Australian Salaried Medical Officers Federation v The Royal Children's Hospital T/A the Royal Children's Hospital
[2023] FWC 639
•18 MAY 2023
| [2023] FWC 639 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Salaried Medical Officers Federation
v
The Royal Children's Hospital T/A The Royal Children's Hospital
(C2022/7210)
| COMMISSIONER JOHNS | MELBOURNE, 18 MAY 2023 |
Alleged dispute about any matters arising under the enterprise agreement.
The Australian Salaried Medical Officers Federation (ASMOF/Applicant) has applied to the Fair Work Commission (Commission) to deal with a dispute under s.739 of the Fair Work Act 2009 (Cth) (FW Act) with The Royal Children's Hospital T/A The Royal Children's Hospital (RCH/Respondent).
In short, the purported dispute concerns the entitlement of Medical Imaging Specialist employed by the Respondent, to a supplement payment on accrued annual leave and long service leave upon termination.
The Applicant contends that:
a) the payment of the supplement payment is by way of a Local Agreement,
b) the Local Agreement is preserved in accordance with Clause 7 of the AMA Victoria - Victorian Public Health Sector - Medical Specialists Enterprise Agreement 2018-2021[1] (Agreement); and consequently,
c) the supplement payment, paid to Medical Imaging Specialists for the sessions that they work, must also be included in any payment of accrued annual or long service leave paid out on termination.
An initial conference did not resolve the dispute and it became necessary to program the matter for hearing. However, the parties filed an agreed proposed timetable for the filing of materials relating to the hearing of the merits of the dispute which was to be determined on the papers.
Jurisdictional issue
Before the merits of the matter could be determined, the Respondent wrote to my chambers advising that it challenged the jurisdiction of the Commission to determine the dispute. The Respondent contended that the dispute concerned an underpayment claim by an ex-employee who did not invoke the dispute procedures in the Agreement during her employment and that therefore there had not been substantive compliance with the disputes procedure.
Consequently, I vacated the Directions in relation to the merits of the dispute and re-programmed the matter for a jurisdictional hearing. The nature of the jurisdictional objection developed further during the hearing.
Jurisdictional hearing and materials
At the jurisdictional hearing:
a) The ASMOF was represented by Mr John Ryan, Workplace Relations Advisor of the Applicant.
b) RCH was represented by Mr Nicholas Harrington of Counsel. He was instructed by Ms Elizabeth Cole, Senior Associate, from DLA Piper.
Clause 11.7(b) of the “Resolution of disputes and grievances” clause in the Agreement provides that,
“The FWC member that conciliated the dispute will not arbitrate the dispute if a party objects to the member doing so.”
Consequently, at the beginning of the jurisdictional hearing I satisfied myself that no party had an objection to me arbitrating the matter.[2]
In advance of the jurisdictional hearing the parties filed the following documents:
| Exhibit | Document title | Document date |
| 1 | Form F10 Application | 31 October 2022 |
| 2 | · Attachment A | |
| 3 | · Attachment B | 17 February 2022 |
| 4 | Respondent’s Outline of Submissions on Jurisdiction | 3 February 2023 |
| 5 | Witness Statement of Kathryn Kwas | 3 February 2023 |
| 6 | · KK-1 | 2 February 2022 |
| 7 | · KK-2 | 14 February 2022 |
| 8 | · KK-3 | 17 February 2022 |
| 9 | · KK-4 | 3 March 2022 |
| 10 | · KK-5 | 9 March 2022 |
| 11 | Applicant’s Submissions on Jurisdiction | 6 February 2023 |
| 12 | Witness Statement of John Ryan | 6 February 2023 |
| 13 | · Attachment 1 | 2 February 2022 |
| 14 | · Attachment 2 | 2 February 2022 |
| 15 | · Attachment 3 | 14 February 2022 |
| 16 | · Attachment 4 | 17 February 2022 |
| 17 | · Attachment 5 | 28 February 2022 |
| 18 | · Attachment 6 | 3 March 2022 |
| 19 | Respondent’s Outline of Submissions in reply | 10 February 2023 |
| 20 | Supplementary Witness Statement of Kathryn Kwas | 10 February 2023 |
| 21 | · KK-6 | 28 February 2022 |
In coming to this decision, I have had regard to all of the materials filed in the proceedings and the submissions made during the jurisdictional hearing.
For the reasons set out below I have decided that the Commission does not have jurisdiction to determine the dispute.
Jurisdiction
Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms.
Section 739 provides that:
“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)….
(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.”
In the present matter the clause in the Agreement dealing with dispute settling procedures is cl 11. It provides as follows:
“11.1 Resolution of disputes and grievances
(a) For the purpose of this clause 11, a dispute includes a grievance.
(b) This dispute resolution procedure will apply to any dispute arising in relation to:
(i) this Agreement;
(ii) the NES;
(iii) a request for flexible working arrangements;
(iv) a request for an additional 12 months parental leave; or
(v) matters purported to be saved due to the operation of the Savings provision.
(c) A party to the dispute may choose to be represented at any stage by a representative including the Association or employer organisation. A representative, including the Association or employer organisation on behalf of a Health Service, may initiate a dispute.
11.2 Obligations
(a) The parties to the dispute and their representatives must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.
(b) While the dispute resolution procedure is being conducted work will continue normally according to the usual practice that existed before the dispute, until the dispute is resolved.
(c) This requirement does not apply where a Doctor:
(i) has a reasonable concern about an imminent risk to his or her health or safety;
(ii) has advised the Health Service of the concern; and
(iii) has not unreasonably failed to comply with a direction by the Health Service to perform
other available work that is safe and appropriate for the Doctor to perform.
(d) No party to a dispute or person covered by the Agreement will be prejudiced with respect to the resolution of the dispute by continuing work under subclause 11.2(b).
11.3 Dispute settlement facilitation
(a) Where the chosen representative is another Doctor employed by the Health Service, that Doctor will be released by the Health Service from normal duties as is reasonably necessary to enable them to represent the Doctor/s including:
(i) investigating the circumstances of the dispute; and
(ii) participating in the processes to resolve the dispute, including conciliation and arbitration.
(b) A Doctor who is part of the dispute will be released by the Health Service from normal duties as is reasonably necessary to enable them to participate in this dispute settling procedure so long as it does not unduly affect the operations of the Health Service.
11.4 Discussion of dispute at workplace
(a) The parties will attempt to resolve the dispute at the workplace as follows:
(i) in the first instance by discussions between the Doctor/s and the relevant supervisor; and
(ii) if the dispute is still unresolved, by discussions between the Doctor/s and more senior levels of local management.
(b) The discussions at subclause 11.4(a) will take place within fourteen days or such longer period as mutually agreed, save that agreement will not be unreasonably withheld.
(c) If a dispute cannot be resolved at the workplace it may be referred by a party to the dispute or representative to the FWC for conciliation and, if the matter in dispute remains unresolved, arbitration.
11.5 Disputes of a collective character
Disputes of a collective character may be dealt with more expeditiously by an early reference to the FWC. However, no dispute of a collective character may be referred to the FWC directly without a genuine attempt to resolve the dispute at the workplace level.
11.6 Conciliation
(a) Where a dispute is referred for conciliation, the FWC member will do everything the member deems right and proper to assist the parties to settle the dispute.
(b) Conciliation before the FWC is complete when:
(i) the parties to the dispute agree that it is settled; or
(ii) the FWC member conducting the conciliation, either on their own motion or after an application by a party, is satisfied there is no likelihood that further conciliation will result in settlement within a reasonable period; or
(iii) the parties to the dispute inform the FWC member there is no likelihood the dispute will be settled and the member does not have substantial reason to refuse to regard conciliation as complete.
11.7 Arbitration
(a) If, when conciliation is complete, the dispute is not settled, either party may request the FWC proceed to determine the dispute by arbitration.
(b) The FWC member that conciliated the dispute will not arbitrate the dispute if a party objects to the member doing so.
(c) If the dispute resolution procedure results in a finding by the FWC that a breach of the Savings provision of this Agreement has occurred, the parties agree that the order of the FWC under this subclause 11.7 will be to restore all rights and entitlements affected by the breach to the state which would have prevailed if the breach had not occurred.
(d) Subject to subclause 11.7(e) below, a decision of the FWC is binding upon the persons covered by this Agreement.”
Background
The facts relating to the dispute were as follows:
a) Dr Mayne was employed by the Respondent as a Medical Imaging Specialist from 2004.[3]
b) On or around 29 September 2021 Dr Mayne gave three months’ notice of her resignation to the Respondent.[4]
c) Dr Mayne’s resignation took effect on 29 December 2021 and her employment with the Respondent ceased on that date. Dr Mayne was paid out certain accrued entitlements at about that time.[5]
d) On 2 February 2022 Mr Ryan sent an email[6] to Ms Kathryn Kwas, Workplace Relations Manager for the Respondent, stating that ASMOF was representing Dr Mayne in relation to matters concerning the termination of her employment with the Respondent. The email stated that the termination payment Dr Mayne received in late January was significantly lower than what she was entitled to due to the payment not including a supplement payment on her accrued leave entitlements. It was further stated that Dr Mayne had spoken to the Respondent’s payroll team about her concerns. She asserted they said they were unable to assist. Dr Mayne had then spoken to Ms Tanuja Sathianathan a person then employed as a Human Resources Advisor for the Respondent.
e) On receipt of the email Ms Kwas made enquires into the amounts paid to Dr Mayne on termination and her discussions with the Respondent regarding those entitlements. Ms Kwas ascertained that Dr Mayne had raised a query about her termination entitlements with the Respondent’s payroll team on or about 31 January 2022. She had spoken with Ms Sathianathan on or about 2 February 2022.[7]
f) On 14 February 2022 Ms Kwas responded to Mr Ryan by email.[8] Ms Kwas stated that the RCH pays a supplement payment to its medical imaging specialists pursuant to a local agreement for the sessions that are worked, however, the local agreement does not entitle payment during periods of leave or on accrued leave paid out upon termination. Ms Kwas further stated that in good faith, the RCH does pay the supplement during periods of annual, personal and long service leave.
g) On 17 February 2022 Mr Ryan responded to Ms Kwas by email.[9] Mr Ryan contended that the Respondent had an obligation to pay Dr Mayne the supplement payment on her accrued annual leave pursuant to s.90(2) of the FW Act. He contended that if the Respondent would have paid the supplement to Dr Mayne if she took a period of annual leave then it should have paid her the supplement on her accrued annual leave.
h) On 28 February 2022 a telephone conversation occurred between Mr Ryan and Ms Kwas regarding the dispute. The content of the conversation is disputed. Mr Ryan stated in evidence that it was agreed between Ms Kwas and himself that “it would be appropriate for the matter to be referred to the FWC to settle the correct interpretation of the Supplement payment entitlement”.[10] In her evidence Ms Kwas denies ever agreeing to the idea that the matter should be referred to the Commission. She stated that rather, Mr Ryan said that someone needed to answer the question of whether the supplement payment was included in calculation of termination pay one way or another for Dr Mayne.[11]
i) On 3 March 2022 Mr Ryan sent Ms Kwas an email[12] attaching a draft Form F10 application. Mr Ryan stated that he intended to file the Form F10 with the Commission next week and that he had constructed the Form F10 based on a collective dispute involving all Medical Imaging Specialists of the Respondent.
j) On 9 March 2022 Ms Kwas responded to Mr Ryan stating that RCH maintains its position that there is no entitlement to the supplement payment on accrued leave paid out on termination.[13]
k) On 31 October 2022 Mr Ryan filed the current application with the Commission.[14]
The Application
Although the discussions leading up to the filing of the Form F10 concerned the entitlements on termination of Dr Mayne, the Form F10 filed in the Commission was not so framed.
The Applicant was not Dr Mayne as represented by ASMOF. ASMOF was the applicant.
At paragraph 2.1 of the Form F10 the dispute was framed as follows:
Medical Imaging Specialists employed by RCH are paid a Supplement payment in addition to their base rates provided for in the Agreement. The payment of the Supplement payment is by way of a Local Agreement, the operation of which is preserved in accordance with clause 7 of the Agreement.
The dispute concerns the entitlement of Medical Imaging Specialists employed by RCH to have the Supplement payment taken into account when accrued annual leave and accrued long service leave is paid out on termination.
The Supplement payment is paid to Medical Imaging Specialists as an over agreement payment on top of the Medical Imaging Specialists ordinary hourly rate of pay. The Supplement is paid to Medical Imaging Specialists whenever the Medical Imaging Specialists takes a period of annual leave or long service leave.
RCH have refused to pay the Supplement on accrued annual leave or long service leave which is paid out on termination of employment.
AMA/ASMOF contends that the Supplement payment must be included in any payment of accrued annual leave or long service leave paid out on termination.
The fact that the matter in dispute concerns a group of Specialists means that it is a collective dispute for the purpose of clause 11.5 of the Agreement.
The remedy sought was as follows,
The specific remedy sought is that the FWC determine that Medical Imaging Specialists employed by RCH are entitled to have the Supplement payment included in any payment of accrued annual leave or long service leave on termination.
That remedy suspiciously looks like a pleading for declaratory relief.
Respondent’s Submissions
On 3 February 2023 RCH submitted that:
6. “… The Respondent challenges the jurisdiction of the Commission to deal with the dispute in circumstances where:
(a) it is concerned with an underpayment claim by an ex-employee;
(b) the ex-employee did not invoke the disputes procedure during her employment; and
(c) there has not been substantive compliance with the disputes procedure.
Jurisdiction
7. The Commission has jurisdiction to exercise powers specifically conferred upon it by the Act.
8. The Act limits the circumstances in which the Commission may exercise arbitral powers. Section 595 of the Act provides:
“(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).
(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”
9. The Applicant seeks to have the Commission exercise a power of arbitration in relation to the Dispute Notification in accordance with the dispute resolution procedure in the Agreement (an enterprise agreement within the meaning of the Act).
10. The Act also sets out the Commission’s powers to settle an alleged dispute notified pursuant to a dispute settlement procedure in an enterprise agreement.
11. Sections 738 and 739 of the Act provide as follows:
“ 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.”
12. Section 739(4) of the Act reposes in the Commission jurisdiction to arbitrate a dispute only if the parties have agreed, in accordance with the dispute resolution procedure contained in an enterprise agreement.
Enterprise Agreement
13. The Applicant seeks to invoke the Commission’s arbitral power under section 739 of the Act in respect of the dispute resolution procedure set out in the Agreement.
14. The Agreement contains a dispute resolution procedure at clause 11.
15. Clause 11 of the Agreement provides:
….
Characterisation of the dispute
12. The Commission must characterise the dispute in order for it to be satisfied that it arises under clause 11 of the Agreement.
13. Clause 11 of the Agreement provides a procedure for the resolution of matters arising in relation to specified matters. The parties have deliberately so confined clause 11 to certain matters: see clause 11(1)(b).
14. The Commission must satisfy itself that it has jurisdiction to determine a dispute. The facts underpinning the alleged dispute must be carefully scrutinised so the Commission can then identify with precision:
(a) whether in fact a dispute of the type identified in clause 11 is in existence; and
(b) what question the Commission is asked to answer.
15. In this matter, and having regard to the terms of clause 11, the Commission has no power to act in an advisory capacity; to answer a hypothetical question or resolve a theoretical dispute that is not properly notified and in existence between the parties.
16. The party notifying the dispute to the Commission bears the onus of satisfying that a real (and not theoretical) dispute is in existence such as to enliven the Commission’s jurisdiction.
Is there a dispute capable of notification?
17. The Dispute Notification discloses that the alleged dispute is concerned with the calculation of payments for accrued leave upon the cessation/termination of Dr Mayne’s employment. The documents attached to the Dispute Notification are the best evidence of the dispute notified to the Commission. The contents of an email from Mr Ryan of ASMOF to RCH dated 2 February 2022 (the Ryan Email) purports to notify the dispute. It is telling: the email discloses, without ornamentation or convenient revision, the true nature of the dispute in its first iteration. These words are the critical descriptors of the dispute:
“Subject: termination pay
“The AMA is representing Dr Valerie Mayne in relation to matters concerning her termination of employment at RCH…”
“The termination pay to Dr Mayne did not include the Supplement payment being part of her accrued annual leave and long service leave”
“…. the failure to pay her the Supplement payment on that accrued leave entitlement amounts to an underpayment of several tens of thousands of dollars.”
“I would appreciate RCH making prompt restitution of the unpaid amounts due to Dr Mayne”
18. Mr Ryan of ASMOF first notified any form of alleged dispute by this Ryan Email to RCH. As stated, the contents of that email set out the substantive nature of the grievance or dispute. The gravamen of the dispute is Dr Mayne’s grievance and complaint about her termination payments. Properly understood and fairly characterised, any dispute notified on 2 February 2022 is a post-employment underpayment claim.
19. Properly characterised, the dispute (as notified):
a) is made for and on behalf of one (1) ex-employee; and
b) is concerned solely with a claim of alleged underpayment arising on termination of employment
Three (3) reasons why the Commission is without jurisdiction
20. There are three (3) reasons why the Commission lacks jurisdiction in relation to this particular alleged dispute.
A. A claim by an ex-employee
21. First, it is an alleged dispute agitated by an ex-employee where that employee did not notify the dispute or engage the dispute settlement mechanism under clause 11 while still employed.
22. RCH refers to the contents of the Ryan Email, elements of which are extracted above. The bare facts are these:
a) in late September 2021, Dr Mayne gave three (3) months’ notice of the termination of her employment;
b) on 29 December 2021, Dr Mayne’s employment ended and she ceased work;
c) in late December 2021, RCH made a payment to Dr Mayne upon the termination of her employment but did not include any sum calculated by reference to the supplement payment; and
d) on 2 February 2022, Mr Ryan of ASMOF sent an email to Ms Kwas of the RCH ‘in relation to matters concerning her termination of employment’ (together, the Factual Matrix)
23. The raising of a query/concern, or the posing of a question, is not the equivalent of agitating a dispute pursuant to a dispute settlement procedure.
24. It is well-established that a former employee must have invoked the disputes process under the Agreement prior to termination/cessation of employment such as to enliven the Commission’s jurisdiction to hear and adjudicate the dispute. The logic of this position has been expressed as follows: “a single person dispute which arises for the first time after the termination of employment is not a dispute between an employer and employee.”
25. Applying the present Act, the Full Bench in Patrick Projects stated:
“An application for the Commission to deal with a dispute in accordance with a dispute settlement procedure of an Enterprise Agreement pursuant to s.739 of the Act can only be heard when the applicants are employed.”
26. It is well-established that where the ex-employee did not invoke the disputes process under the Agreement before dismissal, the Commission does not have jurisdiction to determine the dispute later notified. That is this case.
27. Accordingly, there was no dispute notified by either Dr Mayne or ASMOF to the Respondent under clause 11 of the Agreement before Dr Mayne ceased in her employment.
B. Non-compliance with dispute settlement procedure
28. Secondly, for an alleged dispute to be referred to the Commission to exercise its arbitral powers, the party referring the matter must first have complied with the prior steps out in the process agreed to by the parties in the enterprise agreement. There is no general discretion afforded to the Commission under the Act to deal with a dispute under an enterprise agreement.
29. Clause 11.4(a) of the Agreement requires:
“The parties will attempt to resolve the dispute at the workplace as follows:
(i) in the first instance by discussions between the Doctor/s and the relevant supervisor; and
(ii) if the dispute is still unresolved, by discussions between the Doctor/s and more senior levels of local management.”
30. In reliance upon the Factual Matrix, RCH contends that at no time did Dr Mayne (as ‘the Doctor’) involve herself in any step required by clause 11 of the Agreement. Dr Mayne was not involved in any step or process before she ceased employment. She did not comply with clause 11.4 of the Agreement.
31. In December 2022, there were no discussions between Dr Mayne (when employed) with any relevant supervisor. Further, there were no discussions between Dr Mayne ‘and more senior levels of local management’.
32. It follows that Dr Mayne did not comply with the clause 11.4(a) requirements when employed by RCH. That non-compliance is fatal and cannot be ‘cured’ now, by an ex-employee. Clause 11 of the Agreement sets pre-conditions for the capacity of the Commission to deal with a dispute. Each successive step in the procedure set out in clause 11 of the Agreement may be taken only if the dispute or matter remains unresolved at the completion of the preceding step. A dispute under the clause may only be referred to the Commission by a party when the matter has not been resolved by the specified steps.
C. There was, and is, no collective dispute
33. Finally, ASMOF has sought to invoke jurisdiction upon a false or non-existent jurisdictional premise: a collective dispute for the purpose of clause 11.5 of the Agreement. There are two problems with that proposition.
34. First, in point of fact, there never was a collective dispute when Dr Mayne was employed at RCH, up until December 2021. Properly characterised by reference to the Factual Matrix, there was a post-dismissal dispute termination payment dispute between Dr Mayne and RCH. It was not, and is not, collective in character.
35. Secondly, the Agreement, upon its proper construction, does not invest the Commission with jurisdiction simply because a party alleges there is a ‘collective dispute’.
36. Clause 11.5 provides as follows:
“Disputes of a collective character
Disputes of a collective character may be dealt with more expeditiously by an early reference to the FWC. However, no dispute of a collective character may be referred to the FWC directly without a genuine attempt to resolve the dispute at the workplace level.”
37. Clause 11.5 of the Agreement does not assist ASMOF. It simply provides for expedition in circumstances where the dispute is properly characterised as ‘collective’ in nature. That is not this alleged dispute.
38. Further, as a matter of construction, clause 11.1 of the Agreement defines those disputes which might be adjudicated by the Commission as a private arbitrator upon agreement by the parties. It states:
“This dispute resolution procedure will apply to any dispute arising in relation to:
(i) this Agreement;
(ii) the NES;
(iii) a request for flexible working arrangements;
(iv) a request for an additional 12 months parental leave; or
(v) matters purported to be saved due to the operation of the Savings provision.”
39. There are 5 categories. No category refers to ‘disputes of a collective character’ in its broadest conception. As a matter of construction, clause 11.1 should be interpreted in a manner descriptive of the disputes (and only those disputes) the Commission is empowered to resolve/settle by the parties.
40. There was no collective dispute notified before Dr Mayne ceased employment. There could not have been so because the dispute, alleged by one employee, was an underpayment claim crystallising upon termination of employment.
Summary
41. The alleged dispute notified by the Applicant is not within the jurisdiction of the Commission to exercise its arbitral powers to determine the dispute where, upon the undisputed facts:
a) Neither Dr Mayne, nor ASMOF on her behalf, invoked the disputes procedure under clause 11 of the Agreement during Dr Mayne’s employment with the Respondent;
b) Dr Mayne (and ASMOF) failed to comply with the dispute resolution steps under clause 11.4 of the Agreement prior to referring the dispute to the Commission when Dr Mayne was still employed; and
c) Any dispute notified by the Form F10 and presently before the Commission is properly characterised as an underpayment of termination payments claim notified by a single employee after the cessation of her employment.
42. RCH seeks an order dismissing the application.”
Applicant’s Submissions
On 6 February 2023 ASMOF submitted that:
“The jurisdiction of the FWC to deal with the matter notified in the Form F10 is founded in both the terms of the relevant enterprise agreement and the relevant provisions of the Fair Work Act (the Act).
The FWC has jurisdiction to deal with a dispute arising under the terms of the AMA Victoria – Victorian Public Health Sector – Medical Specialists Enterprise Agreement 2018-2021 (the Agreement) pursuant to s.738(a) and s.739 of the Act.
The Agreement contains a term, clause 11, that provides a procedure for dealing with disputes. Clause 11 meets the requirements of s.738(a) of the Act.
Clause 11 requires or allows the FWC to deal with disputes.
The types of disputes which the FWC can deal with under clause 11 of the Agreement are set out in clause 11.1(b) as follows:
11.1(b) This dispute resolution procedure will apply to any dispute arising in relation to:
(i) this Agreement;
(ii) the NES;
(iii) a request for flexible working arrangements;
(iv) a request for an additional 12 months parental leave; or
(v) matters purported to be saved due to the operation of the Savings provision.
The matter in dispute as notified in the Form F10 is a dispute which falls within clause 11.1(b)(v) of the Agreement.
The Dispute Resolution process set out in clause 11 of the Agreement permits the matter in dispute to be referred to the FWC for conciliation and or arbitration if the matter in dispute cannot be resolved at the workplace.
The Dispute Resolution process set out in clause 11 of the Agreement requires that there be attempts to resolve the dispute at the workplace level.
At clause 11.2(a) of the Agreement a general obligation is placed upon the parties to a dispute in the following terms:
11.2(a) The parties to the dispute and their representatives must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.
Clause 11.4(a) and (b) of the Agreement provide a process for trying to resolve a dispute at the workplace level.
Clause 11.4(c) of the Agreement provides that if a dispute cannot be resolved at the workplace then it may be referred to the FWC. Whilst the language of clause 11.4(c) does not require that the processes set out in clauses 11.4(a) and (b) must be followed it is generally accepted that the sequence of steps set out in clause 11.4 need to be followed before a dispute can be referred to the FWC.
Clause 11.5 specifically provides for disputes of a collective character to be dealt with other than by following the sequence of steps set out in clause 11.4. Clause 11.5 of the Agreement provides as follows:
11.5 Disputes of a collective character
Disputes of a collective character may be dealt with more expeditiously by an early reference to the FWC. However, no dispute of a collective character may be referred to the FWC directly without a genuine attempt to resolve the dispute at the workplace level.
As clause 11.5 makes very clear a dispute of a collective character can be referred to the FWC without the need to have discussions in the sequence set out in clause 11.4(a) provided that there has been a genuine attempt by the parties to the collective dispute to resolve the collective dispute at the workplace level.
It is the very strong contention of AMA/ASMOF that the dispute notified to the FWC in this matter is a collective dispute.
It is the very strong contention of AMA/ASMOF that the collective dispute in this matter was the subject of a genuine attempt to resolve the collective dispute at the workplace level before the collective dispute was referred to the FWC.
It is the very strong contention of AMA/ASMOF that the collective dispute referred to the FWC for conciliation and arbitration is properly within the jurisdiction of the FWC.
It is the very strong contention of AMA/ASMOF that the FWC has jurisdiction to arbitrate the collective dispute given that the FWC has convened a conference of the parties in accordance with clause 11.6 of the Agreement and that conciliation had ended as a result of the operation of clause 11.6(b)(iii) of the Agreement.
The above contentions of AMA/ASMOF are supported by the evidence of John Ryan in this matter.
It is clear that the dispute notified to RCH by John Ryan in his email on 2 February 2022 concerned an alleged underpayment to Dr Valerie Mayne in relation to her termination pay.
As a matter of logic the dispute related to an assertion by AMA/ASMOF that Dr Mayne had an entitlement to be paid a Supplement payment on leave paid out on termination and that the entitlement to be paid a Supplement payment on leave paid out on termination entitlement had not been paid to Dr Mayne.
The email response to Mr Ryan from Ms Kwas on 14 February 2022 asserted that neither Dr Mayne nor any Medical Imaging Specialist at RCH had an entitlement to receive the Supplement payment on any leave taken nor on any leave paid out on termination.
The email response from Ms Kwas effectively altered the issue in dispute from a dispute about an underpayment to a single employee of an existing entitlement (as claimed by Mr Ryan) to a dispute about the existence of the entitlement for all employees in the relevant cohort.
The further email from Mr Ryan to Ms Kwas on 17 February 2022 clearly identifies that the position advanced by Ms Kwas in her email on 14 February 2022 was disputed. At the very least the email from Mr Ryan to Ms Kwas on 17 February establishes that there was a dispute about the application and operation of the collective agreement applying to Medical Imaging Specialists at RCH.
The dispute existed because on one side there was a contention from AMA/ASMOF that Medical Imaging Specialists had an existing entitlement to be paid the Supplement payment when accrued leave was paid out on termination and this contention was rejected by RCH and on the other side there was a contention from RCH that Medical Imaging Specialists employed by RCH Supplement payment when taking periods of leave nor when paid out any accrued leave on termination and this contention was rejected by AMA/ASMOF.
As a matter of fact the evidence discloses that there was dispute of a collective nature in existence.
As a matter of fact the evidence discloses that the dispute of a collective nature was a dispute of the type referred to in clause 11.1(b)(v) of the Agreement in that it was dispute about pre-existing terms and conditions of employment applying prior to the 2013 Specialists Agreement and which was a Saved Local Agreement for the purposes of clause 7 of the Agreement.
Even with the paucity of Mr Ryan’s evidence as to his conversation with Ms Kwas on 28 February 2022 that evidence together with the contents of the email from Mr Ryan to Ms Kwas on 3 March 2022 provides a firm basis for a conclusion that as a matter of fact a collective dispute was in existence on 28 February 2022 and remained in existence on 3 March 2022.
The email from Mr Ryan to Ms Kwas on 3 March 2022 provides a firm basis for a conclusion that as a matter of fact the parties to the dispute had made a genuine attempt to resolve the dispute at the workplace level. The invitation from Mr Ryan to Ms Kwas to continue to attempt to resolve the dispute at the workplace level is sufficient evidence to enable the FWC to conclude that AMA/ASMOF as the party referring the dispute to the FWC pursuant to clause 11.5 of the Agreement had made a genuine attempt to resolve the dispute at the workplace level.
The FWC should be satisfied and should find that the matter in dispute as notified to the FWC in the Form F10 is within the jurisdiction of the FWC and that the arbitration of that matter will proceed.”
Respondent’s Reply Submissions
On 10 February 2023 the RCH submitted that:
“… RCH objection to Jurisdiction
3. Commissioner Hingley in CFMEU v Pilkington observed:
“[29] Jurisdiction is strictly a question of fact determined on individual circumstances of the matter, but can involve the exercise of value judgements.”
4. He also observed:
“It is necessary for the Commission to ascertain the character of the dispute that is before it in order to determine whether the dispute is over the application of the agreement.”
5. RCH maintains:
a) the dispute which actuated the Form F10, notified by ASMOF, was a complaint on behalf of a former employee, Dr Mayne. It was a dispute solely concerned with calculation of Dr Mayne’s termination entitlements, properly described by ASMOF, in a number of postemployment emails, as an underpayment claim;
b) Dr Mayne did not notify any dispute or invoke the disputes clause, and ASMOF did not do so on her behalf, prior to her final day of work (upon resignation);
c) there is no active or present dispute between RCH and any person currently employed and covered by, or entitled to the benefit of, the Agreement;
d) there was never, and is not now, a ‘collective’ dispute as that term is used in the Agreement;
e) to simply ‘construct’ a disagreement as a ‘dispute’ and name it as such does not confer upon that matter the status of a dispute, does not make it so;
f) assuming a dispute was notified while Dr Mayne was employed (which is denied) ASMOF did not comply with the process ordained by clause 11 of the Agreement before issuing a notice Form F10;
g) assuming a dispute was notified after Dr Mayne ceased employment (which is denied) ASMOF did not comply with the process ordained by clause 11 of the Agreement before issuing a notice Form F10;
h) ultimately, upon the evidence adduced to date, the Commission’s jurisdiction is sought to be invoked to rule upon, or answer, a hypothetical question with no practical effect.
6. The contents of the Form F10 and that which is attached to it are critical and constitute the factual underpinning of the dispute.
Response to propositions advanced by ASMOF
7. There are six (6) responses to the ASMOF Submissions.
8. First, in point of fact, there is no collective dispute. This is a dispute by an ex-employee in relation to her claim of underpayment. Mr Ryan of ASMOF concedes that when he was first contacted by Dr Mayne (he does not say when, but it is assumed post-employment in early 2022) it was a dispute about underpayment – from an ex-employee (Mayne Complaint). That is correct and remains so. The rest is window-dressing; an ex post facto recharacterization by ASMOF in an attempt to invoke the Commission’s jurisdiction for the benefit of Dr Mayne.
9. The proper characterisation of the dispute now before the Commission is made plain by the documents attached to the Form F10.
10. The 17 February 2022 email from ASMOF to Ms Kwas ably demonstrates that even then, 2 weeks after the 2 February 2022 Ryan email, the real dispute was about the underpayment to Dr Mayne”. The 17 February 2022 email from ASMOF reinforces the true gravamen of the dispute.
11. There is no further factual instalment beyond the Mayne Complaint. There is no presently disgruntled RCH employee. There is no presently employed RCH employee claiming any underpayment and neither could there be.
12. Further, the 3 March 2022 ASMOF email does not assist ASMOF. The language of this email is telling and provides a complete answer to what ASMOF now contends. Mr Ryan is betrayed by his own candour: he has “constructed the Form F10”, to describe the dispute as a ‘collective dispute’ in an attempt to manufacture jurisdiction. That is impermissible.
13. In truth, ASMOF comes to the Commission anticipating a future dispute over the Agreement and its operation. There is no live, present dispute.
14. Finally, ASMOF, in reality, seeks an opinion from the Commission – not the resolution of a live dispute.
15. Secondly, Ms Kwas of RCH did not agree to refer any matter to the Commission. Ms Kwas did not encourage the filing of the Form F10. She never agreed with ASMOF’s characterisation of an alleged ‘dispute’. Nothing happened for 7 months after a draft Form F10 was delivered to Ms Kwas (the ASMOF Delay).
16. In any event, jurisdiction (pursuant to clause 11) is not enlivened upon an Agreement. It is enlivened upon a bona fide identifiable dispute existing and the parties working through the Agreement’s mandated disputes process to resolve that dispute. Only then can it be referred to the Commission.
17. Thirdly, the ASMOF Delay cannot be reconciled with any attempt to assert an entitlement to expedition under clause 11.5 of the Agreement. That is because:
a) there was no dispute of a collective character; and
b) there was no effort by ASMOF to expedite the dispute: the ASMOF Delay accounted for 7 months.
18. Fourth, the Commission has no jurisdiction under clause 11 of the Agreement unless the condition precedent to a referral to the Commission has been satisfied.
19. It appears ASMOF concedes there was no compliance with the process required by clause 11.2 of the Agreement. Instead, ASMOF seeks to circumvent such mandated attempts at a discussion by its framing of the dispute as collective in nature. It was not.
20. And it is further observed: after Dr Mayne’s cessation of employment in late 2021, there was no ‘doctor’ in dispute with RCH in February 2022 (ASMOF involvement) or upon the filing of the Form F10 by ASMOF in October 2022. The alleged ‘dispute’ in 2022 is illusory because it was ‘constructed’ by ASMOF in the wake of Dr Mayne’s cessation of employment.
21. The Commission ought find there was non-compliance with the disputes process in clause 11.2(a) of the Agreement. There was no genuine attempt to resolve the dispute. The “doctor” (or any doctor) was conspicuously absent in any alleged settlement discussion: see clauses 11.4(a) and (b) of the Agreement.
22. The Commission must refuse to hear and determine the alleged dispute where the party alleging the dispute has not complied with the Agreement.
23. Fifthly, it is well accepted that:
“While the character of a dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute, in some cases the relief sought may cast light on the true nature of the dispute.”
24. In the Form F10 at 3.1, ASMOF outlines the relief sought. Putting to one side the ‘construction’ of the dispute to give it a ‘collective character’, the relief is squarely targeted to obtain a result for Dr Mayne and the dispute ASMOF notified on her behalf as an ex-employee: “are entitled to have the Supplement payment included in any payment of accrued annual leave or long service leave on termination.” The tense is telling: a declaration is sought as to future matters.
25. It follows that sixth and finally, the dispute notification and the relief sought (above) is nothing more or less than an attempt to obtain an advisory opinion or something akin to general declaratory relief upon a future hypothetical circumstance. That is not a power of determination available to the Commission in its role as private arbitrator. As DP Sams observed:
“[33] … I would wish to make it clear that Mr Kennedy cannot purport to represent others in a case such as this; nor is it possible to determine any aspect of merit in the dispute based on the alleged effect it will have on other employees now, and into the future. If this dispute is about anything, it can only be about the direct personal circumstances as they effect Mr Kennedy - no one else
[34] In any event, I accept Mr Gardner’s submission that the ‘outcomes’ Mr Kennedy seeks (see para 8) are akin to declarations of rights, or an expression of an advisory opinion. When viewed in this way, they are powers not only unavailable to FWA in respect to Mr Kennedy, but they cannot possibly be made to apply to unnamed persons, involving unknown and unspecified hypothetical circumstances.”
26. As an arbitral body, the Commission cannot grant declaratory relief.
Disposition
27. There was no dispute notified by a current employee. ASMOF did not engage in the steps required by the Agreement to seek to settle the dispute. Because Dr Mayne is an ex-employee, there is now no active dispute between RCH and ASMOF.
28. The Commission does not have jurisdiction to hear and determine the dispute as notified.
Consideration
If the dispute was about the entitlements on termination of Dr Mayne, I would dismiss the application on jurisdictional grounds for the reasons advanced by the Respondent, namely that,
(a) such a dispute would be concerned with an underpayment claim by an ex-employee;
(b) Dr Mayne did not invoke the disputes procedure during her employment; and
(c) there had not been substantive compliance with the disputes procedure.
However, that is not how the dispute was characterised.
Although the Form F10 looks like a contrivance, coincidence or otherwise an application dressed up as something else to advance Dr Mayne’s claims, it was not. I accept that the Form F10 was advanced as a purported dispute of a collective character under clause 11.5 of the Agreement.
However, the mere assertion that the dispute is of a collective character that is not enough to invest the Commission with jurisdiction in the matter.
I accept that ASMOF can be a party to a dispute and an applicant. However, in the present matter there is no “warm body” - as in a natural person - who is affected by the dispute.
The entire case is based on an assumption about something that the Respondent may do in the future. That is, that some time in the future the Respondent will again decide not to make the supplemental payment on accrued annual leave or long service leave when those entitlements are paid out. As the Respondent correctly asserted,
“The Commission has no power to act in an advisory capacity, to answer a hypothetical question or resolve a theoretical dispute…”
The situation might be different if a Doctor had given notice of their resignation, and before their departure, was given a statement of intended payments that clearly indicated that the supplementary payment was missing from the proposed payments in respect of accrued annual leave or long service leave. But that is not what has occurred here.
In respect of Dr Mayne the horse has already bolted. In respect of other Doctors who may be treated the same way in the future, they are not yet even in the barrier.
It is entirely speculative how they might be treated in the future. Management of the Respondent might have changed by then, the Respondent’s policies, or their attitude to the claim may be entirely different if the situation ever arises again.
Consequently, I am not satisfied that there is an actual dispute in existence. In those circumstances it would be improper for the Commission to enter the arena.
In the alternative I find that there has not been compliance with the clause 11 of the Agreement.
All of the steps relied upon by the Applicant to support its right to refer the matter to the Commission, where steps taken in relation to the dispute about Dr Mayne’s alleged entitlement.
ASMOF, on behalf of Dr Mayne, first wrote to the Respondent on 2 February 2022 (more than 1 month after Dr Mayne ceased to be an employee). The facts establish that, to the extent that the matter is now characterised as a dispute of a “collective character”, there has been no “genuine attempt to resolve the dispute at the workplace level.” There has only ever been an attempt to resolve Dr Mayne’s individual dispute – after the cessation of her employment.
No dispute of a collective character has ever been notified. The response from Ms Kwas on 14 February 2022 did not elevate the dispute about Dr Mayne’s entitlements into a dispute of a collective character. Mr Ryan’s email response to Ms Kwas on 17 February 2022 continued to be a demand for payment for Dr Mayne. The matter was still very much an individual rights-based claim. It was not a notification of a dispute of a collective character.
The telephone call between Mr Ryan and Ms Kwas on 28 February 2022 was still very much about Dr Mayne. So much is clear from Mr Ryan’s handwritten note of the conversation.
It was not until 3 March 2022 that Mr Ryan wrote “I have constructed the Form F10 on the basis of describing the dispute as a collective dispute involving all Medical Imaging Specialists.” This was clearly being used as device to get an individual dispute relating to a past employee before the Commission. The email of 3 March 2022 is not, as Mr Ryan contended, “a firm basis for a conclusion that as a matter of fact the parties to the dispute made a genuine attempt to resolve the dispute at the workplace level.”
Nothing the in the cross-examination of Ms Kwas changed my opinion about the absence of any notification of a dispute of a collective nature.
In any case, even as the matter stands today, it remains unclear to me who it is that comprises the collective that is said to invest the matter before me with a collective character. The Macquarie Dictionary defines “collective” as “relating to a group of individuals taken together.”
As stated above there is no “warm body” presently affected by the supplemental payment issue – let alone more than one “warm body” that, together, could be said to constitute a collective. I reject the contention of ASMOF that there is properly a dispute of a collective character presently before me.
Put simply, there is no active or present dispute between the Respondent and any person currently employed by it or covered by the Agreement. The Commission, as presently constituted, has no authority to adjudicate this matter.
Conclusion
For these reasons I am not satisfied that the Commission is invested with jurisdiction to arbitrate the substantive dispute. The Application must, therefore, be dismissed. An order to that effect will be issued with this decision [Print PR762024].
COMMISSIONER
[1] AE429332.
[2] Transcript PN21 (Mr Ryan) and PN23 (Mr Harrington).
[3] Witness Statement of Kathryn Kwas dated 3 February 2023 (Exhibit 5), at Court Book p 27.
[4] Ibid.
[5] Ibid.
[6] KK-1.
[7] Witness Statement of Kathryn Kwas dated 3 February 2023 (Exhibit 5), at Court Book p 28.
[8] KK-2.
[9] KK-3.
[10] Witness Statement of John Ryan dated 6 February 2023 (Exhibit 12), at Court Book p 44.
[11] Witness Statement of Kathryn Kwas dated 10 February 2023 (Exhibit 20), at Court Book p 77.
[12] KK-4.
[13] KK-5.
[14] Witness Statement of John Ryan dated 6 February 2023 (Exhibit 12), at Court Book p 44.
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