VIC Payment for paid personal leave - Sect 99 FWA

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Jack_G

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4 May 2020
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FAIR WORK ACT 2009 - SECT 99
Payment for paid personal/carer's leave
If, in accordance with this Subdivision, an employee takes a period of paid personal/carer's 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.


Correct me if I'm wrong,
  1. this section establishes the rate of pay during personal leave.
  2. ordinary hours of work is defined under section 147 of the FWA
Employer claims that if the employee is suspended, he has no ordinary hours of work, and therefore he's unable to access his personal leave. (so in fact they use Sect 99 to establish eligibility)

I think as per sect 147, ordinary hours of work are defined in the contract and do not change, even when the employee is suspended.

Thoughts?
 

Rod

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... ordinary hours of work are defined in the contract and do not change, even when the employee is suspended.
Yes, if employee is on an award. And yes anyway if employee is not on an award.

If the employee is suspended on full pay why access personal leave? If the employee is suspended and not being paid, there is a good chance the employer is in the wrong.
 

Jack_G

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Employee was suspended without pay.
Imagine, FWC estblished that because employee had no ordinary hours of work during the suspension without pay, employee was not entitled to Personal Leave.
 

Rod

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I note the VU EA allows for suspension without pay (cl 62.4.1) so no need to discuss this issue.

... because employee had no ordinary hours of work during the suspension without pay, employee was not entitled to Personal Leave
s.99 FWA is a payment section and appears to have been misused and improperly interpreted to define ordinary hours. s.147 brings in the EA and the EA at cl 39 defines ordinary hours, however I think both arguments are a logical fallacy and the FWC partly used it to justify a bad decision.

The real issue appears to be whether an employer can replace paid personal leave with a suspension without pay. It seems like it is open to challenge to the FWC full bench. I do not think this is a settled principle of law and may well be something worth considering as a matter of public interest.

I can see the argument that an employee should not benefit from their misconduct, however medical certificates should be accepted as prima facie evidence the employee is not fit to work enlivening s.97. There is nothing in s.97 that qualifies the right wrt to EAs. Precedence says the FWA overrides any EA where there is a conflict.

Interesting one, and I am not sure of the answer, not sure anyone is without a good reference case. Swanson v Monash Health [2018] FCCA 538 is not on point though gives some useful guidance around the periphery of the argument.
 
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Rod

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I co-incidentally just now saw a notice on the FWC website saying "two proceedings commenced on 1 April 2020 by a number of unions against Qantas Airways Limited are considering the interaction between sick leave and stand down. The information on this page may change as a result of these cases. Employees and employers should seek their own advice."

Appeal applications (Form F7) must be lodged within 21 days of the date the decision or order being appealed was issued :( Suspect you need to seek leave to appeal.
 

Jack_G

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Thanks a lot for your thoughts.
Yes, precedence says the FWA overrides any EA where there is a conflict. Because of this I thought there would be no question, but I guess there is one.

Also, EA has Personal Leave clause 50, that lists no exceptions due to things like suspension. And it couldn't have had any listed, because EA can't override FWA. Right?

I really don't understand the argument of how a sick employee can be said to be benefiting while being sick. It's not fun being sick.
Also, it was an alleged misconduct, there was no certainty that misconduct occurred while the investigation was still in progress, so there was no reason why employee should lose its benefits under EA. Right?

While we're at it, do you think cl 73 "Leave for Attending Proceedings under the Fair Work Act 2009" has the same question - employee should not benefit due to suspension?

Yes, I have appealed. Need to lodge my submissions by Friday.
 

Rod

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"Leave for Attending Proceedings under the Fair Work Act 2009" has the same question - employee should not benefit due to suspension?
If you use the reasoning of the commissioner, then yes. If it was me, I'd not raise this as an issue as it does not really raise a new point of law.

Yes, I have appealed. Need to lodge my submissions by Friday.
Hmm, not a lot of time. Maybe ask for an extension.

Have you got your legal case references prepared?

Suggestion for your main argument. Keep in mind this is not legal advice and opinion only as I have not seen any evidence or documents pertaining to the arguments run by both sides:

s.55(1) FWA says FWA trumps EA. There is a conflict between the right of an employee to take personal leave and the employer's right to suspend an employee under the EA.

Consider running alternative arguments:
  1. Health and safety of an employee overrides misconduct concerns of an employee. Payment of wage allows employee to seek proper medical assistance; then
  2. An employer should not be able to benefit from suspending an employee without pay who has demonstrated he is unfit for work and has paid leave available (demonstrates a proper lack of reasoning in the original decision); then
  3. Attack argument of FWC commissioner. eg (a) s.96 gives the entitlement to leave, s.97 then says payment is required and specifies how it is to be paid. Using s.97 to deny an entitlement and alter the definition of ordinary hours seems like a mistake at law. (b) para [140] first sentence - may be at odds with medical certificates. Second sentence seems like a gratuitous comment to support the last sentence. The last sentence is logically wrong (suspension without pay still has a role, just not when an employee has medical certificates showing an incapacity to work - and is against standard practice where an employee on annual leave becomes sick can covert annual leave to sick leave, and termination brings an end to employment and personal leave).
Let me know if do need legal advice.
 

Rod

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A note to 3(b) above re: Annual leave. s.89(2) FWA explicitly provides the right to convert annual leave to sick leave, however it does demonstrate a principle that sick leave has primacy over another type of leave that has already commenced.
 

Jack_G

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Thanks a lot for your responses.

Extension due to pandemic was refused by FWC.

I think my case is doomed. I shouldn't have complained to the FWC president about a Commissioner as per section 581A.

I'll try to incorporate the info you've provided. Thanks.