Australian Municipal, Administrative, Clerical and Services Union v Moira Shire Council

[2021] FWC 6261

[2021] FWC 6261

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Australian Municipal, Administrative, Clerical and Services Union
v
Moira Shire Council
(C2021/6334)

COMMISSIONER MIRABELLA MELBOURNE, 4 NOVEMBER 2021

Application to deal with a dispute – jurisdiction.

[1] On 16 September 2021, the Australian Municipal, Administrative, Clerical and Services Union (the ASU) filed an application (the Application) on behalf of Mr John Mangan (Mr Mangan) under s. 739 of the Fair Work Act 2009 (Act). The Respondent is the Moira Shire Council (Council).

[2] The Application relies on clause 31, the Dispute Settling Procedure of the Moira Shire Council Enterprise Agreement No. 9 2020-2023 (the Agreement).

[3] The Council commenced disciplinary action in relation to Mr Mangan alleging that he had engaged in serious misconduct. The ASU disputes that Council correctly followed Council’s Disciplinary Policy and Procedure and submits that this enlivens clause 31 of the Agreement.

[4] The matter was listed for Mention/Conference on 27 September 2021. I expressed the preliminary view that the Fair Work Commission (the Commission) may not have jurisdiction to deal with the dispute and directions were issued for the filing of submissions on the issue of jurisdiction. Submissions were subsequently filed by the ASU on 8 October 2021, the Council on 15 October 2021, with the ASU’s reply submission filed on 20 October 2021.

[5] On 20 October 2021, after receiving the ASU’s reply submission, I sought a further submission from them in response to issues raised in the Council’s submission at paragraph 24, specifically regarding Mr Mangan’s employment contract and a copy of same.

[6] On 20 October 2021, the ASU responded to my request with a further submission and attached a copy of Mr Mangan’s initial Letter of Offer and Position Description date stamped 22 March 2010.

[7] On 21 October, the parties indicated they were content to have the matter determined on the papers.

[8] I will decide the matter based on the materials filed in the Commission.

Background

[9] Mr Mangan is employed by Council in the position of “Coordinator Waste Management Services”. He has been employed by Council since 2010.

[10] By way of a letter from the Council’s CEO, Clare Keenan, to Mr Mangan dated 2 September 2021, Council began a disciplinary process alleging Mr Mangan had engaged in acts of serious misconduct. The letter details the allegations as follows:

“On or about Thursday 19 August 2021, after attending the televised funeral of Mr Rick Devlin at Burkes Hotel, you spoke with Councillor Elliot and informed him of the following employment matters:

1.1.1 by you telling your side of the story on an issue that you believed ‘might come up at a Council briefing’ and that ‘the truth may be bent slightly by Council officers in its presentation’;

1.1.2 by stating words to the effect that ‘Andrew Close is a bullshit artist’;

1.1.3 by stating words to the effect that ‘Sally Rice is incompetent’;

1.1.4 by stating words to the effect that ‘Simon Rennie is a stalker and more than probably the reason a lot of women have left Council’.”

[11] The letter informed Mr Mangan that his employment was suspended “until the matter is resolved.” Over the following two weeks, correspondence between Council, the ASU and Mr Mangan included concerns about the suspension, denials of the allegations and requests for an extension of time to respond to same, culminating in a “show cause” letter from Council to Mr Mangan on 15 September 2021. The following day, the Application was filed with the Commission.

Relevant law and consideration

[12] Sections 738 and 739 of the Act provide the jurisdictional basis for the Commission to deal with disputes between employees and their employers. The sections are set out below.

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[13] The Application relies on a dispute resolution procedure in the Agreement at clause 31 “Dispute Settling Procedure”.

[14] There are two relevant sub-clauses of clause 31, seemingly covering different issues that could give rise to a dispute under the Agreement. The first one is clause 31.2:

“If a dispute arises about this agreement, or the NES or any other work-related matter (including a dispute about whether a workplace rights has been breached) the parties to this dispute will attempt to resolve the dispute at the workplace level.”

[15] Sub-clauses 31.3 and 31.4 proceed to describe the rights of a union representative appointed to “perform the role”. Presumably this is a reference to the role of attempting to resolve an issue in dispute under 31.2.

[16] The second sub-clause is 31.5, the relevant parts being:

“31.5

Where a dispute occurs (whether any such dispute or claim arises out of the operation of this Agreement or not) regarding the wages and conditions of employment of any employee covered by this Agreement, the following procedure shall apply…

31.5.5

Any dispute shall, in the first instance, be discussed between the employee(s) concerned, their representative if requested, and the immediate line manager. The line manager or supervisor must make a genuine attempt to resolve the matter speedily.”

[17] If an Agreement, as in this case in this matter, has been drafted to provide for two separate dispute resolution clauses, each covering different matters (even though there may be some overlap between the matters covered) with different processes for resolving respective disputes, the clauses cannot be treated as being one clause or, for all intents and purposes, being the same clause.

[18] There is a difference between the phrases “any other work-related matter” as per clause 31.2 and “conditions of employment” in clause 31.5. They are not interchangeable terms. A plain reading of the terms would indicate that the former would encompass a broader range of issues than would the term “conditions of employment”. A disciplinary process operating in a workplace can more readily be said to be “a work-related matter”. To interpret it otherwise would be to apply a “narrow and pedantic” interpretation. 1

[19] The process for resolving a dispute of the matters described in clause 31.2 is limited to a resolution at the workplace level. In contrast, the process for resolving matters encompassed in 31.5 allows for referral to the Commission.

[20] If the Disciplinary Policy and Procedure is encompassed by clause 31.2, a dispute in relation to it does not lead to a referral to the Commission, whereas a dispute of matters under clause 31.5 can lead to referral to the Commission as per sub clause 31.5.5.

[21] Clause 31.5 is in two parts. Firstly, the dispute must occur “out of the operation of this Agreement or not”. That is, the matter can be outside those matters canvassed in the Agreement. But that is not enough to enliven the clause. The dispute must be in relation to the “wages and conditions of employment”.

[22] Accordingly, the question of whether the Commission has jurisdiction to deal with the Application depends on whether or not the Council’s Disciplinary Policy and Procedure, is to be properly characterised as forming part of Mr Mangan’s “conditions of employment” as per clause 31.5.

Is Council’s Disciplinary Policy and Procedure a “condition of employment”?

[23] Mr Mangan and the ASU assert that a condition of Mr Mangan’s employment is an entitlement to an appropriate, fair and independent investigation where there are allegations of behaviour constituting serious misconduct, via clause 3.3 of Council’s Disciplinary Policy and Procedure.

[24] What has been produced as the contract of employment is the letter of offer from Council to Mr Mangan dated 11 March 2010. It attaches a Position Description detailing authorities and responsibilities for the position “Program Coordinator – Waste & Recycling” which was offered to and accepted by Mr Mangan. The letter states: “…your conditions of employment will be in accordance with the Moira Shire Council Enterprise Agreement Number 5”. It does not state: “...your conditions of employment will be in accordance with the Moira Shire Council Enterprise Agreement Number 5 and Council policies as varied from time to time”.

[25] The Position Description includes several headings. “Accountability and Extent of Authority” is one of these headings which is followed by a preamble and six dot points. The fourth dot point states that “[f]reedom to act is set by policies, objectives and budgets”. It is unclear how the phrase “freedom to act” is set by a policy giving rise to an entitlement to an appropriate, fair and independent investigation where there are allegations of behaviour constituting misconduct. The phrase, in and of itself, does not establish that the Council’s Disciplinary Policy and Procedure is a condition on Mr Mangan’s employment.

[26] Neither the Enterprise Agreement referred to in paragraph 24 above or its most recent iteration, the Moira Shire Council Enterprise Agreement No.9 2020-2023, include any express reference that Council policies are incorporated as “conditions of employment.” Absent an express incorporation of Council policies into the conditions of Mr Mangan’s employment, can it be implied that the Disciplinary Policy and Procedure forms part of his conditions of employment?

[27] The ASU submits that the Disciplinary Policy and Procedure forms part of Mr Mangan’s employment contract in that it “contains "mutual obligations" which are sufficiently identifiable and certain and therefore the policy is contractually binding on the employer. See James v Royal Bank of Scotland, McKeith v Royal Bank of Scotland [2015] NSWSC 243 [40]-[41].”

[28] The Respondent submits that the disciplinary process is not part of Mr Mangan’s employment contract and that it cannot arise under the Agreement as a “condition of employment”.

[29] Favouring the view that the Disciplinary Policy and Procedure is an implied term of Mr Mangan’s conditions of employment are the following.

[30] In its letter dated 2 September 2021, Council proceeds on the basis that the Employee Code of Conduct imposes obligations on Mr Mangan and that the Disciplinary Policy and Procedure is operative.

[31] The Employee Code of Conduct states that “this Code of Conduct prescribes the behaviour expected of all employees at Moira Shire”. The Disciplinary Policy and Procedure details the process that Council must follow in disciplining an employee who has not complied with the Employee Code of Conduct, including that a matter to be dealt with “in an appropriate, timely and fair manner”.

[32] The obligations of Mr Mangan, as an employee, to abide by the Employee Code of Conduct and Council to follow the Disciplinary Policy and Procedure, are obligations that form part of the conditions under which Mr Mangan is employed. 2

[33] The Local Government Act2020 (Vic) (LGA Act) requires that a Chief Executive Officer of a Victorian Local Government “must develop and implement a code of conduct for members of council staff” 3and that the code must include provisions to take disciplinary action.4 Both the Employee Code of Conduct and the Disciplinary Policy and Procedure are conditions of Mr Mangan’s employment as they have been implied by law through the application of the LGA.5

Conclusion

[34] After considering all relevant matters, I find that the Disciplinary Policy and Procedure is implied as being part of Mr Mangan’s conditions of employment. It follows that the dispute resolution clause 31.5 of the Agreement encompasses a dispute in relation to the Disciplinary Policy and Procedure and that the Commission has jurisdiction to deal with the dispute.

[35] The matter will be relisted for conference.

COMMISSIONER

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 1   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd[2017] FWCFB 3005, [46].

 2   Public Service Association (SA) Inc v State of South Australia & Ors [2012] SASCFC 66, [58].

 3   Local Government Act2020 (Vic) s. 49(1).

 4   Ibid. s. 49(3)(b).

 5 [2012] SASCFC 66, [58].