CPSU, the Community and Public Sector Union v ACT Government as represented by the Health Directorate

[2014] FWC 4663

[2014] FWC 4663

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

CPSU, the Community and Public Sector Union
v
ACT Government as represented by the Health Directorate
(C2014/156)

COMMISSIONER DEEGAN CANBERRA, 11 JULY 2014

Alleged dispute about any matters arising under an enterprise agreement.

[1] This is an application made by the CPSU, the Community and Public Sector Union (the CPSU) on behalf of a member, Ms Debbie McQuirk, (for convenience referred to as the applicant) for the resolution of a dispute with the ACT Government as represented by the Health Directorate (the employer) pursuant to the sections I5 (Right of External Review) and G2 (Dispute Avoidance and Settlement) of the ACT Public Service Health Directorate Enterprise Agreement 2011-2013.

[2] The CPSU seeks a review of a decision taken by the delegate of the head of service not to re-credit the applicant’s long service leave credits for the period 21 November 2011 until 23 January 2012 at which time the applicant was covered by medical certificates for a non compensable injury.

Background

[3] The applicant was employed by the employer at all relevant times. On 9 August 2011 the applicant provided the employer with a medical certificate to the effect that she was unfit to perform the duties of her substantive position. From 15 September 2011 until 8 November 2011 the applicant was redeployed to another position.

[4] On 28 September 2011 the applicant made a workers’ compensation claim claiming that she had sustained a psychological injury that had been caused by her supervisor.

[5] At the end of her period of redeployment the applicant applied for a period of long service leave as her medical certificates stated that she was unfit to perform the duties of her substantive position and the employer would not redeploy her to another position. Long service leave was accessed by the applicant for the period from 21 November until 23 January 2012.

[6] On 16 February 2012 the applicant wrote to the Director-General of the Health Directorate complaining about a number of issues related to the employer’s handling of her non compensable injury.

[7] At the request of the employer an internal review was conducted by ACT Shared Services Employee Relations (SSER) into the circumstances surrounding the applicant’s complaint in accordance with section I of the Agreement. A report was produced as a consequence of the review, and contained two recommendations.

[8] One of the recommendations contained within the report was that the applicant’s long service leave for the relevant period should be re-credited in full. On 11 July 2013 the Executive Director, People Strategy and Services Branch, Ms Judi Childs, in her capacity of the delegate of the head of service, advised the applicant that she did not accept that recommendation of the SSER and that the applicant’s long service leave would not be re-credited

[9] Clause I4 sets out the powers and responsibilities of the head of service in the context of internal review procedures. I4.12 relevantly provides:

I4.12 The head of service, after considering the report from the nominee and any response by the applicant to the report of the nominee, may:

(a) confirm the original action;

(b) vary the original action; or

(c) take any other action the head of service believes is reasonable.

[10] I5 of the Enterprise Agreement provides:

I5 Right of External Review

I5.1 The employee, or the employee’s union or other employee representative, may seek a review of a decision of the head of service under subclause I4.12 or subclause I4.16 by an external tribunal or body including FWA

I5.2 FWA will be empowered to resolve the matter in accordance with the powers and functions set out in clause G2 of this Agreement. The decision of FWA will be binding subject to any rights of appeal against the decision to a Full Bench in accordance with G2.15.

[11] Clause G2 relevantly provides:

...

G2.9 FWA may deal with the dispute in two stages:

(a) FWA will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) if FWA is unable to resolve the dispute at this first stage, FWA may then:

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties.

...

[12] The applicant applied for a review of the decision of the delegate of the head of service in relation to her decision not to accept the recommendation in the report to re-credit the applicant’s long service leave.

[13] A conference was convened, and the matter remained unresolved. Directions were issued for the filing of statements of evidence and submissions and a subsequently a hearing was listed for the purpose of short oral submissions.

Consideration

[14] I am satisfied that I have the jurisdiction to settle the dispute pursuant to clauses I5 and G2 of the Agreement. The dispute was notified under s.739 of the Fair Work Act 2009 and the requirements of that section and of the Agreement have been met.

[15] The applicant filed a statement of evidence setting out the facts of the case. This did not differ in any significant manner from the statement provided by Ms Childs on behalf for the respondent.

[16] The only matter for consideration arising from this dispute is whether the applicant should be re-credited for the period of long service leave she took between 21 November 2011 and 23 January 2012. There is no dispute that the applicant applied for and was granted long service leave for this period.

[17] According to the applicant she was forced to apply for long service leave as the employer would not redeploy her to a another position and she had supplied medical certificates covering the entire period which stated that she was medically unfit to perform the duties of her substantive position.

[18] The applicant had lodged a claim in relation to psychological injury under the relevant workers’ compensation legislation. This claim was denied on 8 December 2011 on the basis that the injury arose from reasonable management action. There is no evidence that this decision was disputed by the applicant.

[19] From 15 September 2011 to 15 November 2011 the applicant was redeployed to another position funded by her substantive area.

[20] It appears that at the conclusion of that redeployment the applicant’s substantive area refused to fund a further redeployment and no other position could be found into which the applicant could be temporarily transferred. It is accepted that during this period assistance was being provided to the applicant to apply for transfer to other advertised position.

[21] The investigation into the applicant’s complaint against her supervisor was finalised on 2 September 2011. The workers compensation claim was not determined until 8 December 2011. The evidence surrounding the discussions between the applicant and her employer about the circumstances surrounding the applicant’s decision to apply for long service leave in late November 2011 is limited and to be found in the report prepared by SSER. In her statement the applicant stated:

15. My redeployment ended on 15 November, 2011 and I took my long service leave. At no stage was I sent for a fitness for duty assessment. I did not want to go back to my earlier workplace because of the incident that had occurred and the medical certificates which said I should not work with my previous managers. Management and Ms Randall know of this medical advice.

[22] The question for consideration is whether the employer was obliged to transfer or redeploy the applicant for the relevant period so that the applicant was not required to access her long service leave.

[23] The SSER Report recognises that entitlements and policies differ where an employee has a compensable injury rather than a non-compensable injury. Had the applicant’s injury been accepted by the worker’s compensation scheme there would have been a greater obligation on the employer to find another position for the applicant, and to fund such a position in circumstances where the applicant was unfit to perform the duties of her substantive position. However, the obligations imposed on employers by the relevant workers compensation legislation do not apply in cases of non-compensable injury. The ACT Health - Compensable Return to Work Policy (the Compensable RTW policy) cited in the SSER Report states that the Employer must ‘manage and assist the reintegration of the injured employee into the workplace’. This requirement does not apply under the ACT Health - Non-Compensable Return to Work Policy (the Non-Compensable RTW Policy).

[24] For the basis of its claim that there is an obligation on the employer to redeploy an employee suffering a non-compensable injury, the CPSU relies on s.143 of the Public Sector Management Act 1994 (the PSM Act), clauses E14.2 to E14.4 of the Agreement and the Non-Compensable RTW Policy. Further the CPSU submits that the employer was required to accept and implement the recommendations of the SSER Report.

[25] As already noted the evidence filed on behalf of the employer did not differ in any major respect from that filed by the applicant insofar as the facts of the matter are concerned. However Ms Childs summed up employer’s response to the applicant’s claim as follows:

‘12. After considering the Report, I determined there was insufficient evidence within the Report to support the recommendation to re-credit Ms McQuirk’s long service leave. As the injury was non-compensable, it is established practice within ACT Health that an employee utilises their own unpaid leave provisions until suitable duties are identified. However, there is no obligation on ACT Health to provide suitable alternative employment to Ms McQuirk except as required as per section 143 of the Public Sector Management Act 1994.’

[26] I now turn to the provisions of legislation, policies and the Agreement relied on by the CPSU in this dispute.

[27] Relevantly s.143 of the PSM Act provides as follows:

Redeploy or retire officer from service

(1) This section applies to an officer (other than an officer mentioned in subsection (2)) if the head of service is satisfied on reasonable grounds that the officer—

(a) is unable to perform duties appropriate to the officer’s classification because of physical or mental incapacity; or

(b) ...

(c) ...

...

(3) The head of service must take reasonable steps to identify a vacant position in an administrative unit that the officer is capable of performing and qualified to fill.
(4) If the head of service identifies a position under subsection (3) the head of service must—
(a) offer the position to the officer; and
(b) if the officer consents to be redeployed—redeploy the officer to the position.

[28] It is clear that this section did not apply to the applicant’s circumstances during the relevant period.

[29] Clauses E14.2 to 14.4 of the Agreement provides:

‘E14.2 A medically unfit employee is an employee who is considered by the head of service, in accordance with paragraph (a), subsection 143(1) of the PSM Act, to be an employee who is unable to perform duties appropriate to the employees classification because of physical or mental incapacity.

E14.3 Despite the provisions of sub-section 56(3) and 65(1) of the PSM Act, a medically unfit employee may, by agreement with the employee, be transferred to any position within the employee’s current skill level and experience, the classification of which has a maximum pay which does not vary from the top increment of the employee’s classification by more or less than 10%.

E14.4 An employee will not be redeployed in accordance with subclause E14.3 unless there is no suitable vacant position at the employee’s substantive classification within the Directorate.’

[30] There is no evidence that the head of service was satisfied that the applicant was unable to perform duties “appropriate to (her) classification because of physical or mental incapacity.” Further, there was no suggestion that the applicant was in such a position as the applicant was actively seeking redeployment at her classification level. It is also evident that the medical certificates obtained by the applicant during that period did not support a conclusion that the applicant was unable to perform duties appropriate to her classification.

[31] As there is no evidence that the head of service was satisfied that the applicant was unable to perform duties appropriate to her classification and, given that clauses E14.2 to E14.4 are dependent upon the applicability of s.143 of the PSM Act, I am satisfied that those clauses have no application to the applicant’s circumstances during the relevant period.

[32] While the Non-Compensable RTW Policy does apply to the applicant there is nothing in that policy which obliges a Directorate to redeploy an employee suffering such an injury. Relevantly to this matter and according to the SSER Report, the Non Compensable RTW Policy obliges the manager to:

‘Take reasonable and practical steps in ensuring that an employee who suffers a non compensable injury or illness is provided with a safe workplace, is treated in a fair and consistent manner and is able to return to work as soon as possible taking into account the possibility of a graduated return to work in the initial stages; and

...

Wherever practical, return the injured or ill employee to their normal position, taking into account and complying with, any medical restrictions that an injured or ill employee may have;

Assist in determining suitable return to work options for ill or injured employees within existing establishment where a return to their own position is not practicable, ensure medical clearance has been given before an injured or ill employee returns to work;

...”

[33] This policy imposes no obligation on the employer to redeploy an ill or injured employee to another position where that employee is unable to return to their usual position. In my view the use of the words “ within existing establishment” used in this policy indicates a manager is not obliged to redeploy such an employee, even within the employee’s usual work area, unless the position is vacant and it is both ‘reasonable and practical’ to do so. The obligation is on the employee’s manager, not the Directorate generally, and the obligation is not to redeploy but to “assist in determining suitable options.”

[34] The CPSU also submitted that there was an obligation on Ms Childs to accept and implement the recommendation of the SSER Report so far as it recommended the re-crediting of the long service leave. No such obligation exists. Clause I4.12 of the Agreement is clear in this regard. The head of service is granted broad discretion to accept or not accept the report’s recommendation. Having read the SSER Report I have reached a similar view to that reached by Ms Childs. The report does not provide any persuasive evidence for the recommendation to re-credit the long service leave.

[35] It is clear that the clauses in the agreement, read in conjunction with the relevant legislative provisions, did not impose an obligation under clause E14 to transfer the applicant of the Agreement in the relevant period. Further, there is no obligation to redeploy imposed on the employer by the terms of the Non Compensable RTW Policy. As there was no obligation imposed, it was appropriate and indeed necessary, for the applicant to utilise her long service leave credits in circumstances where all of her personal leave entitlements had been exhausted, if she wished to continue to be paid for the period.

Conclusion

[36] Having reviewed the relevant legislation and the Agreement, I am satisfied that there was no obligation on the employer to transfer or redeploy the applicant during the relevant period. I therefore find that there is no obligation to re-credit the applicant’s long service leave. I decline to grant the relief sought by the CPSU that the applicant’s long service leave for the period 21 November 2011 to 23 January 2012 be re-credited in full.

Appearances:

Ms K Routh, of the CPSU, for the applicant.

Ms S Woodward, of ACT Government Solicitor, for the respondent

Hearing details:

2014.

Canberra:

May 19.

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