CPSU, the Community and Public Sector Union v Australian Securities & Investments Commission
[2010] FWA 9494
•13 DECEMBER 2010
[2010] FWA 9494 |
|
DECISION |
Fair Work Act 2009
s.739—Application to deal with a dispute
CPSU, the Community and Public Sector Union
v
Australian Securities & Investments Commission
(C2010/5262)
AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION ASIC 1—4 LEVEL ENTERPRISE AGREEMENT 2009—2011
Commonwealth employment | |
COMMISSIONER SMITH | MELBOURNE, 13 DECEMBER 2010 |
INTRODUCTION
[1] The Community and Public Sector Union (CPSU) has, pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act), notified a dispute between it and the Australian Securities & Investment Commission (ASIC). The dispute is about the proper application of the Australian Securities & Investment Commission ASIC 1-4 Level Enterprise Agreement 2009—2011 (the Agreement).
[2] The dispute relates to the process adopted by ASIC following a decision to declare an employee excess to requirements which would almost certainly lead to her termination of employment as a consequence of a redundancy. There is no dispute that the organisational change is genuine and that should a redundancy occur it would be genuine. The dispute is about the steps which should be taken by ASIC in an attempt to avoid or mitigate the effects of redundancy. In particular the efforts made to redeploy the person declared excess.
THE AGREEMENT
[3] Clauses 45 and 49 of the Agreement deal with consultation and workplace adjustment together with the process to be followed.
[4] Clause 45 deals with consultation where the employer has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise. 1 Where that change is likely to have a significant effect on employees of the enterprise, among other actions, the employer must discuss with relevant employees measures it is taking to avert or mitigate the adverse effect of the change.2
[5] Relevantly Clause 49 provides:
“...Consultation Arrangements
49.3 When the Chairman becomes aware that a staff member is likely to become excess to requirements the Chairman or their nominee will advise the staff member and, where they choose, their representative, of the situation and have discussions with the staff member to determine any measures that can be taken to resolve this situation. These discussions will include
• redeployment opportunities for the staff member concerned within ASIC either at or below their substantive level, and
• retrenchment.
49.4 The Chairman may, before the conclusion of these discussions, invite other staff who are not potentially excess to express interest in retrenchment, where those retrenchments would permit the redeployment of staff who would otherwise be excess.
Redeployment
49.5 Where the staff member indicates they wish to examine options for redeployment, ASIC will assist the staff member to find alternate employment within ASIC from the day discussions under clause 49.3 commence for a period of generally no more than two months.
49.6 This assistance will include
• assistance and support of a P&D staff member
• advice of vacancies within ASIC and within relevant portfolio agencies in the location
• support in relevant appropriate outplacement services including APS career transition services.
49.7 The staff member may be granted assistance for reasonable time off to seek alternative employment.
49.8 Where during the redeployment period referred to in clause 49.5, the Chairman considers there is insufficient productive work available for the excess staff member at their actual level, the Chairman may redeploy the excess staff member to a position at a lower level, which the staff member is qualified and capable of performing with salary maintenance for the balance of the support period.”
THE SUBMISSIONS AND RELIEF SOUGHT
[6] The CPSU submit that the whole process had not been consistent with the Agreement and it should start again. To support its submission CPSU argued that ASIC had not acted soon enough to explore redeployment opportunities for Ms Maria Thomas and that it placed an artificial barrier in the way of the operation of clause 49.5. This was so, it submitted, because it did not take any action until Ms Thomas provided her curriculum vitae (CV). It submitted that no such prerequisite was contained in the obligation placed upon the employer. CPSU submitted that ASIC was aware that Ms Thomas was seeking redeployment and did not want to be terminated on the grounds of redundancy.
[7] CPSU submitted that there were two issues: firstly, how does an employee indicate to ASIC that they wish to examine options for redeployment and secondly, was it appropriate for ASIC to add a prerequisite of providing a CV before action is taken to find redeployment opportunities.
[8] In addition, CPSU submitted that Ms Thomas was discouraged from applying for a lower level position in accordance with clause 49.3.
[9] In essence, CPSU submitted that as the Australian Public Service is a career service then every effort should be made by an agency of government to retain employees within that service and this was particularly so for a person who had nearly 27 years of service.
[10] ASIC concede that it is not necessary to submit a CV, although doing so enables the process of assistance to have greater substance because available positions both within ASIC and in the wider public service can be better matched with the person who has been declared excess.
[11] ASIC argue that Clause 49.5 is activated only when the Chairman advises the staff member that they are likely to become excess to requirements and hold discussions about redeployment opportunities. At that stage, it is submitted, the staff member should indicate that they wish to examine options for redeployment. It is submitted that ASIC then has a duty to assist the staff member to find alternative employment from the day discussions under clause 49.3 commence for a period of “generally no more than two months”. ASIC conceded that the factual circumstances of this case meant that it had not given two months assistance and made a concession about the date that it would use for the purpose of considering whether or not to make Ms Thomas redundant.
[12] Importantly, ASIC submit that it is only strictly required to assist a staff member and this meant that would be reacting to requests for assistance rather than taking measures of its own imitative to find redeployment opportunities. The use of the term “assist” became important in the proceedings.
CONSIDERATION OF THE ISSUES AND CONCLUSION
[13] As it developed, two matters require consideration. The first is the process for advising that a staff member wishes to be redeployed and the second is the scope of the word “assist” contained in the Agreement.
[14] The process appears to me to be clear.
[15] As soon as the Chairman becomes aware that a staff member is likely to become excess, the staff member will be advised and discussions will take place to discuss redeployment opportunities or retrenchment. There is no doubt that those discussions may well present the staff member with options which need consideration. The staff member will need to consider all of the financial ramifications of seeking redeployment or being made redundant. This time appears to be comprehended by clause 49.11. This clause provides for a period of one month before the Chairman declares the person excess to requirements. At the most it would appear that a staff member has a period of one month in which to notify ASIC that they want to be redeployed although, given that clause 49.21 enables the Chairman to terminate an excess employee within two months of the discussions taking place [see clause 49.3], the sooner the staff member provides the advice under clause 49.5 the more assistance that can be given. Indeed, it would not be inconsistent with a proper reading of clause 49.5 that the staff member could advise ASIC during the discussions comprehended by clause 49.3 that they wish to examine options for redeployment.
[16] As ASIC correctly concede there is no prerequisite that a CV be provided before assistance can be given. Although it seems reasonable to assume that a consolidated document which reflects existing skills and responsibilities enriches the process of assistance.
[17] I now turn to consider what is comprehended by the term “assist” which is contained in the agreement. Whilst ASIC submit that it is more reactive to the needs and wishes of the staff member rather than being pro-active, the whole exercise needs to be put in context. I quickly add that ASIC submitted that a proper examination of the steps it took would reveal that it took all appropriate action in any event to further the interests of Ms Thomas.
[18] To begin, an examination of the context in which clauses dealing with redeployment and redundancy have been decided within Australia, consideration is given to the impact on a person being made redundant. This is so because it is assumed that genuine redundancies will arise in as a result of the changing needs of the enterprise. Indeed the scheme of the current Act provides that a termination for reasons relating to genuine redundancy does not attract the unfair dismissal jurisdiction provided that it complies with the definition of genuine redundancy (see s.389). A part of that definition is whether or not the employer has consulted in accordance with an obligation in a modern award or enterprise agreement. In addition, it would not be a genuine redundancy if the person could be redeployed within the employer’s enterprise or an associated entity.
[19] The terms of the current legislation brings into focus the fact that if vacancies exist in the employer’s enterprise or an associated entity and the employer has not examined redeployment properly then it could give rise to an argument that there was not a genuine redundancy. This has a particular resonance in career based public sector employment.
[20] The impact upon a person is well stated in a forward to a Parliamentary Committee Report entitled “Age Counts”, where Dr Brendan Nelson stated:
“Australia is a country in which we define ourselves through our work. Within minutes of meeting one another, the question is asked: “What sort of work do you do?” Work puts us in a social context, defines the framework of our lives and gives each of us a sense of balance and meaningful purpose. Being without a job devastates not only personal finances; it exacts a heavy social and human toll. Albert Camus said: ‘Without work, all life goes rotten’.
Losing your job after two or three decades of continuous work is a major life event. It can be as devastating for some as the loss of a limb or even a family member. Employers must take seriously the need to manage redundancy in an orderly and humane way. The displacement of employees is handled well by some employers, but appallingly by others. The long term consequences are devastating for the individual and ultimately significant for the public purse.” 3
[21] I was referred to a decision of Logan J, in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR limited 4in which His Honour extensively reviewed the important question of consultation in relation to redundancy. His Honour dealt with the International Labour Organisation (ILO) Conventions, the Full Bench decisions dealing with Termination, Change and Redundancy, the agreements reached at the National Labour Consultative Committee.
[22] This review highlights the impact and importance of the employers’ role in managing terminations of employment in the context of redundancies. His Honours review is comprehensive.
[23] There are also other relevant actions of governments (i.e. the General Employee Entitlements and Redundancy Scheme) which highlight the importance of supporting employees who, through no fault of their own, lose employment.
[24] An examination of the history of debate, industrial regulation and decisions in relation to redundancy would lead to the conclusion that where an employer is faced with making employees redundant then every effort should be made to mitigate the effects of that redundancy. The employer’s role is not a passive one of standing on the sidelines and responding only to specific requests by employees but one where it assumes an active role. Employees who hold the responsibility of assisting those who are about to lose their jobs have a difficult task. The person who is about to be made redundant has some measure of comfort if it is perceived that the person assisting is doing their best to find alternatives. That approach is consistent with recognising that the needs of the enterprise may give rise to redundancies but the efforts are made to assist employees faced with this possibility.
[25] I should add at this stage that as the matter progressed before the Tribunal it appeared that ASIC were genuine in its efforts to support Ms Thomas. The only hesitation I have is the conflicting evidence in relation to the opportunity for Ms Thomas to be redeployed to a lower position and receive salary maintenance. As was observed in the proceedings, if this was a real opportunity then it would have provided the opportunity for Ms Thomas to maintain her employment, continue to grow her superannuation in the public sector and then seek other position at her original level with ASIC or the Australian Public Service more generally. A resolution of that evidence would be more relevant if s.389 of the Act was invoked at some future stage.
[26] ASIC has fully co-operated in this matter and have maintained Ms Thomas’ employment whilst consideration is given to the matters raised and have continued to seek to find suitable redeployment opportunities. Its conduct is more consistent with taking an active role of support than otherwise.
[27] As ASIC correctly observed, the Chairman did declare Mr Thomas excess to requirements on a particular day and that was a reasonable decision against the background of the facts at hand. Those facts remain in place. The events which took place immediately following that decision were less than optimal; however the initial concern of Ms Thomas was that she would be terminated on the basis of redundancy in late October. As the matter has taken some time ASIC has had further opportunity to support Ms Thomas in her quest for redeployment. I do not propose to take any further action to constrain ASIC from applying the terms of the Agreement as now understood.
Appearances:
L Benfell for CPSU, the Community and Public Sector Union.
C Rawson Solicitor on behalf of the Australian Securities & Investments Commission.
Hearing details:
2010.
Melbourne:
October, 26;
November, 5 and 12.
1 Clause 45.1 of the Agreement
2 Clause 45.5(a)(iii)
3 Australia Parliament Standing Committee on Employment, Education and Workplace Relations; an inquiry into issues specific to mature-age workers, published 14 august 2000
4 [2010] FCA 591
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