CPSU, the Community and Public Sector Union v Commonwealth of Australia (represented by the Department of Home Affairs)
[2021] FWC 2199
•21 APRIL 2021
| [2021] FWC 2199 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
CPSU, the Community and Public Sector Union
v
Commonwealth of Australia (represented by the Department of Home Affairs)
(C2020/9044)
COMMISSIONER JOHNS | SYDNEY, 21 APRIL 2021 |
Dispute about a matter arising under a workplace determination
INTRODUCTION
[1] This decision deals with a dispute about the scope of the consultation obligation set out in clause 1.7 of the Department of Home Affairs Workplace Determination 20191 (Workplace Determination).
[2] The dispute was initiated by the Community and Public Sector Union (CPSU). The Respondent is the Commonwealth of Australia (as represented by the Department of Home Affairs) (Department).
[3] In short, the CPSU contends that when the Department introduces new policies, procedures and guidelines, or makes changes to existing policies, procedures and guidelines it must consult with employees. The implication of the CPSU’s contention is that there is no limit on the obligation to consult, that is, that it applies to all policies. The Department contends that the obligation to consult only relates to policies which support the operation of the Workplace Determination.
[4] Essentially, the question to be determined is as follows: “Is clause 1.7 limited to policies, procedures and guidelines which support the operation of the Workplace Determination?”
JURISDICTION
[5] The Application was made on 16 December 2020. Conciliation was attempted on 15 January 2021 without success.
[6] The Workplace Determination only invests the Fair Work Commission (Commission) with jurisdiction to arbitrate a dispute “if the parties consent”.2
[7] The Department agreed to consent arbitration during the conference on 15 January 2021. It was further agreed that the parties would exchange submissions about the proper application of clause 1.7.
[8] I am satisfied that the Commission is properly invested with jurisdiction to determine, by way of arbitration, the proper application of clause 1.7.
THE WORKPLACE DETERMINATION
[9] The Workplace Determination was determined by a Full Bench of the Commission constituted by Vice President Catanzariti, Deputy President Kovacic and me on 8 February 2019 following a decision of the Full Bench published on 11 January 2019 (Full Bench Decision).3
[10] By order4 of the Full Bench the Workplace Determination commenced operation on 8 February 2019.5 The nominal expiry date of the Workplace Determination was 2 years after the date of commencement (i.e. 7 February 2021).6 That is to say, the Workplace Determination has passed its nominal expiry date.
[11] The Workplace Determination covers7:
a) the Secretary of the Department of Home Affairs on behalf of the Commonwealth,
b) all Employees of the Department, with the exception of any Senior Executive Service (SES) Employees,
c) the CPSU, and
d) the AIMPE.
[12] The Department is the employer of each employee covered by the Workplace Determination.
[13] The CPSU is:
a) an association of employees registered under s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) (FW(RO) Act); and
b) eligible to represent the industrial interests of employees to whom the Workplace Determination applies.
[14] Essentially, the dispute is about whether the Department has correctly applied clause 1.7 of the Workplace Determination. Clause 1.7 follows clauses 1.5 and 1.6 which deal with “Interaction with policies”. It is useful to set out all three clauses:
“Interaction with policies
1.5 The operation of this Determination is supported by policies, procedures and guidelines. If there is any inconsistency between the policies, procedures and guidelines and the terms of this Determination, the express terms of this Determination will prevail.
1.6 Policies, procedures, and guidelines which support this Determination are not incorporated into, and do not form part of, this Determination.
Introduction of new policies and changes to existing policies
1.7 Where the Secretary proposes to introduce a new policy, procedure or guideline or vary an existing policy, procedure or guideline they will provide Employees no less than 2 weeks to comment on the proposed new or varied policy, procedure or guideline. The Secretary must give genuine consideration to the comments made by Employees prior to finalising the policy, procedure or guideline.”
THE FULL BENCH DECISION
[15] Policies were addressed as follows in the Full Bench Decision:
“[159] The Department’s and the CPSU’s draft workplace determinations include a clause dealing with the Interaction of Policies. The following is common to both proposed workplace determinations:
“The operation of this Determination is supported by policies, procedures and guidelines. If there is any inconsistency between the policies, procedures and guidelines and the terms of this Determination, the express terms of this Determination will prevail.”
[160] However, the Department’s proposed provision also includes an explicit statement that “policies, procedures, and guidelines which support this Determination are not incorporated into, and do not form part of, this Determination.”
[161] On the other hand, the CPSU’s proposed provision also includes the following which is drawn from the ACBPS Agreement (clause 4.0.5):
“Those policies, guidelines and administrative instruments are incorporated into, and form part of this Workplace Determination. These instruments may only be made or varied following consultation with employees, and their nominated representative(s). These instruments will be subject to the dispute settlement provisions of this Workplace Determination.”
[162] The CPSU submitted that we should include the above in the workplace determination for several reasons including that:
• the Department was prepared to agree to consultation prior to any changes to policy during bargaining;
• drawing on Mr Muffatti’s evidence, significant entitlements, with real impact upon the take-home pay of employees, are contained in policy, procedures, guidelines and administrative instruments; and
• it is consistent with principles of fairness and industrial justice that employees are able to progress disputes about policies through the dispute settlement procedure.
[163] The Department submitted that the Commission should reject the CPSU proposal. More specifically, the Department contended that incorporation of policies, guidelines and administrative instruments in the workplace determination would, among other things, have the effect of leaving anyone who may not have complied with the policy exposed to proceedings against them seeking the imposition of a penalty or perhaps injunctive relief seeking to prevent them from proceeding because there was an arguable case that they propose to do so other than in accordance with the strict terms of the policy. The Department further contended that any such exposure was contrary to the interests of employees, the Department and the public interest. Beyond this, the Department posited that:
• any such proceedings or any provision which conferred a right of veto upon the ability of the Department to vary its policies and procedures to accommodate the dynamic environment in which it operated was antagonistic to the considerations in s.275 of the Act; and
• requiring employees and the Department to determine their rights from multiple and potentially dichotomous documents created uncertainty and diminished productivity in the application and understanding of the respective instruments.
[164] It is not common for enterprise agreements to incorporate policies and guidelines, though reference is frequently made to policies providing further guidance on particular issues. For this reason, we do not intend to incorporate such documents into the workplace determination which we will make. Nevertheless, we consider that there is significant value in employees being provided an opportunity to comment on draft policies and proposed variations to existing policies prior to those policies being finalised. The opportunity to comment on our view has the potential to identify operational issues and/or impacts which may have been overlooked or not considered. This, in our view, would be in the interest of both the Department and its employees. Accordingly, we will include in the determination which we will make a requirement that the Department provide employees such an opportunity. We do not consider providing employees with an opportunity to comment on policies to be inconsistent with s.273(5) of the Act.”
FILED MATERIALS
[16] The parties agreed that the dispute could be decided on the papers. Consequently, in coming to this decision I have had regard to the following material filed by the parties.
Document number | Date | Filed by | Description |
1 | 16 December 2020 | CPSU | Form F10 Application |
2 | 18 December 2020 | Department | Letter setting out the Department’s position |
3 | 29 January 2021 | CPSU | Submissions |
4 | 29 January 2021 | Department | Submissions |
PRINCIPALS OF INTERPRETATION
[17] A Workplace Determination is not an enterprise agreement. It is not the result of a bargain. Consequently, the principles relevant to the task of construing an enterprise agreement as distilled in The Australasian Meat Industry Employees Union v Golden Cockerel8 and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Limited9 do not apply.
[18] However, as the Full Bench (still relevant for present purposes) observed in Berri,
[46] There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments (such as enterprise agreements) is to be avoided,10 and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’.11
[19] A Workplace Determination is a creation of the Commission. Consequently, the principles applicable to interpreting a Workplace Determination are the same as those applicable to interpreting other industrial instruments, like industrial awards.
[20] The general approach to the construction of industrial instruments was set out by Flick J in Australian Workers’ Union v Cleanevent Australia Pty Ltd,12
13 When construing the terms of an award, it is well-settled that a “narrow or pedantic approach” is to be shunned and that the “search is for the meaning intended by the framer(s)”: Kucks v CSR Ltd (1996) 66 IR 182 at 184. Madgwick J there observed:
Legal principles
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 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.
See also: Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [30], (2014) 318 ALR 54 at 58 per Tracey J; Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCA 532 at [6] per Logan J; Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088 at [240] per Murphy J. The words used in an agreement or an award are to be given their “natural and ordinary meaning”: Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472 at [16].
14 It is also well-settled that the words of an award are not to be construed “in a vacuum divorced from industrial realities”: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57], (2006) 153 IR 426 at 440. French J (as his Honour then was) there observed:
[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘… the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘… ideas that gave rise to an expression in a document from which it has been taken’ — Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J).
His Honour continued on to observe:
[57] It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities — City of Wanneroo v Holmes (1989) 30 IR 362 at 378–379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned — see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.
15 There is repeated reference in the authorities to the need to take into account the “context” in which an industrial agreement or award emerges. Thus, by way of example, in Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10 at [2], (2005) 222 CLR 241 at 246 Gleeson CJ and McHugh J observed:
The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose …
Kirby J there also observed:
[66] … In the interpretation of the Constitution and of legislation, Australian courts have passed beyond the age of the magnifying glass. No longer do courts (or industrial tribunals) seek to give meaning to contested language considered in isolation from the context in which the words are used and the purpose for which the words were apparently chosen. Nowadays, the same insistence on context, as well as text, permeates the approach to interpretation that is taken to legally binding agreements. Indeed, before this approach became normal in the courts, in the interpretation of contested instruments it was often the approach adopted for the construction of industrial texts. This was in keeping with an inclination of such tribunals towards practical, as distinct from purely verbal, constructions in that area of the law’s operation.
[67] In the present case, the Union’s submission was that these generalities were all very well, but that in the end, the Court had to give effect to the language of the Agreement. Clearly, this is correct. Interpretation is always a text-based activity …
In Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148, (2014) 245 IR 449 at 455 Siopis, Buchanan and Flick JJ similarly stated:
[22] The test that should be applied is to discern the objective meaning of the words used bearing in mind the context in which they appear and the purpose they are intended to serve. Here, the definition in question expressly extended to work ancillary to the principal business. That was the true question for examination.
Their Honours continued:
[46] … giving primacy to the text does not deny the importance of understanding the context in which an instrument is made, and which it is intended to address, nor the utility of bearing in mind the facts as they are known at the time the instrument is drafted.”
[21] With respect, I adopt the above principles of construction.
[22] I also note that I must apply the Acts Interpretation Act 1901 (Cth) in interpreting the Workplace Determination.13
SUBMISSIONS
[23] The CPSU submitted that,
1. “The Community and Public Sector Union (“CPSU”) has brought an application under s 739 of the Fair Work Act 2009 (Cth) for the Fair Work Commission to deal with a dispute under Part 12 of the Department of Home Affairs Workplace Determination 2009 (“the 2019 Workplace Determination”). That dispute concerns the correct interpretation of clause 1.7 of the 2019 Workplace Determination.
2. In accordance with the Commission’s directions of Friday 15 January 2020, the CPSU makes the following submissions in respect of the correct interpretation of clause 1.7 of the 2019 Workplace Determination. The CPSU offers a brief background to this dispute prior to discussing the principles applicable to the interpretation of the 2019 Workplace Determination, and their application to clause 1.7.
Background
3. On 4 March 2019, the CPSU referred a dispute to the Commission in relation to the policy consultation process to be followed by the Department of Home Affairs (“the Department”) pursuant to the 2019 Workplace Determination (Matter No. C2019/1385). After a series of conciliation conferences before the late Deputy President Kovacic, the CPSU and the Department agreed on a policy consultation schedule. The CPSU and the Department proceeded to follow that schedule, to consult on a broad range of new and amended policies, procedures and guidelines.
4. On 7 September 2020, the CPSU wrote to the Department raising concerns in relation to its consultation process with respect to two policies, namely the Department’s Social Media Policy and its Best Practice for Interacting with Children Procedural Instruction. Neither of these policies had appeared in the agreed policy consultation schedule. The CPSU was concerned to discover that the Department had varied the Social Media Policy, and implemented the Best Practice for Interacting with Children Procedural Instruction, without first consulting with its employees, as required by clause 1.7 of the 2019 Workplace Determination.
5. Following a meeting with the Department to discuss these concerns, the CPSU wrote to the Department confirming that it considered clause 1.7 of the 2019 Workplace Determination to require the Department to consult with its employees when it proposes to implement a new policy, procedure or guideline, and when it proposes to vary an existing policy, procedure or guideline. On 1 October 2020, the Department wrote to the CPSU stating that it understood clause 1.7 of the 2019 Workplace Determination to require consultation only on those policies, procedures and guidelines which “support the operation” of the 2019 Workplace Determination.
6. The CPSU and Department subsequently engaged in discussions, and exchanged correspondence, in an effort to resolve their differences with respect to the correct interpretation of clause 1.7 of the 2019 Workplace Determination. As the CPSU and the Department were ultimately unable to resolve this issue through discussions at the workplace level, the CPSU referred this matter to the Commission.
7. Further detail as to the parties’ discussions and exchange of correspondence with respect to clause 1.7 of the 2019 Workplace Determination is set out in the Form 10 – Application for the Commission to deal with a dispute pursuant to a dispute resolution procedure filed in this matter by the CPSU.
Interpretation of the 2019 Workplace Determination
8. The 2019 Workplace Determination is an industrial instrument made by the Fair Work Commission pursuant to s 266 of the Fair Work Act. It therefore must be interpreted in accordance with the principles applicable to the interpretation of industrial instruments, such as modern awards. The Commission has confirmed this to be the case, and referred to the applicable principles, in its recent judgement in Matter No. C2019/4750 – Australian Institute of Marine and Power Engineers, Sydney Branch & Community and Public Sector Union (CPSU) v Commonwealth of Australia (represented by the Department of Home Affairs). We respectfully adopt those principles in these submissions.
9. As the Commission has stated in Matter No. C2019/4750, the applicable principles have been articulated by the Federal Court of Australia in Australian Workers Union v Cleanevent Australia Pty Ltd [2015] FCA 1477, Veolia Transport Sydney Pty Ltd v Mitford [2012] FCA 1472, and City of Waneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813. In brief, those principles are:
9.1 Interpretation of an industrial instrument must begin with a reading of the natural and ordinary meaning of its words. A reading of the instrument which is narrow or pedantic is to be avoided. Instead, the instrument must be read in such a way as to give effect to the meaning intended by its framers: see Australian Workers Union v Cleanevent Australia Pty Ltd at [13] and Veolia Transport Sydney Pty Ltd v Mitford at [16].
9.2 Interpretation of an industrial instrument (in accordance with the natural and ordinary meaning of its words) may be assisted by a consideration of the instrument’s industrial context, and its underlying purpose: see City of Waneroo v Australian Municipal, Administrative, Clerical and Services Union at [57] and also Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 at [455].
10. Industrial instruments (including the 2019 Workplace Determination) must also be interpreted in accordance with the Acts Interpretation Act 1901 (Cth). The applicable principles in the Acts Interpretation Act are:
10.1 Instruments to which the Acts Interpretation Act applies should be interpreted in a manner that gives effect to their underlying purpose: see Acts Interpretation Act at s 15AA;
10.2 Extrinsic material may be used to assist with the interpretation of an instrument to confirm the ordinary meaning of its words, taking into account its context, or to determine its meaning where the meaning of its ordinary words is ambiguous or obscure or leads to a result that is absurd or unreasonable: see Acts Interpretation Act at s 15AB(1). In determining the weight to be given to that extrinsic material, regard is to be had to the desirability of being able to rely on the ordinary meaning words of the instrument: see Acts Interpretation Act at s 15AB(3)(a).
11. These are the principles which must be applied to the interpretation of clause 1.7 of the 2019 Workplace Determination.
CPSU Interpretation of Clause 1.7 of the 2019 Workplace Determination
12. Clause 1.7 of the 2019 Workplace Determination reads:
Introduction of New Policies and Changes to Existing Policies
1.7 Where the Secretary proposes to introduce a new policy, procedure or guideline or vary an existing policy, procedure or guideline, they will provide Employees no less than 2 weeks to comment on the proposed new or varied policy, procedure or guideline. The Secretary must give genuine consideration to the comments made by Employees prior to finalising the policy, procedure or guideline.
13. Read in accordance with the natural and ordinary meaning of its words, clause 1.7 requires the Department to consult with its employees when it intends to introduce a new policy, procedure or guideline, or vary an existing policy, procedure or guideline, by providing its employees with a minimum of two weeks in which to comment and by giving genuine consideration to those comments prior to finalising the new (or varied) policy, procedure or guideline. The natural and ordinary meaning of the words of clause 1.7 are extremely clear, and free of any ambiguity or obscurity.
14. The industrial context for clause 1.7 confirms the natural and ordinary meaning of its words. In its decision on the 2019 Workplace Determination (Matter No. B2016/1232), the Full Bench of the Commission provided reasons for what would become clause 1.7 in the context of a discussion in relation to “technical matters”: see Matter No. B2016/1232 at [157] – [164]. In that discussion, the Commission rejected a CPSU submission that policies and procedures should be incorporated into the 2019 Workplace Determination, and that they should be subject to the dispute resolution provisions of the Workplace Determination. After doing so, the Commission discussed the merits of consultation on policies, procedures and guidelines more broadly, saying that:
“….we consider that there is significant value in employees being provided an opportunity to comment on draft policies and proposed variations to existing policies prior to those policies being finalised. The opportunity to comment in our view has the potential to identify operational issues and / or impacts which may have been overlooked or not considered. This, in our view, would be in the interests of both the Department and its employees. Accordingly, we will include in the determination we will make a requirement that the Department provide employees such an opportunity. We do not consider providing employees with an opportunity to comment on policies to be inconsistent with s 273(5) of the Act”.
15. These comments confirm that the purpose of clause 1.7 is to provide an avenue for consultation between the Department and its employees on the development of new policies, procedures and guidelines, and variations to existing ones, noting the benefits associated with consultation. The comments do not refer to consultation being restricted, but rather adopt a beneficial approach to consultation, considering its value both to employer and employee. Employees of the Department are subject to a broad range of employment conditions and expectations, not all of which are specifically referenced in the 2019 Workplace Determination (for example, expectations around the use of social media as set out in the Social Media Policy). The comments of the Full Bench on consultation express the importance of ensuring that employees have an opportunity to be informed about, and consulted on, changes to policies and procedures that will affect the way that they work. The purpose of clause 1.7 revealed by its industrial context is entirely consistent with the natural and ordinary meaning of its words.
Department’s Interpretation of Clause 1.7 of the 2019 Workplace Determination
16. The Department has proposed an interpretation of clause 1.7 that would require it to consult with its employees in relation to new policies, procedures and guidelines, and variations to existing policies, procedures and guidelines, that “support the operation” of the 2019 Workplace Determination. This interpretation of clause 1.7 should be rejected.
17. The Department’s proposed interpretation of clause 1.7 is inconsistent with the natural and ordinary meaning of its words. Clause 1.7 clearly refers to the introduction of “a new policy, procedure or guideline” or the variation of “an existing policy, procedure or guideline”. Clause 1.7 does not include any qualification or limitation on the type of policy, procedure or guideline to which it refers. It does not state that consultation is to be restricted to policies, procedures or guidelines that “support the operation” of the 2019 Workplace Determination. The Department’s interpretation of clause 1.7 relies on the insertion of new, qualifying language that simply does not exist in the clause and is not necessary for the interpretation of the clause. It essentially involves a retrospective re-writing of the clause. This approach to the interpretation of clause 1.7 is entirely contrary to principles of interpretation set out at paragraphs [8] - [10] of this submission. The authorities (and the Acts Interpretation Act) are clear that the first step in interpreting an industrial instrument is to read the natural and ordinary meaning of its words. It is not to insert new wording into the instrument.
18. The Department’s interpretation of clause 1.7 is inconsistent with the meaning intended by its framers, and its underlying purpose, as revealed in the remarks of the Full Bench at [164] of its decision on the 2019 Workplace Determination. The Full Bench’s comments reveal that the purpose of the clause was to facilitate consultation on new and amended policies, procedures and guidelines, noting the benefits of consultation for both the Department and its employees. The Full Bench did not refer to any particular qualification or limitation on the scope of this consultation in its comments. Its reasoning is entirely consistent with the wording of clause 1.7, which does not include any qualifying or limiting language. Had the Full Bench intended that consultation be limited in scope, it would have referred to this in its reasoning and reflected that intention in the language that it chose for clause 1.7.
19. The Department has suggested that clause 1.7 should be read in the context of clauses 1.5 and 1.6 of the 2019 Workplace Determination, and that read in this context, clause 1.7 limits consultation to policies and variations to policies that “support the operation” of the 2019 Workplace Determination. This suggestion should be rejected, for the following reasons:
19.1 Clauses 1.5 and 1.6 deal with different subject matter to clause 1.7. Clauses 1.5 and 1.6 appear in the 2019 Workplace Determination under a separate heading, namely “Interaction with Policies”. Clauses 1.5 and 1.6 articulate the manner in which the 2019 Workplace Determination is to interact with policies and procedures, clarifying that the 2019 Workplace Determination must prevail over policies and procedures where there is an inconsistency between the two, and that policies and procedures do not form part of the 2019 Workplace Determination. The manner in which the 2019 Workplace Determination interacts with policies and procedures is a different issue than the manner in which the Department must consult with its employees about policies and procedures. Clauses 1.5 and 1.6 do not contain any provisions with respect to policy consultation. The sole provision with respect to policy consultation in the 2019 Workplace Determination is clause 1.7. Because these clauses deal with primacy of overlapping entitlements and effects of policies that are called up in the agreement by definition they need to be limited to those policies that overlap with agreement conditions.
19.2 Clause 1.7 does not include any wording to indicate that it is to be read subject to clauses 1.5 or 1.6. It appears under a separate heading, namely “Introduction of new policies and changes to existing policies”. It does not cross-reference clauses 1.5, 1.6 or any other clause in the 2019 Workplace Determination. It should be read on its own terms, which are unambiguous and clear. As we have stated at paragraph [17], clause 1.7 does not include any of the qualifying or limiting language for which the Department advocates.
19.3 In its correspondence to the CPSU of 1 October 2020, the Department suggested that the words “policies, procedures and guidelines” in clause 1.7 should be given the same meaning as those words in clauses 1.5 and 1.6, in accordance with the principles in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450. This argument is misconceived. The words “policies, procedures and guidelines” are not defined in clauses 1.5 and 1.6, as being limited to those which “support the operation” of the 2019 Workplace Determination. As we have stated at paragraph 19.1 above, the policies to which clauses 1.5 and 1.6 refer are necessarily limited because clauses 1.5 and 1.6 address the interaction between the 2019 Workplace Determination and policies. The subject matter, purpose and context of clause 1.7 is different. Clause 1.7 must be interpreted in accordance with its own words, its own purpose and its own context, which are different to those of clauses 1.5 – 1.6.
20. The Department has referred to practical difficulties associated with consulting on all new policies, procedures and guidelines (and variations to existing ones) as required by clause 1.7 of the 2019 Workplace Determination. As an argument in support of the Department’s interpretation of clause 1.7, this should also be rejected. The reasons for this are as follows:
20.1 The 2019 Workplace Determination is an industrial instrument which is binding on the parties. The Department has a legal obligation to comply with it. The Department cannot avoid its obligation to comply with the 2019 Workplace Determination simply by citing practical difficulties in doing so.
20.2 Clause 1.7 does not, in any event, impose a difficult, unreasonable or onerous consultation requirement on the Department. It requires simply that the Department notify its employees of a new policy, procedure or guideline (or changes to an existing one), give its employees at least two weeks to make
comments, and give some reasonable consideration to those comments. This process can be achieved by issuing an email to staff, inviting their replies, and considering those replies. This is not an onerous requirement, particularly for an employer of the size and resources of the Department.
20.3 The CPSU is aware that the Department has a large volume of policies, procedures and guidelines concerning a range of different operational issues, some of which would be security sensitive. The CPSU is aware that not all policies, procedures and guidelines will be relevant to every Departmental employee. (For example, procedures and guidelines concerning visa processing will not be relevant to Departmental employees who do not undertake visa processing work). The CPSU does not, however, consider this to be an insurmountable practical difficulty, for two reasons. The first is that clause 1.7 simply requires the Department to give its employees the opportunity to comment on new or amended policies, procedures and guidelines. Employees who are not working in or interested in the subject matter of the relevant policy can simply not comment (and most likely, would not comment). The second reason is that the Department could, in consultation with its employees, develop procedures and guidelines around consultation itself, which would provide for consultation to occur on policies, procedures and guidelines with relevant employees. (For example, consultation on the visa processing guidelines would be undertaken with employees who work in visa processing). The CPSU has invited the Department on several occasions to develop a procedure or guideline of this type, and remains open to engaging with the Department to do so.
20.4 In raising the practical difficulties associated with consultation on policies, the Department appears to ignore its many benefits. The Full Bench referred to these benefits in its comments on clause 1.7 at [164] of its decision on the 2019 Workplace Determination. Engaging in consultation on policies, procedures and guidelines with employees who have front-line experience working with their subject matter can only increase their quality. Employees from across the Department are likely to have organisational knowledge and operational insight different from, and in many instances greater than, that of employees working in managerial or human resources roles, tasked with drafting policies. Their input is critical in developing meaningful and practical policies and guidelines.
21. In drawing a distinction between those policies which “underpin the 2019 Workplace Determination” and those which do not, the Department draws a false distinction. There is, in reality, no clear distinction between policies, procedures and guidelines which relate to the subject matter of the 2019 Workplace Determination and those which do not. All employees of the Department are required, as a condition of their employment, to comply with all of the Department’s policies, procedures and guidelines. Failure to do so has significant consequences for the employee, including performance management and (in the most serious cases) termination of employment. Performance management is a matter addressed in the 2019 Workplace Determination at Part 6. It is entirely artificial, therefore, to state that certain policies and procedures fall entirely outside the ambit of the 2019 Workplace Determination.
22. For the reasons set out at [11] – [16] of these submissions, the Department’s proposed interpretation of clause 1.7 should be rejected. The CPSU interpretation of clause 1.7 is in accordance with the principles for the interpretation of industrial instruments summarised at [4] – [5] of these submissions, particularly the requirement that industrial instruments are to be interpreted in accordance with the natural and ordinary meaning of their words, the meaning intended by their framers and their underlying purpose. The CPSU interpretation of clause 1.7 should therefore be preferred.”
[24] The Department submitted that,
1. “This dispute relates to a difference of opinion regarding the interpretation of clause 1.7 of the Department of Home Affairs Workplace Determination 2019 (WD).
2. Clause 1.7 states:
Where the Secretary proposes to introduce a new policy, procedure or guideline or vary an existing policy, procedure or guideline they will provide Employees no less than 2 weeks to comment on the proposed new or varied policy, procedure or guideline. The Secretary must give genuine consideration to the comments made by Employees prior to finalising the policy, procedure or guideline.
3. The CPSU contends this consultation is required in respect of all policies, procedures and guidelines produced by the Department, without limitation.
4. For the reasons that follow, the Department respectfully disagrees with this broad interpretation. The Department submits that clause 1.7 should be read in conjunction with clauses 1.5 and 1.6. When read in this way, clause 1.7 only requires the Department to consult on policies, procedures and guidelines which support the operation of the WD. The Department considers clause 1.7 does not require it to consult on documents which have no correlation to the WD and squarely exist to support the Department’s business outside the operation of the WD.
5. In accordance with clause 12.6(a) of the WD, the Department seeks a written opinion from the Fair Work Commission (FWC) on the interpretation of clause 1.7.
WD ARBITRATION AND DECISION OF THE FULL BENCH OF THE FAIR WORK COMMISSION
6. First, the Department submits that clause 1.7 should be read in conjunction with clauses 1.5 and 1.6. This view is supported by the decision of the Full Bench 14 in the WD arbitration where the Full Bench considered clauses 1.5 and 1.6. Specifically, whether policies, procedures and guidelines that support the operation of the WD should form part of the WD.
7. In deciding against incorporating such documents into the WD, the Full Bench referred to the importance of providing employees the opportunity to comment on these documents prior to their finalisation. In particular, the Full Bench opined:
[164] It is not common for enterprise agreements to incorporate policies and guidelines, though reference is frequently made to policies providing further guidance on particular issues. For this reason, we do not intend to incorporate such documents into the workplace determination which we will make. Nevertheless, we consider that there is significant value in employees being provided an opportunity to comment on draft policies and proposed variations to existing policies prior to those policies being finalised (emphasis added). The opportunity to comment on our view has the potential to identify operational issues and/or impacts which may have been overlooked or not considered. This, in our view, would be in the interest of both the Department and its employees. Accordingly, we will include in the determination which we will make a requirement that the Department provide employees such an opportunity. We do not consider providing employees with an opportunity to comment on policies to be inconsistent with s.273(5) of the Act.
8. Although not explicitly stated, it can be reasonably inferred that the Full Bench is referring to its view on the proper construction of clause 1.7 when highlighting the importance of “employees being provided an opportunity to comment of draft policies and proposed variations to existing policies prior to those policies being finalised.” The discussion in the paragraphs preceding [164] is clearly about clauses 1.5 and 1.6. Further, apart from clause 1.7, there is no clause in the WD relating to employee comments on such documents. It is therefore reasonable to interpret the Full Bench’s comments regarding consultation on policies and procedures at [164], as consultation relating to those documents referred to in clauses 1.5 and 1.6, specifically, documents that support the operation of the WD.
9. The above interpretation is also consistent with the Department’s submission to the FWC on 31 January 2019, whereby it contended that clause 1.7 (then known as clause 1.8) should read as follows:
Introduction of new policies and changes to existing policies
1.8 Where the Secretary proposes to introduce a new policy, procedure or guideline to support this Determination (emphasis added) or vary an existing policy, procedure or guideline to support this Determination (emphasis added), they will provide Employees no less than 2 weeks to comment on the proposed new or varied policy, procedure or guideline. The Secretary must give genuine consideration to the comments made by Employees prior to finalising the policy, procedure or guideline.
10. While the words “to support this Determination” were not ultimately included in the WD, the Department considers that as part of his consideration of the draft words in the lead up to the Full Bench’s decision being issued, the late Deputy President Kovacic accepted the Department’s position but did not consider it necessary to implant those words into the WD. The Department refers the FWC and the CPSU to the recording of the confidential conference held on 1 February 2019.
INTERACTION WITH SECTION 172 OF THE FAIR WORK ACT 2009 (CTH)
11. Section 172(1) of the Fair Work Act 2009 (Cth) (FW Act) governs the matters which may be included in an enterprise agreement (permitted matters), and applies to the WD by virtue of section 279 of the FW Act. Relevantly, this includes “matters pertaining to the relationship between an employer that will be covered by the agreement and that employers’ employees who will be covered by the agreement”. 15 To the extent a term of an enterprise agreement is not about permitted matters, the term will be of no effect.16
12. A matter pertains to the relationship between an employer and employee where it is connected with the relationship in “a way which is direct and not merely consequential”. 17 Further, the FWC citing one of the two propositions in Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd [1987] HCA 28, stated “a matter will pertain to the relationship of employers and employees if it directly affects the conditions of employees, which includes all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment.”18
13. If the FWC accepts the CPSU’s interpretation of clause 1.7, it could be inconsistent with the Full Bench’s obligation under section 272(3)(a) of the FW Act to include terms in the WD that involve permitted matters as defined in section 172(1)(a). Policies, procedures and guidelines about broad operational matters such as Visa and Migration Management or Trade and Traveller Clearance Management, are not matters that pertain to the employment relationship in a direct way, or affect the conditions of employees. These differ from policies about matters such as Leave or Working Hours. One could argue that matters contained in broader policy documents pertain to the employment relationship in circumstances where employees are required to implement these policies as part of their role. However, this is dealt with separately by way of training those employees to understand and adequately implement policies in those particular roles. To require the Department to consult with every employee on every policy would be to allow a matter that is “merely consequential” to fall within section 172(1)(a) of the FW Act.
INTERPRETATION AND PRACTICAL CONSIDERATIONS
14. The principles of interpretation of industrial awards, as they apply to the WD, are also relevant here. In CPSU and Australian Institute of Marine and Power Engineers v Commonwealth [2021] FWC 87, the FWC at [14] cited City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 to highlight the importance of not construing the words of an award “in a vacuum divorced from industrial realities”. 19 Further, the FWC noted the “long tradition of generous construction over a strictly literal approach where industrial awards are concerned”.20
15. The case law demonstrates the importance of construing clause 1.7 in a way that encompasses the industrial context and purpose. The Department’s business spans across multiple areas, including but not limited to, emergency management, immigration and citizenship, multicultural affairs, national security, criminal justice, and social cohesion. The breadth of the Department’s functions means it is constantly introducing and updating a vast number of policies on a range of subject matters. For example, the Department maintains 1607 documents in its Policy and Procedure Control Framework, comprising of 150 Policy Statements, 744 Procedural Instructions, 344 Standard Operating Procedures and 369 Supporting Materials. The majority of these documents relate to the Department’s business and operations, such as policies on the Citizenship Test and Biometrics, completely divorced from conditions of employment and the operation of the WD. This reflects the fact that many policies and supporting materials the Department implements are a result of decisions by Government on a range of matters, such as border security and visa requirements.
16. Therefore, it is critical that clause 1.7 is interpreted with reference to this context and the practical implications of consulting employees on introductions and variations to each and every departmental policy, procedure and guideline. The CPSU’s interpretation would require an overhaul of the Department’s Policy and Procedure Control Framework to account for consultation with approximately 13,800 employees each time a policy, procedure or guideline is introduced or varied. Further, a major shift in resources would be required to facilitate consultation on these documents. This would undoubtedly result in a substantial delay in finalisation of policies, procedures and guidelines. Given these documents are crucial to the Department’s business, these delays will hinder the Department from exercising its vital functions and achieving necessary outcomes in the requisite timeframes.
CONSULTATION OUTSIDE CLAUSE 1.7 OF THE WD
17. Separately, where the Department makes a definite decision to introduce a major change in accordance with clause 7.1(a) of the WD, it consults, and will continue to consult, staff on related policies, procedures and guidelines, regardless of whether clauses 1.5 to 1.7 apply.
18. Further, and notwithstanding the Department’s interpretation of clause 1.6 stated above, the Department generally errs on the side of caution and consults staff on major non-administrative changes to certain policies, even if they do not directly support the operation of the WD. This ranges from changes to policies about supporting Australian Border Force officers in Use of Force roles to policies about the requirement for employees to report changes in their health circumstances. The Department appreciates that consulting staff on matters of this nature contributes to a cohesive workplace. The Department takes these additional steps to ensure staff have an opportunity to comment on major non-administrative changes to policies, procedures or guidelines, which may impact the activities of employees in and outside of the workplace.
19. The Department does this as a matter of course and will continue to do so in the future. On this basis, the Department does not require the FWC’s recommendation or opinion on whether this is formally required. Rather, the Department requests a written opinion on the scope of its obligation to consult under clause 1.7, and whether the clause extends to consulting employees on policies, procedures and guidelines, which do not, in any way, support the operation of the WD.”
MORE RECENT EVENTS
[25] On 9 March 2021 the CPSU wrote to the Commission to advise what it described as a “new development” which it believed was “relevant to the … dispute.” The CPSU wrote,
“On or about 10 February 2021 the Department of Home Affairs released to staff a varied Dress and Appearance Standards Procedural Instruction (“the Procedural Instruction”). This procedural instruction was released to staff without consultation. (We note that a “procedural instruction” is a form of policy document used in the Department).
On 17 February 2021, the CPSU wrote to the Department raising concerns about its compliance with its consultation obligations under clause 1.7 of the Department of Home Affairs Workplace Determination 2019. The CPSU invited the Department to consult on the varied Procedural Instruction.
On 29 February 2021, the Department replied to the CPSU declining to consult on the Procedural Instruction and stating that it had complied with its consultation obligations under the Workplace Determination. It appears therefore that there is a dispute between the CPSU and the Department around the Department’s obligations with respect to consultation on the Procedural Instruction, which is unable to be resolved through discussions at the workplace level.
Ordinarily, we would refer this matter to the Fair Work Commission as a dispute in accordance with clause 12.5 of the Workplace Determination. However, we are cognisant that the correct interpretation of clause 1.7 of the Workplace Determination is the subject of a dispute currently before the Fair Work Commission (namely Matter No. C2020/9444), and wish to avoid pursuing multiple disputes on the same issue. We therefore thought it appropriate to write to the Commission on this matter and seek that it form part of the consideration of the recommendation to be made in Matter No. C2020/9444. …”
[26] I sort the views of the Department about addressing the “new development” as a part of the present dispute. On 10 March 2021 the Department responded as follows:
“The Department acknowledges the CPSU’s correspondence and notes the parties have already filed detailed submissions setting out their position regarding the issues raised in this dispute. With respect to the recent correspondence provided by the CPSU, the Department considers the amendments to the Dress and Appearance Standards Procedural Instruction were minor in nature and in circumstances where the PI does not support the operation of the WD and has no direct correlation to the terms of the WD, the Department’s view is the changes do not trigger the need for consultation with employees. The Department carefully assessed the proposed changes to the Dress and Appearance Standards Procedural Instruction in line with its approach to consultation more broadly on policies and procedures, as detailed in paragraph 18 of the Department’s submissions dated 29 January 2021. Ultimately, the Department formed the view that formal consultation was not required in this instance.
While the Department considers that inclusion of the below example is not necessary in light of the comprehensive submissions already filed by the parties, I am instructed that if the Commissioner is minded to consider the example as part of his overall deliberations in forming his written opinion, the Department does not object to the below example being included.”
CONSIDERATION
[27] To paraphrase Madgwick J in Kucks, it is “justifiable to read [clause 1.7] to give effect to its evident purposes, having regard to [relevant industrial] context.” Further, a meaning which avoids “injustice may reasonably be strained for.” In Wanneroo it was observed that “there is a long tradition of generous construction over a strictly literal approach…”.
[28] The relevant context is that the Department is likely to promulgate policies, procedures and guidelines that will impact upon employees in the performance of their employment. Employees will be obligated to comply with those policies, procedures and guidelines. Non-compliance may have disciplinary consequences for an employee. These are the industrial realities from which the interpretation of clause 1.7 cannot be divorced.
[29] Also, in the present case, clause 1.7 uses “ordinary and well-understood words”. Consequently, it is necessary “to accord [those words] … their ordinary and usual meaning.” The Department has not advanced an argument that I should do anything other than treat the ordinary and well-understood words in clause 1.7 as anything other than ordinary and well-understood. There is no jargon or terms of art in clause 1.7.
[30] It is also relevant that clause 1.7 does not contain express words of limitation referring to “this Determination”. In that context clause 1.7 differs from clauses 1.5 and 1.6. As was noted by the Full Bench, the inclusion of the words of limitation “this Determination” was common to both draft workplace determinations advocated for by the Department and the CPSU. They are not included in clause 1.7.
[31] Clause 12.1 also contains the words of limitation “this Determination”,
12.1 If a dispute arises:
(a) about any matters arising under this Determination, or …
[32] The wording in clause 1.7 is different. It does not contain the phrase “this Determination”. It does not expressly link back to clauses 1.5 and 1.6 by referring to, for example, “these policies”. It does not contain the phrase “these policies” like the Australian Customs and Border Protection Services Agreement (ACBPS Agreement) does. This is more than an inconsistency in expression.
[33] Meaning must be given to the difference in wording. The Full Bench did not limit clause 1.7. Consequently, principles akin to the old latin maxim “expressio unius est exclusio alterius” ought to be applied. Had the Full Bench intended to limit the operation of consultation obligation in clause 1.7, it would have done so by express words (like those used elsewhere in the Workplace Determination).
[34] Further, the Full Bench at [164] gave an explanation for its inclusion of clause 1.7. It referred to the “significant value in employees being provided with an opportunity to comment on draft policies….” It did not limit its comments to policies about the operation of the Workplace Determination. Reading the Workplace Determination as a whole and beneficially I see no reason to limit the consultation obligation contained in clause 1.7 of the Workplace Determination.
[35] The Department’s interpretation would effectively have me insert into clause 1.7 words that are not there. I see no import to do so. It is not necessary to do so. The Workplace Determination works effectively without the implication of the words advanced by the Department.
[36] I reject the Department’s contention about what should be “reasonably inferred” from the Full Bench Decision. The implication of a limitation is not reasonable and equitable. It would benefit the Department over its employees.
[37] It is important that employees be consulted about policies that may impact upon them (i.e. those relevant to the employer and employee relationship) even if those policies do not arise out of the operation of the Workplace Determination. It is short sighted of the Department to not recognise the benefit of consulting with its employees about policies that affect employees (i.e about policies that likely impacts on the employees’ employment and work – like a social media policy, a procedure to deal with children and a dress/appearance standard) and the recognised benefits of co-designing workplace policies.
[38] To the extent that the unfettered obligation to consult about policies places an administrative inconvenience on the Department, that is a matter that it must live with. That is not a reason to read down the operation of clause 1.7. To the extent that the Department wants to place a limit on clause 1.7 it can seek to do so through enterprise bargaining now that the Workplace Determination has passed its nominal expiry date.
CONCLUSION
[39] For the reasons set out above, the Commission, as presently constituted, determines that the answer to the question,
“Is clause 1.7 limited to policies, procedures and guidelines which support the operation of the Workplace Determination?”
is,
“No. The consultation obligation under clause 1.7 includes policies, procedures and guidelines that are likely to impact upon employees in their employment.”
[40] Having decided the substantive question about the extent of the obligation to consult under clause 1.7, I remind the parties of the words of Commissioner Smith (as he then was) in the Vodafone Network Pty Ltd decision [Print 911257],
[25] …. Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker. …”
[41] Although those words were used in another context involving consultation, the sentiments expressed in that decision remain equally valid today in relation to various obligations that employers have to consult with employees.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
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1 AG501682.
2 Clause 12.6(b)(i), the Workplace Determination.
3 [2019] FWCFB 143.
4 AG501682 PR704687
5 Clause 1.3, the Workplace Determination.
6 Ibid
7 Clause 1.2, the Workplace Determination.
8 [2014] FWCFB 7447 (‘Golden Cockerel’).
9 [2017] FWCFB 3005 (‘Berri’).
10 Kucks v CSR Limited (1996) 66 IR 182 at 184.
11 City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440.
12 [2015] FCA 1477.
13 City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426.
14 Commonwealth of Australia as represented by the Department of Home Affairs [2019] FWCFB 143 [157]-[164].
15 s 172(1)(a) FW Act.
16 s 253(1)(a) FW Act.
17 Re Schefenacker Vision Systems Australia Pty Ltd, AWU, AMWU Certified Agreement 2004, PR956575 [47].
18 United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2016] FWCFB 2894 [26].
19 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57].
20 CPSU and Australian Institute of Marine and Power Engineers v Commonwealth [2021] FWC 87 [14] citing Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J).
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