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

[2017] FWC 2221

[2017] FWC 2221

FAIR WORK COMMISSION

DECISION

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

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

COMMISSIONER ROE MELBOURNE, 21 APRIL 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 The CFMEU seeks that I make a determination that the First Written Warning issued to Mr Aitken on 14 December 2016 be withdrawn.

[2] The written warning includes the following which confirms that it is action taken in accordance with the disciplinary action Clause 29 of the Agreement: “as per clause 29, step 2 of the Yallourn Enterprise Agreement 2013, this is to be regarded as a “note to file.””

[3] The First Written warning was because Mr Aitken had “engaged in unauthorised direction of another employee to cease performing work that has disrupted a business operation, namely the operations training program.” The warning letter said that the basis for this conclusion was “contents of your email to Dale Hogarth and confirmed by discussion with Tom Aberlic.” The letter stated that “following receipt of an email to Dale Hogarth, Operations Leader from you on 2^nd December 2016, an investigation was undertaken based on you informing Dale Hogarth that you were instructing Thomas (Tom) Aberlic to cease instructing operations training. That investigation confirmed that Tom Aberlic had ceased the delivery of the operations training solely on the basis of your instruction to him on 2 December 2016.” Mr Aitken is the lodge district secretary of the CFMEU and as such is the most senior workplace delegate at the power station.

[4] Mr Tom Aberlic, an employee classified at UC3 under the Agreement, ceased to provide cross-stage training on the operation of Stage 1 of the power station to Mr Rod White. Those booked to attend the training were able to operate Stage 2 of the power station but not Stage 1. It is not in dispute that the Agreement provides for operators to be trained so as to be able to operate both Stage 1 and Stage 2. At the time of the training Mr Rod White had recently been promoted to a management level and was therefore no longer covered by the Agreement at the time of the training. Mr White had not been appointed to the management position at the time he had been selected to attend the training but he had been appointed by the time the training commenced about one week after his promotion on 21 November 2016. Mr White and his manager, Mr Hogarth, considered that given Mr White’s new management role related to training of operators and the coordination of permits for maintenance workers the cross stage training was relevant to that new role and should still be completed by Mr White notwithstanding his promotion. There was dispute about whether Mr Aitken had provided Mr Aberlic with an instruction not to train Mr White or whether he had simply provided Mr Aberlic with advice and encouragement about the matter.

[5] Mr Aitken says that he spoke to Mr Aberlic and said: “I suggested that it might be better for the tension at the power station and avoid him being put in an awkward position, if the course did not go ahead with a management employee participating. I believed that he was not obliged to train management employees under the Enterprise Agreement.” 1 Mr Aitken also spoke to Mr White, who was a member of the CFMEU at the time, and told him that Mr Aitken and some members were concerned about Mr White’s participation in the training given the role of management in operating the station during the lockout. Mr White gave evidence that Mr Aitken had said words to the effect: “of course, I would hope that you wouldn’t operate the units if we were locked out.”2 Mr White says that he told Mr Aitken words to the effect that “whatever happens it is not up to me, it is up to others to make the decision.”3 Mr White also says that Mr Aberlic told him after the conversation with Mr Aitken that he was feeling pressured to pull out of delivering the course but that he wasn’t going to say that he did not want to do the course delivery at that time.

[6] Mr Aitken referred to the role descriptors for a UC3 classification in the Agreement which includes the requirement to train “trainee operators and current team members” and which makes no reference to training other persons and also to the Agreement which specifies that the descriptors cannot be changed without agreement. The relevant responsibility in the role description is as follows: “an active involvement in the on the job training and development of trainee operators and current team members”. Mr Aitken gave evidence that he was not aware of any previous occasion when a UC3 employee has been asked to train management employees. He said that it was a sensitive issue “because management operated the power station when employees were locked out several years ago.” 4

[7] Mr Aitken says that he “asked Mr Aberlic if he thought he should stop running the course. I was concerned that Mr Aberlic would be criticised for conducting the training and told him so.” He says that “Mr Aberlic said that he would stop the course if I directed him to. I specifically recall saying to him: “I am not going to direct you to stop because I will get in the shit if I do.””

[8] Mr Aitken says that he then tried to resolve the situation in discussion with the operations leader who is responsible for the overall management of operations activities and associated resources, Mr Hogarth. He emailed Mr Hogarth on 30 November 2016 that “It is our opinion that this course is for personnel covered by the current agreement and not management personnel. You are placing Tom and the other course participants in a very awkward position. Tom never envisaged training management personnel. If you require Rod to undertake the training then that is up to you and you can make alternate arrangements.”

[9] On 2 December 2016 Mr Aitken sent a further email to Mr Hogarth following a discussion he had with him. In that email he recognised that “you did not plan to place a contracted person into the course and there was nothing malicious in him being there.” He said:

“I informed you that I felt I had no option but to ask Tom Aberlic to cease being an instructor on that course. However, in the interest of trying to solve the problem amicably I offered the following compromise. If you provided a letter stating that operations personnel covered by the enterprise agreement are not expected to train contracted employees in future, we would complete the delivery of training on the current course. Regrettably this was not acceptable to you so you declined the compromise. Please be advised that our members will take no further part as instructors on this course.”

[10] Mr Hogarth gave evidence that he considered that this statement amounted to an unlawful ban on the performance of work and also that the statement amounted to a direction to Mr Aberlic to cease acting as an instructor on the course.

[11] Mr Aitken gave evidence that:

“I believed at the time I raised the issue that Mr Aberlic was under no obligation to continue the course and if he said that he did not wish to do so, that he was entitled not to conduct the course. I did not realise that my email would be viewed by Mr Hogarth as a direction for Mr Aberlic to do something that he was not entitled to do. That was not my intention. Nobody from EnergyAustralia suggested to me that I had directed Mr Aberlic not to conduct the training course until I received the First Written Warning.” 5

[12] Mr Aberlic gave evidence that he had received a warning for his actions in respect to the incident. He said that for personal reasons that were not related to work he decided not to contest his warning. However, he said that he did take steps to “try and fix the inaccuracy contained on my First Written Warning. The warning said words to the effect that I had been instructed or directed by Geoff Aitken to stop the training.” Mr Aberlic says that: “Mr Aitken did request that I cease training Mr White but he did not direct or instruct me to stop the training. I also wanted to make it clear that my training role was voluntary in nature and not at the discretion of management.” 6

[13] Mr Ablerlic sent an email to Mr Hogarth on 14 December 2016 advising that Mr Aitken had not directed him. He sought that a correction be made to his warning letter. Mr Hogarth responded attaching a revised version. However, Mr Aberlic did not regard this as fixing the problem and again wrote to Mr Hogarth on 20 December 2016 stating that “it does not reflect the changes I had discussed with you, namely that my training role was voluntary only, and that Geoff Aitken did not direct or instruct me to stand down.”

[14] Mr Hogarth produced records which show that operators have provided training to contractors in the period prior to mid 2007. The persons to whom training has been provided in the past were either maintenance workers engaged by contractors or persons covered by the Agreement. I am satisfied that Mr Aitken made it clear to Mr Hogarth that the major concern was that managerial employees not covered by the Agreement would operate the power station during a lock out as had happened some years ago. There was no evidence that employees covered by the Agreement have previously provided training to management employees. Although the new position held by Mr White did not have any direct reports it was a management position not covered by the Agreement. Mr White gave evidence that the position is “considered a management role and not covered by the” Agreement. 7 I accept the evidence of Mr Aitken and Mr White that Mr White was a team member prior to his promotion but he was not a member of any of the operations teams after his promotion.

[15] EnergyAustralia submitted that the term “team members” is broad enough to include team leaders, engineers and operations specialists like Mr White. They argue that there is no basis to import the concept of Agreement coverage into the meaning of the words. I am satisfied that the context in which the words appear is important. The reference to on the job training and development of trainee operators and current team members is clearly designed to limit the scope of those who are trained to those at a similar or lower level than the UC3 operators and those with whom the operators would have close association. The word “team” in this context is associated with the work teams of the UC3 operators. I am satisfied that Mr White was no longer a current team member once he had been promoted.

[16] Mr Hogarth also gave evidence of the inconvenience to the business caused by having to find a replacement person to conduct the training after Mr Aberlic did not turn up to continue the training.

[17] Mr Burt gave evidence that he was requested by Mr Hogarth to undertake an investigation into the matter and that he spoke to Mr Aitken and Mr Aberlic by phone about the matter and reached the conclusion that Mr Aitken had instructed Mr Aberlic not to further participate in the training and that a first written warning would be appropriate.

The relevant provisions of the Agreement.

[18] I issued an interim decision in this matter 8 in which I found:

• “…there is no uncertainty or ambiguity in the meaning of the status quo in respect to this dispute. I am satisfied that the plain meaning of the words considered in context of the Clause as a whole means in the circumstances of this dispute that during the operation of the disputes resolution process pursuant to Clause 28 of the Agreement Energy Australia cannot rely upon the first written warning issued to Mr Aitken.”



• “….the dispute concerning the First Written Warning issued to Mr Aitken is a Category 1 dispute.”

[19] I also observed that:

“In the event that this matter does proceed to arbitration I will have to consider conflicting submissions of the parties as to the extent to which, given Clause 28 and 29 of the Agreement, I can review the reasonableness of the decision to issue the first written warning to Mr Aitken. The matters raised by Energy Australia are relevant to this consideration. This is a Category 1 matter because it goes to the application and interpretation of Clause 29. The extent to which a Category 1 matter can be arbitrated is constrained by Section 739 of the Fair Work Act 2009. That is, the arbitrated outcome cannot be inconsistent with the terms of Clause 29 of the Agreement. Furthermore, it cannot be inconsistent with the limitations imposed by the terms of the disputes settlement procedure; Clause 28 categorises the disputes in order to limit arbitration to disputes which go to the application or interpretation of the Agreement. Energy Australia is correct that these two considerations may constrain the possible outcomes from arbitration of this dispute.”

[20] The relevant clauses of the Agreement are as follows:

“28 DISPUTE RESOLUTION PROCESS

The DRP process is to be used to assist in resolving any matter or dispute pertaining to the employment relationship.

For matters that are in dispute, that go to the application or interpretation of this Agreement or with matters arising under the National Employment Standards (NES), this clause facilitates access to the Fair Work Commission for conciliation and, if necessary, arbitration ('category 1 matters').

For all other matters pertaining to the employment relationship that do not go to the application or interpretation of the Agreement or are not matters arising under the NES ('category 2 matters'), the steps set out below shall apply, except that the Fair Work Commission shall only be empowered to exercise conciliation powers.

28.1 INITIAL PROCESS

(a) In the event of any dispute arising the following procedure will apply.

STEP 1 The matter will, in the first instance, be discussed between the employee(s), and the Team Leader involved.

If the matter remains unresolved it shall be elevated to STEP 2 as soon as practicable;

STEP 2 The matter may be referred in writing, by the employee(s) to the relevant Line Manager. The Line Manager will provide a written response to the issue within three working days.

If the matter remains unresolved;

STEP 3 It will be referred for discussion between the appropriate Union Official or other employee representative and the Executive Manager Yallourn, or their nominated delegate. The Executive Manager Yallourn will provide a response to the issue as soon as practicable.

If the matter remains unresolved;

STEP 4 It may be referred to the Fair Work Commission (FWC) for conciliation or arbitration (for 'category 1 matters') or conciliation only (for 'category 2 matters').

Employees may bring a support person or the appropriate union representative to any meeting held under this clause with the Parties being able to elect to bring representatives of their own choosing to any matter referred to conciliation or arbitration.

(b) The dispute may be referred to FWC at any stage by agreement of the parties in the interest of speedy resolution of the dispute.

(c) For 'category 1 matters', during the entire period, from the time when the dispute first arises until the time of its resolution (whether by discussion or negotiation, or by proceedings before the FWC), the status quo or 'normal work' shall continue, unless the maintenance of status quo or performance of normal work would place at risk the health or safety of the employee(s) concerned. No party to the dispute shall suffer any prejudice as to the resolution of the matter by reason only that normal work continues as required by this paragraph.

(d) In respect to category 2 matters, either party may notify the FWC of a dispute and seek to have the matter dealt with on an expedited basis, provided that the notifier has satisfied steps 'l and 2 of the initial process. The status quo shall apply to category 2 matters in the same way as category 1 matters unless one party argues successfully before FWC that the status-quo should be altered or removed. Any such application shall not occur until at least 14 days has elapsed since the first conciliation hearing of the notified matter. The dispute and status-quo provision ends when the FWC determines that the conciliation process is concluded.

(e) 'Normal work' means the work normally performed by an employee and "status quo " means the circumstances existing immediately prior to the change or circumstance leading to the proposed change which resulted in the dispute arising.

29 DISCIPLINE PROCEDURE

The discipline procedure will be invoked in cases where unacceptable employee performance and/or conduct require follow-up action.

The discipline procedure aims to correct / address poor conduct, work behaviour or performance.

Disciplinary action can be commenced at any of the four steps after an investigation has been conducted.

This clause does not prevent summary dismissal on account of serious misconduct.

STEPS	LOCATION	WHO’S INVOLVED	PAPERWORK	EFFECTIVE FOR
1. Oral Warning	Workplace or Office	Employee* Team Leader	Diary notes.	Up to 3 months
2. First Written Warning	Office	Employee* Team Leader	Note to file, signed by both employee and Team Leader, detailing the reason for the disciplinary action. An employee may refuse to sign note.	Up to 12 months
3. Final Written Warning	Office	Employee* Team Leader Line Manager	Note to file, signed by both employee and Team Leader, detailing the reason for the disciplinary action. An employee may refuse to sign note.	Up to 24 months
4. Dismissal	Office	As above plus Senior Manager	Note to file detailing the reasons for dismissal.

Written documentation will be recorded on file and will include dates for the disciplinary action to be reviewed. Reviews shall occur at 3 monthly intervals if required. The parties will determine whether a future review date is required. If no further review is required, a note will be placed in the employee's file stating that the disciplinary letter in question, no longer has effect.

The employee may choose to involve his or her support person/representative at any or all the steps of this Discipline Procedure. The Company shall allow reasonable advance notice of any meetings or interviews to allow the employee to arrange for their support person to attend but will not unnecessarily delay proceedings if such support cannot be arranged.”

The position of CFMEU and Mr Aitken

[21] The CFMEU argues that EnergyAustralia did not act in accordance with Clause 29 of the Agreement in giving Mr Aitken the First Written Warning. At the time the first written warning was issued no other disciplinary action had been taken against Mr Aitken that was within the “effective for” period specified in Clause 29. The CFMEU also argues that the actions of EnergyAustralia in issuing the warning were unjust and/or unreasonable.

[22] The CFMEU argues that the discipline procedure cannot be used unless there is unacceptable employee performance and/or conduct which requires follow up action. They argue that Mr Aitken did not engage in conduct which was unacceptable and/or that required follow up action because:

● The task of providing training to management personnel is outside the role descriptor for UC3 and the role descriptor can only be changed by agreement;
● Mr Aikten did not issue the direction to Mr Aberlic; and/or
● Mr Aitken genuinely believed that Mr Aberlic could not be compelled to conduct the training and made genuine efforts to resolve the issue.

[23] The CFMEU submit that Clause 29 states that: “the discipline procedure aims to correct / address poor conduct, work behaviour or performance” and that issuing a warning in circumstances where the alleged conduct did not occur mean that EnergyAustralia have had no regard for the purpose of the discipline procedure.

[24] The CFMEU argue that the provisions of Clause 29 were not followed because the provision requires an investigation be conducted and there was no proper investigation.

[25] The CFMEU argue that the warning was not issued in accordance with the requirement of Clause 29 that a first written warning be issued in the office.

[26] The CFMEU argue that the issuing of a warning in the circumstances of this case was manifestly unjust or unreasonable and that in resolving the dispute the Fair Work Commission should set the warning aside.

Does Clause 29 mean that the disciplinary procedure cannot be utilised unless there is unacceptable conduct which requires follow up action?

[27] EnergyAustralia submits that Clause 29 establishes a disciplinary procedure which must be adhered to by EnergyAustralia when taking disciplinary action; it does not impinge EnergyAustralia's discretion to determine when it is appropriate to take disciplinary action. Indeed, it is submitted that the following provision of Clause 29 enshrines an absolute discretion for EnergyAustralia to take any of the forms of disciplinary action contemplated by Clause 29 where it considers this is appropriate, subject only to the requirement that an investigation must first be conducted.

"Disciplinary action can be commenced at any of the four steps after an investigation has been conducted.

[28] EnergyAustralia submits that this discretion is not limited in any way by the first sentence of Clause 29, which states as follows:

"The discipline procedure will be invoked in cases where unacceptable employee performance and/or conduct require follow-up action"

[29] EnergyAustralia submits that, read in the context of the whole section, the better view is that this provision is merely descriptive of where the clause will be used, rather than establishing an objective standard of poor behaviour that must be established as a gateway to engaging the clause. In support of this construction, EnergyAustralia submits as follows:

(a) The word "will" (rather than, for example, "may only") is used, which weighs against the construction that this is a gateway provision. Indeed, if the provision was considered to be other than descriptive, then it would seem to require that disciplinary action be taken in all cases of "unacceptable" behaviour, removing the employer's discretion not to take such action, which would be a strange result.

(b) The wording is too broad to establish any kind of objective standard that could be sensibly applied or to evince an intention to oust the employer's discretion to determine what behaviour is unacceptable and requires follow-up action.

(c) The provision refers to when the "procedure" established by the clause will be used, not to when disciplinary action may be taken.

(d) It would be strange and somewhat inconsistent if the parties intended to limit the employer's discretion to take disciplinary action by establishing an objective standard that must be met before any action can be taken where they have also made it clear that the employer can commence disciplinary action "at any of the four steps" (which range from an oral warning to dismissal).

(e) What is "unacceptable" performance or conduct can only be understood in the context of what is unacceptable to the employer.

[30] If this construction of the Agreement is correct then EnergyAustralia argue that the reasonableness of the decision (as opposed to whether it issued the warning from the proper location and whether it carried out an investigation), does not relate to the application or interpretation of the Agreement. Therefore, it would be inconsistent with Clause 28 to make a determination about such matters. Accordingly, EnergyAustralia submits that the terms of the Agreement and Section 739(5) of the Act prevent the Commission from determining that the warning should be withdrawn on the grounds that it was unfair or unreasonable.

[31] Clause 29 provides: “The discipline procedure will be invoked in cases where unacceptable employee performance and/or conduct require follow-up action.” I am satisfied that the plain meaning of these words is that for the procedure to be invoked there must be unacceptable employee performance and/or conduct which requires follow-up action. There is nothing in the words when considered in the context of the clause as a whole that suggests that the words “where the employer believes” should be read into the phrase. I am satisfied that on an objective assessment there must be unacceptable employee performance and/or conduct which requires follow-up action.

[32] I am not satisfied that the discretion provided to the employer that "Disciplinary action can be commenced at any of the four steps after an investigation has been conducted” alters this conclusion. This sentence does not say: the employer can select any of the disciplinary actions in the table. Rather it provides that the disciplinary action need not commence at the first step and then proceed through each of the other steps. The use of the words “can be commenced” and the use of the term “steps” supports this construction. Regardless, even if the Agreement provides the employer with broad discretion to determine whether or not the appropriate disciplinary penalty for proven poor performance or misconduct is an oral warning or a written warning or a final written warning or dismissal is not inconsistent with the Agreement requiring that the disciplinary procedure can only be invoked in cases where misconduct or poor performance is established.
[33] Considered in context the use of the word “will” does not weigh against this interpretation. The words “require follow up action” mean that disciplinary action is not required in all cases of unacceptable behaviour and means that discretion in respect to the penalty is retained.

[34] I am not satisfied that there is any basis to conclude that the mutual intention of the parties could not have been to oust the employer’s absolute discretion to determine what behaviour is unacceptable and requires follow up action. Although the wording is broad there is no basis to conclude that the parties did not intend to allow disputes over whether or not disciplinary action is warranted to be resolved utilising the disputes settlement procedure.

[35] Considered in context the use of the word disciplinary procedure rather than discipline is a reference to the requirement to follow the procedure set out in the balance of the clause when there is a case of unacceptable behaviour warranting following up action. It is not a temporal requirement that the disciplinary procedure cannot be commenced until it has been established that there was unacceptable conduct. The use of the word procedure in this context is a reference to the penalty set out in the steps of the procedure and the conditions associated with the issuing of such a penalty.

[36] Of course what is unacceptable performance or conduct must be considered in the context of what is unacceptable to the employer. In considering objectively whether or not conduct is unacceptable and requires follow up action the views and situation of the employer must be considered. However, this is not the same thing as saying that the issue of what is unacceptable conduct or performance requiring follow up action cannot be considered objectively. For example, conduct could not be unacceptable if it could not be established that the alleged conduct occurred.

[37] For these reasons I am satisfied that for a penalty set out in the procedure to be invoked there must be unacceptable employee performance and/or conduct which requires follow-up action.

[38] The “case” we are concerned with relates to conduct not performance. The CFMEU argues that Mr Aitken did not engage in conduct that was unacceptable and/or that required follow up action for the three reasons outlined earlier. I will now deal with each of these matters in turn.

Is the training of management personnel not covered by the Agreement part of the role description for UC3 operators? Can a UC3 operator be required to undertake this work?

[39] Clause 32.16 of the Agreement states that the responsibilities for each of the Operations Group classifications shall be in accordance with the role descriptors contained in Clause 32.20. Clause 32.20 refers to the “Operations Role Descriptors” which are contained in a document which “defines the role and duties of classifications within the Shift Operations Group.” Clause 32.20 goes on to state that the Operations Role Descriptors document cannot be varied during the life of the agreement without consent. The relevant UC3 descriptor includes the following requirement: “an active involvement in the on the job training and development of trainee operators and current team members”. It does not include any other training requirement. The CFMEU therefore argue that Mr Aberlic could not be compelled to provide training to Mr White and was entitled to cease performing the training.

[40] The CFMEU refer to the decision of Commissioner Cirkovic in EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union 9 which considered these clauses. In that case the dispute concerned “whether the Agreement prevents EnergyAustralia from contracting out the task of bunker lancing of the four coal bunkers at the Yallourn Power Station.” The dispute required the interpretation of the following clauses of the Agreement:

“30 Roles & Responsibilities

The classification, duties and responsibilities of an employee shall not be changed unless agreed between the employee and the company.

30.20 Operations Role Descriptors

External to this agreement is a document entitled “Operations Role Descriptors” which defines the roles and duties of classifications within the Shift Operations Group. The Operations Role Descriptors document cannot be varied during the term of the Agreement except by mutual agreement of the operator’s representatives and the Company. The Operations Role Descriptors document forms part of this Agreement for the purposes of the Dispute Resolution clause.”

[41] Commissioner Cirkovic found that the questions to be determined in that case were whether:

“1. Clauses 30 and 32.20 of the Agreement, together with the reference to ‘cleaning of coal feeder conveyors & chutes’ in the Power Worker role descriptor referred to in clause 32.20, incorporates the task of bunker lancing, thus preventing EnergyAustralia from contracting out the task of bunker lancing without mutual agreement with the operators representatives; and

2. Clause 32.2 of the Agreement, which provides that contractors may be used for the performance of work ‘provided that Operations employees are fully utilised’, and clause 6 which provides that contractors may be used to meet workloads provided job security of employees is not affected, prevents the contracting out of bunker lancing work in circumstances where the work is performed as overtime and not during ordinary hours.” 10

[42] Commissioner Cirkovic found:

“I do not accept the proposition advanced by the CFMEU that the proper construction is to read clause 30 in isolation. To give proper meaning to the words it is necessary to look to the terms of clause 30.20 and the terms expressed in the role descriptor. To do otherwise would involve an overly technical and pedantic approach and make the terms expressed in the role descriptor redundant. 11

Turning to the document itself, the contention is founded primarily in the interpretation of two bullet points, firstly to ‘ensure coal is delivered to the power station boilers as required’ and secondly ‘cleaning of coal feeder conveyor and chutes’. EnergyAustralia gave evidence that the responsibility of ‘cleaning of coal feeder conveyor and chutes’ involves the task of ‘trimming the feeders’. 12

Based on the analysis and consideration above, I do not consider that the responsibility of ‘cleaning of coal feeder conveyers and chutes’, including the task of ‘trimming the feeders’, incorporates the task of bunker lancing as they are separate and discreet tasks. Therefore, the task of bunker lancing is not incorporated into the Operations Role Descriptors for power workers. 13

For the reasons above, I consider that clauses 30 and 32.20 of the Agreement, together with the reference to the responsibility of ‘cleaning of coal feeder conveyors & chutes’ in the power worker role descriptor, does not incorporate the task of bunker lancing.

The outsourcing of the task of bunker lancing would not impact on the job security of power workers as contemplated by clauses 6 and 32.20 of the Agreement.” 14

[43] It was accepted that the task of bunker lancing was regularly performed by some of the power workers during overtime. It was also performed by other classifications, including higher unit controller classifications during overtime.

[44] The decision of Commissioner Cirkovic was not appealed. Given that the Commissioner interpreted the same provisions as I am called upon to interpret it would not be appropriate for me to take a different approach to the interpretation of the provisions.

[45] Essentially Commissioner Cirkovic agreed with the submission of EnergyAustralia that “given that the duties set out in the power workers job descriptor do not include bunker lancing, the contracting out of bunker lancing will not vary the power workers’ duties”. 15 Based on the same analysis the duties of UC3 include “an active involvement in the on the job training and development of trainee operators and current team members” but do not extend to the training of management personnel. The duties of UC3 can only be altered by agreement and there has been no agreement to alter the duties to include the training of management personnel. I accept the evidence of Mr Aitken that there is evidence of strong opposition from some employees to the training of management personnel. The training of management personnel does not form part of the duties of UC3 classification.

[46] EnergyAustralia correctly point to the fact that the UC3 classification level is a higher level than the power worker classification being considered by Commissioner Cirkovic and that there are a number of more broadly expressed duties and responsibilities in the UC3 descriptor. However, I do not consider that any of the more general responsibilities for the operation of the unit, to problem solving, to maintaining standards of operating practice and appropriate behaviour, and the like encompass the training of management personnel.

[47] EnergyAustralia refer to Clause 5.5 “Flexibility and Mobility” of the Agreement:

“Employees shall perform such work as the Company shall from time to time reasonably require, including all work that they are trained and competent to perform, or work which they are required to perform for the purposes of training. All work shall be performed in a safe, legal and competent manner.

The Company may, after consultation with affected employees, transfer employees between work areas at the Company site to meet business needs on both a temporary and/or permanent basis.”

[48] I do not consider that Clause 5.5 can be read as making Clause 30 redundant. Clause 30 provides that “the classification, duties and responsibilities of an employee shall not be changed unless agreed between the employee and the company”. Clause 30 does not include a qualification “except where directed in accordance with Clause 5.5”. I am satisfied that a consequence of the decision of Commissioner Cirkovic is that the requirement to perform “all work that they are trained and competent to perform” must be read in the context of Clause 30 and Clause 30.20 and the role descriptors. Clause 30.20 states that the role descriptor “defines the roles and duties of classifications within the Shift Operations Group”. That is the “duties” are defined by the descriptor. Commissioner Cirkovic did not consider that the duties in the position descriptions should be read broadly so as to incorporate related work for which the employee was trained and competent. There is no doubt that some employees were competent and trained to perform the bunker lancing work but Commissioner Cirkovic found that bunker lancing was not part of the power worker role descriptor. It follows that because of Clause 30.20 bunker lancing was not part of the power worker duties. I do not consider that it would be consistent with Commissioner Cirkovic’s decision to conclude that an employee can be directed to perform bunker lancing work as part of regular or normal duties.

[49] Commissioner Cirkovic was not called upon to directly consider Clause 5.5. I consider it likely that Clause 5.5 allows the employer to direct an employee to perform work outside of their role descriptor in certain circumstances. If this were not the case then the first part of Clause 5.5 would have little work to do. However, based on the decision of Commissioner Cirkovic I consider that Clause 5.5 does not allow for the normal or regular duties and responsibilities of an employee to be altered without agreement. However, it allows this to be done for the purpose of acquiring new skills, that is for this “for the purposes of training”. It is also likely that Clause 5.5 allows for work to be directed beyond the duties and responsibilities defined in the role descriptors in an emergency or special or unpredicted circumstance. That is, a circumstance where the direction would not amount to an alteration to the role descriptor or a change to duties inconsistent with the descriptor.

[50] I am satisfied that, given the recent decision of Commissioner Cirkovic, Mr Aitken’s view that it was open to Mr Aberlic to refuse to train management personnel under the provisions of the Agreement was strongly arguable. The voluntary nature of the duties was illustrated by the fact that immediately prior to Mr Aberlic agreeing to do the training, the previous volunteer, Mr Sommerville, had withdrawn his agreement to do the training. 16 However, given that Mr Aitken conceded that the training of Mr White as a management person was not planned, I consider that it was a special or unpredicted circumstance where it is likely that Clause 5.5 would allow management to direct an employee to work outside of the scope of Clause 30 of the Agreement. In other words, were it not for Clause 5.5 and the particular unusual and unplanned circumstances, Mr Aitken’s view that Mr Aberlic could not be directed to perform the work would be consistent with the decision of Commissioner Cirkovic. However, in the special or unpredicted circumstances of this case management could probably issue the direction under Clause 5.5. Given the advice given by Mr Aitken was well founded care needed to be taken before a conclusion could be reached that a contrary direction or instruction justified follow-up action or discipline.

[51] EnergyAustralia submit that Mr Aberlic’s actions were not related to Clause 32.20 of the Agreement. I agree with EnergyAustralia that Mr Aberlic volunteered to do the work and also that he probably did not discuss the issue of Clause 32.20 and the role descriptors with Mr Aitken. 17 I agree with EnergyAustralia that the issue of whether or not EnergyAustralia could instruct him to do the work under the Agreement was not the main motivating factor in Mr Aberlic’s decision to stop doing the work. It was however a factor as this matter was raised directly by Mr Aberlic when he sought to have EnergyAustralia correct the record. It was the union policy as expressed by Mr Aitken which was the main motivating factor and the issue of the work being voluntary was a secondary but important factor. I agree that at the time of the incident the right of EnergyAustralia to direct Mr Aberlic to do the work was probably not in the front of Mr Aitken’s mind because if it was he would have raised it with Mr Aberlic and in the email of 2 December 2016. However, I disagree with EnergyAustralia that the issue that EnergyAustralia could not direct that the work be done was just a convenient argument developed by Mr Aitken after the event. I accept Mr Aitken’s evidence that he believed that EnergyAustralia could not require those covered by the Agreement to train management personnel and I consider his correspondence and his actions were consistent with this. In particular the first correspondence from Mr Aitken to Mr Hogarth concerning this issue on 30 November 2016 stated: “it is our opinion that this course is for personnel covered by the current agreement and not management personnel”. I consider that this is consistent with Mr Aitken’s evidence that he did not believe Mr Aberlic was required to do the training under the Agreement. Training for operators on cross stage operation is specifically provided for in the Agreement.

[52] EnergyAustralia argues that having volunteered to do the job, Mr Aberlic could not just withdraw in the middle of the training. It is not necessary to consider that matter as I am not being asked to consider the appropriateness of the disciplinary action taken against Mr Aberlic. I accept that Mr Aitken should have considered the impact on the training program of Mr Aberlic withdrawing without adequate notice. However, Mr Aitken submits that management could have discussed the matter further with him after he sent the email on 2 December 2016. I accept that the issue of whether or not Mr Aberlic could have withdrawn from the training under the Agreement is not determinative of whether or not Mr Aitken’s actions were unacceptable behaviour warranting follow up action.

[53] In all the circumstances it is neither necessary nor appropriate to reach any concluded view about the construction of Clause 30.20 and Clause 5.5. It is sufficient to conclude that Mr Aitken’s view that it was open to Mr Aberlic to refuse to train management personnel under the provisions of the Agreement was understandable and arguable in light of Commissioner Cirkovic’s decision and that this is a relevant consideration in assessing disciplinary action.

Did Mr Aitken instruct Mr Aberlic not to perform work as an instructor of management personnel?

[54] EnergyAustralia argue that the words in Mr Aitken’s email to Mr Hogarth that: “I informed you that I felt I had no option but to ask Tom Aberlic to cease being an instructor on that course…. Please be advised that our members will take no further part as instructors on this course” amount to an admission by Mr Aitken that he instructed Mr Aberlic not to perform the work. It is inevitable that the role of a union delegate as an employee and as a union representative will sometimes be in conflict. As a union representative the delegate may advocate positions which are perceived by management to be in conflict with management’s view of employee duties. In some cases the management view will be proved correct and in other cases not. This may occur for example where there are disagreements about the interpretation or implementation of a provision in an enterprise agreement or about safe work. For this reason a union delegate requesting a member to do something or advising management about the position of the members is not the same thing as a union delegate instructing or directing a member or members to do something.

[55] I accept that there are occasions when, considered in context, a request or advice from a union representative to a member could be regarded as an instruction or direction. I consider it unlikely that under the rules of the CFMEU Mr Aitken has the power to direct members to perform or not to perform work. However, I make no finding on this point as it was not argued before me. If members make a decision not to perform work as normal or as directed then in some cases this will be industrial action. In other cases it will be action taken as part of a disputes resolution process. This case is not one where an employee has refused a management direction because they were negligent, defiant or lazy. Rather this is a case where the refusal was because the management direction was perceived to be contrary to union policy, custom and practice and/or the provisions of the enterprise agreement. Of course whether such action has immunity from disciplinary consequences depends upon the circumstances.

[56] I accept Mr Aitken’s evidence that he did not explicitly instruct or direct Mr Aberlic to stop participation in the training in his conversations with him between 30 November and 2 December 2016. Mr Aitken’s evidence is supported by Mr Aberlic’s evidence on this point. I can see no basis to doubt the evidence of the two persons directly involved. The only contrary evidence is that Mr Burt says that in his conversation with Mr Aberlic after the incident he asked Mr Aberlic if he ceased training on the basis of Mr Aitken’s instruction. Effectively Mr Aberlic agrees that it was the views of Mr Aitken which influenced his behaviour but that Mr Aitken did not instruct or direct him. Mr Aberlic has maintained this position consistently and has protested in writing when management asserted otherwise. Mr Burt did not recall or record the exact words of the conversation. I prefer Mr Aberlic’s direct evidence.

[57] However, I am also satisfied that during the conversations between Mr Aitken and Mr Aberlic, Mr Aberlic did not tell Mr Aitken that he was going to stop participating in the training. In fact Mr Aberlic told Mr Aitken that he would stop participating in the training if instructed to do so by Mr Aitken.

[58] During the proceedings Mr Aitken gave evidence, which was not included in his statement, that Mr Aberlic had told him on 2 December 2016 that he did not want to do the course anymore. 18 Mr Aitken also said that he spoke to the other persons who had provided training in the past before he sent the email to Mr Hogarth and they also told him that they would not do the training.19

[59] Mr Aitken and Mr Aberlic gave evidence that Mr Aitken showed Mr Aberlic the email before he sent it so as to give Mr Aberlic an opportunity to comment on the email for accuracy before it was sent. Mr Aitken gave evidence that Mr Aberlic effectively approved the email being sent. Mr Aberlic gave evidence that he told Mr Aitken prior to the email being sent that he would respect a request to stand down from the training. However, Mr Aberlic gave evidence, which was repeated under cross examination, that it was the email of 2 December 2016 that led to his decision to cease participation in the training. He did not endorse Mr Aitken’s evidence that he told Mr Aberlic that he did not want to do the course any more. He only saw the email once it had been drafted and there was no further discussion between them. 20 He also gave evidence that were it not for Mr Aitken’s intervention he would have continued his role as instructor.21 The other three CFMEU members participating in the course did not express any concerns to Mr Aitken or Mr Aberlic.22 The prompt for Mr Aberlic to withdraw from the course was the 2 December 2016 email sent by Mr Aitken.23 I therefore need to consider if the email, considered in context, amounted to an instruction or a direction to Mr Aberlic.

[60] On 2 December 2016 Mr Aitken sent Mr Aberlic and CFMEU representatives a copy of his communication to Mr Hogarth in which Mr Aitken stated “Please be advised that our members will take no further part as instructors on this course”. On 5 December 2016 Mr Aitken sent the email to the CFMEU membership more generally. 24 I am satisfied that this process effectively meant that Mr Aitken was advising all CFMEU members that there was a union policy or position that members take no further part as instructors in the course. Mr Aberlic, a long term CFMEU member, confirmed that members would be concerned and hostile to any member who took further part in the training after the email had been sent.

[61] Mr Aitken made this statement in circumstances where Mr Aberlic had not told him that he was going to stop participating in the training. I do not consider that Mr Aberlic telling Mr Aitken that he would respect a request to stand down from the training is the same thing as Mr Aberlic telling Mr Aitken that he had decided not to participate in the training. I consider it is consistent with the earlier statement to the effect that he would decline to take further part in the training if instructed or directed by the union. I am satisfied that Mr Aberlic made his decision when the email was sent and it was clear to Mr Aitken that Mr Aberlic would only pull out of the training if the email was sent.

[62] Considered in this context is the sending of the email:

● Advice from Mr Aitken to Mr Aberlic that it is union policy or a decision of the union that members not participate as instructors in the course?; or
● Mr Aitken encouraging Mr Aberlic to follow union policy and not participate as an instructor in the course?; or
● An instruction or direction from Mr Aitken to Mr Aberlic that he not participate in the course?

[63] In my view for Mr Aitken to provide advice about union policy or union decisions or to encourage union members to follow union policy or decisions is generally not something which could properly form the basis for disciplinary action. In fact to do so may, depending upon the circumstances, be a breach of the general protections provisions of the Act. If, for example, Mr Aitken had written that there is no requirement for union members to deliver the training, and/or that it is contrary to union policy and custom and practice for managers to be trained, or that I have advised members that participation as an instructor in the course is voluntary or contrary to union policy then I would not be satisfied that this amounted to a direction or instruction. Mr Aitken as a union representative is entitled to advise both management and union members about union policy and union views on industrial matters including the interpretation and application of the agreement. The disputes settlement procedure specifically provides for a process to deal with disputes including about the interpretation and application of the agreement. A necessary consequence of this is that representatives must be permitted to express their position about such matters, just as management is permitted to do so. Of course this is a separate matter from the question as to whether action amounts to industrial action. In some cases it may be action consistent with the disputes settlement procedure of the agreement and in other cases it might amount to industrial action.

[64] However, Mr Aberlic had specifically raised the issue of a direction with Mr Aitken and he had not told Mr Aitken that he would not further participate in the course. Mr Aberlic decided not to further participate in the course as a consequence of the email being sent. In that context the statement by Mr Aitken that members will take no further part in the course must be seen as a direction or instruction to Mr Aberlic not to participate in the course.

[65] I am satisfied that considered in context the email “I informed you that I felt I had no option but to ask Tom Aberlic to cease being an instructor on that course…. Please be advised that our members will take no further part as instructors on this course” does amount to an admission that Mr Aitken instructed or directed Mr Aberlic not to perform the work. If it were not for that instruction or direction Mr Aberlic would have performed the work.

Was the issuing of the warning manifestly unjust and unreasonable?

[66] The CFMEU argues that in the circumstances the issuing of the warning was manifestly unjust and unreasonable and that I should in resolution of the dispute remove the warning.

[67] I consider that the disputes settlement procedure only provides for me to arbitrate in respect to a category 1 matter; that is, a matter which goes to the application or interpretation of this Agreement. The issuing of the warning is a matter which goes to the application of Clause 29. However, I cannot issue a decision which is contrary to Clause 29.

[68] The CFMEU referred to the Full Bench decision in Lloyd v Australia Western Railroad Pty Ltd. 25 The clause under consideration in that case provided that:

“Disciplinary measures that Aurizon may take against an employee include:

14.1.1 a caution or reprimand;
14.1.2 a temporary reduction in position, classification and pay for a period of up to six months;
14.1.3 suspension from duty without pay for a period of up to two weeks;
14.1.4 dismissal with or without notice as applicable.”

[69] The Full Bench considered that this clause “did not provide an absolute right or obligation for the employer to apply a particular disciplinary outcome”. 26 Clause 29 of the Agreement provides that “disciplinary action can be commenced at any of the four steps after an investigation has been conducted” and then sets out the steps. I am unable to distinguish the character of Clause 29 of the Agreement from the character of the provision in the Australia Western Railroad case. In both cases the employer “can” or “may” take any one of the specified “measures” or “steps”. The employer has a right to select the measure or the step but it is not an absolute right or obligation for the employer to apply a particular disciplinary outcome.

[70] Based on the authorities I should only interfere in the employer’s discretion to select the disciplinary measure or step where the decision is manifestly unjust or unreasonable.

[71] I have found that Mr Aitken instructed or directed Mr Aberlic not to perform the training work. I have also found that given Commissioner Cirkovic’s decision Mr Aitken’s view that the Agreement did not allow EnergyAustralia to issue the instruction to Mr Aberlic was arguable and understandable. However, this is a matter which should have been dealt with through the disputes settlement procedure of the Agreement rather than through Mr Aitken issuing an instruction. I am therefore satisfied that this was unacceptable conduct which required follow up action.

[72] In resolving a dispute about disciplinary action I can decide whether or not unacceptable conduct requiring follow up action occurred. On balance I have decided that the requirement that there be unacceptable conduct requiring follow up action has been met. There is some weight in the submission of the CFMEU that the disciplinary action selected was harsh in the circumstances. There are significant mitigating circumstances. However, I do not consider that the decision to issue the warning was manifestly unjust or unreasonable.

Was an investigation conducted?

[73] The CFMEU also argue that EnergyAustralia can only commence disciplinary action under Clause 29 “after an investigation has been conducted”. I agree that this is a proper construction of the following provision in the clause: “Disciplinary action can be commenced at any of the four steps after an investigation has been conducted.” This is reinforced by the last paragraph of Clause 29 which requires notice be given of interviews or meetings and reasonable access to a support person. The CFMEU argue that prior to issuing the warning EnergyAustralia did not put the allegation to Mr Aitken that he had directed Mr Aberlic not to perform the training, nor did EnergyAustralia otherwise inform Mr Aitken that he had allegedly engaged in unacceptable conduct that required follow up action. The CFMEU say that an essential part of any investigation is that the allegations must be put to the person accused of misconduct and their response considered prior to reaching conclusions.

[74] Mr Aitken gave evidence that he was contacted by a manger, Mr Burt, and asked if he could tell him what prompted him to send the email of 2 December 2016 to Mr Hogarth. Mr Aitken says that he asked if this had anything to do with the reason he was suspended from duty and Mr Burt said he did not know why Mr Aitken had been suspended. Mr Aitken says that he was not asked if he directed Mr Aberlic to cease training nor if he had intended to direct Mr Aberlic to cease training. 27 Mr Aitken says that Mr Burt did not tell him that there was an investigation taking place into the allegation that he had directed Mr Aberlic not to conduct the training course.28 I do not consider that Mr Burt’s evidence contradicts these aspects of Mr Aitken’s evidence. Mr Burt says that Mr Aitken did not wish to prolong the conversation with him on the phone given his situation. I am satisfied that Mr Burt understood this as a reference to the fact that Mr Aitken had been suspended from duty at the time. However, notwithstanding that Mr Aitken did not want to prolong the conversation I am satisfied that Mr Burt had the opportunity at the start of the conversation to explain that he was conducting an investigation because EnergyAustralia was considering disciplinary action and to state what allegation was being investigated. He did not do so.

[75] During the hearing of the matter another aspect of the investigation emerged. Mr Burt and Mr Hogarth were questioned about the independence of the investigation. Mr Hogarth was a direct participant in the incident. He had direct discussions with Mr Aitken and also was the recipient of the email from Mr Aitken. Mr Hogarth gave evidence that he was involved in discussion with Mr Burt about whether or not it was necessary and/or appropriate to interview Mr Aitken as part of the investigation. The documentation provided by Mr Burt also raises the possibility of deeper involvement and influence by Mr Hogarth on the investigation process.

[76] The investigation report was sent by Mr Burt to Mr Hogarth on 12 December 2016. 29 The cover email stated “Dale, Revised documentation attached. Geoff provided confirmation and a “reason”, but then did not want to discuss this matter any further, David B.” The date of the investigation report is stated as 5 December 2016. The date of approval by Mr Hogarth and Mr Burt to the first written warning outcome is stated to be 7 December 2016. It appears from this documentation that Mr Burt may have sent an earlier draft of the report to Mr Hogarth and it appears that a version of the report may have been finalised prior to any interview with Mr Aitken. Mr Burt gave evidence that he may have provided Mr Hogarth with an earlier version of the report. Mr Hogarth denied that he had seen an earlier version of the report. Mr Burt denied that he had sent a version of the report to Mr Hogarth which did not include the interview with Mr Aitken. Mr Burt accepted that the report he provided to Mr Hogarth stated that the report sign off by both Mr Hogarth and himself occurred on 7 December 2016, that is, prior to the date he interviewed Mr Aitken. The section of the report which reports that Mr Burt spoke to Mr Aitken appears to be an addendum to the report. Mr Burt confirmed that the reference to “we” in his statement “we considered that there was no lawful basis for Geoff to organise the withdrawal of his members from this course” was a reference to Mr Hogarth and himself. This reinforces the impression that Mr Burt and Mr Hogarth discussed the conclusions which should be drawn prior to Mr Aitken having any opportunity to respond.

[77] Mr Burt accepted that during investigations the company policy is that a “request for meeting” as part of an investigation should be provided with “minimum notice of at least 12 hours or next rostered shift or as agreed.” The Agreement at Clause 29 requires reasonable advance notice of any meetings or interviews to allow the employee to arrange for their support person. Contrary to the requirements of the Agreement Mr Burt did not provide Mr Aitken with notice of the request for meeting. He did not consider it worthy of a meeting on site because he considered that the matter looked pretty clear cut based on the email and his conversation with Mr Aberlic. Mr Burt did not consider the issue of whether or not operators could be directed to perform the training under the Agreement. 30

[78] There is also some conflict in the evidence of Mr Burt and Mr Hogarth about whether or not Mr Burt was provided with the 30 November 2016 email from Mr Aitken to Mr Hogarth as part of his investigation. Mr Burt said he had not been given that document and Mr Hogarth says that he provided it to Mr Burt. It is not necessary to determine that matter.

[79] EnergyAustralia argues that the word “investigation” should be given the dictionary meaning of “a searching inquiry in order to ascertain facts; a detailed or careful examination”. However, I am satisfied that the meaning of a word in an industrial agreement must also be considered in an industrial context. In that context the concept of an investigation is strongly linked to the concept of natural justice and procedural fairness. In an industrial context it is not possible for there to be a searching inquiry or a detailed or careful examination unless the person against whom the allegation of misconduct is made is aware that an investigation is being held and is provided with an opportunity to respond to the matters alleged.

[80] I agree with the CFMEU that it is contrary to natural justice and the ordinary industrial meaning of the word investigation for the subject of the investigation not to be told that there is an investigation and of the matters being alleged when being interviewed as part of the investigation. This is not to establish some higher standard or to impose particular procedural steps where they are not set out in the Agreement. It is simply to adopt the ordinary meaning of an investigation considered in an industrial context and in the context of the other words in the Agreement associated with the investigation including the requirement for notice of meetings or interviews and access to a support person.

[81] I am satisfied that Mr Burt did not tell Mr Aitken that his conduct was being investigated and that it was alleged that he had instructed Mr Aberlic not to further participate in the training.

[82] The warning of Mr Aberlic was not issued in accordance with the requirements of Clause 29 because an investigation was not conducted.

Was the warning issued at a location different from that required by Clause 29?

[83] Finally the CFMEU argues that the location of issuing the warning was not compliant with Clause 29. Clause 29 requires that the first written warning be issued in the “office”. This did not occur. I am satisfied that this was inconsistent with the Agreement.

In resolving the dispute what is the appropriate outcome given the finding that the warning was not issued in accordance with the requirements of Clause 29?

[84] I do not think it automatically follows that in circumstances where the warning has not been issued in accordance with the Agreement, the warning should be withdrawn. In some but not all cases this would be the appropriate resolution to the dispute. If all the other requirements had been met and the only defect in the process adopted by EnergyAustralia was that the warning was given in writing rather than in the office, then I would not interfere with the employer’s actions in issuing the warning. I would simply require that the warning be reissued at the office and that the start time for the 12 month time period for the warning remain unaltered.

[85] In my view the requirements for there to be an investigation, for notice to be given of interviews, for the warning to be given in the office, for certain persons to be present and for certain documentation to be completed and in the normal course of events signed are all designed to achieve natural justice – that is, to ensure that the employee has the opportunity to clearly understand what is alleged and to have a real opportunity to influence the decision maker prior to final decision and then to fully understand the decision. I do not accept the suggestion from some of the EnergyAustralia witnesses that the purpose of the requirement to give the warning in the office is to avoid public humiliation and embarrassment where an employee is warned on the job with their work colleagues present. This may be one of the reasons for the provision, however, I am satisfied that considered in context the provision is one of a number of safeguards to ensure natural justice and procedural fairness.

[86] If those natural justice requirements had been achieved in other ways then I would not interfere in the employer’s actions just because the warning was not delivered in the office. In the circumstances of this case there was a good reason why the warning was not given in the office; Mr Aitken was suspended on pay and was not at work at the time.

[87] The failure to conduct an investigation is however a much more serious breach of the Clause. It denied Mr Aitken natural justice. It meant that he did not have the opportunity to clearly understand what is alleged and to have a real opportunity to influence the decision maker prior to the final decision. This is particularly relevant in circumstances where Mr Aitken’s view about the capacity for EnergyAustralia to direct Mr Aberlic to conduct the training of management personnel was understandable given the decision of Commissioner Cirkovic.

[88] In these circumstances the decision maker may well have come to a different conclusion about whether disciplinary action was warranted and/or whether or not the particular measure selected was appropriate if they had the benefit of an investigation which was procedurally fair.

[89] Mr Aitken has had to endure a stressful process before the Fair Work Commission in order for the investigation of the matter to be conducted. It is appropriate to take this into account in finalising the matter.

[90] I am satisfied that it is not appropriate in reaching a resolution to the dispute which has regard to equity, good conscience and the merits of the matter and which is consistent with the provisions of Clause 29 of the Agreement to leave the outcome determined by EnergyAustralia undisturbed. I determine that part of the resolution of the dispute is that the first written warning issued on 14 December 2016 be withdrawn and is of no effect because it was not issued in accordance with the requirements of Clause 29.

[91] It is now necessary to decide if further action should be taken in respect to the matter. I consider it desirable that the matter be brought to a final conclusion as soon as possible. I am satisfied that the necessary investigation has now been conducted through this hearing and that it would be inappropriate, oppressive to Mr Aitken and an unnecessary waste of resources to refer the matter back to EnergyAustralia to conduct a fresh investigation and reach a new conclusion about the appropriate outcome. I consider 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.

[92] Having regard to these factors I consider the final outcome of the matter should be that the Fair Work Commission determines the appropriate disciplinary outcome to be either:

a. No further action; or

b. An oral warning in which case a note should be made to the 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.

[93] I will provide the parties with the opportunity to make a short submission about the matters dealt with in the preceding paragraph. Those submissions should be received within seven days of this decision and I will then finalise this aspect of the decision.

COMMISSIONER

Appearances:

Mr A Kentish appeared for the CFMEU.

Mr W Spargo appeared for EnergyAustralia.

Hearing details:

2017

Melbourne

March 27

 1   Statement of Mr Aitken at para 22.

 2   Statement of Mr White para 24.

 3   Statement of Mr White para 25.

 4   Statement of Mr Aitken at para 18.

 5   Statement of Mr Aitken at paras 26 and 27.

 6   Statement of Mr Aberlic at para 7.

 7   Statement of Mr White, Exhibit EA1 at para 2.

 8   [2017] FWC 1070.

 9   [2016] FWC 2133.

 10   [2016] FWC 2133 at [27].

 11   [2016] FWC 2133 at [35].

 12   [2016] FWC 2133 at [37].

 13   [2016] FWC 2133 at [42].

 14   [2016] FWC 2133 at [47] and [48]

 15   [2016] FWC 2133 at [28].

 16   PN1059 to PN1066.

 17   PN478.

 18   PN270 to PN272.

 19   PN120 to PN127.

 20   PN499 to PN504 and PN527 to PN536.

 21   PN471 and PN508.

 22   PN234, PN470 and PN487.

 23   PN508 and PN546 to PN547.

 24   PN281 to PN288 and PN300 to PN306.

 25   [2017] FWCFB 143.

 26   [2017] FWCFB 143 at [37].

 27   PN698 and PN702.

 28   PN371 and PN697.

 29   Exhibit EA2, Attachment DB3.

 30   PN661.

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