Australian Municipal, Administrative, Clerical and Services Union v Whittlesea City Council
[2012] FWA 8606
•17 OCTOBER 2012
[2012] FWA 8606 |
|
EX TEMPORE DECISION |
Fair Work Act 2009
s.739—Application to deal with a dispute
Australian Municipal, Administrative, Clerical and Services Union
v
Whittlesea City Council
(C2012/5477)
Local government administration | |
DEPUTY PRESIDENT SMITH | MELBOURNE, 17 OCTOBER 2012 |
Alleged dispute concerning Disciplinary Procedure.
[1] The following decision was given in transcript in Melbourne on Thursday, 4 October 2012.
[2] The Australian Municipal, Administrative, Clerical and Services Union (ASU) have notified an alleged dispute about a matter arising under the City of Whittlesea Enterprise Agreement No. 6 2011 [AE889326] (the Agreement). The dispute concerns a disciplinary process currently being undertaken in relation to an ASU representative at the Whittlesea City Council (the Council), Mr Stokes. The Council objects to the matter progressing on the basis that the Tribunal lacks the jurisdiction to deal with the matter. It put forward an argument based upon a construction of clauses 2.5.2 and 2.5.5 (Annexure A) of the Agreement.
[3] It is trite law that the jurisdiction of the Tribunal in these matters is governed by the terms of the Agreement (Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission & Anor (2001) 203 CLR 645). In short, the Council argue that clause 2.5.2 which refers to a disciplinary matter, is distinguishable from clause 2.5.5 of the Agreement which refers to disputes over wages and conditions. The ASU reject the argument put forward and argue that matters raised under 2.5.2 can be raised and can be the subject of arbitration, particularly given the terms of clause 2.5.5(e), which reflects an agreement of the parties that jurisdictional matters will not be raised inhibiting the Tribunal’s power. It should be stated that 2.5.5(e) refers to “the Commission”, but in the context and setting of this Agreement, it must be read as “the Tribunal”.
[4] The notification of the dispute raises a number of clauses which the ASU states are relevant. Without ruling finally on that matter, it would appear that it be necessary to strain language to characterise the present controversy as coming within the scope of those clauses. The disciplinary process is a policy of Council and does not form part of the Agreement. However, it is referred to in the Agreement specifically as a matter which will be attempted to be resolved at the workplace level. Whilst the power granted to the Tribunal is broad, it seems to me that the specific reference to the disciplinary procedure is to permit that normal process take its course without interference by the Tribunal.
[5] There may well be jurisdiction, given the terms of the agreement, to review the outcome of any disciplinary process, but in my view this application is premature. After the process is completed, the ASU is given leave to seek a re-listing of the matter. In this connection, if Council decide that the employment of Mr Stokes should come to an end, it should not take that action until further hearing on the full scope of the dispute settlement procedure. Whilst it is true that unfair dismissal remedies exist, there remains a live question about the jurisdiction once the disciplinary process reaches its conclusion.
DEPUTY PRESIDENT
Appearances:
M Jackson for the Australian Municipal, Administrative, Clerical and Services Union.
R Jackson, solicitor, and P. Heading for Whittlesea City Council.
Hearing details:
2012.
Melbourne:
October 4.
Annexure A
2.5.2 If a dispute arises about this agreement, the NES including a request for flexible working arrangements or a request for extended parental leave, or a grievance arising from a disciplinary matter, or any other work-related matter, the parties to this dispute will attempt to resolve the dispute at the workplace level.
...
2.5.5 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:
a. 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.
b. If the matter cannot be resolved, it will be referred to the appropriate line manager who will attempt to resolve the matter speedily. The line manager shall consult with a representative appointed by the employee. When endeavouring to resolve the matter.
c. If the matter is still not resolved, the matter shall be immediately referred jointly, for discussion, to a manager with industrial relations responsibility, the employee(s) and their representative if requested.
d. If the matter cannot be resolved, it may be referred to a mutually agreed independent mediator (from an agreed list of mediators) who may exercise powers of conciliation or arbitration and whose decision will be binding subject to prior agreement by the parties.
e. Should the matter still be unresolved either party shall be entitled to refer it to FWA for conciliation and, if necessary, arbitration. The parties shall not raise any jurisdictional matters pertaining to the Commission’s powers to settle any dispute via arbitration. All parties will abide by any decision resulting from a matter being referred to FWA
f. If arbitration is necessary, the parties agree that FWA shall exercise all powers as are necessary to make the arbitration effective.
g. Should any party so wish, any or all of the steps above may be bypassed in the interests of a speedy resolution of the matter.
h. To ensure that all disputes between the parties are settled quickly, the parties commit to working towards a resolution without any undue delay, and to keep in regular communication throughout the process.
Printed by authority of the Commonwealth Government Printer
<Price code A, AE889326 PR529951>
0
1
0