CPSU, the Community and Public Sector Union v Department of Human Services

[2018] FWC 7122

[2018] FWC 7122

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

CPSU, the Community and Public Sector Union
v
Department of Human Services
(C2018/5329)

COMMISSIONER SIMPSON BRISBANE, 20 DECEMBER 2018

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] On 25 September 2018, the Community and Public Sector Union (CPSU) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act).

[2] The CPSU’s application is for the Commission to deal with a dispute in accordance with the dispute settlement procedure at Clause A10 of the Department of Human Services Agreement 2011-2014 (the 2011 Agreement) and at Clause A8 of the Department of Human Services Agreement 2017-2020 (the 2017 Agreement). The Department of Human Services (DHS) is the Employer Respondent to this application.

[3] In general terms the dispute relates to the eligibility of an employee of DHS, Mr Terrence Bird, to receive salary advancement for the performance cycle that ran between 1 July 2016 and 30 June 2017.

[4] DHS filed a Position Paper in response to the application on 2 November 2018. In the Position Paper, DHS alleged that the Commission did not have jurisdiction to deal with the dispute.

[5] A directions hearing was conducted before the Commission on 5 November 2018 that sought to narrow the issues in dispute between the parties. The matter was then listed for hearing on 20 November 2018 and directions were issued for submissions and evidence from both parties on the jurisdictional issue.

[6] Following receipt of submissions from the CPSU and also evidence in the form of a statement from Mr Bird, and submissions from the Respondent, my Chambers received an email from the CPSU on 19 November 2018 advising that both parties consented to the matter being determined on the papers. Mr Myrtle on behalf of the Respondent confirmed the Respondent was content for the matter to be dealt with on the papers. The hearing for 20 November 2018 was subsequently vacated. The Respondent’s submissions stated it did not intend to adduce evidence in response to Mr Bird’s statement. On that basis I have accepted the facts as stated in Mr Bird’s statement.

[7] This decision is limited to determining the jurisdictional issue arising prior to determination of the substantive dispute between the parties.

Jurisdictional Issue

[8] DHS allege that the dispute relates to an issue of salary advancement, which arose prior to 2 November 2017. DHS submit that this date is significant as it is the date of commencement of the 2017 Agreement, which is the current agreement in force.

[9] DHS submit further that the dispute resolution procedure in the 2017 Agreement sets out that the Commission is empowered to deal with a dispute that relates to “a matter arising under” the 2017 Agreement. DHS submit that, as the issues subject of the dispute arose prior to the commencement of the 2017 Agreement, the Commission does not have jurisdiction to deal with them.

[10] DHS submit that this is the case despite Clause A10.9 of the 2017 Agreement, which provides that:

“Any disputes arising under the Department of Human Services Agreement 2011-2014 or the National Employment Standards that were formally notified under clause A8 of that Agreement before the commencement of this Agreement and remain unresolved at the date of commencement of this Agreement will be progressed under the dispute resolution procedures in this Agreement.”

[11] DHS submit that the steps the CPSU took prior to 14 August 2018 do not amount to notification of a dispute under the 2011 Agreement. DHS submit further that the CPSU first raised these matters with DHS on 3 August 2018; almost a year after the matter arose, and only formally raised the matters as a dispute on 14 August 2018.

[12] DHS submit that these matters fall solely under the 2011 Agreement and were not formally notified in accordance with that Agreement. DHS submit finally that, in circumstances where the 2017 Agreement does not provide for the dispute matters to be dealt with under the 2017 Agreement, the Commission therefore does not have jurisdiction to deal with the dispute.

Applicant’s Submissions

[13] The CPSU submits that this dispute was formally notified in accordance with the requirements of the 2011 Agreement.

[14] The CPSU says that Mr Bird made numerous attempts to notify and attempt to resolve the dispute under the 2011 Agreement. In doing so he acted in accordance with the requirements of the Dispute Resolution Procedure in the 2011 Agreement.

[15] The CPSU submits the following timeline of events are relevant to the dispute resolution procedure.

[16] On 13 September 2017, Mr Bird discussed the matter with his supervisor, Ms Melissa Simpson. Mr Bird asserted that an error had been made in respect of Mr Bird not being granted salary progression in accordance with the 2011 Agreement and that Ms Simpson advised Mr Bird to contact payroll. Mr Bird then contacted payroll, who advised he could seek a review of action. Mr Bird sought the review of action as advised on 26 October 2017, and DHS issued a decision on 24 January 2018.

[17] The CPSU submits that the first requirement of the dispute resolution process at Clause A8.1 of the 2011 Agreement is that:

“the parties to the dispute must first attempt to resolve the matter at the workplace level by discussions between the employee or employees concerned and the relevant supervisor or manager”.

[18] The CPSU submits further that Clause A8.2 of the 2011 Agreement states that “A dispute will be notified to the appropriate person as soon as possible”.

[19] The CPSU submits that, in circumstances where the ‘appropriate person’ was not specified in the 2011 Agreement, Ms Simpson and the DHS payroll team were ‘appropriate persons’ to notify of the dispute. The CPSU also submits that the 2011 Agreement is silent as to the form of notice for notifying DHS of a dispute, nor is there any requirement to use the word ‘dispute’ when raising an issue.

[20] The CPSU notes the requirement of Clause A10.9 of the 2017 Agreement to ‘formally notify’ regarding the dispute. However, the it submits that the 2011 Agreement does not use this term, such that the reference in the 2017 Agreement to the dispute being “formally notified under Clause A8” should be interpreted to mean ‘notified in accordance with clause A8’. The CPSU say that to construe that term otherwise would be to impose an additional retrospective notification requirement that does not exist in the 2011 Agreement.

[21] The CPSU also submits that the DHS internal review of actions should not be seen as a separate process to the dispute settlement procedure, because Clause A8.3 of the 2011 “5. Agreement specifically provides that if discussions between an employee and their supervisor cannot achieve a resolution then the parties may attempt to resolve the dispute “through alternative dispute resolution methods”.

[22] The CPSU therefore submits that the actions of Mr Bird were sufficient to meet the requirements of Clause A8.2 Mr Bird did everything he could to resolve the dispute under the 2011 Agreement, which included following the direction and advice of DHS as to resolution of the dispute.

[23] Mr Birds statement described the exchange with Ms Simpson as follows:

“4. When I received my on 7 September I noticed that I had not received Salary progression. I asked my colleague Sam Wilson, who advanced to APS4 on the same date as me, if she received salary advancement and she told me she did. Therefore I believed an error had been made in relation to my salary advancement.

5. On 13 September 2017 I raised this issue with my supervisor, Melissa Simpson, and I said words to the effect of “I did not receive salary advancement on 1 September and I don’t know why. I believe an error has been made. How can I get this fixed?” Ms Simpson said words to the effect of “It must be because you have not met the requirement of performing duties in your classification for 18 weeks. You should discuss this with payroll.”

6. Later that day on 13 September I called payroll and I was told again that the reason that I was not granted salary advancement was because I had not performed duties for an aggregate of 18 weeks. I said to payroll that I did not agree with this because I advanced to APS4 more than 18 week(sic) before 30 June 2017. I was told to send my question in an email so that it could be looked into further.

7. After the phone call I emailed payroll to request that my eligibility for salary advancement be reassessed.

8. I received a Generic response from a support officer in the People Advisory Centre named ‘Sukala’ on 14 September. I received a more detailed response on 19 September from Ms Roz Brewer, payroll officer from payroll services. This email just restated clause B5.3 of the agreement and stated that the leave that I have utilised during the performance cycle does not count toward the 18 week period.

9. On 20 September I replied asking for a detailed calculation. Later that day Ms Brewer responded with a manual calculation stating that I had only worked 17.74 weeks. This email included the following statement:

“If you are dissatisfied with this decision, you may make a request for a Review of Action. If you would like to have an action reviewed, please provide a statement to Payroll Services or your People Team briefly outlining:

Why the review is sought; and

Any specific outcome you are hoping to achieve by having the action reviewed.”

10. This email made no mention of any separate rights that existed under the enterprise agreement to dispute the decision.

11. I responded to Ms Brewer that same day questioning why my overtime hours were not included in the calculation. Ms Brewer responded stating that overtime does not count toward the 18 week calculation.

12. On 26 October 2017, I made a request for a Review of Action in relation to this decision. I made this request on the advice of Ms Brewer. I was not aware of any other mechanism for disputing the decision…”

Respondent’s Submissions

[24] The Respondent made the following observations about Mr Bird’s statement:

“a. It is clear that from paragraph 5 that Mr Bird consulted with his supervisor, Ms Simpson, for the purpose of obtaining information about why he had not received the expected advancement, rather than for the purpose of raising a dispute;

b. Mr Bird makes it clear, at paragraph 12, that he did not intend to raise a dispute under the Department of Human Services Agreement 2011 – 2014, as he was not aware that he had such an option.”

[25] The Respondent submits that the 2011 Agreement ceased to have effect on and from 2 November 2017, when the Department of Human Services Agreement 2017 – 2020 came into effect.

[26] The Respondent referred to history of clauses that provided ability for unresolved disputes from the previous agreement to be progressed under a replacement agreement. It submits that clause A10.9 of the 2017 Agreement that replaced clause A8.12 of the 2011 Agreement with more qualified language, emphasising the inclusion of the words “formally notified”.

[27] The Respondent submits that clause A10.9 of the 2017 Agreement only preserves disputes that were “formally notified under clause A8 of that Agreement” before the commencement of the 2017 Agreement and “remain unresolved” at the date of the commencement of the 2017 Agreement.

[28] The Respondent submits the word ‘formally’ which was not present in the 2011 Agreement’s equivalent clause, is important when interpreting clause A10.9 of the 2017 Agreement.

[29] The Respondent asserts that clause A8 of the 2011 Agreement imposed a requirement that “a dispute be notified to the appropriate person as soon as possible”.

[30] The Respondent submits that implicit in the word ‘notified’ is the concept that the party being notified becomes aware of the existence of a dispute under the Agreement. While there may not be any specific requirements on how to achieve that notification, some form of communication must exist which can reasonably be understood as indicating that a dispute exists under the relevant Agreement.

[31] The Respondent submits Mr Bird’s actions did not rise to that level. The Respondent submits;

a. No reference was made in any 2017 correspondence to a dispute under the 2011 Agreement;

b. The Respondent not being aware of the existence of any dispute under the 2011 Agreement being raised in 2017;

c. Mr Bird, by his own admission, having no intention of raising a dispute under the 2011 Agreement in 2017, as he was not aware of such an option.

[32] The Respondent refers to the words in Full Bench decision in AMWU v Berri Pty Ltd at paragraph 44 where the Full Bench said “all words in an enterprise agreement must prima facie be given some meaning and effect.” The Respondent submits that the Applicant’s interpretation does not accord with this principle because the clause would have the same effect if the word were removed.

[33] The Respondent submits the word ‘formally’ is best interpreted as meaning ‘officially’. The Respondent says its preferred interpretation provides the sensible purpose of preserving properly notified disputes which arose under the 2011 Agreement, so far as the employee actually made the employer aware a dispute formally existed under the 2011 Agreement and it had not been resolved.

[34] The Respondent submits that should the broad interpretation as put for the Applicant be accepted, it would effectively mean any occasion on which a departmental employee made a complaint to a supervisor about a matter which involved the 2011 Agreement, or sought official review of a decision which involved the 2011 Agreement between 27 December 2011 and 2 November 2017, it could give rise to a dispute under the 2017 Agreement, regardless of what knowledge the Respondent had of it and regardless of the intent of the employee.

Consideration

[35] I accept the CPSU submission that Ms Simpson could be regarded as an appropriate person to whom a dispute could have been notified in the circumstances of this case under clause A8.2 of the 2011 Agreement.

[36] I would also agree that it is probably not a requirement that the word dispute be used in order for a dispute to be notified under clause A8 of the 2011 Agreement if it is made clear by the use of some other language that is what is being done.

[37] I also agree with the CPSU submission to the extent that it says that despite the use of the expression ‘formally notified’ in the 2017 Agreement, if a dispute was found to be ‘notified in accordance with clause A8’ of the 2011 Agreement, it would also be a dispute falling within the meaning of having been ‘formally notified’ as it was required to be by Clause A10.9 of the 2017 Agreement in order to be able to be progressed under the dispute settlement procedure in the 2017 Agreement.

[38] Where I depart with the remainder of the CPSU argument concerns whether Mr Bird had in fact ‘notified’ a dispute within the meaning of clause A8.2. It is clear from Mr Bird’s statement that Mr Bird had raised with Ms Simpson his disagreement about not having received a salary advancement, had subsequently spoken to the payroll department and emailed the payroll department seeking a reassessment of its decision, and not having received a favourable response sought a request for a Review of Action. However I have ultimately concluded none of the steps he took had the effect of having notified a dispute under clause A8 of the 2011 Agreement.

[39] At first blush this appears to be an artificial distinction, and no doubt frustrating for the Mr Bird and the CPSU to be denied the ability to have the dispute resolved given the whole purpose of having dispute settlement procedures in enterprise agreements is to provide a practical vehicle for timely and inexpensive resolution of disputes concerning matters under the terms of an enterprise agreement. There is also no doubt the particular issue in this case concerning whether Mr Bird was or was not entitled to the pay increment on the particular facts of this case would be a matter under the 2014 Agreement had a dispute been notified.

[40] Unfortunately for Mr Bird, as squarely raised by the Respondent, parties are entitled to be notified if there is a dispute under the enterprise agreements dispute resolution procedure, and on his own statement it is clear Mr Bird did not notify such a dispute. In order for him to be entitled to pursue this matter under the 2017 Agreement, he would have needed to have notified the dispute before 2 November 2017. The actions he took before 2 November 2017 did not include notifying a dispute under clause A8.

[41] I agree with the Respondent’s interpretation that the word ‘notified’ means that the party being ‘notified’ becomes aware of the existence of a dispute under the Agreement dispute resolution procedure. The Respondent had not been made aware of the existence of a dispute under clause A8 before 2 November 2017. That is important because once a dispute has been ‘notified’ under clause A8 it immediately gives rise to rights and obligations that do not otherwise arise if a dispute had not been ‘notified’. For example the right to appoint a representative for the purpose of the clause (A8.7) and seeking to resolve the dispute in accordance with subclause A8.1 within 10 days (A8.2). After 10 days if the dispute remains unresolved the notifier of the dispute is entitled to escalate the dispute to more senior levels of management and/or through alternative dispute settlement methods. Failing resolution at those levels the notifier is entitled to refer the dispute to the Commission, including for arbitration.

[42] What appears to be an artificial distinction because the issue raised could have been a notified dispute, is still however an important distinction because it is important for the parties to know whether the rights and obligations described above have been triggered or not. Otherwise, as was said by the Respondent, any occasion on which an employee made a complaint about a matter during the life of the 2011 Agreement that related to a matter under the 2011 Agreement, could give rise to a dispute under the 2017 Agreement, regardless of whether the Respondent had been made aware at the time the matter was being raised that it was a dispute under clause A8.1 of the 2011 Agreement. That cannot be right.

[43] It cannot be the obligation of the party against whom a dispute is alleged, to have to enquire as to whether the matter is in fact a dispute being notified under a dispute settlement procedure or not, in order for them to ascertain whether the rights and obligations under a dispute settlement procedure have been triggered or not triggered. The obligation must sit with the party who is notifying the dispute to make it clear that is what is being done.

[44] Whilst I am sympathetic to Mr Bird because he did genuinely seek to challenge the Department’s decision by raising the matter with his supervisor, then with pay roll, and then by seeking a Review of Action, none of those things constituted notifying a dispute under the 2011 Agreement. For those reasons the Commission does not have jurisdiction to now deal with the dispute under the 2017 Agreement.

[45] What unfortunately flows from the success of the Respondent’s jurisdictional objection is that what is for all purposes other than the dispute settlement procedure in the 2017 Agreement, a dispute over the correct interpretation of the 2011 Agreement, the matter remains unresolved. It is always open for a party to attempt to enforce the terms of an enterprise agreement in the Courts where they cannot access determination of the dispute in the Commission; however that is a matter for the Mr Bird and the Union. As the jurisdictional objection has been made out the application must be dismissed.

COMMISSIONER

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