FEDERAL COURT OF AUSTRALIA

Queensland Nurses’ Union of Employees v Ramsay Health Care Australia Pty Ltd [2016] FCA 1486

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    The respondent operates the John Flynn Gold Coast Private Hospital (“the Hospital”) at Tugun in Queensland, and employs a number of nurses there. This proceeding is concerned with the nurses’ entitlements to pay and leave for public holidays.

2    More specifically, the applicant alleges that the respondent:

(a)    contravened ss 44 and 116 of the Fair Work Act 2009 (Cth) (“the FWA”) by failing to pay four of its employees for various public holidays between 2010 and 2014;

(b)    contravened ss 44, 50, 89(1) and 98 of the FWA by wrongly treating various employees as having taken annual leave, long service leave, personal/carer’s leave or other kinds of leave on public holidays.

3    The first allegation requires consideration of whether full-time nurses who are not rostered to work on public holidays are nevertheless entitled to be paid for those days. The second concerns the legal effect of errors made by the respondent in recording nurses as having taken leave on public holidays. I will consider each of these allegations in turn.

FAILURE TO PAY EMPLOYEES FOR PUBLIC HOLIDAYS

Facts

4    When the applicant commenced this proceeding, it named a number of employees in respect of whom it alleged that the respondent had contravened s 116 of the FWA. To make the litigation more manageable, the applicant has led evidence concerning that allegation only in relation to four employees, namely Catherine Rose, Kristie Hobbs, Therese Calvird and Ronald McAndrew (“the Four Employees”).

5    The facts are largely agreed. The applicant and the respondent agree that each of the Four Employees was not rostered to work on, and did not work on, a number of public holidays between 2010 and 2014. It is unnecessary to specify the particular public holidays and particular dates involved. It is common ground that the Four Employees were not paid for those public holidays. The principal dispute in the proceeding concerns whether they are entitled to be paid for such public holidays.

6    The nurses employed at the Hospital were covered by the Ramsay Health Care Australia Pty Ltd and the Queensland Nurses’ Union Enterprise Agreement 2009-2012 (“the 2009 Enterprise Agreement”), and are now covered by the Ramsay Health Care Australia Pty Ltd and the Queensland Nurses’ Union of Employees Enterprise Agreement 2012-2016 (“the 2012 Enterprise Agreement”).

7    Clause 2.5 of the 2009 Enterprise Agreement and cl 3.1 of the 2012 Enterprise Agreement are headed “Contract of Employment”. Each of these clauses states that “The basis of the contract of employment shall be confirmed with each employee in writing at the time of engagement”. The respondent provides each of its employees with a separate contractual document when they commence employment. The parties referred to Ms Rose’s contract as an example of such a contract for a full-time nurse. It includes the following terms:

8    The Hospital operates 24 hours a day and 365 days a year. The contract requires the respondent’s full-time nurses to be available to work on all shifts, on any day, including public holidays. That availability is subject to work being limited to 80 hours per week. The work to be in accordance with a roster.

9    Clause 1.4.1 of the 2009 Enterprise Agreement provides that “This Agreement incorporates the terms of the Private Hospital Nurses Award – State 2003 (NAPSA) as it existed at the date of lodgement of this Agreement”. Clause 6.1 of the Private Hospital Nurses’ Award – State 2003 (“the Award”) provides that “the ordinary hours of work shall be an average of 38 hours per week”.

10    The 2012 Enterprise Agreement contains the following clauses relevant to the ordinary hours of work:

5.1    Hours of work

a)    Subject to the exceptions hereinafter provided, the ordinary hours of work shall be an average of 38 per week.

…

5.4    Rosters

a)    All employees shall work in accordance with a fortnightly roster to be agreed from time to time between the employer and a majority of employees in any workplace or part thereof.

b)    The roster shall set out the employees’ periods of duty and the starting and finishing times for such periods shall be displayed in a place conveniently accessible to employees at least 7 days before the commencement of each fortnight.

…

11    It may be seen that cl 5.4(a) of the 2012 Enterprise Agreement requires that the fortnightly roster be agreed from time to time between the employer and the majority of employees in the workplace or a part of the workplace.

12    On the evidence before the Court, the respondent’s nursing unit managers prepare the roster for nursing staff at the Hospital between two to six weeks prior to the relevant fortnight. The roster is set according to the anticipated occupancy of wards and the skill mix amongst the nurses required for each shift in the wards. The relevant nursing unit manager attempts to accommodate any nurses’ requests to work particular shifts and requests for annual leave. It is open to the respondent to request any nurse to work on a public holiday.

Legislation

13    Section 44(1) of the FWA provides:

44    Contravening the National Employment Standards

(1)    An employer must not contravene a provision of the National Employment Standards.

Note:    This subsection is a civil remedy provision (see Part 4-1).

14    The National Employment Standards are contained in Ch 2, Pt 2-2 (ss 59-131) of the FWA.

15    Section 61(1) of the FWA provides:

61    The National Employment Standards are minimum standards applying to employment of employees

(1)    This Part sets minimum standards that apply to the employment of employees which cannot be displaced…

16    Part 2-2, Div 10 (ss 114-116) of the FWA deals with employees’ entitlements in respect of public holidays. Section 114 provides:

114    Entitlement to be absent from employment on public holiday

Employee entitled to be absent on public holiday

(1)    An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.

Reasonable requests to work on public holidays

(2)    However, an employer may request an employee to work on a public holiday if the request is reasonable.

(3)    If an employer requests an employee to work on a public holiday, the employee may refuse the request if:

(a)    the request is not reasonable; or

(b)    the refusal is reasonable.

(4)    In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:

(a)    the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

(b)    the employee’s personal circumstances, including family responsibilities;

(c)    whether the employee could reasonably expect that the employer might request work on the public holiday;

(d)    whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;

(e)    the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);

(f)    the amount of notice in advance of the public holiday given by the employer when making the request;

(g)    in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;

(h)    any other relevant matter.

17    Section 115 describes the days that are “public holidays”. It is unnecessary to set this provision out in view of the parties’ agreement that each of the Four Employees was not rostered to work on at least some public holidays between 2010 and 2014 and that they did not work on, and were not paid for, those public holidays.

18    Section 116 is critical to the outcome of this application. It provides:

116    Payment for absence on public holiday

If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part-day.

Note:    If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.

Submissions

19    The applicant argues that the purpose and policy objective of Ch 2, Pt 2-2, Div 10 (particularly s 114) of the FWA is to confer on all employees to whom the Act applies an entitlement to be absent from their employment on a day that is a public holiday, subject to the employer’s entitlement to request the employee to work on a public holiday if the request is reasonable. The applicant submits that this entitlement extends to shift-workers (such as the nurses employed at the Hospital), demonstrated by the express reference to shift-workers in s 114(4)(e) of the FWA. The applicant submits that the employer’s request that a shift-worker work on a public holiday is made by rostering the employee on a shift on a public holiday. The applicant submits that if the respondent makes no such request and the employee is absent from employment on a day or part-day that is a public holiday in accordance with Div 10 then the employer is required under s 116 to pay the employee.

20    The Four Employees could have been required to work any shift on any day of the year. The applicant submits that in these circumstances the expression “the employee’s ordinary hours of work on the day or part-day” in s 116 is apt to refer to the ordinary hours of work on the public holidays on which the Four Employees did not work, but on which they could reasonably have been requested to work. The applicant submits that s 116 was enlivened and the respondent was required to pay the Four Employees for such public holidays.

21    In response, the respondent submits that s 116 of the FWA has no application unless the employee is absent from his or her employment on a public holidays “in accordance with this Division”. The respondent submits that no requirement to pay employees for a public holiday arises where the absence of the employee from work is due to the employee not being rostered on to work. The respondent also submits that the Four Employees did not have ordinary hours of work on the public holidays because they were not rostered on, and that the note to s 116 indicates that they are not entitled to be paid.

Consideration

22    The Four Employees did not work on various public holidays between 2010 and 2014. They were not rostered to work on those public holidays (and there is no suggestion that the employees were required to be “on call” on the public holidays after the roster was set). The question is whether s 116 applies to these employees, such that the respondent was required to pay them for the public holidays.

23    The obligation on an employer under s 116 of the FWA to pay an employee for a public holiday arises only where the employee is absent from his or her employment on the public holiday “in accordance with this Division”. The words “this Division” refer to Div 10, particularly s 114.

24    Section 114(1) of the FWA confers an entitlement (qualified by s 114(2)) on an employee to be absent from his or her employment on a public holiday. Section 114(1) operates upon the tacit assumption that the employee would otherwise be required to work under the terms of his or her employment on that day. Otherwise, there would be no point in conferring a statutory entitlement to be absent. Further, where s 116 applies, the employer is required to pay the employee “at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part-day”. The provision assumes that the employee has ordinary hours of work on the public holiday. This is reinforced by the note to s 116 which states, “If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section.”

25    Depending on the context, the phrase “in accordance with” can mean “under an obligation created by” a particular term or provision: see Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 249. In its context in s 116, the phrase means “under the entitlement created by” s 114 of the FWA.

26    For the purposes of s 116 of the FWA, an employee will be absent from his or her employment on a public holiday “in accordance with” Div 10 if the employee is absent under the entitlement to be absent created by s 114. An employee will be absent under that entitlement if the employee has ordinary hours of work on the public holiday but does not work on that day, either because the employee is not requested by the employer to work, or refuses a request to work where the request is not reasonable or the refusal is reasonable.

27    This construction of s 116 is consistent with the examples given in the note to the section. One of the examples is of a part-time employee whose part-time hours do not include a public holiday. Such an employee is not absent from work under any entitlement under s 114 to be absent, but because the terms of employment do not require the employee to work on the public holiday. Further, such an employee does not have ordinary hours of work on the public holiday. The employee is therefore not entitled to payment under s 116 for the public holiday.

28    I am assisted in arriving at this construction by the reasoning in CPSU v The GEO Group Australia Pty Ltd [2012] FWA 6707, Re FBIS International Protective Services (Aust) Pty Ltd [2012] FWA 10043 and Dowsett v SouthLink Pty Ltd [2013] FWA 4978.

29    The issue is then whether the Four Employees were absent from work on the public holidays under the entitlement created by s 114 of the FWA. This depends on whether they had ordinary hours of work on the public holidays for which they were not rostered. The FWA does not contain any general definition of the phrase “ordinary hours of work”. It is defined in s 20 in relation to “award/agreement free employees”, but that definition has no direct application to nurses employed by the respondent and covered by enterprise agreements.

30    The phrase “ordinary hours of work” appears in a number of provisions of the National Employment Standards, including in relation to maximum weekly hours of work (s 62), payment for annual leave (s 90), payment for personal/carer’s leave (s 96) and entitlement to redundancy pay (s 119).

31    Section 205(1) of the FWA provides that an enterprise agreement must include a term that requires the employer to consult the employees about a change to the “ordinary hours of work”. This provision suggests that the “ordinary hours of work” for an employee covered by an enterprise agreement are to be ascertained from the enterprise agreement and any other terms of employment.

32    Clause 1.4.1 of the 2009 Enterprise Agreement incorporates the Award. The Award provides that “the ordinary hours of work shall be an average of 38 hours per week”. That clause must be read together with the contractual document which, relevantly, requires employees to work “80 hours per fortnight in accordance with the roster” and “to be available to work all shifts…on a rotating roster”.

33    Clause 5.1(a) of the 2012 Enterprise Agreement also states that “the ordinary hours of work shall be an average of 38 hours per week.” That clause must be read in light of clause 5.4(a) which requires employees to “work in accordance with a fortnightly roster to be agreed from time to time between the employer and a majority of employees in any workplace or part thereof.” Clause 5.1(a) must also be read in light of the contractual document.

34    One of the meanings of “accordance” given in the Oxford English Dictionary is “compliance”. In its context in the contract and the 2012 Enterprise Agreement, the phrase “in accordance with” means “in compliance with”.

35    Clause 5.4(b) of the 2012 Enterprise Agreement requires that the roster (agreed under cl 5.4(a)) set out the employees’ “periods of duty” and their starting and finishing times for such periods and be displayed at least seven days before the commencement of each fortnight. In my opinion, under the 2012 Enterprise Agreement the “ordinary hours of work” for the Four Employees are the hours set out in the roster.

36    The 2009 Enterprise Agreement itself is silent as to how and when the roster is set. However, when the 2009 Enterprise Agreement is read in light of the Award and the contract, it is apparent that the “ordinary hours of work” for the Four Employees are also the hours set out in the roster.

37    The applicant’s argument that the employees have “ordinary hours of work” on every day of the year because they are required to be available to work on all shifts cannot be accepted. The phrase “the employee’s ordinary hours of work on the day or part-day” in s 116 of the FWA contains two questions rolled-up together, namely whether the employee would ordinarily have worked on the public holiday and, if so, what the ordinary hours are on that day. This is confirmed by cl 461 of the Explanatory Memorandum to the Fair Work Bill 2008 which states that “An employee is not entitled to any payment for absence on a public holiday if they would not have ordinarily worked on that day.” Thus, s 116 is concerned with whether the employee would ordinarily have worked on the public holiday if the employee were not absent from work in accordance with the entitlement under s 114.

38    The contract and the 2012 Enterprise Agreement require the employees to work “in accordance with” the roster. The employees are required to be available to work on all shifts, but are only required to work the shifts for which they are rostered. While the employees potentially have ordinary hours of work on any day before the roster for a fortnight is set, they actually have ordinary hours of work only on the days for which they are in fact rostered. Section 116 is concerned with the actuality, or reality, of the position.

39    As the Four Employees were not rostered to work on public holidays, they did not have ordinary hours of work on those days. They were absent from their employment because they were not required under the 2009 Enterprise Agreement, the 2012 Enterprise Agreement or their contracts to work on those days. Their absence from employment was not under any entitlement conferred by s 114(1) of the FWA. It follows, for the purposes of s 116 of the FWA, that their absence from work was not “in accordance with this Division”. Therefore, s 116 did not require the respondent to pay the Four Employees for the public holidays for which they were not rostered to, and did not, work.

40    The respondent has not contravened s 116 of the FWA and, therefore, has not contravened s 44.

the respondent’s ERRORS IN RECORDING LEAVE ENTITLEMENTS

41    The second question is whether the respondent’s errors in recording employees as having taken various types of leave on public holidays constitute contraventions of ss 44, 50, 89(1) and 98 of the FWA.

Facts

42    The parties agree that between 2010 and 2014, a number of named employees took annual leave during periods when public holidays fell. Some employees took personal/carer’s leave for periods during which public holidays fell. One employee took long service leave over such a period. Some employees were given time off in lieu (“TOIL”) or accrued days off (“ADOs”) to which they were entitled under the 2009 Enterprise Agreement or the 2012 Enterprise Agreement respectively on public holidays. One employee was given extra leave under the 2012 Enterprise Agreement for periods that included public holidays.

43    The respondent admits that its records incorrectly showed these employees as having taken annual leave, long service leave, personal/carers leave, ADOs, TOIL or extra leave on such public holidays. The respondent admits that public holidays should not have been counted against the employees’ leave entitlements. Accordingly, leave balances for such employees were shown in the respondent’s records as being lower than they in fact were.

44    The respondent’s evidence is that it became aware of these errors after the commencement of the proceeding, and promptly corrected its records. It contends that there is no evidence of any detriment to any employee.

Legislation

45    I have already set out s 44 of the FWA above at [13]. Section 50 provides:

50    Contravening an enterprise agreement

A person must not contravene a term of an enterprise agreement.

…

46    Section 89(1) of the FWA provides:

89    Employee not taken to be on paid annual leave at certain times

Public holidays

(1)    If the period during which an employee takes paid annual leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday.

47    Section 98 of the FWA provides:

98    Employee taken not to be on paid personal/carer’s leave on public holiday

If the period during which an employee takes paid personal/carer’s leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid personal/carer’s leave on that public holiday.

Submissions

48    The applicant alleges that the respondent contravened ss 44, 50, 89(1) and 98 of the FWA by incorrectly recording employees as having taken annual leave, long service leave, personal/carer’s leave, ADOs, TOIL or extra leave on public holidays.

49    The applicant alleges that the respondent incorrectly “took” employees to be on leave on public holidays, specifically:

(a)    annual leave accrued under the National Employment Standards, in contravention of s 89(1) of the FWA;

(b)    personal/carer’s leave accrued under the National Employment Standards, in contravention of s 98 of the Act;

(c)    long service leave under the 2012 Enterprise Agreement, in contravention of cl 6.10 of the 2012 Enterprise Agreement;

(d)    extra leave under the 2012 Enterprise Agreement, in contravention of cl 6.6 of the 2012 Enterprise Agreement;

(e)    ADOs accrued under the 2009 Enterprise Agreement, in contravention of cl 1.4.1 of the 2009 Enterprise Agreement (taken with cl 7.3.8 of the Award);

(f)    ADOs accrued under the 2012 Enterprise Agreement, in contravention of cl 6.2.7 of the 2012 Enterprise Agreement;

(g)    TOIL accrued under the 2009 Enterprise Agreement, in contravention of cl 4.3 of the 2009 Enterprise Agreement.

50    The applicant alleges that a contravention of ss 89(1) or 98 of the FWA amounts to a contravention of s 44. A contravention of the 2009 Enterprise Agreement or the 2012 Enterprise Agreement will be a contravention of s 50 of the FWA.

51    The respondent submits that incorrect record keeping does not amount to a contravention of ss 89(1) or 98 of the FWA, the 2009 Enterprise Agreement or the 2012 Enterprise Agreement. The respondent states that it became aware of its errors after the commencement of the proceeding and promptly corrected its records. The respondent contends that in circumstances where it corrected the errors upon becoming aware of them it did not contravene the FWA.

Consideration

52    The applicant’s first allegation is that the respondent contravened s 89(1) of the FWA by “taking” employees to be on paid annual leave on public holidays. This submission assumes that s 89(1) imposes an obligation on an employer and that a failure to comply with the obligation amounts to a contravention of the section. This requires construction of s 89(1) to ascertain its purpose and meaning.

53    Section 89(1) of the FWA provides, relevantly, that if the period during which an employee takes paid annual leave includes a public holiday, “the employee is taken not to be on paid annual leave on that public holiday”.

54    The language of s 89(1) may be contrasted with provisions of the National Employment Standards which specifically impose obligations upon employers. For example, s 88(2) of the FWA provides that “The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave”. Section 90(2) provides that “the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave”. Section 89(1) does not use that language of obligation. Section 89(1) does not impose any free-standing obligation on an employer.

55    In my opinion, s 89(1) operates as a deeming provision. The word “taken” means “deemed”. The section operates to deem the employee not to be on paid annual leave on a public holiday.

56    Viewed in this way, s 89(1) has no substantive operation on its own. Rather, it feeds into other provisions of Ch 2, Pt 2-2, Div 6 (ss 86-94) which deal with annual leave. Section 87(1) of the FWA provides that an employee is entitled to either four or five weeks of paid annual leave for each year of service with his or her employer. Section 87(2) provides that an employee’s entitlement to paid annual leave accrues progressively and accumulates from year to year. Section 90(1) provides that if an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period. Under s 90(2), if, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave. Section 89(1) operates upon these provisions so that the employee’s absence from employment on a public holiday falling within a period of annual leave does not count against the employee’s annual leave entitlement.

57    A failure on the part of an employer to accurately record that the employee was not on paid annual leave on a public holiday does not amount to a contravention of s 89(1) of the FWA. That provision is not itself capable of being contravened because it is merely a deeming provision. While other provisions which s 89(1) influences are capable of being breached by the employer, the applicant’s case is confined to an allegation that the respondent contravened s 89(1) itself. The applicant does not, for example, allege that the respondent failed to pay any employee in accordance with ss 90(1) or (2) of the FWA.

58    It may be noted that there are specific obligations in the FWA and the Fair Work Regulations 2009 (Cth) which require an employer to keep accurate records. Section 535(1) of the FWA imposes an obligation on an employer to make, and keep for seven years, employee records of the kind prescribed by the Fair Work Regulations. Regulation 3.36(1) of the Fair Work Regulations provides that, for the purposes of s 535(1) of the FWA, the employer must make and keep a record that sets out any leave the employee takes and the balance (if any) of the employee’s entitlement to that leave from time to time. Regulation 3.44(1) requires the employer to ensure that a record that the employer is required to keep under the FWA or the Fair Work Regulations is not false or misleading to the employer’s knowledge. Regulation 3.44(2) requires an employer to correct a record that the employer is required to keep as soon as the employer becomes aware that it contains an error. It is not any part of the applicant’s case that the respondent contravened s 535(1) of the FWA or regs 3.36(1), 3.44(1) or 3.44(2) of the Fair Work Regulations. The applicant’s case is confined to the allegation that the respondent contravened s 89(1) itself by failing to keep an accurate record of employees’ annual leave entitlements. As I have indicated, s 89(1) does not itself impose any such obligation on an employer. Therefore, I reject the applicant’s allegation that the respondent contravened s 89(1) of the FWA.

59    The applicant’s second allegation is that the respondent breached s 98 of the FWA by “taking” employees to be on personal/carer’s leave on public holidays. Like s 89(1), s 98 is a deeming provision. For similar reasons, an employer has no freestanding obligation to comply with s 98. Instead, s 98 feeds into other provisions in Ch 2, Part 2-2, Div 7 (ss 95-107) which impose obligations on employers that are capable of being contravened. The applicant does not allege that any of those provisions are contravened. I reject the applicant’s allegation that the respondent breached s 98 of the FWA.

60    The applicant’s third allegation is that the respondent contravened s 50 of the FWA by failing to comply with cl 6.10 of the 2012 Enterprise Agreement. The applicant again alleges that the respondent contravened the 2012 Enterprise Agreement by making errors in its record keeping. The error was in recording an employee as having taken long service leave on a public holiday, when cl 6.10 of the 2012 Enterprise Agreement requires that a public holiday falling within a period of long service leave is not to be counted against the employee’s long service entitlement. The respondent admits its error and has now corrected its records.

61    The difficulty for the applicant is that there is no contravention of cl 6.10 of the 2012 Enterprise Agreement simply by the respondent failing to keep an accurate record of long service leave entitlements. There might have been a contravention of that clause if the respondent refused to allow the employee to take an additional day’s long service leave, or if the respondent paid the employee too little for unused long service leave based on its error. However, no allegations of that kind are made against the respondent. I therefore find that the respondent has not contravened cl 6.10 of the 2012 Enterprise Agreement.

62    The applicant’s fourth allegation is that the respondent contravened cl 6.6 of the 2012 Enterprise Agreement by wrongly recording an employee as having taken extra leave on two days that were public holidays. Clause 6.6 of the 2012 Enterprise Agreement allows employees to “buy” extra leave by agreeing to proportionally reduce their pay each fortnight. There is no express provision in the 2012 Enterprise Agreement providing that extra leave is exclusive of a public holiday that falls during a period of extra leave. However, the applicant submits that there is an implied term to that effect because it is so obvious that it goes without saying. While that proposition is open to doubt, even if it were correct it would not assist the applicant. Again, the applicant’s complaint is about inaccurate record keeping. There is no contravention of cl 6.6 simply by the respondent keeping inaccurate records. I reject the applicant’s allegation that the respondent contravened cl 6.6 of the 2012 Enterprise Agreement.

63    The applicant’s fifth and sixth allegations are that the respondent contravened cl 1.4.1 of the 2009 Enterprise Agreement (taken with cl 7.3.8 of the Award) and cl 6.2.7 of the 2012 Enterprise Agreement in respect of its treatment of ADOs for a number of employees. Clause 6.2.7 of the 2012 Enterprise Agreement provides:

The ADO shall be so arranged that it does not coincide with a public holiday:

Provided that in the event that the ADO does coincide with a public holiday another day determined by mutual agreement between the employer and the employee shall be taken in lieu thereof, this day to be within the same 4 weekly work cycle where possible.

64    It is common ground that the respondent arranged ADOs on public holidays for a number of employees. The applicant alleges that “The Respondent failed to comply with its obligation for the employees to take to (sic) other days in lieu”. The parties have filed an agreed statement of facts, but that document does not contain any agreement that the respondent failed to enter a mutual agreement with employees for the employees to take other days off in lieu. Neither is such a proposition borne out by the affidavits filed by the applicant. Accordingly, the applicant has not established that the respondent contravened cl 7.3.8 of the Award (as incorporated by cl 1.4.1 of the 2009 Enterprise Agreement) or cl 6.2.7 of the 2012 Enterprise Agreement in the manner alleged by the applicant.

65    The applicant’s seventh allegation is that the respondent contravened cl 4.3 of the 2009 Enterprise Agreement by recording an employee as having taking TOIL on a public holiday. Clause 4.3.3 of the 2009 Enterprise Agreement provides:

The taking of accrued TOIL hours shall be by mutual agreement between the employee and their manager. Where there is no agreement reached, the Manager shall give the staff member two weeks written notice as to when TOIL is to be taken.

66    The applicant submits that there is an implied term that TOIL is exclusive of a public holiday that falls during a period of TOIL. Leaving aside that issue, it is apparent that the respondent does not contravene cl 4.3 by wrongly recording an employee’s accrued TOIL entitlement. The applicant has not alleged that the employee was in fact deprived of TOIL hours. The applicant has not demonstrated any contravention of cl 4.3 of the 2009 Enterprise Agreement.

Conclusion

67    For the reasons I have given, I find that the applicant has not demonstrated that the respondent contravened ss 44 or 50 of the FWA. Accordingly, the application must be dismissed.

68    The respondent has foreshadowed an application for costs in respect of amendments made to the applicant’s statement of claim. I will hear the parties as to costs.

Associate:    

Dated:    12 December 2016