CPSU, the Community and Public Sector Union v Victoria Legal Aid

[2013] FWC 4380

[2013] FWC 4380

FAIR WORK COMMISSION

DECISION

Workplace Relations Act 1996
s.170LW—pre-reform Act—Application for settlement of dispute (certified agreement)

CPSU, the Community and Public Sector Union
v
Victoria Legal Aid
(C2013/4357)

State and Territory government administration
DEPUTY PRESIDENT SMITH	MELBOURNE, 4 JULY 2013

Changes to the terms and conditions of employment; reimbursement of professional memberships.

[1] The CPSU, the Community and Public Sector Union (CPSU) notified a dispute about the proper application of clause 4 of the Victorian Legal Aid Certified Agreement 2005—2008 (the Agreement). The Agreement was made under the Workplace Relations Act 1996 and the relevant section to which the application relates is s.170LW.

[2] Clause 4 requires Victoria Legal Aid (VLA) to consult where it: “is considering a restructure of the workplace, the introduction of new technology, changes to existing work practices of employees or changes to VLA employment policies”.

[3] Arising from a review of expenditure, VLA decided to no longer pay the Law Institute of Victoria (LIV) subscriptions for solicitors on its staff. This was said, by the CPSU to:

● Form part of the contract of employment of solicitors, and
● Constitute a policy of the VLA in relation to the employment of solicitors.

[4] As to whether or not the payment of LIV forms part of the contract of employment, CPSU submit that it would pursue the matter in another place if it was unsuccessful in its application before the Commission.

[5] CPSU argue that the unilateral withdrawal of this benefit constitutes an alteration to policy of the VLA and therefore should be the subject of consultation in accordance with the Agreement. It submitted that the payment of this benefit had existed for a long period of time and advertisements for positions at VLA offered this benefit. It argued that the Commission should not take a “narrow or pedantic view” [AMCOR Ltd v Construction, Forestry, Mining and Energy Union [(2005) HCA 10] when considering the word “policy” in the Agreement. CPSU also drew attention to the definitions of the word policy.

[6] In the proceedings the CPSU called seven witnesses. They were:

● Ms Terri Carr—CPSU Organiser;
● Ms Sandra Crone—Legal and Policy Officer for VLA;
● Ms Sophie Delany—Senior Lawyer for VLA;
● Mr David Grove—Senior Lawyer for VLA;
● Mr Hamish McLachlan—Senior Lawyer for VLA;
● Ms Annette Murray—Family Lawyer for VLA; and
● Ms Eleanore Fitze—Senior Lawyer for VLA.

[7] It was common in the evidence on behalf of the CPSU, that VLA had paid LIV subscriptions for solicitors since they were employed and that the payment of the subscriptions was held up as an attraction to join the VLA. Material was provided which showed this was the case. In addition, the witnesses expressed views about the value to both them and the organisation in maintaining membership of the LIV. There is little doubt that the implementation of the decision by VLA was surrounded by difficulties.

[8] For VLA, it called Mr Himadri Potter—Associate Director People and Culture. On the question for determination, Mr Potter’s evidence was that the payment of LIV subscriptions was not a policy of VLA.

[9] At this stage it is important to pause and record that a new agreement had recently been negotiated with the VLA and its staff. This unilateral withdrawal of a long-standing benefit occurred after in principle agreement had been reached. I was concerned to consider the time-frame in which this occurred, as if it had occurred during the vote to approve or otherwise the Agreement, then the question could properly be asked if there was genuine consent. Against this background I called the certification of the new Agreement on for hearing where the matter was raised. I was advised that employees were aware of the action of VLA management two days before the vote for the new Agreement was taken and the vote approved the Agreement. In those circumstances I concluded that there was genuine consent and all other matters surrounding the Agreement were consistent with the Fair Work Act 2009. On this basis the agreement was approved.

[10] Therefore, it is the simply the question as to whether or not the payment by VLA of subscriptions to LIV constituted a policy which, if altered, should have been the subject of consultation. If I find it was, the CPSU argue that I should order that the subscriptions be paid until such time as the VLA consulted over the proposed changed. In this regard it relied upon the decision of Tracy J in Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [(2011) FCA 1020].

[11] During the proceedings, certain internal documents of VLA were referred to, which I considered may assist a consideration of whether or not the payment of LIV subscriptions was considered as a policy matter. Those documents were provided to me and I have examined them. It is clear from those documents that VLA did not treat the payment of LIV subscriptions as a policy decision. Indeed, the documents distinguished between policy decision and otherwise. The payment of subscriptions was not described a policy decision. These documents were confidential in nature and whilst the CPSU was advised of their relevant content they were not provided.

Conclusion

[12] The decision by VLA to unilaterally remove the payment of subscriptions to LIV on behalf of lawyers was greeted with a considerable amount of dissatisfaction by staff. The benefit of the recently bargained wage increase was adversely impacted by the decision. However, I am not persuaded that the payment of these subscriptions could be characterised as a policy. It was indeed a practice which benefited individuals, but for the purpose of collective consultation, for which the clause is designed, I unable to find that it constituted a policy of the VLA. This is not to take a narrow or pedantic approach but to separate that which applies to individuals in the formation of their contracts of employment and a policy of an organisation. Even though this was a practice which has been long standing and universal, it could not be regarded as a policy. A policy does not simply come into existence through the effluxion of time but must be accompanied by some governance decision making.

[13] I find that the employment benefit of paying LIV membership on behalf of lawyers of VLA did not constitute a policy of VLA and accordingly there was no requirement to consult in accordance with clause 4 of the Agreement.

[14] As a footnote I add that this case focussed upon the payment of LIV subscriptions as did the documents I inspected. The application was broader but there has been no evidence and it would be unlikely that a different conclusion could be reached.

DEPUTY PRESIDENT

Appearances:

R. Laird with T. Carr for the CPSU, the Community and Public Sector Union.

S. Bingham, of counsel, (1 July 2013), C. Boon on behalf of the Victoria Legal Aid.

Hearing details:

2013.

Melbourne:

June, 19; and

July, 1.

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