Industrial Relations Commission of New South Wales CITATION: NSW Nurses Association v North Coast Area Health Service [2008] NSWIRComm 1072 APPLICANT: PARTIES: New South Wales Nurses' Association RESPONDENT: North Coast Area Health Service FILE NUMBER(S): 111; 507 of 2008 CORAM: Ritchie C Section 130 Dispute notification by Union re failure to pay correct rate of pay. Employee employeed on two conescutive fixed term contracts,the first commencing on 19 February 2007 and the second ceasing on 10 February 2008. During second contract notifies employer that she is pregnant. Employee applies for paid maternity leave to commence on 21 January 2008. She sought payment of full benefit of 14 weeks but was only paid 3 weeks. Applicant submitted that as the employee is an eligible employee she must receive full benefit. Respondent argued that not required to pay benefit beyond 10 February 2008. Applicant argued that the plain ordinary meaning of the words in the maternity leave made no qualification concerning part payment. CATCHWORDS: Respondent argued that for leave to be paid there must exist a contract on foot. No contract existed beyond 10 February 2008. Commission found in favour of the applicant. Nothing in the clause supported the respondent's argument. Plain meaning of eligible employee noted who and who was not eligible. Employee in question was entitled to the full payment. Order made to that effect. Second dispute as to claim that employee not offered further employment due to being pregnant. As Commission found in favour of applicant in first dispute , not required to make a finding in this dispute. LEGISLATION CITED: Industrial Relations Act 1996 Australian Workers Union v Pasminco Australia Ltd and ors,NSWIRComm365 CASES CITED: Zoological Parks Board(2004)135IR56 Kingsmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks Union of Australia, New South Wales Branch (2001)106IR217 Brokern Hill Pty Co Ltd and Federated Ship Painters and Dockers union of Australia, New South Wales Branch re Tank Tops (1961)AR(NSW)312 HEARING DATES: 07/07/08, 08/07/08, 05/08/08 DATE OF JUDGMENT: 25 August 2008 APPLICANT: Ms C. Howell of Counsel LEGAL REPRESENTATIVES: RESPONDENT: Mr J Simpson of Clayton Utz DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 25 August, 2008 Matter No IRC 111 of 2008 and IRC 507 of 2008 IN THE MATTER OF: Notification under section 130 by New South Wales Nurses' Association of a dispute with North Coast Area Health Service re alleged failure to pay correct rate of pay. IN THE MATTER OF: Notification under section 130 by New South Wales Nurses' Association of a dispute with North Coast Area Health Service re maternity leave payment to member. DECISION [2008] NSWIRComm 1072 1 A dispute notification under section 130 of the Industrial relations Act 1996, (the Act) in matter no IRC 08/111 was filed with the Registry on 1 February 2008, by the New South Wales Nurses Association (the applicant) against the North Coast Area Health Service (NCAHS) with a compulsory conference being held on 11 February 2008 in Lismore. The matter failed to settle and a timetable for the filing and serving of evidentiary material was provided to the parties as well as a certificate of attempted conciliation was raised. Dates for the hearing of the matter on 17 and 18 April 2008 were given to the parties. 2 A hearing took place on 14 April 2008 as a consequence of a dispute between the parties in connection with a Notice to Produce. After hearing argument with respect to this issue the Commission upheld the objection of the NCAHS with respect to the requirement to provide certain documents. 3 A second dispute notification in matter no IRC 08/507 was filed on 16 April 2008 and a compulsory conference was held on 17 April 2008. At that conference it was apparent that this matter was connected to matter no IRC 08/111 and therefore the matters were joined by consent and new hearing dates to arbitrate both matters were heard in Lismore on 7 and 8 July 2008. A further day was required to complete submissions, which took place on 5 August 2008 in Sydney. On that day a Decision on these matters was reserved. 4 The dispute with respect to matter no IRC 08/111 was expressed as: "the failure of the Director General of the NSW Department of Health in respect of the North Coast Area Health Service to provide Lyndal Van Eede Registered Nurse fourteen weeks at the ordinary rate of pay from 21 January 2008 the date that her maternity leave commences". The Association contends that Ms Van Eede at all times was an eligible employee under a valid Temporary Contract of Employment and that the terms and conditions of that employment were covered by the Public Health System Nurses' & Midwives (State) Award (the Award). At all material times Ms Van Eede was an employee entitled to the beneficial provisions of Clause 34 Maternity, Adoption and Parental Leave of this Award and entitled to fourteen weeks at the ordinary rate of pay from Monday 21 January 2008. 5 The dispute with respect to matter no IRC 08/507 was expressed in the following terms: This dispute relates to the Dispute in IRC 111 of 2008, which is a claim in respect of maternity leave payments to an Association member, Ms Lyndal Van Eede. Ms Lyndal Van Eede was engaged by the North Coast Area Health Service (NCAHS) on fixed term contracts from 19 February 2007 to 10 February 2008. In October 2007 Ms Van Eede advised the NCAHS that she was pregnant. It was the Association's contention that, but for her pregnancy, Ms Van Eede would have been granted further employment beyond 10 February 2008 by the NCAHS. On 14 April 2008 Commissioner Ritchie determined that the above matters could not be raised in matter no 111 of 2008 because they were not raised in the dispute notice or at conciliation. Accordingly, the present dispute was notified so that those matters can be addressed. 6 As a consequence of a submission raised by the NCAHS with respect to this Commission's lack of power to make an award for the payment of monies to Ms Van Eede if it found in favour of the applicant with respect to either of the two dispute notification's, the applicant made an application for a small claim for $20,000 plus interest. 7 Ms Howell of counsel with Mr Blair appeared for the applicant and Mr Simpson of Clayton Utz with Mr Boyd appeared for the respondent. Applicant's Case. 8 It was accepted by Ms Howell that if the Commission found in the applicant's favour with respect to matter no IRC08/111, then there would be no requirement for a finding to be reached with respect to matter no IRC08/507. 9 The applicant provided statements from Ms Van Eede and an outline of submissions. Ms Van Eede stated that she was a registered nurse who commenced employment at the Lismore Base Hospital, North Coast Area Health Service under a fixed contract as Deputy Director of Nursing-Surgery, Women's care and Paediatrics on 19 February 2007. The fixed term contract had a cessation date of 7 September 2007. Her employment was under the Public Health System Nurses and Midwives (State) Award. 10 In late August 2007 Ms Van Eede was approached by management of the Base Hospital to take up another role working on the Clinical Services Redesign Program (CSRP) as "Project Lead Richmond Network". This role involved co-ordination of a range of initiatives relating to health service design with the main objectives being to reduce hospital admissions and to shorten length of stay of patients. This offer was accepted by Ms Van Eede and the agreed commencement date was 8 September 2007. The agreed finishing date would be 10 February 2008. Ms Van Eede stated that she arrived at that date as it was at the end of a roster cycle. A contract to that effect was signed by both parties. 11 On 22 October 2007 Ms Van Eede advised Ms Podbury of the Base Hospital that she was pregnant. At that point Ms Van Eede said that she advised that she was eager to continue work beyond 10 February 2008 and also to return from maternity leave on reduced hours. She advised that she and her partner would be living in Brisbane when the baby was due and that they had discussed the options of commuting or relocating to Lismore. She also stated that Ms Podbury said that she could work through to the end of March 2008. Ms Van Eede said she also spoke to Ms Podbury with respect to returning to work three months after her baby was born. 12 Ms Podbury also suggested that she undertake formal training for the CSRP role if it became possible. 13 Ms Van Eede said that as a consequence of her condition, she made phone calls to the Employment Services Department of the Base Hospital to determine her rights as to maternity leave payments. It was confirmed by both a "Debbie" and a Mr Ross Baker that she would have a full entitlement of 14 weeks paid maternity leave even if she finished on 10 February 2008. 14 On 24 October 2007 Ms Van Eede stated that she met with Ms Podbury to discuss the Statewide Clinical Leadership Program (SCLP). This program helped participants to better lead and manage clinical change initiatives and consisted of a number of workshops and required participants to undertake a work related project over a six month period with the assistance of a mentor. The next available Program was scheduled to run from February 2008 to about December 2008, depending upon the particular project. Ms Van Eede was encouraged to apply for the SCLP. To be accepted into the Program she advised Ms Podbury that she needed to be employed by the respondent for the duration of the program. Ms Van Eede was advised to apply as the closing date was 26 October 2007.Ms Podbury stated that discussions would take place about her ongoing employment. The SCLP application form was signed by Ms Podbury and submitted at a later date. 15 On 19 November 2007 Ms Van Eede was contacted by a representative of the NCAHS (Ms Tugwell), to state that she had been accepted into the 2008 Program. Ms Van Eede then contacted Ms Podbury with the news and to find out about future employment. At a meeting with Ms Podbury it was suggested that she defer the course for 12 months. Ms Van Eede contacted Ms Tugwell who advised that funding for the 2009 program had not been secured therefore she could not defer her position on the program. 16 In early December 2007 Ms Van Eede sought to speak to Ms Podbury about ongoing employment but was unsuccessful. On 13 December Ms Van Eede applied for maternity leave requesting a lump sum payment of 14 weeks pay. Her maternity leave was to commence on 21 January 2008. 17 When Ms Van Eede returned from leave over the Christmas period she contacted the Pay Office in Coffs Harbour. It was at this point that Ms Van Eede was given conflicting advice with respect to payment for her maternity leave. She then contacted "Debbie" at the Employee Service Office and was advised that she would be entitled to the full amount not just three weeks pay. She was then told to and did contact a Mr David Gray Area IR/HR Advisor who advised he would contact Ms Podbury and return to her with advice. 18 On 3 January 2008 Ms Van Eede met with Ms Podbury and was advised that there was no more funding for CSRP and that the respondent was in dire financial straits. Ms Podbury also said that she did not believe that Ms Van Eede would be returning to this area to work once she had had her baby but that once she had had her child she should contact her and she would find her a job. Also Ms Van Eede was advised that she was only entitled to three weeks maternity leave pay. 19 On 7 January 2008 Ms Van Eede wrote to Ms Podbury stating her case for payment for the full 14 weeks maternity leave. A reply letter dated 23 January 2008 from Mr Boyd, the HR/IR Manager for the Richmond Network stated that Ms Van Eede was only entitled to payment up to the end of her contract, that being 10 February 2008. 20 It was Ms Van Eede's evidence that she did not advise either Ms Podbury or Mr Madden in August 2007 that she was looking for work in Brisbane or the Gold Coast. She also stated that Ms Podbury indicated that the contract she took up in September 2007 was for a few months through to around Christmas but with the real possibility of this going on into the future. She also said that when she advised Ms Podbury of her pregnancy and the confinement date of 27 April 2008, discussion took place about working reduced hours up to late March. 21 When Ms Van Eede met with Ms Podbury on 24 October 2007 they discussed the dates for the mandatory workshops for the SCLP and how those dates fitted in with the birth of the baby. She also denied making any comment to Ms Podbury about renovating her partner's home in Brisbane in preparation for the birth of her child. 22 She also stated that in conversation with Mr Ross Baker that she sought clarification as to whether she could be paid at half pay for 28 weeks. He responded that payments could still be processed to her after the end of the contract however it would be easier if she had a contract that extended for the duration of the payments. 23 In response to Mr David Gray's evidence, she said that she advised him of the terms of her fixed term contract and he responded that it appeared she was eligible for paid maternity leave and that he was going to contact payroll in Coffs Harbour to find out what was going on. He later rang Ms Van Eede and advised that she had an entitlement up to only the end of her contract on 10 February 2008. 24 In her final submissions Ms Howell outlined the employment history of Ms Van Eede. Ms Van Eede was first employed by the NCAHS on a fixed contract from 19 February 2007 to 7 September 2007 and then a further fixed term contract from 8 September 2007 until 10 February 2008. Ms Van Eede notified the NCAHS that she was pregnant on 22 October 2007. Ms Van Eede applied for maternity leave on 13 December 2007 requesting a lump sum payment in advance pursuant to the Public Health System Nurses' & Midwives (State) Award (the Award). She proceeded on her maternity leave on 21 January 2008. At that point she was only paid 3 weeks, up to 10 February 2008. She therefore claimed the 11 weeks that she was not paid. 25 This claim was later modified by Ms Howell, taking into consideration the maximum claim under section 379(3) of the Act, to $20,000 plus interest. 26 Ms Howell stated that Ms Van Eede according to the Award was eligible for paid maternity leave as she had been an employee for at least 40 weeks of continuous service prior to the expected date of birth and therefore was entitled to 14 weeks at the ordinary rate of pay from the date maternity leave commences. 27 By taking the Commission to various decisions, Ms Howell stated that in interpreting industrial instruments one must go to the actual words and give them their plain ordinary meaning. The maternity leave clause was a beneficial clause and should not be read down nor in some way have Ms Van Eede's contract override her award entitlements. The words in the clause are plain with respect to eligible employee, there is no ambiguity nor is there any qualification. An eligible employee is entitled to 14 weeks pay, which may be paid in a lump sum. Ms Van Eede was an eligible employee. The NCAHS recognised that she was an eligible employee because they paid her maternity leave to the extent of 3 weeks. The NCAHS had read into the Award a qualification, which did not exist effecting the 14 week entitlement by reducing the quantum in the case of a fixed term contract employee. There was no warrant in the plain language of the award for reading down or qualifying the entitlement of eligible employees by adding an additional requirement of continuing employment. 28 It was Ms Howell's submission that the respondent discriminated against Ms Van Eede on the grounds of pregnancy. But for her pregnancy Ms Van Eede would have been offered a further contract with the respondent. The request by Ms Podmore for Ms Van Eede to apply for the SCLP in October 2007 which was to take place in 2008 was inconsistent with an intent to terminate her employment in February 2008. It was her submission that there existed flexibility in the CSRP funding applying to Ms Van Eede's employment to a much greater degree than Ms Padbury was prepared to admit. She said that there was $37,000 underspent. It was her submission that discussions between Ms Van Eede and Ms Podbury showed contemplation of Ms Van Eede having a longer term role well beyond the birth of her child. Ms Van Eede's meeting with Ms Podbury on 24 October 2007 with Ms Podbury endorsing Ms Van Eede's application to attend the SCLP training confirmed that employment would go beyond 10 February 2008. It had to for Ms Van Eede to be able to qualify and attend the course. It was inherently likely that a senior nurse whose skills were valued would have been offered further employment after two fixed term contracts with the NCAHS. Case for the Respondent. 29 The following persons gave evidence for the respondent. Ms Deborah Podbury- General Manager, Health Services for the Richmond Network, North Coast Area Health Service. Mr David Gray-Acting Area Human Resources Manager for the North Coast Area Health Service. Mr Ross Baker- Employee Services Officer for the North Coast Area Health Service. Mr Wayne Jones-Director of Clinical Streams for the North Coast Area Health Service. 30 Ms Podbury stated that she is responsible for the Richmond network, which is one of four networks within the NCAHS. She advised that on 29 August 2007 she with Mr Madden spoke to Ms Van Eede about a position as the "Project Lead", Richmond Network Clinical Services Redesign Program. Ms Van Eede was alleged to have stated that she was looking for work elsewhere in Brisbane and the Gold Coast. Shortly after this meeting Ms Van Eede contacted Ms Podbury and accepted the offer with the commencing date being 8 September 2007. A short time later the date of 10 February 2008 was offered by Ms Van Eede and agreed by Ms Podbury as the expiry date of this contract. This short term contract was signed on 5 September 2007. 31 The NCAHS is made up of four networks, each of whom was part of this Clinical Service Redesign Programme (CSRP). The four networks are Richmond, Hastings/Macleay, Coffs/Clarence and Tweed/Byron. Whilst each network appointed a CSRP officer, the duration of each short term contract was slightly different due to local factors. Ms Podbury spoke with Ms Lyn Hopkins about the rate of pay and the duration of Ms Van Eede's contract and it was approved. Ms Podbury stated that she did not have the authority to extend the duration of this contract. 32 Ms Podbury stated that the project was short term with specified/limited funding with a specific timeframe. The Richmond Network Project Lead was employed for a period of approximately five months. Ms Van Eede was one of the staff approached within the Richmond network in relation to this Clinical Redesign Project Officer fixed term position. 33 In late October 2007 Ms Podbury had a conversation with Ms Van Eede about her participation in the Statewide Clinical Leadership Program(SCLP). This is a learning and development program. This offer was in no way a commitment for ongoing employment, just an opportunity to develop skills within the Richmond network. Ms Podbury said that she generally encouraged staff to undertake learning and development skills and she considered this program may be an incentive for Ms Van Eede to stay with the Richmond Network if a position became available. 34 Between late October and early November 2007 Ms Van Eede advised Ms Podbury that she was pregnant. Later in November Ms Podbury met with Ms Van Eede and it was decided that Ms Van Eede would not progress the training development program. 35 On 13 December 2007 Ms Van Eede submitted her application for maternity leave. 36 On 3 January 2008,Ms Podbury met with Ms Van Eede and discussed Ms Van Eede's dates for maternity leave, other leave dates, progress of the Clinical Services Redesign Project, her pregnancy and wellbeing and her future, relating to her work after her pregnancy. Ms Van Eede spoke of renovating her partner's home in Brisbane in preparation for the birth of her child. She enjoyed working for NCAHS and might consider future employment after the birth. 37 Whilst Ms Podbury did not give any advice to Ms Van Eede with respect to paid maternity leave entitlement she did speak to Mr Gray in early January 2008 who advised that she was only entitled to payment up to the end of her contract. 38 Ms Van Eede went on annual leave from 15 January 2008 to 21 January 2008 when she proceeded on maternity leave. The work she was doing (CRSP) was completed and no other person did such work between 21 January and 10 February 2008. 39 Ms Podbury denied that she had suggested the temporary contract cease at the end of February 2008 or that there would be opportunities for the contract to be extended as CSRP was receiving a lot of attention. 40 Post Ms Van Eede, the change was to be driven from within the network by permanently employed staff. Clinical process redesign was a continuous process over many years. Ms Van Eede's role was for a fixed period of time to assist initial set up. 41 Ms Podbury stated that she could not recall a meeting with Ms Van Eede on 24 October 2007 and that she would not have suggested to Ms Van Eede that she attend the SCLP on dates that were outside the term of her contract. 42 Ms Podbury stated that when she received information about future training programmes, she sent the information out to employees who may be interested in them and encouraged employees to apply. This is what she did with Ms Van Eede. What she was not aware of at the time was the extent of the actual training involved. That she admitted was her fault. She said that Ms Van Eede was a good manager but she was on a short term contract and that she did not offer her any future employment beyond the conclusion of her short term contract. She said she did not have the authority to employ additional staff. Ms Podbury rejected the claim that she had changed her position with respect to Ms Van Eede as a consequence of her pregnancy and that the NCAHS could save money by not offering Ms Van Eede future employment. No formal application for future employment was made by Ms Van Eede. 43 Mr David Gray stated that in early January 2008 he fielded a question from an Employment Services Officer (Debbie) on the eligibility of an employee on a temporary employment contract who had completed 40 weeks continuous service. He replied that he would have to look at the circumstances but it would appear that the employee had an entitlement. 44 He also stated that he received a phone call from Ms Van Eede in early January 2008 seeking clarification with respect to paid maternity leave. He organised to meet with Ms Van Eede a day or two later. At that meeting he advised Ms Van Eede that he would seek some advice from the Department of Health. Ms Van Eede said during this meeting that she did not have confirmation of any work beyond 10 February 2008. 45 On 4 January 2008 Mr Gray met with Ms Podbury to discuss Ms Van Eede's future employment. He was advised that there was nothing that could be offered beyond 10 February 2008. Later in January 2008 Mr Gray was part of a discussion with four other network HR/IR advisors concerning Ms Van Eede's entitlement. The consensus was that once Ms Van Eede's employment contract finished then her eligibility for paid maternity leave was extinguished. This decision was later communicated to Ms Van Eede. It was also later confirmed by the Director of Employee Relations, NSW Health, Mr Tony Craft. 46 Mr Gray advised that at no time did he advise Ms Van Eede that she would be eligible for the full payment or that Ms Van Eede stated to him that she wished to continue her contract with NCAHS. He also denied that he suggested to Ms Van Eede that funding for the four CSRP positions went beyond 10 February 2008. 47 In responding to a question from Ms Howell, Mr Gray stated that if it be came his understanding that there was a potential for an extension of Ms Van Eede's contract or the work she was doing beyond the term that the current contract was running, then this would have enabled the NCAHS to pay the full entitlement. 48 Mr Ross Baker is an Employee Services Officer for the NCAHS. He provided brief evidence to the effect that in mid November 2007 he received a phone call from Ms Van Eede regarding a paid maternity leave entitlement inquiry with respect to a person who was on a temporary contract. He stated that he referred to the Leave Matters Manual for NSW Health Service dated November 2006 and responded that if a person had fulfilled the obligation of 40 weeks continuous service then they would be entitled to paid maternity leave. In responding to Ms Van Eede's question he was not aware at the time that she was ceasing on 10 February 2008. 49 Mr Wayne Jones is the Director of Clinical Streams for the NCAHS having commenced with the service in April 2000. As part of his responsibilities Mr Jones supervises the Area Manager for clinical redesign services, Ms Lyn Hopkins. Mr Jones provided an historical background commencing in early 2005 with respect to the governance and funding of the Clinical Service Redesign Project (CSRP). A Governance Committee was established. He advised that there was four phases of the CSRP. The purpose of CSRP was to develop new ways to deliver clinical services to aged and chronic care patients that was more effective and efficient and implement these changes into the culture of each Network in NCAHS. Each of the four Networks within NCAHS would engage a Project Lead position for approximately 12 weeks full time or longer if a part time option was preferred. The period of engagement for each Network would be adjusted due to funding, availability of resources and needs. The Richmond network went longer because Richmond was behind the rest of the networks. This Project lead role was to be a transition role, which would be handed over to permanent staff in their Network to continue driving the cultural change. An amount of $16,311 was allocated to Ms Van Eede's role as Project Lead. 50 Mr Jones provided the names of previous persons who had carried out the Project Lead role in the Richmond Network leading up to the engagement of Ms Van Eede. Ms Van Eede's fixed term employment contract ceased on 10 February 2008 because the funding for the position would be exhausted, funding for the implementation stage of the Project in NCAHS would be exhausted by March 2008, the CSRP implementation stage for NCAHS was to be completed by March 2008 and the evaluation stage of the CSRP for NCAHS was to start in March 2008. No funding was allocated to any of the Project lead positions past 10 March 2008. He stated that there was a marginal degree of flexibility in the way he applied the totality of the funding. In March 2008 the Project Lead role ceased and the responsibility for continuing the redesign work for each network was transferred to permanent staff. 51 In his final submissions Mr Simpson spoke to his Outline of Submissions, plus the evidence that fell during the hearing. Mr Simpson accepted that Ms Van Eede was an eligible employee with respect to qualifying for the taking of paid maternity leave. In the respondents view Ms Van Eede was entitled to and did receive paid maternity leave between 21 January 2008 and 10 February 2008. It was their submission that there must be an employment relationship on foot for leave to be able to be taken. The maternity leave clause can only be read so that the payment of paid maternity leave must relate to a period of employment. The paid maternity leave is to compensate the employee for a period when they would have earned income but for their pregnancy, the birth of the child and the immediate care of that child. To take a period of leave there must be an employment relationship in place for one to take leave from. The applicant's interpretation simply put is that once one is an eligible employee they are entitled to "the payment". This does not have any relationship between the concept of leave or a leave of absence and accordingly cannot be met. The respondent submitted that in order for something to be taken in advance, something must be expected to occur in the future. The expression in the maternity leave sub-clauses with respect to Stillbirth and Effect of a Premature Birth on Payment of Maternity Leave indicated that maternity leave should not be treated as a simple "payment", but as a genuine form of a "leave of absence". Also if an employee chooses to return to duty during a period of paid maternity leave, then the payments of maternity leave must cease. This is a strong indication that paid maternity leave is not in any way to be treated as a simple "payment". The respondent submitted that the applicant's case was that the construction of the maternity leave clause was based on the presumption that the payment is a "bonus payment" and not a payment for a leave of absence. It was Mr Simpson's submission that if a permanent employee resigned at the end of 40 weeks, then that employee would only be entitled to a maternity leave payment up until the end of the employment And if such an employee had received a lump sum payment then the employee would be required to repay the payment of leave. Leave cannot be paid, even in advance, for a period where there was no employment relationship on foot. 52 With respect to the second dispute it was the respondent's submission that there was never any expectation or intention to extend or renew Ms Van Eed's employment beyond the expiry date of the fixed term contract. No guarantees of future employment were given to Ms Van Eede. This was the respondent's submission both pre and post Ms Van Eede notifying the respondent of her pregnancy. 53 It was the evidence of several of the respondent's witnesses that Ms Van Eede had indicated that she would be looking for work in Brisbane or the Gold Coast and that a short term contract suited her personal circumstances. The assertion that there was a general shortage of nurses did not create an expectation or guarantee that Ms Van Eede would have been offered a further contract past the expiry date of her fixed term contract. It was the evidence of Ms Podmore that she had a general policy of encouraging employees to take up training courses in the public health sector. That she encouraged Ms Van Eede to apply for the SCLP did not establish the NCAHS intention to offer a further contract of employment. There never existed an expectation, intention or guarantee that the NCAHS would offer Ms Van Eede employment beyond 10 February 2008. As there was no expectation then it cannot be established that the NCAHS treated Ms Van Eede less favourably because of her pregnancy. It was also the NCAHS's submission that this Commission did not have the jurisdiction to make an Order in favour of Ms Van Eede with respect to the second dispute. Section 136 of the Act sets out what the Commission may do in relation to an arbitration of a matter. Section 137(3) prevents a dispute order being made "for the payment of compensation, lost remuneration or any other amount". Consideration and Decision. 54 Ms Van Eede was employed under the Public Health System Nurses' and Midwives (State) Award (the award). During Ms Van Eede's employment with the NCAHS she was employed under two consecutive fixed term contracts, the first running from 19 February 2007 to 7 September 2007 and the second from 8 September 2007 until 10 February 2008. On 13 December 2007 Ms Van Eede submitted her application for maternity leave to commence on 21 January 2008. Ms Van Eede was paid three weeks maternity leave from 21 January 2008 until 10 February 2008. 55 Clause 34. Maternity, Adoption and Parental Leave is expressed, in part in the following manner: (i) All eligible employees covered by this Award are entitled to the provisions of this clause other than part time employees who receive a part time loading as prescribed by Part IV – Savings Provisions of clause 29 of this Award (known as "old part time") and casual employees; provided that these part time employees who receive a part-time loading and casual employees are entitled to parental leave in accordance with the provisions of Part4, Parental Leave, Of the Industrial Relations Act ,1996. A. Maternity Leave- (i) Eligibility- To be eligible for paid maternity leave a full time or permanent part time employee must have completed at least 40 weeks continuous service prior to the expected date of birth. An employee who has once met the conditions for paid maternity leave will not be required to work again the 40 weeks continuous service in order to qualify for a further period of paid maternity leave, unless; (a) there has been a break in service where the employee has been re-employed or reappointed after a resignation, medical retirement, or after her services have been otherwise dispensed with; or (b) the employee has completed a period of leave without pay of more than 40 weeks. In this context, leave without pay does not include sick leave without pay, maternity leave without pay, or leave without pay associated with an illness or injury compensable under the Workers Compensation Act, 1987. (ii) Portability of Service for Paid Maternity Leave- ……………………………………….. (iii) Entitlement: Eligible employees are entitled to paid maternity leave as follows:- (a) Paid Maternity Leave-an employee is entitled to fourteen weeks at the ordinary rate of pay from the date maternity leave commences. This leave may commence up to fourteen weeks prior to the expected date of birth. It is not compulsory for an employee to take this period off work. However, if an employee decides to work during the nine weeks prior to the expected date of birth it is subject to the employee being able to perform satisfactorily the full range of normal duties. Paid maternity leave may be paid: -on a normal fortnightly basis; or - in advance in a lump sum; or - at the rate of half pay over a period of twenty eight weeks on a regular fortnightly basis. Annual and/ or long service leave credits can be combined with periods of unpaid maternity leave of not more than 12 months after the actual date of birth. (b) Unpaid Maternity Leave-an employee is entitled to a further period of unpaid maternity leave of not more than 12 months after the actual date of birth. (iv) Applications- An employee who intends to proceed on maternity leave should formally notify her employer of such intentions as early as possible, so that arrangements associated with her absence can be made. Written notice of not less than eight weeks prior to the commencement of the leave should be given. This notice must include a medical certificate stating the expected date of birth and should also indicate the period of leave desired. (v)……………… (xi) Stillbirth- In the case of a stillbirth,(as classified by the Registry of Births, Deaths and Marriages) an employee may elect to take sick leave, subject to production of a medical certificate, or maternity leave. She may resume duty at any time provided she produces a doctor's certificate as to her fitness. (xii) Effect of Premature Birth on Payment of maternity leave- An employee who gives birth prematurely, and prior to proceeding on maternity leave shall be treated as being on maternity leave from the date leave is commenced to have the child. Should an employee return to duty during the period of paid maternity leave, such paid leave ceases from the date duties are resumed. 56 Exhibit A tab 31 is a copy of a Department of Health, NSW circular dated 13 May, 1987 which outlined a review of the conditions relating to maternity and adoption leave. The circular stated amongst a number of changes that from 6 March 1987 an employee was no longer required to come back to work from maternity leave and complete 62 days of service to qualify for paid maternity. The then Public Hospital Nurses (State) Award (tab 32) was varied in 1990 to take into account the variations as expressed in the previously mentioned circular. 57 It was the submission of Ms Howell that in considering the interpretation of the maternity leave clause one considered the award construction and the accompanying law and quoted from Australian Workers Union v Pasminco Australia Ltd and ors (2003) NSWIRComm365, Zoological Parks Board (2004)135IR56 at par 43 and Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks Union of Australia, New South Wales Branch(2001)106IR 217 at par 63 where a Full Bench stated: "In our view, in construing the true meaning of an industrial award like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kellegher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961]AR(NSW)312 at 314: a ) The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this can not justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having special trade significance, however, may need to be construed in that light. 58 The maternity leave clause in the award clearly defines that casual employees and part time employees who receive a particular part time loading are not eligible for paid maternity. Temporary employees who work for a period of 13 weeks or less receive an allowance of 10%. Where the employment goes beyond 13 weeks the allowance ceases to be applied. Clearly Ms Van Eede was such an employee whose contracts exceeded the 13 weeks and therefore was not paid the 10% loading. Employees who had completed at least 40 weeks continuous service prior to the expected date of birth were eligible to paid maternity leave. Such an employee was entitled to 14 weeks at the ordinary rate of pay from the date maternity leave commenced. Nothing is expressed in the award to qualify the eligibility criteria that would result in Ms Van Eede no longer being an eligible employee or one who can only receive part payment, yet part payment is what she received. 59 Both parties accepted that Ms Van Eede was an eligible employee. The eligibility statement within the maternity leave clause is clear as to who is, and who is not entitled to the payment. 60 Since at least 1990 there has been no requirement for the employee proceeding on maternity leave to actually return to work and work for a minimum period and thereby qualify for payment of said maternity leave. Parties to the making of the award must have contemplated and accepted that some eligible employees who sought and received a lump sum payment at the commencement of their maternity leave would at some stage of their maternity leave announce that they would not be returning to continue their employment. History since 1990 must have shown this to be true yet the award has not been varied to alter or restrict this practise. I cannot find anything in the expression of the maternity leave clause that allows the NCAHS to read down the benefits of the clause or allow them to qualify the entitlement of an employee by adding an additional requirement of, in the case of Ms Van Eede, continuation of employment. The conditions of employment set by an award are the minimum entitlements for an employee under that award. I accept Ms Howell's submission that the award entitlements must prevail over the terms of Ms Van Eede's contract. At the point of commencing her maternity leave Ms Van Eede was an eligible employee who in my view was entitled to the full benefits of the maternity leave clause and therefore to receive the monetary payment of 14 weeks as a lump sum payment as she had requested. 61 It is my finding that a consideration of the plain ordinary meaning of the words used in the maternity leave clause leads me to find in favour of the applicant's submission in respect of matter number IRC08/111. 62 As previously stated in this Decision having found in favour of the applicant in matter no IRC08/111, the Commission is not required to make a finding in matter no IRC08/507. 63 I make the following Order based on the applicant's Particulars of Small Claims application. ORDER 1. That the North Coast Area Health Service pay to Ms Lyndal Van Eede the sum of $20,000 plus interest. 2. That this payment must be made within 21 days of the date of this Decision. 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