Australian Municipal, Administrative, Clerical and Services Union v Royal Automobile Association of South Australia Inc

[2014] FWC 6363

[2014] FWC 6363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Municipal, Administrative, Clerical and Services Union
v
Royal Automobile Association of South Australia Inc
(C2014/1100)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 12 SEPTEMBER 2014

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - jurisdiction established by agreement.

[1] On 23 June 2014 the Australian Municipal, Administrative, Clerical and Services Union (the ASU) lodged an application pursuant to s.739 of the Fair Work Act 2009 (the FW Act) and clause 7 of the RAA Assistance Centre Agreement 2012 (the Agreement), through which it sought the assistance of the Fair Work Commission (FWC) to resolve a dispute relating to a warning given to Mr Miller, in November 2013.

[2] The application was listed for a conciliation conference. This conference was cancelled after the RAA advised, on 22 July 2014, that it did not consider that the application related to a matter arising from the Agreement or from the National Employment Standards (NES) and hence, disputed the jurisdiction of the FWC.

[3] This jurisdictional issue was defined in the following terms:

Does the Agreement establish the jurisdiction for the FWC to consider the dispute lodged by the ASU on 23 June 2014, on behalf of Mr Miller?

[4] Both parties agreed with this description of the jurisdictional issue and also agreed to provide written submissions and material in accordance with an established schedule. I have considered the jurisdictional issue on the basis of this material and the provisions of the Agreement.

[5] The application states: 1

“4.1 Mr Robert Miller is a Member of the Applicant and an employee of the RAA (the Respondent).

4.2 On 12 November 2013 Mr Miller received written notification of an allegation of misconduct and the request to attend a meeting. The meeting was originally scheduled for 13 November 2013. Mr Miller sought to defer the meeting to a later date in order to arrange representation by the ASU. The meeting was rescheduled for 20 November 2013.

4.3 The allegations put to Mr Miller stated:

"On the 4th of November 2013 you allegedly breached RAA policy when you failed to comply with the Code of Conduct by raising your voice at a consultant in an inappropriate manner causing distress to the consultant. In addition you have allegedly failed to comply with your position description accountability requirements, by refusing to listen to call recording and guidance, when requested by the consultant."

4.4 Mr Miller attended the meeting with a representative of the Applicant and denied the allegations.

4.5 On 21 November 2013 Mr Miller attended a further meeting and was issued with a written warning in relation to the outcome of the investigation. The written warning was dated 12 November 2013; the same date as the written notification of the allegations.

4.6 The ASU wrote to Mr Ben Nottage, Senior Manager Member Operations, seeking to have the matter further investigated and the written warning withdrawn. Mr Nottage responded to the request, by email23 December 2013, in which he confirmed the issue of the written warning to Mr Miller.

4.7 The Applicant disputes the issue of the written warning to Mr Miller submitting that the Respondent has not acted in accordance with clause 10.9 of the RAA Assistance Centre Agreement 2012. In particular, contrary to clause 10.9.3 the Respondent has not approached the resolution of the workplace conflict in 'an unbiased manner in accordance with the principles of natural justice'.

4.8 The Applicant submits that the Respondent failed to adequately investigate the matter. In particular, that several key witnesses were not interviewed or asked to submit witness statements. The Applicant submits further, that relevant and available voice recordings in relation to the allegations, that support Mr Miller's position, were not listened to during the course of the investigations. It is alleged further that material evidence in which the Respondent has relied in their investigation has never been made available to the Applicant or Mr Miller. The Applicant intends to submit detailed written evidence supporting these assertions to the Commission.

4.9 The Applicant submits that the date of the written warning, 12 November 2013, was the same date as the written notification of the allegations. Accordingly, the date of the written warning pre-dates the meeting of 20 November 2013 in which Mr Miller defended the allegations. This tends to indicate that the issue of the written warning was a pre-determined outcome.”

[6] Clause 7 of the Agreement details the entirety of the dispute resolution process. The only issue in dispute relates to clause 7.1 which states:

“7.1 If a dispute relates to:

7.1.1 a matter arising under the agreement; or

7.1.2 the National Employment Standards;

this term sets out procedures to settle the dispute.”

[7] The RAA position is that the Agreement dispute resolution process must be read as replacing the dispute resolution process in the RAA Assistance Centre Award and that clause 7.1 requires that Mr Miller's concerns must be about "a matter arising under this Agreement". 2

[8] The RAA asserts that the application relies on clause 10.9 of the Agreement which deals with issues of workplace discrimination, bullying and harassment and does not deal with the subject of warnings or other forms of disciplinary action. 3 It further contends that no other provisions of the Agreement deal with the issues of warnings or disciplinary action, such that a dispute about those issues is not able to be described as a matter arising from the Agreement.

[9] Specifically with respect to Mr Miller, the RAA asserts that it did not put allegations about bullying or harassment to him, and did not act on complaints of that nature. The RAA asserts that the warning given to Mr Miller concerned:

1. The manner in which he spoke with a co-worker, and
2. his lack of supervision of that person.

[10] The RAA asserts that Mr Miller has not pursued bullying allegations against it.

[11] Accordingly, the RAA asserts that the matter raised in the application cannot be described as a matter arising under the Agreement or the NES.

[12] In support of its submissions, the RAA provided various statements from managers relative to the matter in dispute.

[13] The ASU provided a statement made out by Mr Miller. In that statement, Mr Miller asserts that he attempted to resolve his concerns about his warning through the RAA Grievance Procedure and he argues that this attempt was not fairly dealt with. 4

[14] Mr Miller asserts that, in the course of meetings about his concerns, it stated that he felt targeted because of his status as a union representative. Additionally, he disputes the accuracy of the statements provided by RAA personnel.

[15] I note that the RAA responded to Mr Miller's statement to the effect that he continued to assert that the matter was outside of the dispute resolution provisions of the Agreement.

Findings

[16] Whilst clause 2 of the Agreement establishes that it is to be read in conjunction with the RAA Telephone Assistance Award, except to the extent of any inconsistency, I consider that the dispute resolution provisions in clause 7 represent a comprehensive code which establishes the jurisdiction available to the FWC.

[17] The Agreement deals with employment rights and obligations. At clause 10.5 it refers specifically to ASU workplace representatives and delegate rights.

[18] I have noted Mr Miller's assertion that he was targeted as a result of his status as a union representative. 5

[19] Clause 10.9 of the Agreement states:

“10.9 Standards of Behaviour

10.9.1 The Parties to this Agreement commit to taking all reasonable steps to ensure that RAA is and remains a respectful workplace where employees can feel safe and where they are treated fairly.

10.9.2 The best way to ensure that this happens is for all to engage in respectful behaviour toward others. The following guidelines describe the responsibilities of RAA, its team leaders and employees which are necessary to achieve a respectful workplace.

10.9.3 Employer Responsibilities

10.9.3.1 RAA recognises its responsibility to promote a respectful workplace and to take all reasonable steps to ensure the workplace is free of discrimination, bullying and harassment.

10.9.3.2 RAA is therefore committed to creating, supporting and maintaining a workplace that focuses on the prevention and resolution of workplace conflicts as they arise, and ensures that any complaints regarding behaviour contrary to the RAA Code of Conduct are taken seriously, dealt with quickly and in an unbiased manner in accordance with the principles of natural justice.

10.9.3.3 As employer, RAA has the responsibility to ensure that effective training is available and undertaken regarding workplace bullying, harassment and discrimination, and to support those employees affected by, or accused of, such poor behaviours.

10.9.4 Employee Responsibilities

10.9.4.1 Employees have the responsibility not to discriminate against, bully or harass others. Employees also have the responsibility, should they be involved in a workplace bullying complaint, to ensure confidentiality is maintained.

10.9.4.2 All employees are encouraged to address disrespectful behaviour if they see it happen, refuse to participate in that behaviour, support their colleagues in the face of that behaviour, and be aware of their own role in perpetuating disrespectful behaviour. Laws, regulations, and procedures are important, but do not by themselves ensure a respectful workplace. Each employee can have a powerful impact on the environment in which they work.

10.9.5 Team Leader Responsibilities

10.9.5.1 Team Leaders are relied on to model respectful behaviour. They will take a proactive role to stop disrespectful behaviour, challenge inappropriate comments and jokes, and remove offensive visual materials.

10.9.5.2 They will provide support to employees who are experiencing personal intervention or referral to other resources and follow up to ensure a satisfactory resolution. If a Team Leader intervenes personally, they will try to understand what has happened, what the impact is on the employee, and what can be done to restore the RAA to a respectful workplace.

10.9.5.3 Team Leaders will ensure that employees exhibiting behaviour contrary to the RAA Code of Conduct will be held accountable for their actions.”

[20] I have concluded that, whilst that clause makes particular reference to bullying and harassment initiatives, these should be considered in the context of the more general commitment to fair treatment in clause 10.9.1.

[21] Mr Miller's dispute appears to be directed toward whether or not his treatment, culminating in the issuing of a warning, was fair. I have not formed any view about the merits of his assertions in this respect. However, I consider that this issue falls within the jurisdiction of the dispute resolution provisions of the Agreement and hence is able to be a matter which can be referred to the FWC, in as much as it relates to a dispute about fairness. To the extent that claims may be made in the conduct of the matter that go beyond the jurisdiction available to the FWC, I will address these at that time.

[22] Accordingly, the application will be relisted for a conciliation conference consistent with the provisions of clause 7.5.1 of the Agreement.

SENIOR DEPUTY PRESIDENT

 1 F10 Application, paras 4.1 - 4.9

 2   RAA Initial Submissions, para 17

 3   RAA Initial Submissions, para 27

 4   Mr Miller's statement, para 2

 5   Mr Miller’s statement, para 3

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