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State of Queensland (Gold Coast Hospital and Health Service) v Christina Thomas ICQ 6
INDUSTRIAL COURT OF QUEENSLAND
State of Queensland (Gold Coast Hospital and Health Service) v Christina Thomas  ICQ 6
STATE OF QUEENSLAND (GOLD COAST HOSPITAL AND HEALTH SERVICE)
18 June 2019
28 May 2018
Martin J, President
INDUSTRIAL LAW – QUEENSLAND – GENERAL EMPLOYMENT CONDITIONS – where the respondent was an employee of the appellant – where the respondent sought recreation leave for the period before and after the expected date of birth of her child – where the respondent also sought paid maternity leave to commence after the end of the recreation leave and the expected date of birth of her child – where, absent taking recreation leave first, the respondent would not have achieved continuous service with the appellant for 12 months before taking maternity leave and would therefore not have been eligible for paid maternity leave – where the Industrial Magistrate held that the leave policy to which the respondent was subject allowed paid maternity leave to commence after the expected date of birth – where the Industrial Magistrate accordingly held that the appellant was liable to pay the respondent paid maternity leave – whether paid maternity leave had to commence before the expected date of birth of the respondent’s child
CJ Murdoch QC instructed by GR Cooper, Crown Solicitor for the appellant
S Robb instructed by Roberts & Kane Solicitors for the respondent
- The hearing both before the Industrial Magistrate and in this court proceeded upon the following set of agreed facts:
22 February 2015
Respondent commenced employment with the appellant.
10 December 2015
Respondent requested from the appellant:
31 January 2016
The appellant provided the respondent with a midwife’s certificate certifying that the claimant was fit for duties as a registered nurse to this day.
1 February 2016
Respondent commenced her recreation leave.
11 February 2016
Respondent gave birth to her child.
15 February 2016
This was the respondent’s “expected date of delivery” as certified by a doctor and provided to the appellant.
23 February 2016
Respondent achieved “continuous service” with the appellant for 12 months.
29 February 2016
Last day of respondent’s recreation leave.
1 March 2016
Respondent sought to commence her paid maternity leave.
- The learned Industrial Magistrate held that the appellant was liable to pay the respondent paid maternity leave in respect of her employment for the period 1 March 2016 to 7 June 2016.
Relevant industrial instruments
- The parties agreed that the relevant instruments which related to maternity leave were:
- (a)Nurses and Midwives (Queensland Health) Certified Agreement (EB8) 2012 (Certified Agreement),
- (b)Queensland Health Nurses and Midwives Award - State 2012 (QHNM Award),
- (c)Family Leave (Queensland Public Sector) Award - State 2012 (Family Leave Award),
- (d)Queensland Health Parental Leave Human Resources Policy - C26 (Parental Leave Policy), and
- (e)Paid Parental Leave Directive No. 26/10 (the Directive).
- It is argued for the appellant that the respondent had no entitlement to paid maternity leave because:
- (a)any paid maternity leave had to commence before the expected date of birth, and
- (b)the respondent was not entitled to such leave at that time because she had not completed 12 months continuous service.
- The Industrial Magistrate held, among other things, that:
- (a)an employee in the respondent’s position was permitted to “properly work on” after the expected date of birth,
- (b)that cl 7.1 of the Parental Leave Policy imported a discretion in respect of flexible work arrangements, and
- (c)the Parental Leave Policy allowed paid maternity leave to commence after the expected date of birth.
- It is the appellant’s case that the Industrial Magistrate misconstrued individual instruments and their relationship to each other. The most useful way to deal with the grounds of appeal is by construing the relevant provisions.
The terms and conditions of employment
- The Certified Agreement provides that certain policies are incorporated as terms of that agreement (see Schedule 4). One of the policies incorporated into the Certified Agreement is the Parental Leave Policy. The effect of incorporation is that the policy becomes a term of the Certified Agreement.
- Clause 7.1 of the Parental Leave Policy provides that it is to be read in conjunction with the Family Leave Award. That award does not make provision for paid maternity leave but it does set out some general conditions for maternity leave.
- At this point, it is worth noting that the Parental Leave Policy refers to both paid and unpaid maternity leave whereas the Family Leave Award only provides for unpaid maternity leave.
- Clause 7.3 of the Parental Leave Policy provides that an employee is only eligible for paid maternity leave if the employee meets the qualifying service period of at least 12 months recognised service. This is to be contrasted with unpaid parental leave which is available irrespective of the length of service.
- Clause 8.2 provides:
“An eligible employee … whose expected date of birth has been confirmed by a medical practitioner is entitled to 14 weeks paid maternity leave, to be taken as the initial absence on such leave regardless of when the leave is accessed.”
- The meaning of the words “to be taken as the initial absence on such leave regardless of when the leave is accessed” is not obvious. But then, what should be a relatively simple prescription of rights is made unclear by the language used in the various instruments and the necessity to move from one unclear statement to another unclear statement in this clumsy scheme further renders clarity a forlorn hope. The problem with the expression used is created by the words “on such leave”. Ordinarily, the use of the word “such” in those circumstances would indicate a reference to the immediately preceding “leave”. But that makes little sense. To say that paid maternity leave is to be taken as the initial absence on paid maternity leave is a nonsense. It is more likely that it is intended that paid maternity leave be used up first in any combination of other leave entitlements.
- Clause 8.5 of the Parental Leave Policy provides:
“A woman may start a period of maternity leave at any time within the six week period immediately before the expected date of birth. When she continues to work within that period, she is to provide a medical certificate stating that she is fit to work.”
- The appellant contends that this clause should be read as requiring the maternity leave to commence within the six weeks immediately before the expected date of birth and that the use of the word “may” is permissive in that it allows the maternity leave to start at any time within that period. The second sentence of the clause is just another example of the confused thinking which underlies this policy. The word “when” should be read as “if” for it to make any useful contribution to the policy.
- The meaning of the word “may” in cl 8.5 can be understood when that clause is read with cl 4.10 of the Family Leave Award. That clause provides:
“Subject to clause 4.11, an employee who is pregnant, whether or not she has made application under 4.2 must:
- (a)commence maternity leave at least six weeks prior to the expected date of birth of her child; and
- (b)remain on maternity leave until at least six weeks after the birth of the child.”
- The reference to “maternity leave” in cl 4.10 is not a reference to “unpaid maternity leave”. The term “maternity leave” is defined to mean:
“Leave that a pregnant employee takes -
- (a)for the birth of her child; or
- (b)to enable her to be the child’s primary caregiver.”
- In order to read the provisions of the Parental Leave Policy and the Family Leave Award in a consistent fashion, the combined effect of cl 8.5 of the Parental Leave Policy and cl 4.10 of the Family Leave Award is to relax the strict requirement of commencement of maternity leave at least six weeks prior to the expected date of birth and allow a pregnant employee to commence leave at any time within that six week period.
- The argument by the respondent that these clauses should be read to allow for an employee to commence maternity leave after the birth of a child is inconsistent with the provisions of cl 4.10 of the Family Leave Award because it refers to “an employee who is pregnant”. It does not allow for maternity leave to be commenced at any time other than before the expected date of birth.
- In supporting the conclusion of the Industrial Magistrate the respondent argues that a woman may take any annual leave to which she is entitled in the six week period before the expected date of birth. Reference is made to cll 2.9, 4.9, 4.10 and 4.11 of the Family Leave Award. It is then put that a woman may take annual leave before she takes paid maternity leave – cll 2.9 and 4.9 of the Family Leave Award. This, it is said, is not inconsistent with cl 8.5 of the Parental Leave Policy. Further, a woman cannot be on paid recreation leave and paid maternity leave at the same time but can combine paid recreation leave and unpaid maternity leave – cl 11.11 of the Parental Leave Policy. Finally, regardless of when it is accessed, once a woman commences maternity leave, any paid maternity leave is to be taken before any unpaid maternity leave – cl 8.2 of the Parental Leave Policy.
- It was contended that the combination of those provisions allowed for the respondent to take paid maternity leave from 1 March 2016. That does not, with respect, follow from the correct construction of those clauses.
- The Family Leave Award is, for these purposes, concerned with unpaid maternal leave. The provision in cl 2.9 that annual leave may be taken instead of or together with parental leave must be read as a reference to unpaid parental leave. The combination of cll 4.9, 4.10 and 4.11 is consistent with the fact that the Award deals with unpaid maternity leave. Those clauses allow an employee who is entitled to annual leave or long service leave to take that paid leave instead of unpaid maternity leave. That situation is confirmed in cl 11.11 of the Parental Leave Policy which provides: “An employee can only be on one form of approved leave at any one time (e.g. an employee cannot be on paid recreation leave and paid maternity leave at the same time).”
- In the circumstances of this case, the respondent had no eligibility for paid maternity leave in any period before the expected date of birth. She did not achieve 12 months continuous service until 23 February 2016. Of course, by that time, she was no longer pregnant and, therefore, no longer entitled to commence paid maternity leave.
- The Industrial Magistrate erred in holding that cll 8.1 and 8.5 of the Parental Leave Policy allowed paid maternity leave to commence after the expected date of birth.
- The appeal is allowed. The orders made by the Industrial Magistrate of 8 March 2018 are set aside. The respondent’s application filed 11 September 2017 is dismissed.
- Published Case Name:
State of Queensland (Gold Coast Hospital and Health Service) v Christina Thomas
- Shortened Case Name:
State of Queensland (Gold Coast Hospital and Health Service) v Christina Thomas
 ICQ 6
18 Jun 2019