T4593
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Liquor, Hospitality and Miscellaneous CLEANING AND PROPERTY SERVICES AWARD
Interpretation - Clause 9, Annual Leave INTERPRETATION This application for an interpretation of the Cleaning and Property Services Award concerns the effect of Clause 9, Annual Leave, in particular subclause (b)(ii), on employees who are absent from work and in receipt of workers compensation. The specific case against which to test the meaning of the clause concerned a property service employee whose services were terminated whilst she was on workers compensation. The employee, having been absent on workers compensation from May 1991, advised her employer early in 1993 it would seem that she would be unable to return to work in the near future. On 16 March 1993 the employer advised that her employment would be terminated on 30 March 1993, and the employee was advised that any extra payments owing would be made at that time. On 6 May 1993 the employer gave the union the following information in relation to the way in which the employee's annual leave entitlements would be calculated: Employment commenced in August 1989. The accident happened in May 1991; therefore an estimated nine months accumulation of holiday pay. Consequently 3 weeks holiday pay due to that time. The first 91 days after the accident cut out in August 1991. To July 1992 one week's holiday pay was due. Therefore a total of six weeks holiday pay was due, plus 17.5% loading. The union claimed that the employer therefore was saying that after the first 91 days in each year's absence there was no further accumulation of annual leave for an employee on extended workers compensation absence, when it considered that the provision dealing with continuous service and absences of up to 91 days was not applicable in respect of absences on workers compensation. The relevant part of the Annual Leave Clause is as follows: "(b) Calculation of Continuous Service (i) 12 months' continuous service, for the purposes of this award shall mean 12 months from the commencement of employment. Such 12 months shall not be affected by the number of hours worked each week. (li) Continuous service shall not be deemed to have been broken because of: (a) absences of up to 91 days resulting from accidents, or illnesses which are covered by medical certificates, in accordance with Clause 29 - Sick Leave of this award; (b) absences of up to one month for any cause for which leave has been granted by the employer." The union maintained that the punctuation in paragraph (ii) (a) indicated that absences in respect of both accidents and illnesses were qualified by the requirement that they be in accordance with the sick leave clause. It was submitted that the subparagraph applied only to absences on sick leave and the Sick Leave clause ensured that its provisions were not available in respect of workers compensation absences. Clause 29, Sick Leave, is as follows: "(a) An employee, other than one engaged as a casual, who is absent from work on account of personal illness or on account of injury by accident shall be entitled to leave of absence without deduction of pay, after one month's employment, subject to the following conditions: (i) the employee shall not be entitled to such leave of absence for any period in respect of which the employee is entitled to workers' compensation; (ii) the employee shall, prior to the commencement of such absence, inform the employer of the inability to attend for work and as far as may be practicable state the nature of the illness or injury and the estimated duration of the absence. Where such notification is not given, the employer shall be entitled to require as proof in accordance with subclause (iii) of this clause, a certificate of a medical practitioner. Provided that where he is genuinely unable to give notification prior to the commencement of the shift the requirements of subclause (iii) of this clause shall apply; (iii) The employee shall provide proof that the employee was unable, on account of such illness or injury, to attend work on the day for which sick leave is claimed in the form of a sworn statutory declaration or a medical certificate provided by a qualified medical practitioner. In the case of absences of more than a single day an employer may request, prior to the employee's return to work, as proof a medical certificate. (iv) the employee shall not be entitled in any year (whether in the employment of one employer or of more) to sick leave credit in excess of 2 weeks of ordinary working time; (v) for the purposes of administering paragraph (iv) above an employer may within one month of this award coming into operation or within 2 weeks of the employee entering his employment require an employee to make a sworn declaration or other written statement as to what paid leave of absence he has had from any employer during the then current year, and upon such statement the employer shall be entitled to rely and act." Further, it was argued that Section 84 of that Act provided that employees on a workers compensation absence were entitled to annual leave as if they had remained at work and, if termination occurred before leave to which they were entitled was granted, there was a right to compensation in lieu of paid leave. The union took the view that the decision of the Deputy Chairman of Industrial Boards (No. 5 of 1979), which established a common rule award for the calculation of continuous service for annual leave purposes, should be disregarded where it differed from the words of the Cleaning and Property Services Award. The Deputy Chairman's decision had excluded from the calculation of continuous service any absence from work on account of personal sickness or accident in excess of 91 days in any 12 month period. The employer did not dispute the fact that the Workers Compensation Act provided that annual leave accrued under a contract of service was to be made available to an employee on return to work. However the rate at which annual leave accrued was determined by the award, in particular by the annual leave clause which it considered imposed the 91 day maximum in respect of accidents not covered by the sick leave clause. The employer argued that if a person was absent from work on workers compensation for a year, the employee would be entitled to count, for annual leave purposes, only 91 days as service. The words of Clause 9 (b)(ii)(a), although awkward and perhaps ambiguous, the employer said, were sufficiently intelligible to bestow that meaning. In the employer's view there were four circumstances provided for in the subparagraph affecting the calculation of annual leave where absences and continuity of service were involved. They were: (i) accidents where sick leave was claimed; It was argued that the paragraph could be reconstructed to provide for two separate components:
The employer said the sick leave clause between 1975 and 1991 had provided for two single day absences in any six month period to be taken without having to produce proof of illness or injury. When the ability to take single day sick leave without proof was removed in the structural efficiency review of the award, made in 1991 and effective from 23 December 1990, the employer submitted it would have been desirable to have amended the annual leave clause to recognise the change. Notwithstanding that, the employer contended that by making reference to the sick leave clause in the annual leave clause the authors of the provision were endeavouring to draw a distinction between illnesses with and illnesses without medical certificates. Putting that aside, the employer's preferred approach to the provision was to accept the words as written and the punctuation. That would mean, the employer said, that the subparagraph referred to absences of up to 91 days resulting from accidents, no matter whether they were covered by workers compensation, sick leave, or any other provision. The use of words "in accordance with Clause 29 - Sick Leave" did not have to mean being remunerated under the sick leave clause but, the employer said, the words "in accordance" could also mean being "in harmony or in agreement with" the sick leave clause. In relation to the common rule award decision, the employer submitted that there had been no attempt to distinguish between workers compensation and non workers compensation absences when extending the absence to 91 days and that the decision recognised that leave entitlements were a cost factor that needed to be limited. To accept the union's proposition, the employer said, would produce the "absurd outcome" of a person on workers compensation receiving 56 weeks pay for every 52 weeks absence because the annual leave component of four peeks would be in addition to ordinary pay for 52 weeks. It was argued that the principles of interpretation adopted by the Commission included the requirement that unless the drafting of the provision under consideration was such as to lead to no other conclusion, the other principles of interpretation should not become the absolute authority for construing a provision in such a way as to confer an extreme advantage or disadvantage on an employee. Further, that the result should not be out of step with the general provisions of the award as a whole. In order to remove whatever ambiguity and awkwardness existed in the provision it was submitted that the comma appearing after the words "medical certificates" should be removed. The union requested that the declaration resulting from this application should be retrospective to 23 December 1990, the date on which the award in its current form came into effect. The employer opposed any retrospectivity on the grounds of significant cost to the industry. Finding I agree with the employer's submission that the wording of Clause 9(b)(ii)(a) is awkward. However, given the words used in the subclause, the sick leave provisions of the award and Section 84 of the Workers Compensation Act 1988, I have come to the conclusion that subparagraph 9(b)(ii)(a) applies to absences of up to 91 days resulting from accidents and illnesses, which are covered by a medical certificates in accordance with the sick leave clause. I do not accept the employer's proposition that the provision could be improved by removing the comma appearing after "medical certificates", or the contention that accidents, whether supported by a medical certificate or not, are to be treated differently from illnesses covered by medical certificates in accordance with the sick leave clause, for the purposes of calculating continuity of service. The sick leave clause itself is at pains to treat personal illness or injury by accident equally, as evidenced by the preamble to subclause (a) of Clause 29 and, taking the award as a whole, it is clear to me that the award regards accidents and illnesses in a similar manner. The Determination of the Cleaners Wages Board of 5 August 1966, notified in the Tasmanian Government Gazette of 18 November 1966, provides for the calculation of continuous service for annual leave purposes in the following manner: "(c) Continuous service shall not be deemed to have been broken because of: (i) absences of up to one month, resulting from accidents or illnesses which are covered by Medical Certificates, in accordance with Clause 10. (Sick Leave); (ii) absences of up to one month for any cause for which leave has been granted by the employer." Given this punctuation, subclause (c)(i) clearly required accidents and illnesses to be regarded in the same way in that both, for the purposes of the clause, had to be supported by medical certificates in accordance with Clause 10. In a subsequent Determination of the Board dated 13 May 1969, and gazetted on 12 June 1969, a comma was inserted in subclause (c)(i) after the word "accidents" which has created, in my opinion, the current awkwardness. I agree with the union that the common rule award decision No. 5 of 1979 has no effect on the broad subject of this interpretation which is whether absences on workers compensation affect an employee's annual leave entitlements. The common rule decision clearly treats personal sickness and accidents in similar fashion, as is the case with the Cleaners Wages Board Determination of 5 August 1966, and it makes no reference to workers compensation absences. Having regard to the foregoing I have formed the opinion that the words used in Clause 9(b)(ii)(a) mean that absences of up to 91 days resulting from accidents or illnesses which are covered by medical certificates in accordance with Clause 29, Sick Leave, do not break service for the purpose of calculating annual leave entitlements. Since workers compensation absences cannot be treated as sick leave (see Clause 29(a)(i)), Clause 9(b)(ii)(a) has no application in respect of an employee absent on workers compensation. I make no comment on the effect of Section 84 of the Workers Compensation Act 1988 in these circumstances. The award, in my opinion, simply provides the means of calculating whatever entitlements are provided by that Act. Accordingly, pursuant to Section 43 (1A)(a) of the Industrial Relations Act 1984, I declare that Clause 9(b)(ii)(a) of the Cleaning and Property Services Award shall be interpreted to mean that absences of up to 91 days resulting from accidents or illnesses which are covered by medical certificates in accordance with Clause 29, Sick Leave, for the purposes of calculating annual leave shall not break "continuous service". Whilst I note the employer's submissions in relation to the potential additional payments which might arise as a result of a retrospective declaration, I am not persuaded that the cost would be significant and I am concerned to ensure that the award is applied correctly. In the circumstances the operative date of this declaration shall be 23 December 1990.
F.D. Westwood Appearances: Date and place of hearing: |