Australian Municipal, Administrative, Clerical and Services Union -and-Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia -and-Association of...
[2015] FWC 8971
•24 DECEMBER 2015
| [2015] FWC 8971 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Municipal, Administrative, Clerical and Services Union
-and-
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-and-
Association of Professional Engineers, Scientists and Managersv
Essential Energy
(C2015/6340, C2015/6355, C2015/6363)
COMMISSIONER JOHNS | SYDNEY, 24 DECEMBER 2015 |
Alleged dispute concerning the placement of employees into a meaningful work placement under the Essential Energy Enterprise Agreement 2013 and the Management of Surplus Employees Policy
Introduction
[1] This decision involves applications brought by the Australian Municipal, Administrative, Clerical and Services Union (USU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) and the Association of Professional Engineers, Scientists and Managers (APESMA) (collectively, the Unions/applicants) under section 739 of the Fair Work Act 2009 (FW Act).
[2] Essential Energy is the respondent (respondent).
[3] The parties are covered by the Essential Energy Enterprise Agreement 2013 (Agreement). The Agreement took effect on 16 July 2014 and has a nominal expiry date of 30 June 2015, and remains in effect. Clause 3.7 of the Agreement relates to redundancy. It provides that,
The redundancy policy for the term of this Agreement is the Essential Energy Redundancy Policy (Management of Surplus of Employees) dated 20 November 2013. (Policy)
[4] The Policy, therefore, is incorporated by reference into the Agreement. However, although dated 20 November 2013, the Policy took effect from 16 July 2014 (i.e. the commencement date of the operation of the Agreement following approval of the Agreement by the Commission on 9 July 2014).
[5] The present dispute arises out of the operation of the Policy; specifically, that part of the Policy which provides that,
Employees who are not placed into an acceptable alternative permanent position and who are not taking voluntary redundancy will be referred to the Employee Mobility section for redeployment. While the HR Manager and employee are working towards finding an appropriate permanent position, the employee will be placed into a meaningful work placement.
(emphasis added)
[6] On 13 October 2015 the respondent wrote to about 57 employees (classified as redemployees). Employees who received the letter were advised that their “substantive position is access to Essential Energy’s business requirements and you will be redeployed effective 19 October 2015.” The employees were advised that there were two options available to them:
1. no longer attend for work, as there is no meaningful work for you to perform;
2. complete a four week career transition program.
[7] The Unions submit that the direction to “no longer attend for work” is inconsistent with the Policy which requires, the Unions submit, that Essential Energy place employees “into a meaningful work placement”.
[8] Between 13-14 October 2015 each of the Unions made application to the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute settlement procedure in the Agreement.
[9] On 16 October 2015 the Commission (Senior Deputy President Hamberger) issued an interim decision 1 and order2 in relation to the dispute. The purpose of his Honour’s decision was to ensure that the status quo was maintained until the matters in dispute were able to be finally determined. His Honour was satisfied that there was a serious case to be tried and the balance of convenience favoured making the decision and the order. His Honour ordered that:
1. the respondent is restrained from giving effect to any direction, given to employees it has described as “redeployees in underfunded positions” on 13 October 2015, that they not attend for work…
2. …
3. The respondent is to place employees subject of the direction in a meaningful work placement as defined by the Management of Surplus Employees Policy.
[10] The dispute was the subject of attempts at mediation, but remained unresolved.
The hearing
[11] The applications were listed for substantive hearing on 18 December 2015.
[12] Having regard to the complexity of the matter the Commission, as presently constituted, was satisfied that it would be assisted in the efficient conduct of the matter if it granted permission to all parties to be represented under s.596(2)(a) of the FW Act. Consequently, at the hearing:
a) the Unions were represented by Ms Lisa Doust of counsel. Ms Doust tended a witness statement by Scott McNamara 3, a manager within the energy and utilities branch of the USU. The respondent raised a number of objections to Mr McNamara’s witness statement on the basis that it contained hearsay, stated conclusions and opinions and also contained material objected to on the basis of relevance. Subject to those objections the respondent did not require Mr McNamara for cross-examination.
b) the respondent was represented by Mr Yassen Shariff of counsel. Mr Shariff called Peter Smith to give evidence. Mr Smith is the respondent’s Manager of Industrial Relations and had previously filed a witness statement 4. The Unions objected to parts of Mr Smith’s statement on the same basis that the respondent had objected to parts of Mr McNamara’s statement. Mr Smith was cross-examined by Ms Doust.
Jurisdiction of the Commission
[13] The submissions of the applicants properly set out the jurisdiction of the Commission as follows:
8. Section 738(b) of the FW Act provides that Division 2 of Part 6-2 of the FW Act (which sets out the dispute settlement powers of the Commission) applies if, “an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6)”. Clause 1.15 Dispute and Grievance Resolution Procedure of the Agreement is such a term.
9. Clause 1.15 concerns “all disputes arising out of the employer-employee relationship.” It prescribes procedures in respect of both “Local Matters” (clause 1.1 5.2) and “Corporate-wide issues” (clause 1.15.3).
10. In relation to both local matters and corporate-wide issues, the Agreement provides recourse to the Commission. Tier 3 of clause 1.15.3 provides (relevantly):
If the issues remain unresolved, the matter may be referred to the Fair Work Commission for conciliation and/or arbitration with the rights of the parties to appeal being reserved.
11. In this matter, the parties asked the Commission to exercise powers of arbitration. Section 595(3) of the FW Act allows the Commission to exercise those powers.
[14] The Commission “must not make a decision that is inconsistent with [the FW Act] or [the Agreement].” 5
Background
[15] The following matters were either common ground between the parties or not otherwise contested:
a) Essential Energy is a NSW Government-owned corporation with responsibility for building, operating and maintaining Australia’s largest electricity network and delivering essential network services to more than 800,000 homes and businesses across 95% of NSW and parts of Southern Queensland.
b) Essential Energy is subject to regulation by the Australian Energy Regulator (AER) under the Competition and Consumer Act 2010 (Cth).
c) In April 2015 the AER issued a determination which had the effect of significantly reducing the amount of revenue which Essential Energy can recover for the 2014 – 2019 regulatory period.
d) Essential Energy claims that the determination has left it without funding for approximately 1395 employee positions out of the current total workforce of approximately 3500 employees.
e) The cost to the respondent of these unfunded jobs from 1 July 2015 is 14.7 million per month. Essential Energy is not permitted to raise this money by way of increasing revenue from electricity customers and therefore has to continue to fund the shortfall by way of debt.
f) The reduction in revenue means Essential Energy has had to reduce its operating expenditure and capital expenditure. Consequently, Essential Energy has had to adjust its work plans for the next five year regulatory period which means work must be done in a more efficient manner and with less resources. Further its capital works program has been significantly reduced with a direct impact on capital works which had previously been planned. Further, because of a significant upgrade on the network in the last regulatory period, less upgrade work and maintenance is required, resulting in lower workforce requirements.
g) Further, Essential Energy has made significant inroads into other areas of expenditure in order to reduce costs such as reducing the fleet by approximately 40% since 2012, reducing over time and reducing travel related expenditure.
h) Labour remains the single largest cost for Essential Energy. However, Essential Energy is prevented from implementing forced redundancies by virtue of the Agreement and Policy. 6
i) Since the AER Determination, Essential Energy has sought to meet the challenge by identifying roles which are no longer required to be performed. This process has been facilitated by the Redundancy Consultative Committee.
j) As at 1 July 2015 Essential Energy identified 700 positions as being no longer required as a result of Phase 1 of the reductions necessary to meet the AER Determination. Phase 2, involving a reduction of a further 695 positions will commence in early 2016. Ultimately as a result of the Phase 1 and Phase 2 reductions Essential Energy go from a workforce of around 3888 to approximately 2493.
k) As at 13 October 2015 there were approximately 308 employees who are classified as a redeployee.
l) On 13 October 2015 the respondent wrote to about 57 employees (classified as redemployees). Employees who received the letter were advised that their “substantive position is access to Essential Energy’s business requirements and you will be redeployed effective 19 October 2015.” The employees were advised that there were two options available to them:
1. no longer attend for work, as there is no meaningful work for you to perform
2. complete a four week career transition program.
m) While an employee is not at work they will be provided with a mobile phone to enable contact as required with the relevant case manager or direct manager. It is proposed that if the redeployee is required to attend for work, 48 hours’ notice of any requirement will be given.
n) There is no salary saving to Essential Energy if employees remain at home. This is because they will continue to receive their base rate of pay while they are at home.
o) However, there is a cost of having a redeployee in the workplace and creating a “meaningful work placement” where one is otherwise not available. According to the uncontested evidence of Mr Smith those costs include:
i. the cost of providing on-going training or career transition programs;
ii. the administrative resources needed to facilitate the “meaningful work placement”; and
iii. consumables and resources such as electricity and vehicles.
Issue in dispute
[16] The parties agreed that the question to be answered by the Commission is as follows:
Is Essential Energy entitled (under the Essential Energy Enterprise Agreement 2013 and the Management of Surplus Employees Policy dated 20 November 2013) to issue a direction to redeployees not to attend for work in circumstances where it asserts there is no meaningful work placement (as defined in the Policy)?
[17] Essential Energy urges the Commission to answer the question in the affirmative.
[18] The Unions would have the Commission determine that the answer to the question is “No, because there could never be a situation where there is no meaningful work placement.” 7
Unions submit that, purely in the context of a redeployment situation, Essential Energy can never direct its employees to stay at home. 8
Evidence
[19] The Unions’ witness, Mr McNamara, did not give any evidence about the making of the Agreement or the Policy.
[20] The evidence of Mr Smith was that,
“The Policy was adopted during negotiations for the Agreement after the following process:
a) after the Unions proposed that the provisions of any redundancy policy be the same or similar to the Endeavour Energy policy, Essential Energy presented the bargaining representatives with a copy of the relevant policy at Endeavour Energy as a proposed redundancy policy;
b) the Unions requested a number of changes to the Endeavour Energy policy, some of which were agreed;
c) the parties to the Agreement then agreed to the final wording of the redundancy policy and agreed that it would be referred to in the Agreement;
d) the issue of the Policy with the last issue to be resolved during negotiations, with the exceptions of the scope; and
e) the Policy was provided to employees during the process of voting on the Agreement.” 9
Principles of construction of agreements
[21] A Full Bench of the Commission has gone to great lengths to set out the relevant principles concerning the construction of agreements. In The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited (Golden Cockerel) 10 the Full Bench set out the relevant authorities. Having set out the relevant authorities the Full Bench distilled the following principles:
[41]From the foregoing, the following principles may be distilled:
1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
[22] The Commission, as presently constituted, adopts the reasoning of the Full Bench in Golden Cockerel and the authorities it referred to.
Submissions
[23] In the present matter there is a dispute between the parties about the operation of the Policy which provides that,
Employees who are not placed into an acceptable alternative permanent position and who are not taking voluntary redundancy will be referred to the Employee Mobility section for redeployment. While the HR Manager and employee are working towards finding an appropriate permanent position, the employee will be placed into a meaningful work placement.
[24] The Applicant submitted that:
a) Under the Policy where “roles are no longer required”, Essential Energy is obliged to “consider the suitability of the redeployee for all vacant position for advertising” and to provide the employee with “the necessary support and assistance to ensure the redeployee is provided with the best opportunity to being successful in obtaining a vacant position.”
b) A redeployee is expected to accept redeployment to a “suitable vacancy”, or a position that he/she has a necessary skills and qualifications to perform.
c) Where a redeployee does not wish to be redeployed to another role, the Policy provides that the employee may request to be considered for voluntary redundancy.
d) The obligations on Essential Energy under the Policy are not time limited.
e) Taken together, on a proper reading of the Policy:
i. where an employee’s position is no longer required, they must be considered for an acceptable alternative role;
ii. where the employee is not placed into such a position, and does not ask for a voluntary redundancy, the redeployee is referred to the Mobility Section;
iii. Essential Energy is to consider the employee for all available roles;
iv. Essential Energy is obliged to assisted the employee to obtain such role;
v. the employee may not be forcibly retrenched;
vi. the obligation to place an employee into a “meaningful work placement” subsists while;
A. the employees’ position is not required;
B. employee has not been placed, either into an “acceptable alternative position” or a “suitable vacancy”;
C. that employee has not elected to take or seek voluntary redundancy.
f) The duties, activities and features associated with a “meaningful work placement” contrast with those of the employee’s “substantive position”, and “acceptable alternative position” and a “suitable vacancy”. Such a placement need not involve work within the employee’s expertise, or which would ordinarily attract a salary equivalent to that [which] the employee earns. A much greater range of activities and duties is contemplated by the term.
g) The use of the words “will be placed” to describe the employer’s obligation to provide a “meaningful work placement” makes it clear that the obligation is mandatory. No discretion is reserved for the employer to decline to perform that obligation.
h) Further, the term “meaningful work placement” is not confined to already existing roles or position. So much follows of the matter of logic from the fact that a meaningful work placement is a position to be occupied by an employee’s role has been identified as surplus. The use of the term “any” at the outset of the definition and the reference to training, workshops, project work or specific tasks and activities to enhance or increase an employee’s skills, knowledge or experience provide further voice for that view. Satisfaction of the obligation may require more than that the employer look through its records to identify existing vacant positions.
i) Properly understood, the Agreement and the Policy do not allow Essential Energy to direct employees to select from amongst options including not attending for work.
[25] The Respondent submitted that:
a) Nothing in the Agreement displaces the common law rights including that there is no obligation on Essential Energy to provide work.
b) To the extent that the Policy imposes a requirement on Essential Energy to place a redeployee into a “meaningful work placement”, such obligation does not require Essential Energy to create a new position and is limited to instances where a “meaningful work placement” is available.
c) The meaning of the phrase “meaningful work placement” is expressly defined to be measured from the viewpoint of what Essential Energy “feels” would be suitable and by reference to the ordinary meaning of the word “meaningful”. The word “meaningful” connotes that the available work must be significant, that is productive or of value.
d) In the present circumstances having regard to the unprecedented number of redeployees there are no “meaningful work placement”s available.
e) In the circumstances, the direction not to attend work is not prohibited and is entirely lawful.
[26] The Commission, as presently constituted, has had regard to all of the submissions of the parties.
Consideration
[27] All of the parties contend that the Commission should have regard to the plain and ordinary meaning of the words in the Agreement and the Policy. Counsel for both the Unions 11 and the respondent12 submitted that neither the Agreement nor the Policy are ambiguous or susceptible to more than one meaning.
[28] It is necessary therefore to apply the Golden Cockerel principles.
1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
[29] The AI Act is not to be and has not been applied to the Commission’s interpretation of the Agreement and the Policy.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
[30] All parties contend that the Agreement and Policy have a plain meaning.
[31] The starting point for the analysis, therefore, is the text of the Policy. The relevant paragraph provides as follows,
Employees who are not placed into an acceptable alternative permanent position and who are not taking voluntary redundancy will be referred to the Employee Mobility section for redeployment. While the HR Manager and employee are working towards finding an appropriate permanent position, the employee will be placed into a meaningful work placement.
[32] For present purposes, the relevant part of the paragraph cited above is the last sentence.
[33] None of the authorities suggest that context is not important. Context is important and the starting point is always the text, considered in context, having regard to purpose.
[34] Parties to an industrial agreement may define any term they like in any way that they like. If parties to an enterprise agreement want to define the word “black” to mean “white”, then it would be open to them to do so and, thereafter, where-ever the word “black” appears in the enterprise agreement it will mean “white”.
[35] Left to its own devices it might have been open to the Commission to define “meaningful work placement” to mean something consistent with the ordinary meaning of “meaningful”, i.e. something that is significant or of value (to the employer).
[36] However, in the present matter the parties decided to define the meaning of the phrase “meaningful work placement”.
[37] In the definitions section of the Policy it is defined as follows,
meaningful work placement
Any position that the Company feels is suitable for the redeployee prior to a permanent position becoming available through redeployment. It can involve undertaking; the duties of someone on leave, to act will be secondment temporarily into a vacant position; project work or specific tasks and/or activities to increase or enhance an employee’s current knowledge, skills and experience. This may include attending training and/or workshops.
[38] In order to properly understand the plain meaning of the Policy is necessary to substitute the defined term (“meaningful work placement”) into the relevant paragraph. The result is as follows:
While the HR Manager and employee are working towards finding an appropriate permanent position, the employee will be placed into any position that the Company feels is suitable for the redeployee prior to a permanent position becoming available through redeployment.
(emphasis added)
[39] In order to understand the plain meaning of the paragraph it is necessary to understand, or give meaning to, the following phrases:
a) “the Company feels is suitable”;
b) “will be”; and
c) “any position”.
[40] Putting aside the fact that a corporate person cannot “feel” anything, it must have been the intention of the parties to the Agreement that Essential Energy is invested with a wide discretion when faced with the circumstances described in the paragraph
[41] However, that does not mean that the respondent has carte blanche (i.e. to do whatever it likes). Any discretion of this nature must be exercised in good faith and for a proper purpose. Essential Energy is required to act reasonably and on reasonable grounds. Where employees are to be affected by its exercise of the discretion it must provide them with procedural fairness.
[42] The use of the verb “will” denotes inevitability about what must occur. It is inescapable that it invests the obligation imposed upon Essential Energy with some mandatory force. The respondent must place the employee somewhere.
[43] That somewhere is “any position”. What that “position” might be is given meaning by the balance of the definition of “meaningful work placement”. The Policy provides as follows,
It can involve undertaking; the duties of someone on leave, to act will be secondment temporarily into a vacant position; project work or specific tasks and/or activities to increase or enhance an employee’s current knowledge, skills and experience. This may include attending training and/or workshops.
[44] What is to be observed is that, nothing in the definition that the parties turned their mind to and agreed upon contemplates a “position” other than one that is at work. The non-attendance of an employee at work is not a “position” (as contemplated by the Policy). It follows that employees cannot be directed not to attend work.
[45] The operation of the Policy, therefore, is an exception to the general rule that there is no common law right to be provided with work (except in particular circumstances). It is no doubt a unique circumstance and one that goes against the oft quoted statement of the Right Honourable Cyril Asquith, Baron Asquith of Bishopstone Kt, PC, QC in Collier -v- Sunday Referee Publishing Co 13 that,
It is true that a contract of employment does not necessarily, or perhaps normally, oblige the master to provide the servant with work. Provided I pay my cook her wages regularly she cannot complain if I choose to take any or all of my meals out. In some exceptional cases there is an obligation to provide work. For instance, where the servant is remunerated by commission, or where (as in the case of an actor or singer) the servant bargains, among other things, for publicity, and the master, by withholding work, also withholds the stipulated publicity.
(emphasis added)
[46] By express terms parties to an enterprise agreement can override what would otherwise be their common law rights. That is what the parties to this Agreement did. There could be no clearer statement of their intent and purpose in this regard. Essential Energy has promised to provide employees with a “meaning work placement” (as defined). It cannot direct them to stay at home. Put another way (adopting the Asquith analogy) Essential Energy has promised to eat at home.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
[47] The applicants submitted that the Commission should consider the obligation in the Policy in the context of a broader meaning of what it means to work.
[48] In particular the Unions relied upon the decision in Quinn v Overland 14. In that decision his Honour, Mr Justice Bromberg, noted that there have been “changed social attitudes” that mean that,
There is now a greater recognition than ever that employment is important to an employee not simply because it provides economic sustenance. Workplaces are a hub of important human exchanges which are vital to the well-being of individual workers. Work provides employees with purpose, dignity, pride, enjoyment, social acceptance and many social connections. As well, the performance of work allows for skill enhancement and advances career opportunities. These non-pecuniary attributes of work are important and their denial can be devastating to the legitimate interests of any work, either skilled or unskilled. 15
[49] Ms Doust’s submission in this regard was, at first blush, seductive. No doubt his Honour was correct in his assessment of work and the dignity of work. However, that assessment is irrelevant to the task before the Commission in the present matter. In deciding upon the plain meaning of the Agreement and the Policy the Commission, as presently constituted, has not had regard to the extraneous policy considerations that the Unions urged upon it. To do so would have resulted in the Commission falling into error.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
[50] Having determined that the Agreement and Policy have a plain meaning the Commission, as presently constituted, has not had regard to evidence of surrounding circumstances.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
[51] The language of the Agreement and Policy is not ambiguous or susceptible to more than one meaning. Consequently, the Commission, as presently constituted, has not had regard to evidence of the surrounding circumstances to assist it in the interpretation of either the Agreement or Policy.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
a. evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
b. notorious facts of which knowledge is to be presumed;
c. evidence of matters in common contemplation and constituting a common assumption.
[52] This principle is not relevant in the present matter.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
[53] This principle is not relevant in the present matter.
8. Context might appear from:
a. the text of the agreement viewed as a whole;
b. the disputed provision’s place and arrangement in the agreement;
c. the legislative context under which the agreement was made and in which it operates.
[54] This principle is not relevant in the present matter.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
[55] The Commission, as presently constituted, has not had regard to the subjective intentions or expectations of the parties. It is evident from all the surrounding circumstances that the objective intention of the Policy was to provide redeployees with an advantage above and beyond an employer’s usual non—obligation, at common law, to provide an employee with work. In the present matter, Essential Energy must provide redeployees with a “meaningful work placement” (as defined by the Policy).
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
[56] No rewriting of the Agreement has been undertaken in coming to the decision in this matter. The Commission, as presently constituted, has interpreted the Agreement produced by the parties (which incorporates the Policy into it) and contains a considered and agreed term about the respondent’s obligation to place employees “into a meaningful work placement” as defined in the Policy.
Conclusion
[57] Having considered all that has been submitted in these proceedings and the relevant authorities, for the reasons set out above, the Commission, as presently constituted, has determined that it should answer the agreed question as follows:
Question: | Is Essential Energy entitled (under the Essential Energy Enterprise Agreement 2013 and the Management of Surplus Employees Policy dated 20 November 2013) to issue a direction to redeployees not to attend for work in circumstances where it asserts there is no meaningful work placement (as defined in the Policy)? |
Answer: | No. |
[58] Consequently, consistent with the interim order made by the Senior Deputy President, an order to the following effect will be issued with this decision.
The respondent:
a) is restrained from giving effect to any direction, given to employees it has described as “redeployees in underfunded positions” on 13 October 2015, that they not attend for work; and
b) must place employees subject of the direction in a meaningful work placement as defined by the Management of Surplus Employees Policy.
COMMISSIONER
Appearances:
Ms L Doust ofcounsel for the applicants
Mr Y Shariff of counsel for the respondent
Hearing details:
Sydney,
18 December
2015
1 ['2015] FWC 7147.
2 PR573003.
3 Exhibit “A2”.
4 Exhibit “R2”.
5 Section 739(5) of the FW Act.
6 [2015] FWC 6931.
7 Transcript PN76-77.
8 Transcript PN 87-88.
9 Exhibit “R2”, para 9.
10 [2014] FWCFB 7447.
11 Transcript PN161-174.
12 Transcript PN304-305.
13 [1940] KB 647.
14 [2010] FCA 799.
15 [2010] FCA 799, para [101].
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