Australian Nursing and Midwifery Federation v Alfred Health
[2015] FWCFB 3045
•22 MAY 2015
| [2015] FWCFB 3045 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Alfred Health
(C2015/1988)
VICE PRESIDENT CATANZARITI | SYDNEY, 22 MAY 2015 |
Appeal against decision [2015] FWC 899 of Deputy President Hamilton at Melbourne on 17 February 2015 in matter number C2014/6824.
[1] This is an appeal by the Australian Nursing Midwifery Federation (the Appellant) against a decision 1 (Decision) and order2 (Order) of the Commission made in dealing with a dispute arising under the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012-2016 (Agreement) pursuant to s.739 of the Fair Work Act 2009 (the Act).
[2] Prior to the hearing of the appeal on 15 April 2015, Mr Harding of Counsel sought permission to appear for the Appellant and Mr Rinaldi of Counsel sought permission to appear for the Respondent. Given the complexity of the matter, and having regard to s.596 of the Act, permission was granted to both parties to be represented.
[3] We note that due to unforeseeable circumstances Commissioner Blair was unable to attend the hearing. It was proposed that he would read the transcript and then join in the decision, subject to the parties views. The parties consented to this course and it was taken.
Background
[4] The matter concerns an employee of the Respondent, Ms Alana Guy, who occupied the position of Nurse Clinician in Alfred Health’s ‘Hospital in the Home’ program. In September 2014, the Respondent alleged that Ms Guy had engaged in misconduct and commenced an investigation. The allegations are not directly relevant to the case on appeal, but in short, they were that on 16 September 2014, Ms Guy “spoke over and continued to whisper” during a handover being conducted by a student nurse. It was also alleged that on the same day when the student nurse was in the kitchenette, Ms Guy walked through the kitchenette to go to the bathroom and deliberately knocked the student nurse with her shoulder as she walked past without stopping to apologise. 3
Ms Guy was notified of the allegations against her in a letter dated 23 September 2015. 4 The letter warned that as a result of the investigation process there could be a “disciplinary outcome” as per the dispute resolution clause (clause 11) of the Agreement.
[5] The Respondent wrote to Ms Guy again on 10 October 2014 to advise that it had made a decision about the “allegations of unprofessional conduct by you in the workplace”. 5 The letter stated:
“Having given careful consideration to all the information that has come to light during this [investigation] process, Alfred Health finds that, on the balance of probabilities, you did engage in the conduct alleged by the complainant.”
[6] Ms Guy was issued with a ‘first and final warning’ pursuant to cl.11.11(f)(vii) of the Agreement. In the next paragraph of the letter, the Respondent stated:
“Further, Alfred Health believes that the relationship of confidence and trust between the employer and employee has been compromised as a result of your conduct. As a result, Alfred Health will transfer you to a ward area, 4GMU in order to provide you with supervision and the opportunity to improve your behaviours and conduct in the workplace. A performance plan will also be developed to assist you with meeting the standards required. The transfer will be for a period of 6 months, with a review at 3 months. If at the 3 month review, you have met the goals of the performance plan, you will return to your role in Hospital in the Home. You will be salary maintained at your current grade and classification for the duration of your transfer. The rationale for this decision was explained to you at the meeting; to confirm, this allowed you to maintain your employment with Alfred Health.”
[7] The relevant clauses of the Agreement are set out as follows:
“11 Disputes Settling Procedures
11.1 Resolution of disputes and grievances
(a) This clause applies to any dispute or grievance about a matter arising under this Agreement or the NES, except:
(i) a dispute about termination of employment;
(ii) a matter or matters arising in the course of bargaining in relation to a proposed enterprise agreement;
(iii) a dispute about workload management, except as provided in clause 42 of this Agreement; or
(iv) as otherwise provided for in this Agreement.
(b) A person bound by this Agreement may choose to be represented at any stage by a representative, including a union representative or employer organisation.
....
11.11 Discipline
(a) Where an employer has concerns about the conduct of an employee, or a performance issue that may constitute misconduct, the following procedure is to apply.
(b) Investigative procedure
(i) The employer will advise the employee of the concerns in question and any allegation in writing and conduct a fair investigation having proper regard to procedural fairness and the factors set out below.
(c) Important procedural factors at this point in time include:
(i) The employer must take all reasonable steps to give the employee a reasonable opportunity to answer any concerns or allegations.
(ii) The reason for any interview is to be explained.
(iii) The employee is to be provided with any material which forms the basis of the concerns and any allegation against him or her and given a reasonable time to respond.
(iv) If the employee raises an issue in his or her response to the employers concerns or allegations, that warrants further investigation, the Employer shall take reasonable steps to investigate the matter.
(v) A reasonable opportunity is to be provided for a support person or representative of the Employee’s choice to attend all interviews or meetings conducted by the employer with the employee.
(d) Disciplinary procedure
(i) If following the investigation, the employer reasonably considers that the employee’s conduct may warrant disciplinary steps being taken, the employer will notify the employee in writing of the basis of its view and any allegation and meet with the employee.
(e) In considering whether the employee should be disciplined the employer
will consider:
(i) whether there is a valid reason related to the conduct of the employee arising from the investigation justifying the disciplinary process;
(ii) whether the employee knew or ought to have known that the conduct was below acceptable standards; and
(iii) any explanation by the employee relating to conduct
(f) Possible outcomes
Where it is determined that after following the procedures in this clause that disciplinary action is warranted, the employer may take any of the following steps depending on the seriousness of the conduct:
(i) counsel the employee, with the counselling recorded on the employee’s personnel file;
(ii) give the employee a first warning, which will be verbal and a record of the warning recorded on the personnel file;
(iii) give the Employee a second written warning in the event that the Employee has previously been given a first warning within the previous 12 months for that course of conduct;
(iv) give the Employee a final written warning in the event that the Employee has previously been given a second written warning within the preceding 18 month period for that course of conduct;
(v) Terminate the Employee on notice in the case of an employee who repeats a course of conduct for which a final warning was given in the preceding 18 months; or
(vi) Terminate the Employee without notice where the conduct is serious misconduct (as defined for the purposes of the Fair Work Act) that is willful and deliberate.
(vii) In case of misconduct warranting termination, either summarily or on notice, the Employer may issue the Employee with a final warning without following the steps in (i) to ((vi) above.
(viii) The employer’s decision and a summary of its reasons will be notified to the employee in writing.
(ix) If after any warning, a period of 12 or 18 months elapses (as relevant) without any further warning being required, all adverse reports relating to the warning must be removed from the Employee’s personnel file.
(x) A dispute over the clause is to be dealt with in accordance with the Dispute Settling procedure of this Agreement
12. No Extra Claims
12.1 The Unions, the Employers and the Employees acknowledge and agree that:
(a) this Agreement settles all claims in relation to the terms and conditions of employment of the Employees to whom it applies including all Union and Employer claims made before and during the negotiations leading to the making of this Agreement (whether or not those claims were matters at issue during the bargaining period); and
(b) Except as otherwise indicated herein this Agreement sets out and is intended to set out comprehensively, all of the terms and conditions of employment of the Employees whose employment is subject to the Agreement; and
(c) they will not pursue any extra claims during the terms of this Agreement.”
[8] The matters in dispute were narrowed by agreement on the day the matter was listed for arbitration before the Deputy President and at the first instance hearing the parties tendered Joint Exhibit 1 which described the dispute in the following terms:
“AGREED FACTS
1. An investigation was conducted by Alfred Health based on the allegations set out in the letter to Ms Guy dated 23 September 2014 which is Attachment “AG-2” to Ms Guy’s statement and “LV-2” to Ms Vecchi’s statement (Allegations Letter).
2. A first warning was given to Ms Guy in lieu of the final warning dated 10 October
2014 which is Attachment “AG-1” and “LV-8”, on the basis of the first allegation in the Allegations Letter, which was found to be substantiated.
3. As a result of the conduct referred to in the substantiated allegation and the conduct alleged in the second (not substantiated) allegation in the Allegations Letter, Alfred Health decided to temporarily transfer Ms Guy to a ward area, 4GMU, in order to provide her with supervision and the opportunity to improve her behaviours and conduct in the workplace, for a period of 6 months, with a review at 3 months which (if successful) would result in her returning to her previous Hospital in the Home role (Temporary Transfer).
QUESTIONS FOR DETERMINATION
1. Whether the Temporary Transfer is a matter arising under the Nurses and Midwives
(Victorian Public Sector) (Single Interests Employers) Enterprise Agreement 2012- 2016 as referred to in clause 11.11(a) of the Agreement.
2. If yes to 1, does Alfred Health have power to effect the Temporary Transfers?’
Decision at first instance
[9] The Deputy President dismissed the application on the basis that the Commission did not have the jurisdiction under s. 739 of the Act to settle the dispute relating to the temporary transfer as it did not ‘arise under the agreement’. The Deputy President made the following findings:
“[12] The letter of 10 October 2014 and statement of agreed facts indicates that the employer acted to improve behaviour and conduct in the workplace through temporary transfer to enable supervision and a performance plan. The employer referred loosely to ‘trust and confidence’, relying on the contract of employment not the disciplinary clause in the agreement. Employer directions of such a nature may be lawful and reasonable or even sometimes essential: R v. Darling Island Stevedoring and Lighterage Co Ltd, McCasker v. Darling Downs Co-operative Bacon Association Ltd, Ferraloro v. Preston Timber Pty Ltd, Turner v. The State of South Australia.(footnotes omitted)
[13] Clause 11.11 regulates ‘discipline’. The reference in the clause to the steps that may be taken is a reference to steps of a disciplinary nature. It was not the intention of the agreement to inhibit either party taking steps to improve ‘behaviours and conduct in the workplace’, or performance. Supervision and a performance plan may be essential to for example improve respectful behaviour towards other employees. It would be a perverse result if such a limited disciplinary clause operated to prevent employer action on an issue not actually dealt with in the clause, even if there was a real need for this, or some form of obligation to act.
[14] In any event, as with Wagstaff and Byrne v. Frew, the ordinary language of the disciplinary clause suggests that it operates in conjunction with such measures. The agreement cannot be construed as comprehensively dealing with all aspects of the employment relationship, such as the contract of employment.
[15] The history of the agreement and the surrounding context of agreement clauses do not alter the nature of the clause. The action taken by the employer cannot reasonably be seen as an ‘extra claim’ within clause 12, for example.
[16] The Commission has considered the term ‘arising under the agreement’ or similar terms in a number of authorities, including AMRS v. AMACSU. I find that the temporary transfer is not a matter arising under the agreement. I therefore issue an order dismissing the application. An order is set out in PR560878.”
[10] We note that after the Decision was handed down, the Respondent renewed its transfer direction to Ms Guy who resigned from her employment. 6
The Appeal
[11] Given that Ms Guy no longer works at the hospital, this matter has come before us as a matter of principle and turns on the proper construction of cl.11 of the Agreement. At the heart of the matter is whether it can be said that the transfer was a matter arising under the Agreement and if so, was it an action that was open to the Respondent as part of a disciplinary process pursuant to cl. 11 of the Agreement.
Appellant’s submissions
[12] The Appellant advanced 8 grounds of appeal and invited the Full Bench to quash the decision of the Deputy President in circumstances where the Agreement covers 134 employers across Victoria and their covered employees and would have lasting effects for them if the Decision is upheld. 7 The Appellant invited the Full Bench to make a further decision that it has jurisdiction to settle the dispute pursuant to cl. 11.8(a) of the Agreement and to answer the second question stated for determination “No”.
[13] The grounds of appeal were the subject of lengthy written submissions and extended oral submissions at the hearing but were succinctly put in the Notice of Appeal as follows:
“1. The Deputy President erred in failing to find that there was a matter arising under the Agreement within the meaning of cl. 11.1(a) or a dispute over the clause within the meaning of cl 11.11(f)(x) about whether the Agreement, properly construed, allowed the Respondent to transfer Alana Guy to a position in Ward 4GMU (referred to as the “Temporary Transfer” in paragraph 3 of the Agreed Facts reproduced at [2] of [2015] FWC 899) once it had invoked cl. 11.11 of the Agreement.
2. The Deputy President erred by mischaracterizing the dispute he was called upon to arbitrate.
3. The Deputy President erred in failing to construe the Agreement (specifically cl. 11.11 and cl. 12) in accordance with law, specifically in accordance with its text, context and industrial purpose.
4. The Deputy President erred by concluding that action to improve Alana Guy’s behaviours and conduct was not inhibited by cl. 11.11 in circumstances where the possible actions for improvement in employee behaviour and conduct due to employee misconduct are stated comprehensively by the Agreement in cl. 11. 11(f)(i)-(iv) and (vii).
5. The Deputy President erred in failing to find that the Temporary Transfer was discipline that was not authorized by cl. 11.11(f) of the Agreement or otherwise.
6. The Deputy President erred in concluding that the Temporary Transfer could not reasonably be seen as an extra claim within the meaning of cl. 12.1 of the Agreement having regard to cl. 11.11 of the Nurses (Victorian Public Health Sector) Multiple Business Agreement 2007-2011 and Alana Guy’s contract of employment.
7. The Deputy President erred by failing to construe cl. 12 of the Agreement in accordance with the judgment of the Federal Court in Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152.
8. The Deputy President erred in that he failed to answer “No” to the second question stated for determination.”
[14] The Appellant further submitted in the Notice of Appeal that it is in the public interest for the Commission to grant permission to appeal for the following reasons:
“1. It is contended that the Deputy President erred in his construction of the relevant provisions of the Agreement. It would be unjust to allow that erroneous decision to stand uncorrected.
2. Further, the Agreement applies to all employers in the Victorian public health sector who employ employees covered by the Agreement. The appeal raises mattes of public importance and of general application for other Victorian public health employees and employers covered by the Agreement.”
[15] The starting point in the Appellant’s reasoning is that the transfer was a dispute arising under the Agreement. The Appellant submitted that pursuant to cl. 11.1(a), the clause applied to any dispute about a matter “arising under this Agreement”, except for matters (i)-(iv), the relevant exception being (iv) which says “as otherwise provided for in this Agreement. Clause 11.11(f)(x) confers jurisdiction as it requires that a dispute “over the clause” be dealt with under the dispute settling procedure of the Agreement. The Appellant submitted that whether or not the Respondent could direct Ms Guy’s transfer was within jurisdiction because that question arose under cl. 11.1(a) directly or cl. 11.11(f)(x).
[16] The Appellant submitted that the 10 October 2014 letter from the Respondent to Ms Guy clearly characterised the transfer as being done as a sanction the result of misconduct. The letter stated in the third paragraph a finding that Ms Guy did engage in the alleged conduct and went on to say:
“Having given consideration to (sic) serious nature of the incident, Alfred Health views this as misconduct and has decided to issue you with a final warning as per clause 11.11(f)(vii) of the Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2012-2016.”
[17] Having expressly stated that it engaged cl. 11.11 and issuing her with a final warning, the Respondent went on to say in the letter (emphasis added):
“Further, Alfred Hospital believes that the relationship of confidence and trust between the employer and employee has been compromised as a result of your conduct. As a result, Alfred Health will transfer you to a ward area, 4 GMU in order to provide you with supervision and the opportunity to improve your behaviours and conduct in the workplace.”
[18] The Appellant submitted that the wording of the letter was clear evidence that the concerns were characterised as misconduct and cl. 11.11 was evoked and as a result, the warning ensued and the act of transfer occurred. The Appellant rejected the notion that the transfer was for the purpose of supervision, citing the role of a coordinator and contending that there was no evidence that Ms Guy was unsupervised and operated autonomously. The transfer was “as a result” of the misconduct and no other characterisation could be given to the letter in the Appellant’s submission.
[19] Once cl.11 was triggered, the Appellant submitted that on its proper construction, cl. 11.11 comprehensively set out the rights held by the Respondent to investigate and remedy “concerns that it has about the conduct of an employee or performance issues that may constitute misconduct”. By reason thereof there was no room for any residual contractual right to direct Ms Guy to perform another job in order to address the concerns for which it had invoked cl. 11.11.
[20] The Appellant submitted that the Respondent did not have the power to effect the transfer as the transfer of an employee could not be an outcome, it having not been expressly put in cl. 11.11(f) which is a comprehensive clause particularly when read with cl. 12.1(b) which states (emphasis added):
“Except as otherwise indicated herein this Agreement sets out and is intended to set out comprehensively, all of the terms and conditions of employment of the Employees whose employment is subject to the Agreement.”
[21] In short, Appellant’s position is that once misconduct was raised as a concern, the Respondent could only look to cl. 11.11(f) for a remedy as it covers the field.
[22] The Appellant submitted that whilst an industrial instrument, such as the Agreement operates concurrently with the contract of employment, the Deputy President’s statement of how in this case they interacted at [14] of the Decision and the extent of that interaction, was too wide and inconsistent with authority. 8 The Appellant submitted that cl. 11 appears in an agreement that is expressly stated to be comprehensive. Clause 11.11 speaks directly and in specific terms and is to be read with cl. 12.1 in the Appellant’s submission. When that is done, it is clear that the makers of the Agreement intended for its terms to govern the subject of employee misconduct and action taken thereupon. There is no provision made for the residual contract right, nor any need for one on the same terrain. The Appellant submitted that it is not suggesting that the Respondent was not entitled to supervise its employees, set performance targets or monitor performance. What the Appellant disputes is the Respondent’s right to do so by means of the transfer it contemplated as a measure to address the concerns it had identified, investigated and sanctioned as misconduct under cl. 11.11.
[23] The Appellant also submitted that cl. 12.1(a) and (c) prohibit extra claims. A prohibition of the kind in the cl. 12.1(a) extends to some “presumptively advantageous alteration to the existing state of affairs”. 9 In her employment, the Appellant submitted that Ms Guy enjoyed a right to occupy the position of Nurse Clinician in the Hospital in the Home program and to “perform the duties and exercise the functions delegated or assigned to [her] consistent with the duties set out in [her] position description”. The transfer constituted a change to that state of affairs.
Respondent’s submissions
[24] The Respondent submitted that permission to appeal should not be granted because there was no arguable error in the Decision. In the Respondent’s submission the Deputy President correctly performed his statutory duty through a determination of whether or not the temporary transfer was disciplinary in nature. In the Respondent’s submission there was no important principle of law engaged or precedent established and no reason for the Full Bench to interfere with the Decision. Moreover, the Respondent submitted that permission should not be granted given the lack of substantial injustice if permission to appeal is refused. In the Respondent’s submission, there is no utility in this case because of the particular circumstance, namely that Ms Guy no longer works for the Respondent. 10
[25] In oral submissions, Counsel for the Respondent further noted that permission to appeal should not be granted because it could create disastrous results for the health sector and for a range of employers with similar clauses in their certified agreements if they were precluded from implementing employee management outcomes arising under employment contracts as opposed to disciplinary outcomes contained within a clause. 11
[26] At the heart of the Respondent submissions on appeal is the contention that cl. 11.11 is not to be read as an exhaustive code that “entirely supplants the contract of employment”. 12 In the Respondent’s submission, the contract of employment allows an employer to direct an employee where to work and the temporary transfer was an option open to the Respondent as ancillary to the disciplinary process. In the Respondent’s submission cl. 11.11 does not create a code that precludes the employer in its managerial prerogative to move an employee elsewhere. As in Wagstaff v Piling Pty Ltd v CFMEU13 and Byrne Australia Airlines Ltd14 which were referred to by the Deputy President at [14], the Respondent submitted that the terms of the disciplinary clause in this case did not purport to so limit the employer’s capacity to move an employee to another area. The Respondent contended that the transfer was not precluded by cl. 11.11(f), did not fall within cl. 11.11(f) and was therefore not a matter arising under the Agreement. The transfer was part of the performance management process, ancillary to the disciplinary process and the power to transfer arises out of the employment contract. As such, the Commission had no jurisdiction under s.739 of the Act and therefore the Deputy President made no error in that finding.
[27] The Respondent further submitted that the point of the transfer was to allow Ms Guy to continue to her employment and provide supervision. It was not a demotion given that her salary was maintained. There was also no reduction in grade as it was only a temporary transfer, as stated in the letter. The Respondent submitted that in these circumstances the transfer could not be characterised as disciplinary. On this view, the disciplinary process was limited to the warning which was within the options of outcomes under cl. 11.11(f) of the Agreement. The transfer was ancillary to and was implemented in conjunction with the disciplinary outcome but was not part of the disciplinary process. It was temporary and not punitive because it allowed her to remain employed. In the Respondent’s submissions these two actions were distinct and separate.
[28] Specifically in relation ground 1, the Respondent submitted that the Deputy President correctly found that the dispute was not a matter arising out of the Agreement and was not in relation to a dispute over cl. 11 of the Agreement. Even if the disciplinary clause was enlivened, in the Respondent’s submission the clause does not have proper application to the management of employee conduct under the employment contract by way of location change that is permitted by the contract. The Respondent submitted Ms Guy’s contract of employment expressly provided under the heading “Work Location” on the second page, that:
“[t]his offer of employment is made, and would be accepted, on the basis that you may be expected to work at any campus or all campuses of Alfred Health as and when required. Such a requirement may be ... a temporary arrangement...”. 15
[29] Further cl. 12.2 of the Agreement, reprinted in the Appendix to the Decision, provided that:
“Subject to an employer meeting its obligation to consult arising under this Agreement or a relevant contract of employment, it is not the intension of clause 12.1(c) to inhibit, limit to restrict an Employer’s right or ability to introduce change at the workplace.”
[30] In these circumstances, the Respondent submitted that the transfer was an option open to the Respondent under the employment contract and an option legitimately exercised.
[31] In relation to ground 2, the Respondent submitted, the ground is misconceived and does not identify any error as the Deputy President did not overlook how the employer intended to give effect to its purpose, namely the non-consensual nature of the transfer. A direction to an employee that is non-consensual is not inherently disciplinary in nature in the Respondent’s submission as it is part of the employment relationship governed by the employment contract. Likewise in relation to ground 3, the Respondent submitted that there was no error identified and that the Agreement only governed disciplinary steps an employer may take in relation to an employee’s misconduct but did not act as a prohibition upon the employer taking other non-disciplinary steps.
[32] The Respondent further submitted in relation to ground 4 that the Deputy President correctly concluded that to restrict the Respondent to taking steps provided for under the disciplinary clause would substantially limit its ability to take action to improve an employee’s conduct or behaviour, beyond the provision of a warning as provided for in the disciplinary clause, and that the terms and intention of the Agreement did not do so. 16 In the Respondent’s submission, due to the unsupervised, autonomous nature of the Hospital in the Home role, and the Respondent’s perceived need to be able to supervise Ms Guy to enable improvement in behaviour, the temporary transfer was appropriate. On this view, such a measure was not mentioned in the disciplinary clause because its purpose was not disciplinary.
[33] In relation to ground 5, the Respondent reiterated that the transfer was not punitive and was separate from the warning, which was the disciplinary action selected by the Respondent. Nor did it involve performing unspecified work at a lower grade. Moreover, and in reply to grounds 6, 7 and 8, the Respondent noted that the Agreement is silent in relation to the issue of transferring nurses to other wards. However, as outlined above, the employment contract provided for the Respondent to transfer Ms Guy to other wards. As such, both prior to and at the time that the transfer was effected, the Respondent had the right to effect the transfer. Given that the right existed, it did not alter “the existing state of affairs” or constitute an extra claim under the Agreement in a “presumptively advantageous” way or at all. 17 Further, the Respondent submitted that the Decision at [14] was not inconsistent with authority and correctly applied Wagstaff Piling.
Consideration
[34] The Fair Work Commission must grant permission to appeal if it is satisfied it is in the public interest to do so. 18 The test of assessing whether the public interest is enlivened is discretionary, involving a broad value judgement.19 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,20 a Full Bench summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”
[35] Otherwise, the grounds for granting permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 21
[36] We are satisfied that this matter raises issues of importance and general application and thus enlivens the public interest. Notwithstanding the fact that Ms Guy no longer works for the Respondent, the Agreement the subject of these proceeding is a multi-employer agreement which covers some 134 public health employers in Victoria and their covered employees. 22 Findings regarding the construction of the Agreement raise issues of importance and general application for these employers and employees and potentially for those covered by similarly worded Agreements. With these considerations in mind, permission to appeal is granted.
[37] Although the Appellant has raised 8 grounds on appeal, the crux of the matter remains the answer to the two questions that were before the Deputy President for determination, that is, whether the temporary transfer was a matter arising under the Agreement and if so, was it an action that was permissible under the dispute settlement procedure of the Agreement contained in cl.11.11. If we find the answer to either of these questions in the affirmative, then the appeal must be upheld.
[38] We find that the temporary transfer was a matter arising out of the Agreement. This is a dispute over the application of a particular term of the Agreement, namely the meaning of cl. 11.1(a) or a dispute over the clause within the meaning of cl. 11.11(f)(x). We find that there is a sufficient nexus between the dispute and the provisions of the Agreement 23 in circumstances where the allegations that were said to constitute misconduct were the trigger for the action that was taken - the temporary transfer.
[39] The Respondent seeks to persuade us that the dispute relating to the temporary transfer did not arise out of the Agreement in the sense that it was management action arising out of the employment contract and as such the Deputy President correctly made a finding of no jurisdiction to hear a dispute in relation to the transfer. To take this view would require us to separate the two actions taken by the Respondent, namely, the first and final warning which the Respondent says was the disciplinary measure in relation to conduct, and the temporary transfer which the Respondent says was part of a performance management process pursuant to the employment contract.
[40] We are not persuaded by the Respondent’s argument. It is clear from the evidence before the Commission, and in particular the 10 October 2014 letter from the Respondent to Ms Guy, that the transfer was a response to and ‘as a result of’ the finding of misconduct. Quite apart from the express language indicating that the transfer was as a result of the disciplinary action, there seems to be a further degree of separation between the action of transferring Ms Guy and the development of the performance plan at paragraph 5 of the letter which states:
“a performance plan would also be developed to assist you with meeting the standard requirements”
[41] The letter seems to contemplate the development of a performance plan as distinct from the disciplinary measures. On our reading of the letter, the transfer was addressing the concerns regarding misconduct and the performance plan was to address the future and how to improve.
[42] In relation to whether the Respondent had the power to effect the temporary transfer, we further find that cl. 11.11(f) is a comprehensive clause which, when read together with cl. 12.1, cannot be interpreted generally to allow a transfer to another location as a disciplinary action. As is clear from [21] above, cl. 12.1(b) states that the Agreement “comprehensively” sets out all of the terms and conditions of employment of emlployees covered by the Agreement. We consider that cl. 11.11(f) when read with cl. 12.1(b) is comprehensive, specific and covers the field. It can be distinguished from the type of clause found in Wagstaff Piling which was a general clause and aspirational in nature and one where the field was not covered. Once the disciplinary remedies available to the Respondent in cl. 11.11(f) in relation to misconduct were triggered, transfer was not an option available to the Respondent in relation to a finding of misconduct given the comprehensive nature of the clause. In those circumstances, cl. 11.11(f)(x) required that a dispute over this issue be dealt with in accordance with the Agreement’s Dispute Settling Procedure.
[43] Drawing on the above, we respectfully consider that the Deputy President fell into error in two respects. First, in finding that cl. 11.11(f) was not a comprehensive clause and that “It was not the intention of the agreement to inhibit either party taking steps to improve ‘behaviours and conduct in the workplace’, or performance.” Second, in failing to find that there was a matter arising under the Agreement within the meaning of cl. 11.1(a) or a dispute over the clause within the meaning of cl. 11.11(f)(x) about whether the Agreement, properly construed, allowed the Respondent to transfer Ms Guy.
[44] For the avoidance of doubt, we note that where similar agreements may be in place, there is nothing to prevent employers from supervising employees, setting performance targets or monitoring performance pursuant to an employment contract. However, in circumstances where there is a finding of misconduct and there is a comprehensive clause in an enterprise agreement in relation to disciplinary outcomes for employee misconduct, the employer may only select from those disciplinary measures to address the misconduct.
Conclusion
[45] We find that the Deputy President erred in finding that cl. 11.11(f) was not a comprehensive clause and in failing to find that there was a matter arising under the Agreement within the meaning of cl. 11.1(a) or a dispute over the clause within the meaning of cl. 11.11(f)(x).
[46] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Deputy President’s decision in Australian Nursing and Midwifery Federation v Alfred Health[2015] FWC 899 is quashed.
VICE PRESIDENT
Appearances:
Mr Harding of Counsel for the Appellant.
Mr Rinaldi of Counsel for the Respondent.
Hearing details:
15 April
Melbourne
2015
1 [2015] FWC 899
2 PR560878
3 We note that the Appellant stated in its written submissions at [7] that this second allegation was later withdrawn by the Respondent and declared to be unsubstantiated.
4 Appeal Book at tab 8.
5 Appeal Book at tab 9.
6 Until that point, Ms Guy was on leave with pay due to cl 11.2(b) of the Agreement.
7 Paragraph [11] of Appellant’s Submissions and Schedule A of the Agreement.
8 CFMEU v Wagstaff Piling Pty Ltd (2012) 203 FCR 371 at [50]; Ansett v Wardley (1980) 142 CLR 237, per Wilson J at 287; Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 at 423-4.
9 Toyota Motor Corporation v Marmara (2014) 222 FCR 152 at [61].
10 Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025 at [48].
11 Transcript, PN322
12 Wagstaff Piling Pty Ltd v CFMEU[2011] FWAFB 6892
13 [2011] FWAFB 6892.
14 (1995) 185 CLR 410.
15 Appeal Book, tab 9, exhibit AH1.
16 Decision at [13]-[14].
17 See Toyota Motor Corporation v Marmara (2014) 222 FCR 152 at [61].
18 Fair Work Act 2009, s.604(2).
19 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210 at [6].
20 [2010] FWAFB 5343 at [27].
21 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210 at [7].
22 The Employers are listed in Schedule A to the Agreement.
23 Seven Network v CPSU (2003) 122 IR 98.
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