Coralynn Brewer v Suncorp Staff Pty Limited
[2011] FWA 7334
•22 DECEMBER 2011
Note: An appeal pursuant to s.604 (C2012/2229) was lodged against this decision.
[2011] FWA 7334 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Coralynn Brewer
v
Suncorp Staff Pty Limited
(C2011/796)
Banking finance and insurance industry | |
COMMISSIONER SPENCER | BRISBANE, 22 DECEMBER 2011 |
Jurisdictional Objection.
Introduction
[1] This decision relates to a jurisdictional objection made by Suncorp Metway Ltd (Suncorp/the Respondent) with respect to an application by Mrs Coralynn Brewer (the Applicant) made pursuant to s 739 of the Fair Work Act 2009 (the Act). The application alleged a dispute over the application of the Suncorp Group Enterprise Agreement 2011 (the Agreement). The Applicant alleged that Mr Peter O’Brien, the Applicants direct Manager, had been engaged in a course of workplace harassment directed against the Applicant.
[2] The matter was listed for a dispute conference before Fair Work Australia (FWA) as currently constituted. At this Conference, the Respondent objected on the basis that FWA did not have jurisdiction to progress the matter, as the Applicant had not brought a dispute pursuant to clause 11 of the disputes procedure of the Agreement. That is, a dispute over the application of a provision of the Agreement. The Respondent submitted that the issues raised in the application were not matters arising under the Agreement, and/or did not relate to a true dispute between the parties.
[3] The matter in dispute relates to the alleged treatment of the Applicant by a supervisor employed by the Respondent. The Applicant alleges the supervisor dealt with and spoke to her poorly and that this, and his subsequent performance management of her, led to her ill-health. (A second matter related to the working of overtime arose, however this is not pursued.)
[4] Given the actions brought about her ill-health, the Applicant contends the jurisdiction for the dispute is over the application of clause 23 (Health and Safety).
[5] The Respondent argued that the provision of clause 23 (Health and Safety) in the Agreement, is merely the statement of an intention. Further, the matters of performance management are all dealt with in policies and are excluded from the Agreement by clause 18(c) which states:
18(c) While the policies guidelines, standards and procedures are not incorporated by reference into and do not form part of this agreement, you may be subject to disciplinary action, if you fail to comply with them.
[6] The Respondent was represented by Mr Darren Perry of Freehills. The Applicant was represented by Mr Travis O’Brien of the Finance Sector Union.
Relevant legislative provision
739 Disputes dealt with by FWA
(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.
(2) FWA 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 FWA dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter.
Note: This does not prevent FWA 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, FWA must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.
Note: FWA 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), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) FWA may deal with a dispute only on application by a party to the dispute.
Relevant section of the Agreement
11 How are disputes resolved under this Agreement?
(a) This clause sets out the procedure for resolving a dispute which relates to:
(i) a matter arising under this Agreement; or
(ii) the National Employment Standards.
(b) The aim of the dispute resolution procedure below is to encourage You to resolve any disputes that arise as soon as possible by engaging directly in discussions with Your Leader or others, so that the issue can be resolved at the lowest possible level. At any stage, any of the steps may, by agreement between the parties to the dispute, be bypassed in the interests of achieving a timely resolution.
(c) The process for resolving a dispute referred to above is set out below:
Step 1
In the first instance, You should raise the matter with Your Leader and endeavour to resolve it by discussion.
Step 2
If the matter remains unresolved after Step 1, or the nature of the matter means that it is not appropriate to speak to Your Leader, You can raise the matter with Your Manager Once Removed (MOR) for further discussions in an effort to resolve it.
Step 3
If the matter still remains unresolved after Step 2, You can raise the matter for discussions between yourself and a representative from Human Resources in an effort to resolve it.
Step 4
If the matter still remains unresolved after Step 3, if You and the Group agree, the matter may be referred to an independent mediator to conciliate the matter in an attempt to resolve the dispute. The parties will agree on the appointment of an independent mediator within 72 hours of the progression to Step 4 but if the parties are unable to agree, the default mediator will be a member of the Institute of Arbitrators and Mediators (IAMA) appointed by the President. The Group will meet the reasonable costs of the appointment of an independent mediator.
Step 5
If the matter still remains unresolved after Step 4 or the parties did not agree to refer the matter to an independent mediator, then You or the Group may refer the matter to Fair Work Australia for resolution (including by conciliation and if that does not resolve the dispute, arbitration).
(d) You may, if You wish, have a support person/observer accompany You to any meetings which take place while progressing through the above steps. You may, if You wish, nominate a person to accompany You to meetings and represent You from Step 3 onwards of the procedure (although You will be entitled to be accompanied by no more than one person during Steps 1 to 4 in the procedure).
(e) While the parties are trying to resolve the dispute using the above steps, You must continue to perform Your work as normal, unless otherwise directed by the Group.
Background
[7] The Applicant lodged a grievance with the Suncorp HR Team on 14 September 2011 against Mr Peter O’Brien, alleging breaches of clauses 23 (Health and Safety) and 57 (Overtime) of the Agreement. The grievance alleged that Mr O’Brien’s behaviour towards the Applicant breached clause 23 because he threatened removal of 80% of the Applicant’s work; directed the Applicant not to ask questions of the officer assigned to respond to queries; and issued a frivolous and vexatious letter of allegation to the Applicant. The grievance also alleged clause 57 was breached by Mr O’Brien, pressuring the Applicant to work unpaid overtime.
The conduct issue
[8] The Respondent had provided a letter of allegation to the Applicant on 12 September 2011. It contained allegations of inappropriate conduct on two occasions. On 28 September 2011 the Respondent wrote to the Applicant noting that while it considered the performance management investigation to be closed, the ‘conduct issue’ raised in the 12 September letter was a serious matter and the Applicant was requested to provide a written response on 29 September 2011. The Applicant (as represented by Mr Travis O’Brien of the FSU) requested further time to respond, but this request was denied. In an email of 28 September from Mr Travis O’Brien to Mr Marr of the Suncorp HR Team, Mr O’Brien advised that he considered it inappropriate that the letter of allegation be pursued while the Applicant’s grievance remained unresolved.
The grievance issue
[9] The Applicant’s grievance disputed the legitimacy of the conduct issue and raised the matters of Mr Peter O’Brien’s behaviour. The parties met to discuss the issues raised in the grievance and on 26 September 2011 the Respondent wrote to the Applicant advising that a preliminary investigation had occurred and the relevant officer had found no breach of the Respondent’s policies, standards or guidelines that would warrant further investigation. As noted above, in an email of 28 September 2011, Mr Travis O’Brien advised that the Applicant considered that the grievance issue remained unresolved.
Summary of Respondent’s submissions on jurisdiction
[10] Primarily, the Respondent submitted that the grievance outlined in the application filed in Fair Work Australia on 29 September 2011 was not a dispute of the kind that the parties agreed would be subject to clause 11 (the dispute resolution procedure). The Applicant has not raised any dispute under the National Employment Standards and the Respondent contended that the alleged dispute is not a ‘matter arising’ out of clauses 23 or 57.
[11] Clause 23 of the Agreement is set out below:
23 Health and safety
(a) The Group is committed to the provision of a safe and healthy work environment for employees, contractors, customers and visitors. This commitment extends to ensuring that the Group’s operations do not place the community at risk of injury, illness or property damage.
(b) You have an obligation to take reasonable care of Your own health and safety and the health and safety of others affected by Your actions.
[12] Regarding the health and safety issue, the Respondent submitted that clause 23(a) declares the Respondent’s “commitment and intention” but does impose an obligation on the Respondent to provide a safe and healthy workplace. Accordingly the Respondent argued, as no obligation exists, there cannot be a dispute about whether an obligation is met. The Respondent draws the distinction between the commitment referred to in clause 23(a) and the obligation created in clause 23(b) to reinforce the contrast of party’s expression of intent in clause 23(a) rather than the imposition of any obligation on the Respondent. The Respondent referred to a number of cases where the distinction between statements of intention and promises in relation to similar provisions were discussed 1 to support its contention that no obligation (on the Respondent) is created by clause 23.
[13] In the alternative, the Respondent submitted that even if clause 23 does impose an obligation on the Respondent, the health and safety dispute is not in fact a ‘matter arising’ out of clause 23. The Respondent submitted that that claim, in fact, is a dispute about performance management and grievance processes, neither of which are subjects addressed within the Agreement. It submitted that both these subjects are addressed in various Suncorp policy documents and the Agreement, via clause 18, expressly provides that policies, guidelines and procedures do not form part of the Agreement. Therefore, the Respondent submitted that disputes about these policies, are not matters arising under the Agreement, and therefore jurisdictionally excluded.
[14] Clause 57 of the Agreement is set out below:
57 What will I be paid if I am required to do overtime?
57.1 Overtime
(a) Overtime means the hours You are required to work in excess of Your ordinary hours or, unless You are a Rostered Employee, outside the scope of ordinary hours specified in sub-clause 15.l(a) above. Overtime does not include times when You are required to stay in overnight accommodation at the Group’s expense.
(b) Your Leader may require You to work reasonable overtime. Overtime is only paid where it is authorised and when Your Leader has given prior approval to it being worked.
…
[15] Regarding the overtime issue, the Respondent also submitted that no dispute exists that can invoke the operation of the dispute resolution procedure. The Respondent stated it had, made a payment (on an ex gratia basis) for the overtime to the Applicant, in relation to the period of work, that was subject of the Applicant’s complaint. The Respondent submitted that the Applicant has agreed that she had not been directed to work overtime, therefore no question as to the reasonableness of such a direction can arise (as outlined in clause 57.1(b)). It is submitted that ‘pressure’ to work overtime is not a ‘requirement’ and therefore this claim is neither a dispute nor a matter arising under clause 57. The Respondent also noted that the Applicant has not raised any further claim related to overtime and in the current application sought no relief in relation to overtime.
[16] Finally, the Respondent submitted that as there is no conflict between the parties as to future actions, there is no dispute, to which the dispute resolution can apply. Referring to the relief sought by the Applicant, the Respondent submitted that it considered the performance/conduct issue to be resolved, and that a meeting had occurred between the parties in an attempt to resolve the grievance issue, on 13 October 2011.
Summary of Applicant’s submissions on jurisdiction
[17] The Applicant submitted that the Respondent’s acceptance of the dispute process initiated by the Applicant in accordance with clause 11, demonstrated that, at least initially, the Respondent did consider that the Applicant’s grievance could be dealt with, in accordance with the dispute resolution clause of the Agreement. The Applicant also made submissions refuting the Respondent’s contention that clause 23(a) does not impose a binding obligation on the Respondent. The Applicant maintained its position that the grievance, was a matter arising under the health and safety clause. The Applicant also made submissions on the intention of the parties (regarding the clause), at the time of negotiating the Agreement.
[18] The Applicant argued that throughout the initial stages of the ‘dispute’ process, the Respondent did not indicate, that it considered clause 11 to not apply. Rather, the Respondent’s actions indicated, that it accepted, that the grievance raised by the Applicant came under clause 11. The Applicant cited examples of this, relying particularly on an email sent on 12 October by Mr Marr of the Respondent’s HR Team, looking to schedule a HR meeting as, under clause 11, such a meeting is a ‘precursor’ to the dispute being considered by FWA. The Applicant submitted that the Respondent’s earlier participation in the process (despite the fact that the later, 12 October email flagged that it would be raising the jurisdictional objection before FWA) should be taken as an indication that both parties considered the grievance was properly pursued under clause 11.
[19] Regarding the Respondent’s submission that the wording of clause 23(a) created a statement of intent, as opposed to a binding obligation, on the Respondent, the Applicant submitted that the operation of the clause must be determined by considering what a reasonable person, in the position of the promisee would conclude. The Applicant also stated that the promisor (the Respondent) intended to be bound to, 2 and argued that in these circumstances a reasonable employee would take clause 23(a) to mean that the employer intended to be bound by, its commitment to provide a safe workplace. Consequently, a failure to do so would constitute a breach of the Agreement and properly give rise to a dispute under clause 11.
[20] The Applicant rejected the Respondent’s application of the case authorities, particularly noting the distinction between the different types of ‘commitment’ clauses and the surrounding context. The Applicant submitted that ‘commitments’ contained in a company policy document should be distinguished from those found in a negotiated enterprise agreement, approved by FWA and legally binding on the Respondent. 3
[21] The Applicant rejected the distinction drawn by the Respondent between the ‘commitment’ in clause 23(a) and the ‘obligation’ in clause 23(b). It submitted that the different wording is a matter of construction and does not go to the intention of the parties. Further to this, the Applicant contended that no practical distinction should be drawn between ‘commitment’ and ‘obligation’, submitting that both represent an intention to be bound.
[22] The Applicant rejected the Respondent’s submission that the grievance is not a matter arising under clause 23. It submitted that the behaviour of Mr O’Brien towards the Applicant that led to the filing of the grievance, arose because of the Respondent’s failure to provide a safe and healthy workplace and, as a result of this behaviour, the Applicant suffered ill health and took personal leave.
[23] The Applicant also rejected the submission that the real grievance related to performance management, submitting that the Respondent issuing a letter of allegation and characterising the matter differently cannot ‘change the nature of the dispute’, from a health and safety grievance to a performance management issue, thus taking the dispute out of the ambit of clause 11. Rather, the Applicant considered that the letter of allegation is further evidence of the inappropriate behaviour of Mr O’Brien and forms part of the grievance raised by the Applicant.
[24] The Applicant submitted that no conclusions should be drawn about the nature of the dispute from the relief sought, according to the current application. The Applicant is prepared to participate in the investigation relating to the separate letter of allegation, but sought that this occur once the dispute regarding Mr O’Brien’s behaviour has been determined. As noted by the Respondent, the HR meeting sought by the Applicant has occurred. The Applicant submitted that this meeting was not able to resolve the dispute and as such it was therefore appropriate that the matter be referred to FWA (in accordance with clause 11) for resolution.
[25] Finally, the Applicant made submissions about the intent of the parties at the time of negotiating the Agreement. It put forward the notes of the external facilitator 4 of a bargaining workshop held during negotiations, as evidence that all parties considered access to FWA as very important, and drew the inference that if any party had considered that clause 11 would not apply to matters related to clause 23, a clear statement would have been made to this effect. This did not occur. The Applicant submitted that at no time did the Respondent indicate that clause 11 would not apply to health and safety issues.
[26] The Applicant did not seek to make submissions on the overtime issue nor did she seek anything further in relation to that matter.
Considerations
[27] The Respondent argued, that the specific relief that the Applicant sought referred to; firstly the suspension of the investigation process, regarding the performance issue, until the grievance issue had been resolved; and secondly the facilitation of a meeting with a Human Resources representative in terms of step 3 of the Disputes procedure.
[28] The Respondent claimed there was no ‘live’ dispute in relation to the allegations regarding pressure from Mr O’Brien on the Applicant to work overtime. The Respondent also stated that he had paid overtime to the Applicant on an ex gratia basis for the one specific period of work that the Applicant had raised a complaint for; and that the Applicant had made no further claims for payment of overtime.
[29] Further the Respondent stated the Applicant had agreed that she had not been directed to work overtime. Therefore there can be no dispute over whether the directed hours were reasonable, pursuant to clause 57.1(b).
[30] The Applicant despite the directions seeking submissions on the jurisdictional matter, stated “The Applicant does not at this time seek to make submissions regarding the dispute arising from clause 57.” On the material before FWA, no dispute can be found arising from the application of clause 57.
[31] In relation to clause 23, the Applicant contended that the language of the Agreement in clause 23 created a binding commitment on the Respondent. I refer to the principles of construction as SDP Lacy did, in Alcoa Australia Ltd v Automotive, Food, Metal, Engineering Printing and Kindred Industries Union 5, that is; the case authorities make it clear that it is inappropriate to take a narrow approach to the characterisation and construction of the facts that constitute a dispute. Furthermore, narrow or pedantic approaches to the interpretation of an agreement or award are to be avoided. However in that matter SDP Lacy could not provide any foundation upon which the dispute, as characterised, enlivened the jurisdiction of the Commission.6
[32] In the current matter the Applicant argued that the jurisdiction of the Tribunal is enlivened on the basis that the Respondent has provided a commitment in clause 23 to the provision of a safe workplace. Further that there is an obligation in clause 23(b) on the part of the Respondent for the Applicant’s supervision. The Applicant also argued that clause 23(b), a requirement, for the supervisor to meet their obligation to take reasonable care of the health and safety of others, that may be affected by his actions.
[33] The Applicant argued that the Tribunal’s jurisdiction is enlivened as the Respondent has committed to an obligation, on the interpretation of clause 23 in accordance with the case authorities as set out below. That is; a contractual obligation arises from the words of clause 23 in terms of ‘the group is committed to the provision of a safe and healthy work environment for employees...’ and further in relation to the supervisor’s obligation and clause 23(b). They argue a nexus between those words in clause 23 and the allegations of the Applicant, in relation of the conduct of the supervisor, and in relation to her treatment at the workplace. The Applicant claimed the treatment referred to involved the performance management and the supervisor’s allocation of work or work direction and the Applicant as a result of such, becoming ill.
[34] Those matters in terms of allocation of work or performance management are issues covered under the Respondent’s policies and guidelines and are not specific matters which form provisions of the Agreement. Therefore there cannot be a dispute over the application of a provision of the Agreement that enlivens the jurisdiction for this dispute. However actions falling from conduct that gives rise to matters under the Agreement’s health and safety provision can give rise to a dispute.
[35] In the Full Bench decision of Shop, Distributive and Allied Employees Association (SDA) v Big W Discount Department Stores (PR924554), the Full Bench found that they considered the Commissioner at first instance construed the dispute narrowly as the ‘the alleged refusal of Big W to provide anti-fatigue matting for an SDA members, engaged as door greeters at the Broadmeadows and Forest Hills stores’ did give rise to a dispute under the health and safety provision of the Agreement. The Full Bench concluded that in their view it was a dispute more broadly about occupational health and safety and the provision of safe and healthy working conditions. The Full Bench set out that the dispute application referred to the steps taken to resolve the dispute, and clearly disclosed the discomfort experienced by a member of staff acting as a door greeter and that she had supplied her own anti-fatigue matting and had been requested by management to remove such. She had in response received a doctor’s certificate advising her to use anti-fatigue matting.
[36] The Full Bench set out that the provision of anti-fatigue matting is better regarded as the means of resolving the dispute, rather than as characterising the dispute and that the dispute, is a dispute over the application of the Agreement, which required a consideration of the terms of sub clauses 2.6(a) and 2.6(b) of the Agreement, in relation to occupational health and safety under that Agreement.
[37] The health and safety clause in the matter was in similar terms to that of the current matter. Clause 2.6 (Occupational Health and Safety) of that Agreement at clause 2.6(a) stated ‘Big W, it’s associates and the SDA are committed to achieving and maintaining healthy and safe working conditions in all Big W workplaces by abiding by all relevant occupational health and safety legislation.’ Clause 2.6(b) progressed to ‘this commitment will have the following objectives; 1. To control workplace health hazards at their stores; 2. To reduce the incidents and cost of occupational injury and disease; 3. To provide an occupational rehabilitation system for workers affected by occupational injury or illness.’
[38] The Full Bench confirmed the Appellant’s contention that clause 2.6(a) imposed an obligation on Big W to achieve and maintain healthy and safe working conditions by abiding by all relevant occupational health and safety legislation. The Full Bench did note that clause 2.6(b) set out the aims of the commitment, expressed in sub clause 2.6(a). There is no such detail in the provision in the current Suncorp Agreement, however the Full Bench in considering clause 2.6, set out in relation to the Big W Agreement, that the Agreement plainly commits the parties to working towards and maintaining a healthy and safe work environment. As per that decision, a dispute about how the commitment to workplace health and safety is to be achieved, is a dispute over the application of the agreement. Accordingly, in line with that, in the current circumstances, even though the dispute requires an assessment of the application of a performance management system or something else that may be found in a policy or guideline outside the Agreement, the Agreement provision, wherein the employer has made a commitment in the clause to the provision of a safe and healthy working environment for employees provides a foundation for the assessment of the health and safety particulars of this dispute via clause 23. Therefore, jurisdiction of the Tribunal is enlivened.
[39] The Suncorp Agreement contains a disputes procedure. The chronology of the matter between the parties indicated that the parties set about endeavouring to resolve this dispute via the steps of the disputes procedure. Whilst that action does not preclude the parties, when the matter is referred to FWA, from bringing a jurisdictional objection, it does provide some history of the assessment of the matter between the parties. I have not placed particular weight on that history of the handling of the matter prior to the matter being bought before FWA.
[40] The decision in ASU v ATO (PR961315), also turns on whether an agreement provision gives rise to a binding obligation. In that matter, the Full Bench set out that the critical question at the proceedings in the first instance is whether the clause 118 of the ATO Agreement created an obligation and was enforceable as a clause of the ATO Agreement to properly apply the ATO misconduct procedures. I adopt the approach taken by the Full Bench in that matter in confirming the approach to the interpretation of the industrial instrument as set out by Madgwick J in Kucks v CSR Ltd:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which may have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”
..... 7
[41] Relevantly clause 118 of the ATO Agreement provided a commitment, which is analogous to the commitment expressed in the current matter in clause 23:
“The ATO is committed to ensuring that all employees are aware of and comply with the standards of conduct as detailed in the APS Code of Conduct in the Public Service Act 1999, and that the ATO procedure “Managing Misconduct in the ATO” is properly applied.”
[42] Importantly at paragraph 62 the Full Bench stated:
‘It seems to us that in the context of this matter the expression “committed to ensuring” evinces an intention to create an obligation, enforceable as a clause of the ATO Agreement, to properly apply the Misconduct Procedures. As the Deputy President pointed out in the decision subject to appeal, one of the meanings of the word ‘commit’ is to “bind by pledge or assurance”. We also note that the word “ensuring” is a derivative of the word ‘ensure’, which means, among other things, “to pledge one’s faith to a person for the execution of a promise”.43 Hence, adopting the ordinary meaning of the words in the expression “committed to ensuring” suggests a binding obligation. The context within which the ATO Agreement was negotiated and the legislative context in which it sits also support that conclusion.’ 8
[43] The Full Bench further stated that the fact that the commitment in clause 118 is expressed by the ATO alone and not as a mutually agreed term is of little weight. In addition at paragraph 65 the Full Bench sets out:
‘The second reason given is that the ATO’s Misconduct Procedures are enforceable by other means and hence it was unnecessary for them to be given force by the ATO Agreement. We accept that this is so, but it does not follow that the availability of alternative remedies means that the parties agreed that clause 118 would have no legal effect.’ 9
[44] This is pertinent to the current circumstances, as in the current matter, the Respondent’s argued that potentially this is a dispute over the application of a performance management policy. That policy sits outside of the agreement but breach of a particular policy may still lead separately to disciplinary proceedings, just as workplace health and safety breaches are enforceable under separate legislation. Importantly the Full Bench set out at paragraph 67 as follows:
‘The existence of alternative means of enforcing compliance with the Misconduct Procedure does not of itself lead one to conclude that clause 118 was not intended to give rise to an enforceable obligation. Parties to agreements often confer a power of private arbitration upon the Commission in respect of disputes over the application of the agreement. Such a power is conferred despite the availability of an alternative remedy, namely enforcement in a court pursuant to s.178 of the WR Act.’ 10
[45] I have considered the Respondent’s argument that the statement in clause 23 is a statement of intent, that does not create an obligation but a description of the intention. As set out by Commissioner Smith in the matter of Finance Sector Union of Australia v National Australia Bank Limited (PR982592) as follows:
‘......
Clauses in agreements are put there for a purpose. The question is whether or not a clause has any real work to do. Sometimes these clauses are referred to as aspirational clauses.
‘In Shop, Distributive and Allied Employees Association v Big W Discount Department Stores 5 the Full Bench found that the clause in relation to occupational health and safety went beyond an aspirational concept and committed parties to pursuing a particular outcome. The language used in clause 22 of the Agreement uses the words “committed” and “ensure”. I am satisfied that the language of the Agreement permits an examination of the factual circumstances to allow conclusions to be reached about the commitments given.
It appears that the actions of NAB may be tested against these commitments and therefore the character of the dispute is easily identified.
To the extent that these clauses are said to be aspirational, I adopt, with respect, the observations of His Honour Chief Justice Black:
The difficulty is that the statement in issue is not explicitly contractual in its language and could be seen as merely aspirational. It appears in a document of mixed content and purposes and, although these include contractual purposes, at least the primary repository of the employment contract is unambiguously elsewhere. The context is, however, decisive. In the context of WWU as a whole, if the statement that the firm “will take every practicable step to provide and maintain a safe and healthy work environment for all people” were no more than an aspirational representation, imposing no obligation on the maker, it would be seen as an exercise in hypocrisy. The statement is a reflection of, and is central to, WWU’s expression of the “culture” of the firm and its approach to its staff, and its aspirations about the approach its employees will take to each other. The language used, taken in the context as a whole, points to the statement embodying a contractual obligation and the trial judge was correct in holding that it was a term of the contract.
.......’ 11
[46] The circumstances of that matter are persuasive to the consideration of the current matter, before me. In that matter, clause 22 of the NAB Agreement set out ‘that the NAB is committed to ensure their employees balance their work and personal commitments’ further clause 2.5 of the Agreement stated ‘we actively promote the health and well being of our employees with a balance between personal and work life’.
[47] In that matter Commissioner Smith found that the Applicant was entitled to be paid overtime for the time she spent at the training sessions. This was against a work-life balance provision in the agreement he set out. He found that in making a decision which impacted upon her work and life without discussing the matter with her prior to the decision being made, NAB had not properly applied clause 2.5 and clause 22 of the Agreement.
[48] The conclusions reached in the current matter before me, are consistent with the process used by Commissioner Smith in relying on the Full Bench decision in Shop, Distributive and Allied Employees Association (SDA) v Big W Discount Department Stores, where the Full Bench found that the clause in relation to occupational health and safety went beyond an aspirational concept and committed parties to pursuing a particular outcome, and provided a contractual obligation.
Therefore on the basis of the (authorities as set out,) the wording in clause 23 of the current Suncorp Agreement, which provides a health and safety obligation, which permits an examination of the factual circumstances of the current matter. 12
[49] The Applicant raised the grievance; under the disputes procedure it was accepted by the Respondent and progressed through the initial steps prior to referral to FWA. The grievance raised issues regarding the treatment by her supervisor; in the manner in which he responded to her. The Applicant alleged such action taken by the supervisor and the Respondent led to her requiring a period of sick leave. The Union on behalf of the Applicant argued that the circumstances of the matter are relevant to the application of clause 23 (a) and (b).
[50] The Respondent at clause 23(a) has committed to providing a safe workplace and further clause 23b; the other employees (such as the Applicant’s supervisor) have an obligation regarding the effect of their actions on the health and safety of others such as the Applicant. The Applicant argues that the circumstances of the supervisor’s conduct potentially brought about the circumstances of ill-health of the Applicant. Therefore the dispute is within the domain of clause 23 of the Agreement and the circumstance of the dispute considered accordingly. The matter is therefore within the jurisdiction of FWA. The matter will therefore further be listed for conciliation. A separate listing will issue.
COMMISSIONER
Appearances:
Mr Travis O’Brien of the Finance Sector Union, on behalf of the Applicant
Mr Darren Perry of Freehills, on behalf of the Respondent.
1 Relying on Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120 and Alcoa Australia Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (PR964895) AIRC, 15 November 2005 and distinguishing Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office (2005) 144 IR 85; SDA v Big W Discount Department Stores (PR924554) AIRC (FB) 12 November 2002 and Finance Sector Union of Australia v National Australia Bank Limited [2008] AIRC 1174.
2 Relying on Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179.
3 Distinguishing Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120.
4 Applicant submissions on jurisdiction, Annexure G.
5 (PR964895) AIRC 980, 15 November 2005 at paragraph 37
6 (PR964895) AIRC 980, 15 November 2005
7 Kucks v CSR Ltd (1996) 66 IR 182 at 184
8 Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office and another (PR961315) [62]
9 Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office and another (PR961315) [65]
10 Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office and another (PR961315) [66]
11 Finance Sector Union of Australia v National Australia Bank Limited [2008] AIRC 1174 - 29 July 2008 [18-21]
12 Commissioner Smith - Finance Sector Union of Australia v National Australia Bank Limited [2008] AIRC 1174 - 29 July 2008
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