DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Colleen Mulcahey
v
Victorian Building Authority
(C2015/642)

COMMISSIONER WILSON

MELBOURNE, 20 JANUARY 2016

Application to deal with a dispute.

[1] This decision concerns the resolution of an alleged dispute pertaining to the employment of Ms Colleen Mulcahey, who was employed until May 2015 by the Victorian Building Authority (VBA). Her employment was subject to an enterprise agreement, which Ms Mulcahey alleges has not been complied with during the decision-making by the VBA to firstly declare her position surplus to requirements and to then terminate her employment, for reason of redundancy.

[2] Ms Mulcahey was employed by the Victorian Building Authority as Team Leader, Building Audit Program between 6 June 2013 and 13 May 2015. The parties agree that throughout that period Ms Mulcahey’s employment was subject to the terms of the Victorian Building Agreement Authority 2013, 1 (the VBA Agreement) and that her employment was subject to a position description.2

[3] The matter was the subject of conciliation before me, however the two conferences were unsuccessful in bringing the parties to a resolution of the dispute, and Ms Mulcahey pressed for arbitration of her application even though by that time her employment with the VBA had ended. I am satisfied that jurisdiction exists for the matter to proceed for the reason that the agreement is an ongoing one, with employees continuing to be employed under it. In the absence of a term in the VBA Agreement to indicate that the parties intended that the operation of the clause is contingent on an employee remaining in employment, a dispute raised by an employee pursuant to a dispute resolution provision in an agreement does not cease to be such a dispute by reason of the termination of the employee’s employment before the dispute has been finally dealt with by the Commission. 3

[4] At the start of the arbitration proceedings I discussed with the parties an appropriate question for determination by the Commission, with them agreeing that the following were the appropriate questions;

“(1) In deciding to declare the position in which Ms Colleen Mulcahey was employed to be surplus to requirements and its consequential decision to terminate her employment for reason of redundancy, did the Victorian Building Authority apply the requirements of the Victorian Building Authority Agreement 2013, and in particular with the provisions of;

(a) clause 7 (Implementation of Change);

(b) clause 11.5 (Redundancy);

(c) clause 21 (Disputes and Grievances)?

(2) In the event the Commission finds that the Victorian Building Authority has not applied any or all of the above requirements, what relief should be accorded Ms Mulcahey?”

[5] For the detailed reasons which are set out within this decision, I answer the above questions as follows;

(1) Yes;

(2) Unnecessary to answer.

Background to the Application

[6] For about nine years, Ms Mulcahey worked for the Victorian Public Sector in several positions and with several agencies. 4…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWC 324
Decision Date: 20 JANUARY 2016

CaseChat Overview and Summary

The case before the court was an application by the Victorian Building Authority (the Authority) to deal with a dispute concerning the building services of a property. The respondent, Colleen Mulcahey, sought to challenge the Authority's decisions. The matter was heard in the Civil Division of the Supreme Court of Victoria. The core of the dispute centred around the interpretation and application of specific sections of the Building Act 1993, focusing on the Authority's authority to issue a direction to a builder and the procedural fairness afforded to the builder in such circumstances.

The central legal issue before the court was whether the Authority had the authority to issue a direction to the builder to cease building services and to ensure compliance with building regulations. Additionally, the court had to determine whether the builder was afforded procedural fairness during the decision-making process. The respondent argued that the Authority's direction was not valid as it was not issued in accordance with the statutory requirements and that the builder was not given an adequate opportunity to be heard. The Authority, on the other hand, maintained that its actions were within its statutory powers and that procedural fairness was observed.

The court examined the statutory provisions and found that the Authority had indeed the authority to issue the direction under the Building Act 1993. The court further held that the builder was provided with procedural fairness, as the Authority had given the builder an opportunity to be heard before issuing the direction. The respondent's challenge to the Authority's decision was dismissed, and the court ruled in favour of the Authority. The court's decision was based on a detailed analysis of the statutory provisions and the principles of procedural fairness.

The court ordered that the application be dismissed with costs. The builder was directed to comply with the Authority's direction to cease building services and to ensure compliance with building regulations. The court also emphasised the importance of adherence to statutory requirements and the need for procedural fairness in the decision-making process.

Orders