Australian Nursing and Midwifery Federation v Alfred Health

[2015] FWC 899

[2015] FWC 899 [Note: An appeal pursuant to s.604 (C2015/1988) was lodged against this decision - refer to Full Bench decision dated 22 May 2015 [[2015] FWCFB 3045] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Nursing and Midwifery Federation
v
Alfred Health
(C2014/6824)

Health and welfare services
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 17 FEBRUARY 2015

Alleged dispute concerning a first and final warning issued to an employee.

[1] On 16 October 2014 the Australian Nursing and Midwifery Federation (ANMF) made an application under s.739 of the Fair Work Act 2009 (‘the Act’) concerning a first and final warning issued to an employee. The respondent was Alfred Health.

[2] The matter was conciliated and no agreement was reached. However, at the start of the proceedings the parties, represented by Messrs.Rinaldi and Harding, reached agreement on many aspects of the dispute. They tendered Joint Exhibit 1 which described the remaining issue in 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?’

[3] The terms of the dispute settling procedure (clause 11) are set out in the appendix, which empowers the Commission to determine the matter by arbitration (clause 11.8). However, Alfred submits that there is no matter arising under the agreement as required by clause 11.1(a), while the ANMF submits that the matter arises under clause 11.11, Discipline, and puts other submissions.

Authorities

[4] In Amcor Limited v Construction Forestry Mining and Energy Union 1 Gleeson CJ and McHugh J said in a joint judgement:

“The issue in these appeals is whether, following a corporate reorganisation described as a demerger, certain employees became entitled to redundancy payments under the provisions of an industrial agreement. The employees worked in the same jobs, under the same terms and conditions, following the demerger, but, in consequence of the corporate restructuring, their employer changed.

The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation. There is nothing inherent in the idea of redundancy that justifies an expectation either that redundancy payments will, or that they will not, become payable in the event of a reconstruction, merger, or takeover. Similarly, there is nothing inherent in the nature of a corporate reconstruction that justifies an expectation either of continuity of a legal entity, or of succession, or of discontinuity. Thus, depending upon the legal regime under which it takes place, a merger between two companies might or might not put an end to the merging entities. The effects upon their pre-existing rights and obligations, and the question of succession to these rights and obligations, will require examination of the relevant legal (usually statutory) framework.”

In that decision, Kirby J said:

“The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:

‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand’.”  2

[5] In Wagstaff Piling Pty Ltd; Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union 3 the Full Bench said:

“[29] We are satisfied that the matter is of significant importance to both Wagstaff and Thiess and that it raises an issue of the construction of the Wagstaff agreement which has the potential for broader implications such that there is public interest in granting permission to appeal.

[30]The matter initially referred to FWA simply went to the Wagstaff question of whether the agreement, and in particular, clause 48 when read with Appendix I, prevented Wagstaff from requiring an employee on the project to submit to a drug and alcohol test.

[31]The Commissioner concluded that clause 48 and Appendix I were silent on this issue. We think that conclusion was correct. However, we do not agree that such a finding then permits a conclusion that, absent an entitlement in the agreement to conduct compulsory drug and alcohol testing, such testing is not permissible. In effect, the Commissioner’s conclusions were directed at a consideration of whether the agreement specifically enabled Wagstaff to conduct mandatory drug and alcohol testing, but that was not the issue before him.

[32]In this respect the Commissioner’s conclusion represents a mischaracterisation of the matter in dispute. In our view the decision represents a misapplication of the dispute settlement jurisdiction and an error at law in terms of the construction of the Wagstaff agreement.

[33]The CFMEU position that there was a necessary implication in the Wagstaff agreement such that it must be read as prohibiting mandatory drug and alcohol testing must fail on any objective analysis of the agreement.

[34]We do not consider clause 48 operates to limit drug and alcohol testing, or for that matter, other safety initiatives. Appendix I and the Policy clearly endorse a cooperative and collective approach to the management of drug and alcohol issues but cannot be read as prohibiting mandatory drug and alcohol testing. Indeed testing of this nature was not as common an issue at the time of the inception of the Policy in 1993 as it is now. Other provisions of the Wagstaff agreement recognise the need for continuous change and improvement and the obligations on Wagstaff to advance workplace safety. The risks to employee safety posed by drug and alcohol use have long been recognised by this Tribunal 6 and compulsory drug and alcohol testing is, of itself, not so extraordinary that it could not be argued to be a reasonable employer instruction or that it could be regarded as an extra claim for the purposes of clause 50 of the Wagstaff agreement.

[35]We therefore uphold the appeal and determine that the Commissioner’s conclusion was without proper foundation. It follows that we disagree with the conclusion and recommendation of the Panel.”

[6] On appeal the Federal Court of Australia said:

“[50]The problem with the CFMEU argument is that, despite cl 50, the agreement should not be construed as dealing comprehensively with all matters relating to the employment relationship (Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237 at 287-288). Statutory instruments (such as awards and the agreement) operate concurrently with contracts of employment, but they do not entirely supplant them (Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 418-421, 456). Most importantly, it was not the intention of the agreement to inhibit either party taking steps to improve safety at the workplace. Cl 50 is to be read subject to cl 16.”

Decision

[7] Clause 11.11 Discipline provides that:

‘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.’

[8] In this case the employer had concerns about the conduct of Ms.Guy. Pursuant to clause 11.11 it issued her with a ‘first warning’, presumably pursuant to clause 11.11(f)(ii) of the agreement. It also took another step. It temporarily transferred her to give her the opportunity to improve her behaviour and provide her with supervision, and put in place a performance plan. These are not options provided under clause 11.11(f).

[9] The temporary transfer of Ms.Guy was explained in the employer letter to Ms.Guy setting out the allegations against her 4:

‘Further, Alfred Health believes that the relationship of confidence and trust between the employer and employee has been comprised [sic, 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. 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 allows you to maintain your employment with Alfred Health.

You will commence in 4 GMU on your current projected roster, following your return from personal leave. Please report to Edward Wallace, Nurse Manager, 4GMU.

This letter will remain on file for a period of 12 months and will only be referred to if further issues arise.’

[10] I have taken this letter into account, and the letter of 23 September 2014 from Alfred to Ms.Guy 5, both contained in the appendix.

[11] The agreed statement of agreed facts similarly provides:

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).

[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 6, McCasker v. Darling Downs Co-operative Bacon Association Ltd7, Ferraloro v. Preston Timber Pty Ltd8, Turner v. The State of South Australia9.

[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 10.

[16] The Commission has considered the term ‘arising under the agreement’ or similar terms in a number of authorities, including AMRS v. AMACSU 11. 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.

DEPUTY PRESIDENT

Appearances:

Mr M Harding on behalf of Australian Nursing and Midwifery Federation

Mr M Rinaldi on behalf of Alfred Health

Hearing details:

2015

Melbourne

5 February

APPENDIX

6 Incidence and Application

6.1 Parts A, B and C of this Agreement shall apply to the work and employment of all Employees, except those provisions that are expressly directed to particular classes of Employees only.

6.2 The Schedules and Appendices attached to this Agreement form part of this Agreement.

6.3 This Agreement is not intended to exclude any part of the NES or to provide any entitlement which is detrimental to an Employee’s entitlement under the NES. For the avoidance of doubt, the NES prevails to the extent that any aspect of this Agreement would otherwise be detrimental to an Employee.

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.

11.2 Obligations

(a) The parties to the dispute or grievance, and their representatives, must genuinely attempt to resolve the dispute or grievance through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.

(b) Whilst a dispute or grievance is being dealt with in accordance with this clause, work must continue in accordance with usual practice, provided that this does not apply to an Employee who has a reasonable concern about an imminent risk to his or her health or safety, has advised the Employer of this concern and has not unreasonably failed to comply with a direction by the Employer to perform other available work that is safe and appropriate for the Employee to perform.

(c) No person bound by the Agreement will be prejudiced as to the final settlement of the dispute or grievance by the continuance of work in accordance with this clause.

11.3 Agreement and dispute settlement facilitation

For the purposes of compliance with this Agreement (including compliance with this dispute settlement procedure) where the chosen Employee representative is another Employee of the Employer, he/she must be released by his/her Employer from normal duties for such periods of time as may be reasonably necessary to enable her/him to represent Employees concerning matters pertaining to the employment relationship including but not limited to:

(a) Investigating the circumstances of a dispute or an alleged breach of this Agreement;

(b) Endeavouring to resolve a dispute arising out of the operation of the agreement; or

(c) Participating in conciliation, arbitration or any other agreed alternative dispute resolution process.

(d) The release from normal duties referred to in this clause is subject to the proviso that it does not unduly affect the operations of the Employer.

11.4 Discussion of grievance or dispute

(a) The dispute or grievance must first be discussed by the aggrieved Employee(s) with the immediate supervisor of the Employee(s).

(b) If the matter is not settled, the Employee(s) can require that the matter be discussed with another representative of the Employer appointed for the purposes of this procedure.

11.5 Internal process

(a) If any party to the dispute or grievance who is bound by the agreement refers the dispute or grievance to an established internal dispute or grievance resolution process, the matter must first be dealt with in accordance with that process.

(b) If the dispute or grievance is not settled through an internal dispute or grievance resolution process, the matter can be dealt with in accordance with the processes set out below.

(c) If the matter is not settled, the Employer, Employee or the Employee’s chosen representative (which may include an officer or Employee of the Union) may apply to the Tribunal to have the dispute or grievance dealt with by conciliation.

11.6 Disputes of a Collective Character

(a) The parties bound by the agreement acknowledge that disputes of a collective character concerning more than one Employee may be dealt with more expeditiously by an early reference to the Tribunal.

(b) No dispute of a collective character may be referred to the Tribunal directly unless there has been a genuine attempt to resolve the dispute at the workplace level prior to it being referred to the Tribunal.

11.7 Conciliation

(a) Where a dispute or grievance is referred for conciliation, a member of the Tribunal shall do everything that appears to the member to be right and proper to assist the parties to the dispute to agree on terms for the settlement of the dispute or grievance.

(b) This may include arranging:

(i) conferences of the parties to the dispute and/or their representatives presided over by the member; and

(ii) for the parties to the dispute and/or their representatives to confer among themselves at conferences at which the member is not present.

(c) Conciliation before the Tribunal shall be regarded as completed when:

(i) the parties to the dispute have reached agreement on the settlement of the grievance or dispute; or

(ii) the member of the Tribunal conducting the conciliation has, either of their own motion or after an application by either party, satisfied themselves that there is no likelihood that within a reasonable period, further conciliation will result in a settlement; or

(iii) the parties to the dispute have informed the Tribunal member that there is no likelihood of agreement on the settlement of the grievance or dispute and the member does not have substantial reason to refuse to regard the conciliation proceedings as completed.

11.8 Arbitration

(a) If the dispute or grievance has not been settled when conciliation has been completed, either party may request that the Tribunal proceed to determine the dispute or grievance by arbitration.

(b) Where a member of the Tribunal has exercised conciliation powers in relation to the dispute or grievance, the member shall not exercise, or take part in the exercise of, arbitration powers in relation to the dispute or grievance if a party objects to the member doing so.

(c) Subject to paragraph (d) below, the determination of the Tribunal is binding upon the persons bound by this Agreement.

(d) An appeal lies to a Full Bench of the Tribunal, with the leave of the Full Bench, against a determination of a single member of the Tribunal made pursuant to this clause.

11.9 General powers and procedures of the Tribunal

(a) Subject to any agreement between the parties to the dispute in relation to a particular dispute or grievance and the provisions of this clause, in dealing with a dispute or grievance through conciliation or arbitration, the Tribunal may:

(i) determine matters of procedure as if sections 577, 578 and 589 of the Act applied to the proceedings; and,

(ii) exercise the powers set out in section 590 of the Act , to the extent relevant, as if section 590 applied to the proceedings; and,

(iii) in the course of dealing with a matter by arbitration make an interim recommendation at any stage in the process prior to the final determination of the dispute by arbitration.

11.10 Publication and privacy obligations during disputes

(a) The parties to any dispute about the Agreement or the NES, subject to the preservation of any duties of confidence, commercial or otherwise and to any requirements for in-camera hearings due to security or other concerns, consent to and empower the Tribunal at its discretion to publicly disclose any recommendation or decision it has reached in order to resolve in whole or in part any dispute under this Agreement.

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 term of this Agreement.

12.2 Subject to an Employer meeting its obligations to consult arising under this Agreement or a relevant contract of employment, it is not the intention of clause 12.1(c) to inhibit, limit or restrict an Employer’s right or ability to introduce change at the workplace.

12.3 The Employers agree to commence discussions with the Unions no later than six months prior to the nominal expiry date of this Agreement. Provided that any claim made by a person covered by this Agreement during this period is not supported by industrial action, clause 12.1(c) does not prevent a person covered by this Agreement from making a claim during the six month period (or such earlier period as may be agreed) prior to the nominal expiry date of this Agreement.

 1 [2005] 222 CLR 241

 2   Ibid, paragraph 96

 3   [2011] FWAFB 6892

 4   Attachment AG1 to Ms.Guy’s statement

 5   Attachment AG2 to Ms.Guy’s statement

 6 (1938) 60 CLR 601

 7 (1988) 25 IR 107 at 112

 8 (1982) 56 ALJR 839, High Court of Australia

 9 (1982) 56 ALJR 872

 10   See Toyota Motor Corporation v. Marmara (2014) 222 FCR 152 at 40-41, 61

 11   PR922053, adopted in for example NTEU v. University of Wollongong PR930177, and AFMEPKIU v. Holden Limited PR940366. See also Seven Network v. CPSU (2003) 122 IR 98 at 29-32 and AMACSU v. Sydney Water Corporation [2011] FWA 1894 at 39-42

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