplace Determination 2019¹ (Workplace Determination).

[2] The dispute was initiated by the Community and Public Sector Union (CPSU) under section 739 of the Fair Work Act 2009 (FW Act). The Respondent is the Commonwealth of Australia (as represented by the Department of Home Affairs).

[3] In short, the CPSU contends that the provision in the PI which allows managers to request documentary evidence in support of absences of less than three days is inconsistent with clause 4.68 of the Workplace Determination. The CPSU contends that clause 4.68 of the Workplace Determination provides employees with an entitlement to take up to three days of personal/carer’s leave without the requirement to produce documentary evidence.

[4] The Department contends that clause 4.68 does not provide an entitlement but rather imposes an obligation on employees which is enlivened when employees are “absent on personal leave for a period of 3 or more consecutive days”. Therefore, the Department contends that the PI is not inconsistent with the Workplace Determination.

[5] Essentially, the question to be determined is as follows: “Is the Unplanned Leave Procedural Instruction consistent with clause 4.68 of the Workplace Determination?”

Jurisdiction

[6] The Application was made on 17 June 2021. Conciliation was attempted on 24 June 2021 without success.

[7] The Workplace Determination only invests the Fair Work Commission (Commission) with jurisdiction to arbitrate a dispute “if the parties consent”.²

[8] On 24 June 2021 the Department agreed to consent arbitration.

[9] The matter was then programmed for a hearing on 27 August 2021.

[10] However, on 25 August 2021 the parties agreed to the matter being decided on the papers.

[11] I am satisfied that the Commission is properly invested with jurisdiction to determine, by way of arbitration, the proper application of clause 4.68.

The Workplace Determination

[12] The Workplace Determination was determined by a Full Bench of the Commission constituted by Vice President Catanzariti, the late Deputy President Kovacic and me on 8 February 2019 following a decision of the Full Bench published on 11 January 2019 (Decision).³

[13] By order⁴ of the Full Bench the Workplace Determination commenced operation on 8 February 2019.⁵ The nominal expiry date of the Workplace Determination was 2 years after the date of commencement (i.e. 7 February 2021).⁶ That is to say, the Workplace Determination has passed its nominal expiry date.

[14] The Workplace Determination covers⁷:

a) the Secretary of the Department of Home Affairs on behalf of the Commonwealth,

b) all Employees of the Department, with the exception of any Senior Executive Service (SES) Employees,

c) the CPSU, and

d) the AIMPE.

[15] The Department is the employer of each employee covered by the Workplace Determination.

[16] The CPSU is:

a) an association of employees registered under s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) (FW(RO) Act); and

b) eligible to represent the industrial interests of employees to whom the Workplace Determination applies.

[17] Essentially, the dispute is about whether the Department’s Unplanned Leave PI is inconsistent with clause 4.68 of the Workplace Determination. It is therefore useful to set out the relevant clauses of both instruments:

a) Unplanned Leave Procedural Instruction

“Documentary evidence for absences less than three days

4.9.52. Managers may identify a pattern of absence over an extended period of time where an employee does not provide supporting documentation for absences less than three days on each occasion. Examples of this are provided below.

4.9.53. Where this occurs, managers have the discretion to request documentary evidence to support an application for personal leave.

Examples:

Examples of this could be, but are not limited to:

•  multiple periods of unscheduled personal leave of less than three days, taken without supporting documentary evidence over a period of time

•  unscheduled personal leave taken regularly on the same day of the week, following preceding/following weekends or particular days within shift patterns

•  unscheduled personal leave taken following or preceding significant events such as sporting events and public holidays.”

b) Workplace Determination

“Personal leave

Crediting and accrual of personal leave

4.62 Employees other than those specified in clause 4.63 accrue 18 working days of paid personal leave for each completed year of service with the Department, accruing daily and credited monthly.

4.63 Employees who commence their ongoing APS employment on engagement with the Department will be credited with 18 days of paid personal leave on commencement.

4.64 Any unused personal leave accumulates but cannot be cashed out or paid out on cessation of employment with the Department.

Taking of personal leave

4.65 Employees may take paid personal leave for full or part day absences.

4.66 Employees may take personal leave:

(a) because the Employee is not fit for work due to a personal illness, or personal injury, affecting the Employee; or

(b) to provide care or support to a member of the Employee’s Family or household who requires care or support because of:

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

(ii) for an unexpected emergency affecting the member.

Notification

4.67 Employees must notify their Manager of any absence as soon as reasonably practicable (which may be a time after the leave has started). When doing so, the Employee must advise their Manager of the period, or expected period, of their absence.

Documentary evidence

4.68 When an Employee is absent on personal leave for a period of 3 or more consecutive days, they must provide satisfactory documentary evidence to establish that the leave was taken for one of the reasons specified in clause 4.66.

4.69 Satisfactory documentary evidence is evidence that would satisfy a reasonable person that the leave was taken for a reason specified in clause 4.66. This may comprise of a medical certificate provided by a health practitioner or a statutory declaration.”

[18] Also relevant are the following provisions of the Workplace Determination,

a) Clause 1.5 of the Determination states:

Interaction with policies

1.5 The operation of this Determination is supported by policies, procedures and guidelines. If there is any inconsistency between the policies, procedures and guidelines and the terms of this Determination, the express terms of this Determination will prevail.

1.6 Policies, procedures, and guidelines which support this Determination are not incorporated into, and do not form part of, this Determination.

b) Clause 1.9 of the Determination states:

Interaction with industrial instruments and the NES

…

1.9 The terms of this Determination are intended to apply in a manner that does not derogate from the NES. The NES will continue to apply to the extent that any term of this Determination is detrimental to an Employee or the Secretary in any respect when compared with the NES.

Material Filed

[19] In coming to this decision, I have had regard to the following material filed by the parties.

Agreed Facts

[20] The Parties filed an Agreed Statement of Facts. Consequently, I make the following findings of fact:

a) During the arbitration hearing for the Workplace Determination, the Department submitted a draft Workplace Determination. 8 The draft provided as follows,

4.67 When an Employee is absent on personal leave for a period of 3 or more consecutive days, they must provide satisfactory documentary evidence to establish that the leave was taken for one of the reasons specified in clause 4.64.

4.68 When an Employee is absent on personal leave for a period of 2 consecutive days or less, the Secretary may require presentation of satisfactory documentary evidence.

b) On 11 January 2019, a Full Bench of the Fair Work Commission issued a decision in the Workplace Determination arbitration. In relation to personal / carer’s leave the Full Bench 9 observed that,

Personal/Carer’s Leave

[275] There are several matters in issue in respect of personal/carer’s leave. They are:

•  the CPSU’s claim for a provision which enables employees to take up to one day of personal leave each year without the need to specify a reason or provide evidence,

•  in support of its claim the CPSU contended that there are public policy reasons for including such an entitlement in terms of reducing the burden on the healthcare system caused by employees visiting medical practitioners for the purpose of obtaining evidence for the employer and that an employee’s ability to access their entitlements during periods of illness without having to attend a doctor would aid recovery,

•  the CPSU further contended that there was no evidence that the provision would lead to unreasonable costs being incurred by the Department or that the provision was administratively unworkable;

•  the CPSU’s claim for an employee’s personal leave entitlement to be credited on commencement and each anniversary thereafter as per the Agreements

•  the CPSU relied on Mr Loughnan’s evidence in support of its claim,

•  Mr Loughnan’s evidence was that the entitlement provided a real benefit to employees and ensured that employees who were just starting their career were not formally disadvantaged by unplanned absences,

•  the CPSU submitted that there was no justification for the removal of this provision and that the Department had led no evidence that the operation of the clause would be administratively unworkable or that it would lead to unreasonable costs being incurred by the Department,

•  the CPSU also submitted that there were positive reasons for the inclusion of the provision such as the significant effect that the provision had on employee welfare and that the issue ought to be the subject of negotiations for an enterprise agreement to replace the workplace determination; and

•  the exclusion from the Department’s proposed workplace determination of a number of provisions relating to personal/carer’s leave which appear in the DIAC Agreement, including the scope to access personal/carer’s leave for a range of compelling personal circumstances such as for compassionate reasons, religious or cultural observance, genuine emergency situations, scope to anticipate up to 10 days personal/carer’s leave, the requirement to develop and implement organisational health initiatives and the discretion for the Secretary to grant up to 10 additional days personal/carer’s leave in certain circumstances

•  in short, the CPSU wanted these provisions reflected in the workplace determination we will make,

•  with regard to the scope to access personal/carer’s leave for a range of compelling personal circumstances, the CPSU submitted that the inclusion of such provisions in the determination would not foster a culture whereby personal leave is something simply to consume and that annual leave was not intended to cover the personal circumstances covered by such provisions, adding that the inclusion of such provisions would preserve annual leave for the purpose of employees having a period of rest and recreation away from the work environment,

•  the CPSU relied on the Mr Hyde’s evidence in support of the inclusion of a provision providing discretion for the Secretary to grant up to 10 additional days personal/carer’s leave in certain circumstances.

[276] The Department in its submissions opposed the CPSU’s claims that:

•  personal/carer’s leave be credited up front;

•  the circumstances in which personal/carer’s leave be extended to include “compelling circumstances” – the Department opposed the claim on the basis that personal/carer’s leave was a safety net for employees who were unable to attend work due to illness or caring responsibilities and ought to be preserved for that purpose and no other purpose thereby ensuring that such leave remained accessible in times of most need;

•  employees be able to take up to one day of personal leave each year without the need to specify a reason or provide evidence – the Department submitted that the absence of a requirement for evidence created the potential for employees to misuse their personal leave entitlement; and

•  employees be able to anticipate up to 10 days personal leave – the Department submitted that in circumstances where employees accrued 18 days of personal leave per annum a sufficient safety net was afforded employees, adding that the CPSU’s claim lacked merit. The Department also highlighted that the Secretary maintained the discretion to provide paid leave in the case of long-term illness via miscellaneous leave

[277] Beyond that, in its submissions the Department highlighted that its proposed workplace determination largely replicated the notification requirements in respect of personal/carer’s leave that were found in the NES, noting that clause 4.68 of its proposed determination provided the Secretary with the discretion to require satisfactory documentary evidence in circumstances where an employee was absent on personal leave for a period of 2 consecutive days or less. The CPSU submitted in respect of the Department’s proposed clause 4.68 that there was no justification for the provision which would be to the detriment of employees accessing their lawful entitlements.

[278] The Department also referred to clauses 4.71 and 4.73 in its proposed determination which were not agreed. Those clauses respectively empower the Secretary to grant personal leave where an employee has had contact with a person suffering from a notifiable infectious disease or to grant unpaid personal leave where accruals were exhausted. In respect of the first of those clauses, the Department submitted that absent such a clause an employee would be required to access another form of leave. The Department also contended that the CPSU’s opposition to these clauses was unexplained.

[279] Having regard to the parties’ submissions regarding the matters in issue in respect of personal/carer’s leave we are not satisfied as to the merits of the CPSU’s claims (other than in respect of the basis on which personal/carer’s leave accrues) or the Department’s proposed clause 4.68 [s.275(a)]. In our view these matters are more appropriately dealt with in bargaining for an enterprise agreement to replace the workplace determination [s.275(h)].

(my emphasis)

[280] As to the basis on which personal/carer’s leave accrues, we note that the Agreements both provide that on commencement of an employee’s ongoing employment with the APS they will be credited with 18 days paid personal leave and that in subsequent years personal leave accrues progressively throughout the year. The Department in its submissions provided no rationale for its opposition to this claim. In our view, the inclusion of such a provision has regard to the interests of the Department and employees [s.275(c)]. Such a provision is in the interest of the Department in that it avoids the need for this cohort of employees, i.e. ongoing employees who are new to the APS, to apply for other forms of leave and in doing so minimises the risk of disputes where alternative forms of discretionary leave may not be granted. Such a provision is also in the interests of employees as it minimises the risk of an employee having to take leave without pay.

[281] With regard to the Department’s proposed:

•  clause 4.71, we note that the provision is drawn from the ACBPS Agreement and assume that it is a response to the risk of ACBPS and now ABF employees being exposed to notifiable diseases in the course of their work and is necessary given that such exposure, while it may render an employee unable to attend work, would not necessarily result in an employee being eligible for personal leave because they are not fit for work due to a personal illness or injury affecting the employee. Against that background, the inclusion of such a provision in the workplace determination has regard to the interests of the employer and more particularly in this case employees; and

•  clause 4.73, we consider that there is merit in including such a provision in the determination we will make [s.275(a)]. However consistent with the relevant provision in the Award, we consider that the provision should provide that the Secretary may grant either paid or unpaid personal leave in circumstances where the employee has exhausted their personal leave accrual and is not fit for work due to a personal illness or injury affecting the employee.

c) The final form of the Workplace Determination did not contain the following (as proposed by the Department),

4.68 When an Employee is absent on personal leave for a period of 2 consecutive days or less, the Secretary may require presentation of satisfactory documentary evidence.

Unplanned Leave Procedural Instruction

d) In October 2020, the Department initiated consultation in relation to leave policies and procedural instructions (PIs) to support the operation of the Determination.

e) Following consultation between the CPSU and the Department, on 23 April 2021 the Department wrote to the CPSU providing a further revised version of the Unplanned Leave Procedural Instruction (Unplanned Leave PI). That version is the subject of these proceedings.

Submissions

[21] The CPSU submitted that,

1. “The Community and Public Sector Union (“CPSU”) has brought a dispute under s 739 of the Fair Work Act 2009 (Cth) and Part 12 of the Department of Home Affairs Workplace Determination 2019 (“the Workplace Determination”) for the Fair Work Commission to deal with a dispute.

2. The issue in dispute is whether a clause relating to documentary evidence in support of absences of less than three days in an Unplanned Leave Procedural Instruction which has been developed by the Department of Home Affairs (“the Department”) complies with the Workplace Determination at clause 4.68.

3. The CPSU submits that the clause relating to documentary evidence in support of absences of less than three days in the Department’s Unplanned Leave Procedural Instruction (“the Unplanned leave Procedural Instruction Clause”) does not comply with clause 4.68 of the Workplace Determination.

Clause 4.68 of the Workplace Determination

4. Clause 4.68 of the Workplace Determination should be interpreted in accordance with the principles for the interpretation of industrial instruments established in Veolia Transport Sydney Pty Ltd v Misfud [2012] FCA 1472 at [16], City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [53], Manildra Flour Mills (Manufacturing) Pty Ltd v National Union of Workers [2012] FCA 1010 at [50], Australian Workers’ Union v Cleanevent Australia Pty Ltd [2015] FCA 1477 at [13] and Kucks v CSR Pty Ltd (1996) 66 IR 182 at [184]. Specifically, it should be interpreted in accordance with the natural and ordinary meaning of its words, bearing in mind its industrial context and its purpose. Words should not be added which alter its meaning (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 and Taylor v The Owners – Strata Plan 11564 (2014) 253 CLR 531.

5. The natural and ordinary meaning of the words of clause 4.68 are clear. The clause requires employees who have been absent on personal leave for three days or more to provide satisfactory documentary evidence that the reason for taking that leave is one of the reasons set out at clause 4.66 of the Workplace Determination: i.e. that it is due to the employee experiencing personal illness or injury, or a member of the employee’s immediate family or household experiencing personal illness or injury.

6. The industrial context of clause 4.68 of the Workplace Determination includes the National Employment Standards (NES) contained in the Fair Work Act, and the decision of the Full Bench of the Fair Work Commission in B2016/1232 – Commonwealth of Australia represented by the Department of Home Affairs.

The NES

7. The NES provide an entitlement to ten days of paid personal leave per annum, which may be taken by an employee who is experiencing a personal illness or injury, or providing care to a member of the employee’s immediate family or household who is experienced a personal injury or illness (Fair Work Act, ss 96 – 97). Employees who give notice of the taking of leave under s 96 of the Fair Work Act must, if required by their employer, give evidence that the leave has been taken for one of the reasons specified in s 97 of the Fair Work Act. The specific requirements of that evidence are set out at s 107 of the Fair Work Act, which provides that employees must provide notice to their employer of the taking of leave, and the expected duration of that leave (s 107(2)) and must if required provide evidence that the leave is taken for one of the reasons specified in (relevantly) s 97 of the Fair Work Act (s 107(3)).

8. The Fair Work Act applies to the Workplace Determination as though it were an enterprise agreement (Fair Work Act, s279). Section 55 of the Fair Work Act deals with the interaction between the NES and enterprise agreements, and applies to the Workplace Determination by virtue of s 279. Under s 55(3) of the Fair Work Act, the NES have effect subject to the terms of an enterprise agreement (or in this case, a Workplace Determination). Under s 55(4), an enterprise agreement (or in this case, a Workplace Determination) may contain provisions which are ancillary or incidental to the operation of an entitlement under the NES, and terms that supplement the NES, to the extent that they are not detrimental to an employee to any extent when compared with the NES. Consistently with s 55 of the Fair Work Act, clause 1.9 of the Workplace Determination sets out the manner in which its provisions interact with the NES, as follows:

The terms of this Determination are intended to apply in a manner that does not derogate from the NES. The NES will continue to apply to the extent that any term of this Determination is detrimental to an employee or the Secretary in any respect when compared with the NES.

9. Clause 4.68 of the Workplace Determination must be interpreted in a manner that is consistent with s 55 of the Fair Work Act and clause 1.9 of the Workplace Determination. Accordingly, clause 4.68 must be understood as ancillary to the leave entitlements, and associated notice and evidence requirements, set out in ss 96, 97 and 107 of the Fair Work Act. Clause 4.68 supplements the NES entitlements at ss 96, 97 and 107 of the Fair Work Act by providing employees covered by the Workplace Determination with an entitlement to take personal / carer’s leave without a requirement to provide documentary evidence, for periods of up to three days.

10. In doing so, clause 4.68 operates in a manner similar to clause 17.3 of the Australian Public Service Enterprise Award 2015, which provides employees with an entitlement to take up to three days of personal / carer’s leave without the requirement to produce documentary evidence.

Full Bench Decision in B2016/1232 – Commonwealth of Australia as represented by the Department of Home Affairs

11. The Full Bench considered personal / carer’s leave entitlements at [275] – [281] of its decision. With respect to the issue of evidence in support of personal leave, the Full Bench said:

[277] Beyond that, in its submissions the Department highlighted that its proposed workplace determination largely replicated the notification requirements in respect of personal/carer’s leave that were found in the NES, noting that clause 4.68 of its proposed determination provided the Secretary with the discretion to require satisfactory documentary evidence in circumstances where an employee was absent on personal leave for a period of 2 consecutive days or less. The CPSU submitted in respect of the Department’s proposed clause 4.68 that there was no justification for the provision which would be to the detriment of employees accessing their lawful entitlements.

[279] Having regard to the parties’ submissions regarding the matters in issue in respect of personal/carer’s leave we are not satisfied as to the merits of the CPSU’s claims (other than in respect of the basis on which personal/carer’s leave accrues) or the Department’s proposed clause 4.68 [s.275(a)]. In our view these matters are more appropriately dealt with in bargaining for an enterprise agreement to replace the workplace determination [s.275(h)].

12. The Full Bench considered the inclusion of a clause in the Workplace Determination that would provide for evidence to be supplied in support of all requests for personal / carer’s leave. It considered a specific proposal by the Department of a clause that would allow for evidence to be required for absences of less than two days (in effect, absences of any duration). Its rejection of this proposal indicates an intention that the requirements for evidence in support of personal leave to be included in the Workplace Determination would not simply mirror the requirements in the NES, but would operate in a manner ancillary to, and supplementing, the NES by providing employees with the ability to take up to three days’ personal leave without the requirement to provide documentary evidence. Clause 4.68 of the Workplace Determination must be interpreted consistently with this intention and purpose.

Conclusion on Interpretation of Clause 4.68 of the Workplace Determination

13. Clause 4.68 of the Workplace Determination acts as a restriction on the circumstances in which employees can take personal leave without providing evidence. It should be read as meaning that employees covered by the Workplace Determination are required to provide evidence in support of absences on personal leave for periods of three days or more. It does not provide a requirement to provide evidence for absences that are less than three days. This interpretation is consistent with the natural and ordinary meaning of the words, the purpose of the clause as revealed through its industrial context in the Full Bench’s decision in B2016/1232, and the NES. Clause 4.68 is neither inconsistent with nor derogates from ss 96, 97 and 107 of the Fair Work Act.

Unplanned Leave Procedural Instruction Clause

14. The Unplanned Leave Procedural Instruction Clause provides that:

19.1 Managers may request documentary evidence in support of requests for personal leave when they have identified a “pattern of absences”. Examples of what might constitute a “pattern of absences” are provided, but a definition is not (at clause 1.1.2).

19.2 If the reason for the “pattern of absences” is a medical or personal issue (such as family violence), managers may request that all future unplanned absences be supported by evidence (at clause 1.1.4).

19.3 If the issue of the employee’s unscheduled absences is resolved, the requirement to provide supporting documentary evidence for all future unscheduled absences may be rescinded (at clause 1.1.7.

15. The effect of the Unplanned Leave Procedural Instruction Clause is that employees may be required to provide evidence in support of absence on personal leave for absences of less than three days. This requirement may come into effect when the employee’s manager forms the view that the employee has a “pattern of absences”. The requirement may be imposed on the employee indefinitely. The employee has no resource if an indefinite requirement to provide evidence in support of all absences on personal leave (including those of less than three days) is imposed.

16. The Unplanned Leave Procedural Instruction Clause directly contradicts and undermines clause 4.68 of the Workplace Determination, in that it imposes a requirement to provide documentary evidence in support of all requests for unplanned personal / carer’s leave, irrespective of whether they are of three days’ duration or less. This is a position that was expressly put to the Full Bench in B2016/1232, and rejected.

Conclusion

17. The Unplanned Leave Procedural Instruction Clause is not consistent with clause 4.68, when that clause is interpreted in accordance with the natural and ordinary meaning of its words, and its industrial context in the Full Bench’s decision in B2016/1232.”

[22] The Department submitted that,

1. “For the reasons set out below, the Respondent submits that the disputed clauses of the Unplanned Leave PI are not inconsistent with cl 4.68 of the Determination. Indeed, cl 4.68 of the Determination does not arise on the factual circumstances contemplated by the Unplanned Leave PI and, to that end, the two documents are simply read together.

The determination and relevant legislative provisions

2. Clause 4.68 of the Determination falls within the section of the Determination concerned with personal leave. Those provisions provide as follows:

Personal leave

Crediting and accrual of personal leave

4.62 Employees other than those specified in clause 4.63 accrue 18 working days of paid personal leave for each completed year of service with the Department, accruing daily and credited monthly.

4.63 Employees who commence their ongoing APS employment on engagement with the Department will be credited with 18 days of paid personal leave on commencement.

4.64 Any unused personal leave accumulates but cannot be cashed out or paid out on cessation of employment with the Department.

Taking of personal leave

4.65 Employees may take paid personal leave for full or part day absences.

4.66 Employees may take personal leave:

(a) because the Employee is not fit for work due to a personal illness, or personal injury, affecting the Employee; or

(b) to provide care or support to a member of the Employee’s Family or household who requires care or support because of:

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

(ii) for an unexpected emergency affecting the member.

Notification

4.67 Employees must notify their Manager of any absence as soon as reasonably practicable (which may be a time after the leave has started). When doing so, the Employee must advise their Manager of the period, or expected period, of their absence.

Documentary evidence

4.68 When an Employee is absent on personal leave for a period of 3 or more consecutive days, they must provide satisfactory documentary evidence to establish that the leave was taken for one of the reasons specified in clause 4.66.

4.69 Satisfactory documentary evidence is evidence that would satisfy a reasonable person that the leave was taken for a reason specified in clause 4.66. This may comprise of a medical certificate provided by a health practitioner or a statutory declaration.

3. The entitlement to personal leave is also a matter dealt with in the National Employment Standards (NES) set out in the Fair Work Act 2009 (Cth) (FW Act). To that end, the Determination provides that:

Interaction with industrial instruments and the NES

1.9 The terms of this Determination are intended to apply in a manner that does not derogate from the NES. The NES will continue to apply to the extent that any term of this Determination is detrimental to an Employee or the Secretary in any respect when compared with the NES.

4. Relevantly, the FW Act provides that:

97 Taking paid personal/carer's leave

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.

Note 1: The notice and evidence requirements of section 107 must be complied with.

…

107 Notice and evidence requirements

Notice

(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.

Evidence

(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;

…

Compliance

(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.

5. Additionally, the Determination sets out the following with respect to policies:

Interaction with policies

1.5 The operation of this Determination is supported by policies, procedures and guidelines. If there is any inconsistency between the policies, procedures and guidelines and the terms of this Determination, the express terms of this Determination will prevail.

1.6 Policies, procedures, and guidelines which support this Determination are not incorporated into, and do not form part of, this Determination.

Applicable principles

6. The principles applicable to interpreting a workplace determination are the same as those applicable to interpreting other industrial instruments, like industrial awards: CPSU v Commonwealth of Australia (represented by the Department of Home Affairs) [2021] FWC 2199 at [19]. The principles of interpretation of industrial instruments are well settled.

7. The general approach to the construction of industrial instruments is set out in the judgment of French J, as his Honour then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 (Wanneroo), at 438:

The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).

8. Further, Madgwick J in Kucks v CSR Limited (1966) 66 IR 182 observed that a narrow pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, but, at 184:

... the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.

9. As French J observed in Wanneroo, at 440:

It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg George A Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

“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.”

10. Accordingly, in interpreting the Determination, the Commission must look at the language of the Determination, having regard to its context and purpose.

Proper interpretation

11. Having regard to the text of the Determination, and reading the provisions extracted above together, and in context, a number of matters are immediately apparent.

12. First, cl 4.68 imposes a requirement, namely that an employee “must provide satisfactory documentary evidence to establish that the leave was taken for one of the reasons specified in clause 4.66” (emphasis added), if the pre-condition of the provision is satisfied. The relevant precondition is that the employee is “absent on personal leave for a period of 3 or more consecutive days”. It follows that if the precondition is not met, the mandatory obligation is not enlivened.

13. Second, the relevant provisions of the Unplanned Leave PI are concerned with absences of fewer than three days only. That is, a situation cannot arise which is caught by the provisions of the Unplanned Leave PI and cl 4.68 of the Determination. Viewed in that light, there is no inconsistency between the two provisions because there is simply no overlap.

14. Third, cl 4.68 of the Determination is concerned with the mandatory requirement for employees to provide evidence of the reason for their absence. It says nothing as to other scenarios in which the employer may require evidence, or give a reasonable direction – pursuant to its common law right or a statutory right – to an employee to provide evidence of the reason for their absence.

15. The interpretation of the provision advanced by the CPSU requires words to be read into cl 4.68 that the circumstances contemplated by that provision are the only circumstances where the employee will be required to provide evidence for their absence, and that the employee will otherwise never be required to provide evidence. Such an interpretation is not derived from the plain English meaning of the words in the provision, nor with the context and purpose of the provision. Put simply, it is an impermissible re-writing of cl 4.68.

16. The Determination, read as a whole, and in particular in light of clauses 1.5 and 1.9, clearly contemplates policies which sit outside the Determination, as long as they are not inconsistent with it. Equally, the NES continues to apply unless an inconsistency arises. There is nothing unusual about such an approach: see Construction, Forestry, Maritime, Mining and Energy Union v Wambo Open Cut Pty Ltd T/A Wambo Open Cut Mine [2019] FWC 7707 at [51]-[52].

17. Fourth, the disputed provisions of the Unplanned Leave PI are entirely consistent with the NES, specifically s 107 of the FW Act. Section 107(3) provides that an employee, if requested by the employer, must provide evidence that would satisfy a reasonable person that the leave is taken for, relevantly, a reason specified in s 97 (personal/ carer’s leave). The Explanatory Memorandum to the Fair Work Bill, at 415, specifically provides that, “in cases of an absence extending beyond a short period or repeated absences on particular days (e.g., before or after a weekend or public holiday), it may be reasonable for an employer to request a medical certificate in support of the employee’s request for leave”. The Unplanned Leave PI merely provides some guidance to managers in requesting evidence of the reason for leave, and is entirely consistent with the Explanatory Memorandum. Section 107(3) of the FW Act requires the employee, in that situation, to provide evidence that would satisfy a reasonable person that the leave is taken for personal/ carer’s leave reasons.

18. To deny the Department the opportunity to test and confirm the reason that an employee is taking a period of personal/ carer’s leave would be to deny it a benefit expressly permitted by the NES. Clause 1.9 of the Determination makes plain that:

The terms of this Determination are intended to apply in a manner that does not derogate from the NES. The NES will continue to apply to the extent that any term of this Determination is detrimental to an Employee or the Secretary in any respect when compared with the NES.

19. The interpretation advanced by the CPSU would result in the Department being under a detriment when compared to the NES, which clearly contemplates the request for evidence of reason for the taking of leave of any duration, and the requirement on the employee to provide the evidence requested.

20. Finally, the interpretation advanced by the CPSU would result in the Department being unable to test and confirm the reason for the purported taking of personal leave, unless that leave was for the duration of three or more consecutive days. Such an interpretation would not be consistent with the purpose of cl 4.66 of the Determination. Pursuant to clause 4.62 and 4.66, an employee may take paid personal leave only for one of the reasons set out in cl 4.66.

21. Given that the employee can only take leave for one of the prescribed reasons, it would be inconsistent with the purpose of cl 4.66 to limit the Department’s ability to test and confirm the basis for the taking of personal leave, other than in accordance with cl 4.68 of the Determination.

Conclusion

22. For the reasons set out above, the Commission ought to determine that the disputed clauses of the Unplanned Leave PI are not inconsistent with cl 4.68 of the Determination.”

Principles of interpretation

[23] A Workplace Determination is not an enterprise agreement. It is not the result of a bargain. Consequently, the principles relevant to the task of construing an enterprise agreement as distilled in The Australasian Meat Industry Employees Union v Golden Cockerel¹⁰ and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Limited¹¹ do not apply.

[24] However, as the Full Bench (still relevant for present purposes) observed in Berri,

[46] There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments (such as enterprise agreements) is to be avoided,¹² and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’.¹³

[25] A Workplace Determination is a creation of the Commission. Consequently, the principles applicable to interpreting a Workplace Determination are the same as those applicable to interpreting other industrial instruments, like industrial awards.

[26] The general approach to the construction of industrial instruments was set out by Flick J in Australian Workers’ Union v Cleanevent Australia Pty Ltd,¹⁴

13 When construing the terms of an award, it is well-settled that a “narrow or pedantic approach” is to be shunned and that the “search is for the meaning intended by the framer(s)”: Kucks v CSR Ltd (1996) 66 IR 182 at 184. Madgwick J there observed:

Legal principles

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.

See also: Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [30], (2014) 318 ALR 54 at 58 per Tracey J; Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCA 532 at [6] per Logan J; Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088 at [240] per Murphy J. The words used in an agreement or an award are to be given their “natural and ordinary meaning”: Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472 at [16].

14 It is also well-settled that the words of an award are not to be construed “in a vacuum divorced from industrial realities”: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57], (2006) 153 IR 426 at 440. French J (as his Honour then was) there observed:

[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘… the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘… ideas that gave rise to an expression in a document from which it has been taken’ — Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J).

His Honour continued on to observe:

[57] It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities — City of Wanneroo v Holmes (1989) 30 IR 362 at 378–379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned — see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

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.

15 There is repeated reference in the authorities to the need to take into account the “context” in which an industrial agreement or award emerges. Thus, by way of example, in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 at [2], (2005) 222 CLR 241 at 246 Gleeson CJ and McHugh J observed:

The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose …

Kirby J there also observed:

[66] … In the interpretation of the Constitution and of legislation, Australian courts have passed beyond the age of the magnifying glass. No longer do courts (or industrial tribunals) seek to give meaning to contested language considered in isolation from the context in which the words are used and the purpose for which the words were apparently chosen. Nowadays, the same insistence on context, as well as text, permeates the approach to interpretation that is taken to legally binding agreements. Indeed, before this approach became normal in the courts, in the interpretation of contested instruments it was often the approach adopted for the construction of industrial texts. This was in keeping with an inclination of such tribunals towards practical, as distinct from purely verbal, constructions in that area of the law’s operation.

[67] In the present case, the Union’s submission was that these generalities were all very well, but that in the end, the Court had to give effect to the language of the Agreement. Clearly, this is correct. Interpretation is always a text-based activity …

In Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148, (2014) 245 IR 449 at 455 Siopis, Buchanan and Flick JJ similarly stated:

[22] The test that should be applied is to discern the objective meaning of the words used bearing in mind the context in which they appear and the purpose they are intended to serve. Here, the definition in question expressly extended to work ancillary to the principal business. That was the true question for examination.

Their Honours continued:

[46] … giving primacy to the text does not deny the importance of understanding the context in which an instrument is made, and which it is intended to address, nor the utility of bearing in mind the facts as they are known at the time the instrument is drafted.”

[27] With respect, I adopt the above principles of construction.

[28] I note also that I must apply the Acts Interpretation Act 1901 (Cth) in interpreting the Workplace Determination.¹⁵

Consideration

[29] Section 107 of the FW Act 2019 provides the following in relation to evidence requirements,

(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.

Evidence

(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 …

[30] What is clear from the operation of the FW Act is that:

a) employers can ask employees to provide evidence for as little as 1 day or less off work, and

b) an employee who doesn't give their employer evidence when asked may not be entitled to be paid for their sick leave.

[31] The operation of the FW Act is a relevant industrial contextual consideration to the interpretation of the Workplace Determination.

[32] The final form of the Workplace Determination did not contain the following (as proposed by the Department),

4.68 When an Employee is absent on personal leave for a period of 2 consecutive days or less, the Secretary may require presentation of satisfactory documentary evidence.

[33] The Full Bench was “not satisfied as to the merits of … the Department’s clause 4.68 [2.275(a)]. 16

[34] The proceedings and decision of the Full Bench are relevant industrial contextual considerations to the interpretation of the Workplace Determination.

[35] What was left in the Workplace Determination as an operative provision was (what is now) clause 4.68. It is worthy of repeating,

4.68 When an Employee is absent on personal leave for a period of 3 or more consecutive days, they must provide satisfactory documentary evidence to establish that the leave was taken for one of the reasons specified in clause 4.66.

[36] It is the ordinary meaning of the words contained in clause 4.68 that must be given primacy. It is also necessary, having regard to the entirety of the industrial context, to give effect to the evident purpose of the clause. To do otherwise would be to interpret the Workplace Determination in a vacuum and divorced from the industrial realities that led to its creation.

[37] The Workplace Determination in effect operates as a code concerning the requirement to provide evidence when absent “for a period of 3 or more consecutive days.” That is the objective meaning of the clause. It is intended to “cover the field” setting out when evidence is required. It is a constraint imposed on the circumstances where the employer can request evidence. If it is not read that way, it has no operative effect.

[38] It is only when “an employee is absent on personal leave for a period of 3 or more consecutive days”, that “they must provide satisfactory documentary evidence.”

[39] The PI would allow the Department to request evidence when the absence is for less than 3 days. Allowing the Department to require evidence for lesser periods defeats the purpose of clause 4.68. Consequently, such a construction must be rejected. It is not consistent with a proper interpretation of clause 4.68.

[40] I reject the Department’s submission that the PI and the Workplace Determination can be read together. There is clearly an inconsistency between the PI and the Workplace Determination. Consequently, under the terms of the Workplace Determination, the Workplace Determination prevails.

[41] To allow the PI to operate as proposed by the Department would be to give life to the proposal advanced by the Department during the proceedings before the Full Bench. That was a proposal rejected by the Full Bench. This informs the industrial context relevant to the interpretation of the Workplace Determination.

[42] The PI would essentially give the Department the same rights as it has under the FW Act. Those rights are more onerous on employees than provided for in the Workplace Determination. Because the Workplace Determination is not detrimental to an employee when compared with the NES (in relation to evidence requirements), the Workplace Determination provision prevails. That is how to properly read the “NES interaction” provision in the Workplace Determination.

[43] The Department relied upon the decision in Construction, Forestry, Maritime, Mining and Energy Union v Wambo Open Cut Pty Ltd T/A Wambo Open Cut Mine. 17 In that matter the employer had a policy that provided for stricter evidentiary requirements than the applicable enterprise agreement. The matter can be distinguished because it did not concern the operation of a workplace determination (which is more akin to an industrial award). In any case the Deputy President did not need to determine whether the Agreement and the NES could be reconciled because he found that the warnings issued under the policy were unjust and unreasonable. To the extent that the Deputy President went on to make some observations about how the leave policy, the enterprise agreement and the NES might interact with each other, they are not observations immediately applicable to the present circumstances. Those observations are confined to the facts in that matter.

[44] There are no doubt good management reasons for what is proposed in the PI. As this decision is published on Melbourne Cup Day it might be envisaged that a number of workers were “sick” yesterday (thus giving them a 4-day long weekend), or may be “sick” tomorrow celebrating the very elegant win by the winner of the Melbourne Cup. However, the Workplace Determination does not allow for requests for evidence of less than 3 days.

[45] If the Department wants to change the operation of the Workplace Determination, it is a matter for it to again advance the case for such a change (in line with what it is attempting to do under the PI). Noting that the Workplace Determination has passed its nominal expiry date the Department could advance such a claim in the context of enterprise bargaining.

Conclusion

[46] For the reasons set out above, the Commission, as presently constituted, determines that the answer to the question,

“Is the Unplanned Leave Procedural Instruction Clause consistent with clause 4.68 of the Workplace Determination?

is,

“No.”

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR734199>

1 AG501682.

2 Clause 12.6(b)(i), the Workplace Determination.

3 [2019] FWCFB 143.

4 AG501682 PR704687

5 Clause 1.3, the Workplace Determination.

6 Ibid

7 Clause 1.2, the Workplace Determination.

 8   See Annexure B to the Statement of Jocelyn Gammie dated 15 July 2021.

 9   [2021] FWC 5972.

10 [2014] FWCFB 7447 (‘Golden Cockerel’).

11 [2017] FWCFB 3005 (‘Berri’).

12 Kucks v CSR Limited (1996) 66 IR 182 at 184.

13 City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440.

14 [2015] FCA 1477.

15 City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426.

 16   [2021] FWC 5972, [277].

 17   [2019] FWC 7707 at [51]-[52].