(2015) 231 FCR 316
Anglican Care v NSW Nurses and Midwives' Association
Court:
 
Federal Court of Australia Full Court
Judges:
 
Jessup J, Bromberg J, Katzmann J
Judgment Date:
 
5/6/2015
Jurisdiction:
 
Australia (Commonwealth)
Court File Number:
 
NSD 1253 of 2014
Citations:
 
[2015] FCAFC 81 , (2015) 231 FCR 316 , 250 IR 106 , [2015] ALMD 5058
Party Names:
 
Anglican Care ABN 94 273 103 460, NSW Nurses and Midwives' Association
Legal Representatives:
 
R Kenzie QC and D Mahendra, for the appellant; M Gibian, for the respondent
Classification:
 
Jump to:
 
Judgment
Headnote
Federal Court of Australia, New South Wales District Registry
Anglican Care v NSW Nurses and Midwives' Association
[2015] FCAFC 81
NSD 1253 of 2014
18 February
5 June 2015
Sydney
Industrial Law — Annual leave — Workers compensation — Whether annual leave able to be taken or accrued during compensation period — Whether ‘permitted by’ compensation law — Fair Work Act 2009 (Cth), s 130 — Workers Compensation Act 1987 (NSW), s 49
Section 130 of the Fair Work Act 2009 (Cth) provided that: (1) an employee was not entitled to take or accrue leave during a period when he or she was absent from work due to illness or injury, for which he or she was receiving compensation payable under a law, unless (2) the taking or accruing of the leave was “permitted by” a compensation law. Section 49(1) of the Workers Compensation Act 1987 (NSW) (the WC Act) then provided relevantly that compensation was payable to a worker under that Act even though the worker had received or was entitled to receive in respect of the period any payment, allowance or benefit for holidays.
Held: A worker is “permitted by” s 49 of the WC Act to take or accrue annual leave whilst absent from work and in receipt of compensation. 19 , 63 -64
Appeal from decision of Judge Emmett, [2014] FCCA 2580, dismissed.
Appeal
R Kenzie QC with D Mahendra, for the appellant
M Gibian, for the respondent
Judgment
Cur adv vult
5 June 2015
Jessup J
1
In this appeal, I have had the advantage of reading in draft the reasons to be delivered by Bromberg and Katzmann JJ. In the reasons which follow, I assume a familiarity with the facts of the case and with the legislative provisions referred to by their Honours.
2
To the extent that the appeal concerns the obligations of the appellant under federal law, it involves the construction of s 130(2) of the Fair Work Act 2009 (Cth) (“the FW Act”). To the extent that that subsection refers to the operation of a “compensation law”, the appeal involves the construction of s 49 of the Workers Compensation Act 1987 (NSW) (“the WC Act”).
3
With respect to the first point, the use of the word “permitted” is, at first sight at least, curious in its context in s 130(2), since, generally, workers compensation statutes are concerned with a worker's entitlement to regular payments to compensate for loss of earnings brought about by inability to work on account of a compensable injury, and the calculation of any such entitlement. Such statutes do not generally either permit or prohibit the taking of leave. Section 119A(2) of the Workers' Compensation and Rehabilitation Act 2003 (Qld), which does ostensibly entitle the worker to take leave during a period in respect of which he or she is entitled to compensation payments, was enacted after the commencement of, and manifestly with an eye on the operation of, s 130 of the FW Act, and cannot, therefore, provide any useful guide to the policy or purposes which lay behind the latter.
4
The federal provision which preceded s 130 of the FW Act was s 237 of the Workplace Relations Act 1996 (Cth) (“the WR Act”). That provision was introduced by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (“the 2005 amendment”), as an element of Subdiv C — “Annual Leave Rules” — of Div 4 of Pt 7 of the WR Act. Part 7 was headed “The Australian Fair Pay and Conditions Standard”, and represented the first occasion upon which the federal Parliament had legislated directly to prescribe the content of the entitlements of private sector employees in certain main areas, including annual leave.
5
Section 237 of the WR Act provided as follows:
“This Division does not apply to the extent that it is inconsistent with a provision of a law of the Commonwealth, a State or a Territory relating to workers' compensation if the provision would (apart from this Division):
(a)
prevent an employee from taking or accruing annual leave during a period while the employee is receiving compensation under such a law; or
(b)
restrict the amount of annual leave an employee may take or accrue during such a period.”
6
This provision was not part of the Workplace Relations Amendment (Work Choices) Bill 2005 (Cth) as introduced, but was later made part of the Bill, and was dealt with in the Supplementary Explanatory Memorandum as follows:
“Item 71 — Schedule 1, item 71, page 109 (after line 9)
101.
This item would ensure that that Commonwealth, or State or Territory, legislation relating to workers' compensation would continue to apply despite Division 4 of Part VA to the extent of any inconsistency in relation to:
the taking of annual leave while an employee is receiving workers' compensation; or
the accrual of annual leave while an employee is receiving compensation.
102.
The effect of this amendment would be that such limits in a Commonwealth or State or Territory law would continue to apply.”
7
As it happens, there was Commonwealth legislation which was, or would but for the operation of s 237 have been, inconsistent with Div 4 of Pt 7. Section 116 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) provided as follows:
“In spite of the provisions of any other Act or an award, an employee is not entitled to be granted any kind of leave of absence with pay (other than maternity leave with pay) during, or in respect of, any period when the employee is or was on compensation leave but:
(a)
sick leave and recreation leave entitlements continue to accrue in relation to the employee during each of the first 45 weeks during which he or she is on compensation leave; and
(b)
long service leave entitlements continue to accrue in relation to the employee during the whole of the period of the compensation leave;
as if the employee were not absent from work.”
8
Under the SRC Act, an “employee” was —
“(a)
a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or
(b)
a person who is employed by a licensed corporation.”
A “Commonwealth authority” was —
“(a)
a body corporate that is incorporated for a public purpose by a law of the Commonwealth, other than a body declared by the Minister, by notice in writing, to be a body corporate to which this Act does not apply;
(b)
a body corporate that is incorporated for a public purpose by a law of a Territory (other than an ACT enactment or a law of the Northern Territory) and is declared by the Minister, by notice in writing, to be a body corporate to which this Act applies;
(c)
a body corporate:
(i)
that is incorporated under a law of the Commonwealth or a law in force in a State or Territory;
(ii)
in which:
(A)
the Commonwealth has a controlling or substantial interest; or
(B)
a Territory (other than the Australian Capital Territory or the Northern Territory) or a body corporate referred to in paragraph (a) or (b) has a controlling interest; and
(iii)
that is declared by the Minister, by notice in writing, to be a body corporate to which this Act applies; or
(d)
a body corporate:
(i)
in which a body corporate declared under paragraph (c) has a controlling interest; and
(ii)
that is declared by the Minister, by notice in writing, to be a body corporate to which this Act applies; or
(e)
if a declaration is in force under section 4A, the Australian Capital Territory.”
A “licensed corporation” was a corporation that held a licence in force under Pt VIII of the SRC Act. Under s 100, the responsible minister was empowered to declare that a particular corporation was eligible to be granted a licence under Pt VIII if he or she was satisfied that —
“ … it would be desirable for this Act to apply to employees of a corporation that:
(a)
is, but is about to cease to be, a Commonwealth authority; or
(b)
was previously a Commonwealth authority; or
(c)
is carrying on business in competition with a Commonwealth authority or with another corporation that was previously a Commonwealth authority … ”
The grant of a licence, which was done by the Safety, Rehabilitation and Compensation Commission, had a number of consequences under the SRC Act, the detail of which is not presently relevant. It is sufficient for present purposes to note that the corporation thereby became covered by the provisions of that Act in relation to workers compensation.
9
That was, therefore, the federal legislative landscape against which the 2005 amendment was made. By s 227 of the WR Act as so amended, Div 4 of Pt 7 applied to all “employees other than casual employees”. By s 5(1), “employee” meant “an individual so far as he or she is employed, or usually employed, as described in the definition of employer in subsection 6(1)”. Section 6(1) contained a definition of “employer” which included the following:
“ …
(b)
the Commonwealth, so far as it employs, or usually employs, an individual; or
(c)
a Commonwealth authority, so far as it employs, or usually employs, an individual … ”
By the definition in s 4(1) of the WR Act, a “Commonwealth authority” was —
“(a)
a body corporate established for a public purpose by or under a law of the Commonwealth; or
(b)
a body corporate:
(i)
incorporated under a law of the Commonwealth or a State or Territory; and
(ii)
in which the Commonwealth has a controlling interest.”
10
Prior to the enactment of the 2005 amendment, the opening words of s 116 of the SRC Act would have given that section primacy over “the provisions of any other Act or an award”. The terms of Div 4 of Pt 7 of the WR Act as amended in 2005 would, however, have given rise to an inconsistency with that section, and there would, in my view, by no means have been confidence on the part of the legislators that that inconsistency would, thereafter, necessarily be resolved in favour of the earlier provision. The fact that the provision which became s 237 was not part of the Bill for the 2005 amendment as introduced provides a rational basis to infer that, at some point in the passage of the Bill through the Parliament, the potential for this clash of provisions to cause problems in practice became apparent.
11
In the present appeal, much energy was devoted to identifying where there might have been a law of a State that made sense of s 130(2) of the FW Act. Save for provisions that followed the format of s 49 of the WC Act, none was found. In my view, it was on the Commonwealth's own doorstep that that problem arose, and was identified (although, as is often the case, one derives almost no assistance in this regard from the relevant Explanatory Memorandum). Section 116 of the SRC Act was a law of the Commonwealth relating to workers compensation that would restrict the amount of annual leave that an employee might accrue during a period while he or she was receiving compensation, and would prevent the employee from taking annual leave during such a period.
12
Although the matter does not directly arise in this appeal, it may be noted that s 49 of the WC Act did not meet the description in s 237 of the WR Act of a law which prevented an employee from taking or accruing annual leave during a period while he or she was receiving compensation, or restricted the amount of annual leave which he or she might take or accrue during such a period.
13
It was in this state of things that the WR Act was repealed and replaced by the FW Act. Section 130 undoubtedly dealt with the matter that had previously been the concern of s 237 of the WR Act, but it did so in different terms. Whereas s 237 had been based upon inconsistency with a law that would prevent or restrict the taking or accruing of leave, s 130(1) disentitled the relevant employee whenever he or she was absent from work on account of an illness or injury for which he or she was receiving compensation payments, and then subs (2) excepted from that disentitling rule any situation in which the taking or accruing of leave was permitted by the law in question. It is not apparent why the legislature made this change: the Explanatory Memorandum for the Bill which became the FW Act is not helpful in this regard. The change was, it seems, wholly responsible for the present litigation: the appellant accepts that, under s 237 of the WR Act, Ms Copas was entitled to accrue annual leave entitlements during the period when she was absent and in receipt of compensation payments under the WC Act.
14
It is tempting to suppose that the change from s 237 of the WR Act to s 130 of the FW Act was a change of a kind referred to in s 15AC of the Acts Interpretation Act 1901 (Cth), but I cannot form the view the new wording was adopted “for the purpose of using a clearer style”: regrettably, if anything, the contrary is the case.
15
Nonetheless, there is nothing to suggest that a change in substance was intended with the enactment of s 130 of the FW Act. That does not mean that we should construe this section as though it was in the same terms as s 237 of the WR Act. It was and is in its own terms, and effect must be given to them as they stand in the statute. But it does mean that we are justified in resolving any obscurity of meaning in favour of one which would not amount to a significant alteration in rights and obligations arising under the section. On the case of the appellant, there was such an alteration, and it was, moreover, one which cut back the entitlements which employees previously had under the WR Act. I would not, however, impute to the legislature an intention to give effect to such an alteration, at least without some appropriate indication in the Explanatory Memorandum or other Parliamentary materials.
16
What this amounts to is that the word “permitted” in s 130(2) of the FW Act should be construed in the sense of not prevented, prohibited or restrained.
17
In the facts of the present case, the WC Act was the “compensation law” referred to in s 130(1) and was, therefore, the law by reference to which subs (2) either did or did not operate. That brings me to the second of the constructional points to which I referred at the outset of these reasons.
18
The precursor of s 49 was enacted to overcome the situation which arose in Thompson v Armstrong & Royse Pty Ltd (1950) 81 CLR 585, namely, that an employee who had been absent from work on account of compensable illness or injury and who was then given paid annual leave was not also entitled to compensation payments. The new section reversed that outcome. Entitlement to annual leave payments is not the concern of s 49: indeed, it is assumed. Further, s 49 is utterly unconcerned with the accrual of an employee's annual leave entitlements. Because it has nothing to do with the subject, there is a sense in which it might be said that s 49 does not permit the taking or accruing of leave. As I have indicated, however, that is not the sense in which the word “permitted” is used in s 130(2) of the FW Act.
19
In my view, the presence of s 49 in the WC Act did not disqualify that Act from characterisation as a law which permitted the taking or accrual of annual leave during a compensation period. The WC Act did so permit because it did not prevent, prohibit or restrain those things.
20
I would dismiss the appeal.
Bromberg and Katzmann JJ
21
On 11 November 2014 the Federal Circuit Court made declarations that Lynette Copas, a member of the NSW Nurses and Midwives' Association (“Association”), was entitled to accrue annual leave while she was absent from work and in receipt of workers compensation and that her employer, Anglican Care, contravened s 44(1) of the Fair Work Act 2009 (Cth) (“FW Act”) by failing to pay her for that untaken accrued annual leave. Consequential orders were made requiring the sum to be paid with interest. The amount, exclusive of interest, is $2,993.96.
22
In this appeal Anglican Care argues that the orders should be quashed because the primary judge misconstrued the relevant legislation. The gravamen of its complaint is that the primary judge erred in finding that an employee is “permitted by”s 49 of the Workers Compensation Act 1987 (NSW) (“WC Act”) to accrue annual leave. The issue arises because s 130(1) of the FW Act removes an employee's entitlement to take or accrue leave during a period in which the employee is receiving workers compensation unless the taking or accrual of leave is “permitted by a compensation law” within the meaning of that expression in s 130(2).
23
The question the Court is called upon to answer is whether the exception provided for in s 130(2) that the taking or accrual of leave be “permitted by a compensation law” will only apply, as Anglican Care contends, where the compensation law provides or confers an entitlement to take or accrue leave. If so, the primary judge fell into error. If it is sufficient that the compensation law contemplates and allows for the dual receipt of both leave entitlements and workers compensation, then the appeal must be dismissed.
24
Although the amount at stake in the appeal is relatively small, the question is an important one.
Background
25
The facts were agreed.
26
Ms Copas worked for Anglican Care, an aged care provider, from 26 February 2007 until 23 May 2011. She was employed as an assistant in nursing. On 17 December 2009 she sustained an injury in the course of her employment. From then on she was unable to work. From the date of her injury until the termination of her employment she was absent from work and in receipt of weekly payments of compensation.
27
Upon termination Ms Copas was paid an amount of $1,879.65 in respect of accrued and untaken annual leave for the first two weeks (until 31 December 2009), which covered her entitlement to accrued leave under the Workplace Relations Act 1996 (Cth) (“WR Act”). But she was not paid the value of any annual leave which accrued thereafter.
28
The Association contended that by failing to make such a payment, Anglican Care contravened the FW Act. Anglican Care accepted that under the WR Act employees of the Association were entitled to accrue and take annual leave while in receipt of workers compensation, but contended that the position under the WR Act no longer applied after 31 December 2009.
The relevant legislation
29
Section 87(1) of the FW Act provides that for each year of service with his or her employer, an employee is entitled to four weeks of paid annual leave and, in the case of certain categories of shiftworkers, five weeks. Section 87(2) states that the entitlement accrues progressively during a year of service according to the employee's ordinary hours of work and accumulates from year to year.
30
Section 90(2) states that:
“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.”
31
Section 130, however, precludes some employees from taking or accruing any leave. The question at the heart of this case is whether Ms Copas was precluded. Put another way, it is whether s 130 deprives her of the entitlement conferred by s 87.
32
Section 130 relevantly states:
“(1)
An employee is not entitled to take or accrue any leave or absence (whether paid or unpaid) under [Pt 2-2] during a period (a compensation period) when the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation payable under a law (a compensation law) of the Commonwealth, a State or a Territory that is about workers' compensation.
(2)
Subsection (1) does not prevent an employee from taking or accruing leave during a compensation period if the taking or accruing of the leave is permitted by a compensation law.”
(Emphasis in original.)
33
These provisions form part of the National Employment Standards contained in Pt 2-2 of the Act (ss 60 to 131). They are minimum standards which employers are required to provide to all national system employees (defined in Pt 1-2, Div 3 of the Act). They relate, amongst other things to maximum weekly hours of work and a range of employee entitlements. They relevantly confer entitlements to parental leave, annual leave, personal/carer's and compassionate leave, community service leave, long service leave and public holidays.
34
The National Employment Standards were included in the FW Act when it received royal assent on 7 April 2009. Part 2-2 however, did not commence until 1 January 2010.
35
Section 44(1) states that an employer must not contravene a provision of the National Employment Standards. Section 44(1) is a civil remedy provision (s 539). An employee organisation or a registered employee association may apply for an order under Pt 4-1, Div 2 in relation to an employee if the employee is or will be affected by the contravention and the organisation or association is entitled to represent the industrial interests of the employee (s 540(2)). Those orders include compensation for loss suffered because of the contravention (s 545(2)).
36
It was common ground that the WC Act is a compensation law for the purposes of s 130 of the FW Act.
37
Section 49 of the WC Act is in the following terms:
“Weekly compensation payable despite holiday pay etc
(cf former s 7(2B))
(1)
Compensation is payable under this Division to a worker in respect of any period of incapacity for work even though the worker has received or is entitled to receive in respect of the period any payment, allowance or benefit for holidays, annual holidays or long service leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.
(2)
The amount of compensation so payable is the amount which would have been payable to the worker had the worker not received or been entitled to receive in respect of the period any such payment, allowance or benefit.”
(Emphasis added.)
38
It was common ground that accrued leave is a benefit within the meaning of s 49 of the WC Act.
39
The forerunner of s 49 of the WC Act was s 7(2B) of the Workers' Compensation Act 1926 (NSW), which was in relevantly similar terms. Its purpose, as both parties accepted, was to overcome the effect of Thompson v Armstrong & Royse Pty Ltd (1950) 81 CLR 585 that an injured worker was not entitled under the Act to receive payment for annual holidays while receiving compensation. In Building Workers' Industrial Union of Australia v Master Builders' Association (NSW) (1987) 20 IR 226 Evatt J considered whether an injured employee was entitled under the terms of an industrial award to receive payment for public holidays without deduction of pay (for which the award provided) when he was also receiving workers compensation. After reviewing the background to the introduction of s 7(2B) his Honour observed that the section “expressly contemplates the prospect of workers' compensation payments being made in addition to award or statutory rights when the contract of employment subsists during any period of incapacity arising from injury”.
The decision of the primary judge
40
The primary judge reviewed the legislative history, the terms of the relevant sections of the various Acts and the arguments advanced by the parties. The essence of her Honour's reasons appears at [38]-[39] of her judgment:
“38
The purpose or object of s. 130 is clearly to deny to an employee the benefit of accruing leave during the period of receipt of workers compensation unless such accrual is permitted by a compensation law. However, s. 49 of the Workers Compensation Act does not prevent a worker from receiving both compensation and accruing annual leave. In that sense, on a beneficial construction, s. 49 permits receipt of those payments by the worker. The Fair Work Act provides to the worker the benefit of the accrual of annual leave.
Conclusion
39
In circumstances where s. 49 of the Workers Compensation Act does not prevent the worker from receiving both, and, indeed expressly contemplates receipt of both workers compensation and accrued leave, a beneficial construction of s. 130(2) of the Fair Work Act would allow for s. 130(2) to be enlivened by reason of s. 49 of the Workers Compensation Act because s. 49 does not prevent it. In that sense, s. 49‘allows’ or ‘permits’ the receipt of both.”
41
Consequently, her Honour concluded that, despite s 130(1), Ms Copas was not prevented from accruing leave in the period from 1 January 2010 until 23 May 2011 during which she remained absent from work and in receipt of compensation.
The appellant's case
42
Anglican Care contended that s 49 creates no entitlement to take or accrue leave. Its case is that s 130(1) extinguishes the employee's claim and s 130(2) is not enlivened. Its short point is that in order for that to occur the compensation law must confer the right to take or accrue leave and s 49 does not do this. It is not enough, Anglican Care argued, that the compensation law does not prevent the taking or accrual of leave or that it contemplates or allows it.
Did the primary judge misconstrue the legislation?
43
The first question is what is meant by “permitted” and more precisely “permitted by” in s 130(2). The expression is not defined and, unless the context suggests otherwise, it is to be inferred that it carries its ordinary English meaning. The difficulty, of course, with the ordinary English meaning is that the expression admits of more than one meaning. It might refer to a situation in which permission is granted. More commonly, however, “permitted” is used as a synonym for “allowed”.
44
Anglican Care placed considerable emphasis on the accompanying preposition “by”. In our opinion, as used in s 130(2), it does not have the effect for which Anglican Care contended. The preposition is merely a grammatical device, denoting a preference by the draftsperson for the passive rather than the active voice. If the active voice had been used, the subsection would read:
“Subsection (1) does not prevent an employee from taking or accruing leave during a compensation period if a compensation law permits the taking or accruing of the leave.”
45
Apart from the archaic use of the verb “permit” to connote “commit, submit, hand over, leave, resign or yield”, the first meaning of the transitive verb given in the Oxford English Dictionary is:
“To allow the occurrence of (an action, etc.); to allow (something) to be carried out or to take place; to give permission or opportunity for.”
46
The next meaning is:
“To allow or give consent to (a person or thing) to do or undergo something.”
47
The meaning given to the adjective “permitted” (of a thing, action, etc.) is “allowed, not forbidden”.
48
This is precisely the meaning given to the word by the primary judge.
49
It is tolerably clear that s 130(2) must be read in its context. Indeed, that is the place to start: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ). The context includes the legislative scheme, the legislative history and the purpose of the legislation and the section in particular. Purpose is particularly important because, in interpreting any Commonwealth statute, all courts are obliged to prefer over every other interpretation the interpretation that best achieves the statute's purpose: Acts Interpretation Act 1901 (Cth), s 15AA. That is so even if the meaning of the words is clear: Mills v Meeking (1990) 169 CLR 214 at 235 (Dawson J). These principles apply as much to individual provisions of an Act as to the Act as a whole.
50
It would be odd if Parliament's intention were to confine the operation of s 130(2) to compensation laws which actually created or conferred entitlements to leave. After all, compensation laws create or confer rights to compensation. Anglican Care could point to no compensation law which, at the time s 130 commenced, created or conferred an entitlement to leave. It submitted that s 119A of the Workers' Compensation and Rehabilitation Act 2003 (Qld), which was inserted afterwards, was such a provision. It is tolerably clear, however, that the section does no such thing. It refers to entitlements to leave conferred by an industrial law or instrument (including the FW Act) and provides for compensation to be payable during the period to which the compensation relates. Its purpose is neatly encapsulated in the heading and the note. In substance it is no different from s 49 of the NSW Act. Section 119A reads as follows:
“Compensation entitlement does not restrict taking or accrual of leave
(1)
This section applies to a worker who is entitled to compensation, including compensation payable as weekly payments.
(2)
The worker is entitled to take or accrue annual leave, sick leave and long service leave under an Industrial Act or industrial instrument during the period to which the compensation relates.
Note —
In relation to entitlements under the Fair Work Act 2009 (Cwlth), this section removes the restriction under section 130(1) of that Act.”
51
Similarly, in 2010 s 97(1) of the Accident Compensation Act 1985 (Vic) was amended to insert (relevantly) para (d):
“97 Provisions relating to the payment of compensation
(1)
Except as provided in section 96, regard shall not be had, in respect of the entitlement to, or amount of, compensation under this Part, to any sum paid or payable —
(d)
in lieu of accrued annual leave or long service leave.”
52
The Explanatory Memorandum to the amending Bill (the Accident Compensation Amendment Bill 2009 (Vic)) states that the intention of the provision is “to permit a worker to take long service leave or annual leave during a compensation period for the purpose of section 130(2) of the Fair Work Act … where the leave is approved by the employer”. This understanding of the meaning of “permitted” coincides with the primary judge's construction in the present case.
53
At the time of the introduction of the National Employment Standards, while there were no compensation laws that conferred entitlements to leave (that is to say, parental, sick or compassionate leave, annual holidays or long service leave), there were compensation laws that provided for the payment of compensation during a period of leave or a period during which employees had entitlements to certain leave benefits. Section 49 of the WC Act was one such law. There were other such laws in other States and in the Australian Capital Territory. Section 80(1) of the Workers' Compensation and Injury Management Act 1981 (WA), for example, was identical in terms to s 49 of the NSW Act.
54
In South Australia, s 40(1) of the Workers Rehabilitation and Compensation Act 1986 provided that, subject to subs (3), neither the liability to make weekly payments to a worker in respect of a period of incapacity nor the amount of the payments is affected by a payment, allowance or benefit for annual or long service leave to which the worker is entitled in respect of that period. In the ACT, s 46 of the Workers Compensation Act 1951 stated, in effect, that payment of compensation under that Act is “not intended to affect an entitlement that, apart from this Act, the worker has to a benefit or payment except so far as a law in force in the ACT otherwise applies”. Two examples are then given: accrual of long service leave and accrual of annual leave.
55
The Commonwealth legislation contained a similar provision. Section 116 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provided that, while an employee is on compensation leave, sick leave and recreation leave entitlements continue to accrue during each of the first 45 weeks of post-determination compensation leave and, in the case of long service leave, for the whole of the period, as if the employee were not absent from work.
56
The precursor of s 130 of the FW Act was s 237 of the WR Act. It appeared in Div 4 of Pt 7 of the WR Act. Pt 7 contained the Australian Fair Pay and Conditions Standard. Section 237 provided:
“Annual leave and workers' compensation
This Division does not apply to the extent that it is inconsistent with a provision of a law of the Commonwealth, a State or a Territory relating to workers' compensation if the provision would (apart from this Division):
(a)
prevent an employee from taking or accruing annual leave during a period while the employee is receiving compensation under such a law; or
(b)
restrict the amount of annual leave an employee may take or accrue during such period.”
57
Section 130 is cast in different terms from s 237 in two material respects. First, it covers all forms of leave entitlements. Secondly, it effectively reverses the default position. That is to say, by s 130 an employee may recover both annual leave entitlements and compensation during the same period of absence from work as long as a compensation law permits it. A mere failure by the compensation law to advert to the situation will not suffice. Nevertheless, there is no reason to suppose that the change introduced by s 130 was intended to have the far-reaching consequences that Anglican Care contended for.
58
The effect of Anglican Care's argument is that employees who were previously entitled to the dual benefit are deprived of it. Anglican Care could point to no material to demonstrate why those consequences would have been intended. Its argument essentially rested on its submission as to the meaning of the words “permitted by”. At a general level, Anglican Care submitted that the purpose of s 237 of the WR Act was to provide for harmony between the Commonwealth legislation and the legislation of the States and Territories. In this respect, however, its purpose was no different from the purpose of s 130 of the FW Act.
59
If Anglican Care were right, then statutory rights employees previously enjoyed would be removed by a provision which, as Anglican Care conceded, is ambiguous. In Buck v Comcare (1996) 66 FCR 359 at 364, a case about a provision of the Safety, Rehabilitation and Compensation Act which provided in certain circumstances for the automatic suspension of compensation and the pursuit or continuance of litigation over compensation rights (s 57(2)) Finn J made the following pertinent statement:
“in a case, such as this, s 57(2) operates on a significant, albeit statutory, right of an employee … it is a right of sufficient significance to the individual … that, where there may be doubt as to Parliament's intention, the courts should favour an interpretation which safeguards the individual.”
60
The Full Court endorsed and applied these remarks in Australian Postal Corporation v Sinnaiah (2013) 213 FCR 449 at [34].
61
For all these reasons, the legislative context in which s 130 was enacted tells against the construction for which Anglican Care contended.
62
Anglican Care made much of the primary judge's observations that both s 49 of the WC Act and s 130(2) of the FW Act should be construed beneficially. Nothing really turns on those observations but, in deference to the argument, we would make the following observations.
63
Despite what the primary judge said, she did not give s 49 of the WC Act a beneficial construction. She did not hold that the section conferred a right to the concurrent receipt of leave and compensation. Moreover, there was never a dispute about the meaning of that section. The dispute always concerned the meaning and effect of s 130 of the FW Act. In that regard, we reject Anglican Care's submission that her Honour erred in adopting a beneficial construction. While s 130(1) is not remedial legislation, s 130(2) plainly is. It should be read beneficially and the exception narrowly construed: Goliath Portland Cement Company Ltd v Chief Executive Officer of Customs (2000) 101 FCR 11 at [29].
64
We are not persuaded that the primary judge fell into error. Ms Copas's entitlement to accrue annual leave was not removed by s 130(1) because she was permitted by s 49 of the WC Act to accrue annual leave over the entire period she was absent from work and in receipt of compensation. The purpose of s 130(2) is to enable employees who are absent from work and in receipt of compensation to retain their entitlements to leave over the same period as long as that course is sanctioned, condoned or countenanced by the relevant compensation law. Put another way, employees in this position are entitled to both compensation and leave benefits provided that permission is given by the compensation law for dual receipt. While it is no longer sufficient that the compensation law does not prevent the simultaneous enjoyment of the two, it is not necessary that the compensation law provides for the payment of the leave benefit.
Conclusion
65
As Anglican Care argued, s 49 of the WC Act did not create an entitlement to accrue leave. But s 130 of the FW Act does not require that the source of the entitlement be found in the compensation law in order for an employee to be able to enjoy the benefit of both compensation and leave over the same period. The purpose and effect of s 130 is to remove the entitlement to take or accrue leave for employees in receipt of workers compensation unless there is a law relating to compensation in the relevant jurisdiction which countenances the simultaneous receipt of workers compensation while the employee is absent from work. Section 49 of the WC Act is such a law.
66
It follows that the appeal must be dismissed. Having regard to the terms of s 570 of the FW Act and the positions taken by the parties on this question, there will be no order as to costs.
Orders accordingly
Reported by SARAH SOMERSET