Anne Warner v Insurance Australia Group Services Pty Ltd
[2012] FWA 10813
•24 DECEMBER 2012
[2012] FWA 10813 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Anne Warner
v
Insurance Australia Group Services Pty Ltd
(C2012/5514)
COMMISSIONER BISSETT | MELBOURNE, 24 DECEMBER 2012 |
Alleged dispute concerning the employer not providing a fair and equitable performance management process.
[1] This is an application by Ms Anne Warner (the Applicant) for Fair Work Australia (FWA) to deal with a dispute arising under the Insurance Australia Group Enterprise Agreement 2012 (the Agreement).
[2] Prior to dealing with the merits of the claim made by Ms Warner the Respondent, Insurance Australia Group Services Pty Ltd (IAG or the Respondent) has raised several jurisdictional objections which it says prohibit FWA from dealing with the matter.
[3] IAG has requested that those jurisdictional objections be dealt with as a preliminary matter. I have, in the interests of expediting the matter, agreed.
[4] IAG’s objections in essence go to three areas. First it says that Ms Warner has failed to articulate the ‘matter’ subject to her application. Second it says that, even if the matter has been articulated, it is a dispute relating to performance management and therefore is not a matter arising under the agreement. Third it says she has failed to complete all steps in the dispute settling procedure in the Agreement prior to bringing the matter to FWA and the capacity of FWA to arbitrate the dispute is conditional on all of the steps in that procedure being completed.
[5] Before considering these matters it is appropriate to note that I have identified an anomaly in the Agreement on which I have sought separate submissions from the parties to this dispute and those covered by the Agreement. That anomaly may have a bearing on the resolution of the jurisdictional objections.
The dispute settling procedure
[6] The procedure for resolving workplace issues is at clause 8.1 of the Agreement. That procedure states:
This procedure will ensure that issues or grievances are resolved quickly, fairly and without disruption to business operations. Where an issue or grievance arises during the term of this Agreement about matters arising under this Agreement or the NES, it will be settled according to the following procedure:
Step | Action |
1 | The Employee should first discuss the matter with their immediate Manager who must make every effort to resolve the matter. |
2 | If the matter is not resolved, or if it is not appropriate to discuss the matter with their immediate Manager, the Employee should discuss the matter with their next level Manager who will attempt to resolve the matter. Alternatively an Employee can contact their Human Resources representative directly who will work with the Employee and Manager to attempt to resolve the issue. |
3 | If the matter is not resolved at this point the Employee may, if appropriate, notify an employee representative (such as the FSU), who will discuss the matter further with the relevant Human Resources representative. |
4 | If the matter is not resolved it will be brought to the attention of the relevant Head of Human Resources. They or their nominee will discuss the matter with the Employee/their representative. (In the case of the FSU, the discussion will involve the FSU National Office). |
5 | If the matter is not resolved by the parties in steps 1-4 above, the parties may separately or jointly refer the matter to FWA for resolution. |
Employees may seek guidance and assistance from the FSU or other representative of the Employee’s choice at any stage of this process.
[7] IAG says that Ms Warner has not undertaken step 4 of the process - that is, she has not referred the matter to the Head of Human Resources who is then obliged to discuss the issue with the employee. IAG says that as Ms Warner commenced the process it is her responsibility to ensure each step is taken.
[8] Mr Hamilton, for Ms Warner, says that step 4 of the dispute resolution process does not require that the Applicant initiate step 4, just that it happens. He says Ms Warner, after a meeting with the State Manager CGU Workers Compensation and a representative from human resources, waited two weeks for some contact from the Head of Human Resources but none was forthcoming. She said she did send to the Head of Human Resources her Form F10 when it was submitted.
[9] A reading of step 4 of the process indicates a lack of precision as to who is responsible for this action. Other steps indicate that the ‘employee should’ do certain things (see steps 1 and 2) but no such direction is given in step 4.
[10] Both steps 2 and 3 indicate involvement of representatives from human resources. When these are read in conjunction with step 4 it might be taken that the human resources representative engaged at steps 2 and/or 3 is responsible for bringing the matter to the attention of the Head of Human Resources.
[11] Further it would not appear that step 3 is mandatory. It says that the employee may notify an employee representative and this representative will discuss the matter with human resources. There is nothing in this step that indicates it is a mandatory process. This suggests that not all steps of the process are mandatory.
[12] In this case the Applicant attended a meeting with the State Manager CGU Workers Compensation and a human resources representative. She anticipated that, given the non-resolution of the matter, those people would refer the matter to the Head of Human Resources. Ultimately no-one took responsibility for such a referral.
[13] I do consider however that the Applicant, having instigated the dispute settling procedure and not being content with the progress of the dispute, must take some responsibility for initiating each step in the process. She is the one who knows whether or not she is content with an answer given or if she believes the matter must be escalated in order to achieve resolution.
[14] Given the imprecision in the wording of the clause however I can understand her failure to escalate the matter and some responsibility must rest with others involved for that failure. In any event it is not clear why, if he did in fact receive a copy of the application, the Head of Human Resources did nothing to intervene to see if the matter could be resolved prior to coming before FWA.
[15] In these circumstances I recommend that the Head of Human Resources or his or her nominee meet with the Applicant and her representative at the earliest opportunity but no later than 18 January 2013 in an effort to resolve the dispute.
[16] Should that meeting not resolve the dispute - and I strongly encourage the parties to try and resolve it - the matter shall come back here for arbitration (subject to my findings below).
[17] So as not to delay matters any further it is appropriate that I deal with the other jurisdictional objections raised by the Respondent.
Has Ms Warner identified or articulated the dispute or ‘matter’?
[18] Ms Warner lodged an application for FWA to deal with a dispute on 2 October 2012. In her Form F10 Ms Warner identifies clauses 5.2, 5.4 and 5.8 as those clauses to which her dispute relates. She then sets out in some detail what she says the dispute is about. A plain reading of that application in conjunction with the clauses of the Agreement to which she refers indicate that the application of the performance system (clause 5.8) including its impact on her annual remuneration review (clause 5.2) is the matter in dispute. Ms Warner in fact provides some detail of the issues she has with the way the performance system referred to in clause 5.8 of the Agreement is being applied in her case. Whilst some of the matters raised in the Form F10 go to submissions as to why the outcome of the performance system might be wrong it does clearly identify the matter or issue to be the performance system.
[19] In a clarification of the matter in dispute provided by the Applicant on 19 November she says that clause 5.8 places obligations on IAG with respect to employee development. Further she says that clause 1 of the Agreement obliges the company to provide a healthy and safe workplace and that, by its actions, IAG is adversely affecting the health of the Applicant.
[20] I find that the Applicant has articulated the matter in dispute. The matter is the Applicant’s right to a performance system where her performance is assessed against reasonable, relevant and measurable performance expectations/goals. This, she says, has not occurred.
Is the ‘matter’ a matter arising under the Agreement?
[21] The procedure in clause 8.1 for resolving workplace issues states that where an issue or grievance arises about matters arising under the Agreement the procedure will be followed.
[22] The introductory paragraph to clause 8.1 specifies that ‘[g]rievances regarding Annual Remuneration Review outcomes are only to be resolved in accordance with the procedure set out in clause 5.4 of this Agreement.’ This is the anomaly I have separately referred the parties to. Even it is resolved so that the procedure at clause 8 does apply to remuneration review outcomes there is still a barrier in clause 5.4 to any employee subject to performance management counselling having access to a review of the remuneration outcome beyond a review by the local manager and/or human resources (clause 5.4(f)). So even if the anomaly is resolved it may not provide jurisdiction for the outcome of the Applicant’s remuneration review to be subject to arbitration. With respect to the dispute before me this only becomes an issue subject to the resolution of other matters and is perhaps best revisited after any arbitration (subject to my findings below) with respect to the Applicant and the performance system itself.
[23] There is, in my mind, no doubt that the issue that Ms Warner raises - the misapplication of the performance system, the lack of objectivity in the system - is a matter arising under the Agreement at clause 5.8.
[24] IAG says that the matter has consistently been characterised as relating to the ‘performance management system’ and the performance management system is not a matter arising under the Agreement. IAG says that the performance system at clause 5.8 of the Agreement is only the system that determines an employee’s remuneration review. This, it says, is clear from the inclusion of clause 5.8 in section 5 of the Agreement which deals with remuneration. It therefore cannot be considered to extend to performance management, which is the process the Applicant is going through.
[25] The Applicant says that when she sought information on the policy or process that was being applied in her circumstances she was told there was none.
[26] My knowledge of this case indicates that whatever the policy is that is being applied to the Applicant an outcome of this has been that she has received a negative outcome on her remuneration review (in this I do not take it that she has lost wages but that she has received little or no increase in remuneration). If this is an outcome then the process being applied to the Applicant at the moment must be that contained in clause 5.8 of the Agreement. If it were not the basis of the effect on her remuneration makes no sense.
[27] As to whether the process at clause 5.8 is or is not the process that is being applied, and if there is a separate performance management system that the Applicant is subject to, is a matter for determination in any final arbitration.
[28] It is my opinion that clause 5.8 clearly puts the performance system into the realm of the Agreement. The extent to which it is so should be a matter for evidence and submissions in the determination of the dispute.
[29] Clause 5.8 places obligations on IAG. The Applicant says these have not been met.
[30] I consider that the matters raised by the Applicant with respect to the performance system being applied to her do constitute a dispute about a matter arising under the Agreement.
[31] As to the matter relating to the obligations placed on IAG with respect to safety I agree with IAG that this has not been raised prior to 19 November 2012 and has certainly not been subject to the required steps in the dispute settling procedure. I find that I do not have jurisdiction to deal with a dispute in relation to clause 1.2 of the Agreement with respect to safety.
[32] Whilst Mr Hamilton had refined the areas in dispute in his letter of 19 November 2012 at my request and in order to expeditiously deal with the dispute, the safety issue was not raised in the original dispute notification and while the Applicant says the matters were raised with her manager this is a matter of fact in dispute between the parties.
Conclusion
[33] In conclusion I find that the Applicant has identified the matter in dispute and that it is a matter arising under the Agreement. To this extent the dispute relates to whether or not IAG has met its obligations under the performance system as set out in clause 5.8(b) of the Agreement with respect to Ms Warner. That is, has the performance of Ms Warner been assessed against reasonable, relevant and measurable performance expectations/goals?
[34] This is the question that shall be answered in arbitration.
[35] I have indicated above that discussions should take place between the Applicant and her representative and the Head of Human Resources or his or her nominee by 18 January 2013. I require that the Applicant advise my chambers by noon on 21 January 2013 if the matter has been settled. If the matter has not been settled I shall issue directions for arbitration of the matter.
COMMISSIONER
Appearances:
D Hamilton for the Applicant.
N Gingold of the Respondent.
Hearing details:
2012.
Melbourne:
December 20.
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