Construction, Forestry, Mining and Energy Union v Energy Australia Yallourn Pty Ltd

[2017] FWC 2376

[2017] FWC 2376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union
v
Energy Australia Yallourn Pty Ltd
(C2017/491)

COMMISSIONER ROE MELBOURNE, 1 MAY 2017

Resolution of dispute in accordance with the dispute resolution procedure of the EnergyAustralia Yallourn Enterprise Agreement 2013. Dispute concerning warning issued to Mr Aitken pursuant to Clause 29 of the Agreement

[1] This dispute is about a warning issued to Mr Aitken pursuant to Clause 29 of the EnergyAustralia Yallourn Enterprise Agreement 2013 (the Agreement). The Construction, Forestry, Mining and Energy Union (CFMEU) sought that I make a determination that the First Written Warning issued to Mr Aitken on 14 December 2016 be withdrawn. I made a decision 1 to this effect on 21 April 2017. I gave the parties an opportunity to make a further submission concerning what disciplinary outcome should be imposed in light of the findings made in the decision of 21 April 2017.

[2] I sought submissions about three options:

“(a) No further action; or

(b)  An oral warning in which case a note should be made to file and that the effective period of three months has expired; or

(c)  A first written warning with the effective period to be reduced to six months expiring 14 June 2017".

[3] At paragraph [91] of the decision, I stated that the final resolution of the dispute should balance:

“ My finding that Mr Aitken did effectively direct or instruct Mr Aberlic not to further participate in the course and that this was inappropriate because the dispute over the matter should have been dealt with through the disputes procedure of the Agreement.

• My finding that Mr Aitken’s view that Mr Aberlic could not be required to conduct the training was arguable.



•  My finding that there was a significant lack of procedural fairness by EnergyAustralia and failure to act in accordance with Clause 29.



•  My finding that Mr Aitken has already been subject to a period of uncertainty and a stressful process before the Fair Work Commission in order to achieve his rights under Clause 29 of the Agreement.”

[4] I have considered the matters raised by the parties in their further submissions. It is not necessary to canvass each of the matters raised. However, EnergyAustralia raised four points which need to be addressed.

• Firstly, they submit that there was no evidence that Mr Aiken was suffering from stress. I stand by my view that Mr Aitken has already been subject to a period of uncertainty and a stressful process before the Fair Work Commission in order to achieve his rights. I had the opportunity to observe Mr Aitken in the witness box in reaching my conclusion. I consider that EnergyAustralia’s failure to act in accordance with Clause 29 and the impact of that on Mr Aitken are relevant considerations in determining an appropriate and equitable outcome of the dispute.





• Secondly, they submit that the status quo provisions of the disputes settlement procedure of the Agreement mean that the penalty imposed cannot be backdated. Having decided to set aside the penalty imposed in December 2016, it is not consistent with the terms of the Agreement for the effective period to commence prior to the date of the decision. I agree with this submission.





• Thirdly, they submit that a First Written Warning with an effective period of six months is not one of the options in clause 29 of the Agreement. Accordingly they argue this would appear to be contrary to the approach that was determined to be open to the Commission in Lloyd v Australia Western Railroad Pty Ltd [2017] FWCFB 143 at [37]. It is not necessary to determine this matter because EnergyAustralia then goes on to state that “having regard to all of the Commission's findings and the desirability of resolving this matter quickly, the Respondent wishes to indicate its consent to a First Written Warning which would take effect from the final decision and run until 14 June 2017.”



• Fourthly EnergyAustralia submits that the plain meaning of clause 29 of the Agreement is that it has a broad discretion to determine the appropriate disciplinary action to be taken. The prerequisites for the imposition of a penalty having been met, they argue that the selection of the appropriate step is purely a matter for the employer, or, alternatively that strong weight should be given to the employer’s preference. I accept that the employer’s views are an important consideration. I dealt with the other aspects of this submission in my earlier decision and I do not intend to add to that.

[5] The CFMEU submit that no further action should be taken. They argue that this would be an equitable outcome given the impact of the process on Mr Aitken and the shortcomings of the process adopted by EnergyAustralia.

[6] The CFMEU also submit that:

“To the extent that the disciplinary procedure’s aim is to correct or address poor conduct, as a matter of practical reality, that has been achieved. Mr Aitken is aware that his actions have been found to be unacceptable and that the appropriate course for him to take in the circumstances would have been to invoke the dispute settlement procedure contained in clause 28 of the Agreement. Mr Aitken has suffered consequences associated with his conduct. In terms of any general need for unacceptable conduct to be seen to be addressed in a manner that maintains standards within the workforce, the action taken against Mr Aberlic has not been challenged by Mr Aberlic and the Commission’s finding against Mr Aitken, the most senior union representative at the workplace, delivers a clear message concerning the appropriate manner in which matters concerning a dispute over the interpretation of the Agreement are to be raised.”

[7] The CFMEU submission has considerable merit. However, despite the strength of the CFMEU’s submissions I do not consider that it would be appropriate to take no further action. This would not appropriately balance the considerations I have listed.

[8] The second option of an oral warning has to be modified in light of the status quo provisions of the disputes settlement procedure. An oral warning with an effective period of three months would in some senses be more onerous to Mr Aitken than the third option because its effective period would be until August 2017. It would not be appropriate at this stage to consider an oral warning of less than three months’ duration as the parties were not asked to comment on such a proposal. The fact that EnergyAustralia is prepared to accept the third option as a final resolution to the dispute removes some of the uncertainty which may be associated with this option. On the other hand an oral warning may be seen as a lesser penalty which better reflects my findings concerning the extenuating circumstances and the procedural shortcomings.

[9] On balance I have decided that the most appropriate outcome is that a first written warning effective from today’s date be recorded and that the warning have a reduced “effective for period” expiring on 17 June 2017. This is the final resolution to the dispute.

COMMISSIONER

Final written submissions:

Applicant submissions received 28 April 2017.

Respondent submissions received 28 April 2017.

 1   [2017] FWC 2221

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