Damon Hobbs v Australian Government: Australian Financial Security Authority T/A Australian Financial Security Authority
[2014] FWC 6446
•1 OCTOBER 2014
| [2014] FWC 6446 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Damon Hobbs
v
Australian Government: Australian Financial Security Authority T/A Australian Financial Security Authority
(C2014/449)
Tasmania | |
COMMISSIONER LEE | SYDNEY, 1 OCTOBER 2014 |
Application to deal with a dispute - preliminary determination on jurisdiction.
[1] On 24 March 2014 Mr. Damon Hobbs (the Applicant) referred a dispute with the Australian Government: Australian Financial Security Authority T/A Australian Financial Security Authority (the Respondent) to the Fair Work Commission (the Commission) pursuant to the dispute settlement procedure contained in clause 54 of the ITSA Enterprise Agreement 2011-2014 (the Agreement).The Agreement refers to the “Insolvency and Trustee Service Australia (ITSA)”, the title that applied to the Respondent until 2013. However, there is no dispute that the Agreement continues to cover and apply to the Respondent.
[2] The Applicant, in his original application, sought that various orders be made pursuant to the Agreement. The Applicant also sought that various orders be made pursuant to the Australian Public Service Employment Conditions and/or the Fair Work Act 2009 (the Act) and/or the common law. The original application was made on the Commission’s Form F1 (no specific form). The application was dealt with and marked as an application under section 739 of the Act after Commission staff sought clarification from the Applicant as to what section of the Act he was seeking to lodge his application under. 1 During the conversation with Fair Work Commission staff, the Applicant was provided with information about available legal services in Hobart and information in relation to the Hobart Community Legal Centre.
[3] The application lodged sought that urgent declaratory orders be made by the Commission. In summary, the orders sought were that:
- As a result of the Respondent’s actions (or failure to act), the Applicant’s employment had been effectively terminated by the Respondent on an involuntary basis and the involuntary termination provisions of the Agreement and related policies should be applied.
- If the first order is not made, a second alternate order is made that the Applicant be permitted to return to work.
- If the second alternate order is not made, that a third alternate order is made that the Respondent grant discretionary paid leave to the Applicant whilst the details of a return to work plan can be agreed.
Proceedings thus far
[4] The dispute was initially dealt with by way of a conciliation conference before me on 24 April 2014. Prior to the conference, the Respondents representative, Ms. Fusitu’a of the Australian Government Solicitor (AGS), sought permission to appear at the conference. Application for permission to appear was made on three counts. Firstly, the AGS on behalf of the Respondent made application on the basis that the matters raised by the Applicant were complex and that legal representation would assist in determining jurisdiction. Secondly, application was made on the basis that legal representation would assist the matter to be dealt with effectively as the Applicant had indicated that he was anxious about dealing with Ms. Neeley, the Respondent’s Director of People and Capability and the Respondent’s instructor in the matter. The Applicant provided in writing his views on the question of whether permission to appear should be granted. 2 The Applicant did not “....discount out of hand” the possibility that the AGS involvement could assist proceedings to some degree, however he set out a number of concerns.
[5] Having considered the concerns of the Applicant and the submissions of the Respondent as to whether to grant permission to appear, I determined that I would grant permission to the AGS to represent the Respondent as to do so would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. In particular, I agreed with the Respondent that given the number and complexity of matters raised in the application, permitting legal representation would enable the matter to be dealt with more efficiently.
[6] The conference listed for 24 April 2014 proceeded. An outcome of the conference was that a without prejudice offer was made by the Respondent to the Applicant in order to settle the dispute. Some time was allowed for the Applicant to respond to the offer. The Applicant advised in writing on 27 April 2014 that the offer was rejected.
[7] A directions hearing was set for 12 May 2014 but was adjourned upon request from the Applicant. Ultimately, a directions hearing was held on 26 May 2014. It remained unclear at the directions hearing what matter or matters the Applicant sought to be arbitrated under the dispute settlement clause of the Agreement. Considerable time was spent by the Commission to assist the Applicant in formulating the questions or matters that he sought be determined by the Commission. Ultimately, the Applicant was directed to set out in writing the question or questions that he sought to be determined. The Respondent reserved its right to make a jurisdictional objection to the arbitration, dependent upon the Applicant’s response to the directions.
[8] The Applicant provided on 2 June 2014 the matters that he sought be arbitrated. Further Directions were then set to allow for the filing of materials in relation to any jurisdictional objection the Respondent sought to make. Submissions in respect to the jurisdictional objection were made in accordance with the directions. Neither party sought that a hearing be convened. Therefore, consistent with the directions, the jurisdictional objection will be determined on the papers.
The matters that the Applicant seeks to have arbitrated
[9] The Applicant provided a submission by way of a letter. The letter is dated 2 June 2014 and it set out the matters that the Applicant sought be arbitrated.
[10] Responding to the 2 June 2014 letter from the Applicant, the Respondent characterised the matters to be determined in paragraph 13 of their written submissions as follows:
“13. The applicant seeks the following orders:
Order 1
(1) I seek urgent declaratory Orders that, as a result of AFSA’s actions (or failure to act), my employment has been effectively terminated by AFSA on an involuntary basis and that the involuntary termination provisions of the “ITSA Enterprise Agreement 2011-2014” and any related AFSA or APS policies governing involuntary termination of employment, should be applied without delay.
Order 2
(2) In the absence of Orders that there has been an effective termination of my employment, and noting that (1) I am currently not permitted by AFSA to enter my workplace in order to earn my wage; (2) that paid discretionary leave has been denied, (3) that a return-to-work plan has not been provided; and (4) that I have exhausted my leave accruals; I seek alternate orders that I be permitted immediately to return to my work on a full-time basis in order that I may earn my usual wage; or
Order 3
(3) that in the event that full-time work is not deemed appropriate at this time, that AFSA grant me discretionary paid leave equivalent to my usual full-time wage whilst the details of a return-to-work plan, for which I have already been waiting approximately 6 months, can be agreed and given full effect.”
[11] The Applicant in his reply submission did not object to this characterisation of the matters to be determined. I note the matters sought to be determined are consistent with the Applicant’s original application. This decision deals with the threshold issue as to whether or not there is jurisdiction for the Commission to determine the 3 matters above.
[12] Both parties provided written submissions on the question of jurisdiction. The Applicant contends that there is jurisdiction to grant the various orders that he seeks. The Respondent argues that the matter could proceed to a substantive hearing in relation to whether the relief at Order 3 only should be granted and that the balance of the application should be dismissed for want of jurisdiction.
The law to be applied
The powers of the Fair Work Commission to arbitrate disputes.
[13] It is necessary to set out the legal position on the powers of the Fair Work Commission to arbitrate disputes pursuant to the Act. The legal position is as follows.
[14] Sub-sections 595(1) and (3) of the Fair Work Act 2009 (the Act) provide that:
“(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision in this Act.
…
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.”
[15] The power of the Commission to deal with disputes is governed by Part 6-2, Division 2 of the Act, in particular ss738 and 739. Relevantly, s738(b) provides that:
“This Division applies if:
…
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); …”
[16] Subparagraphs (a), (c) and (d) of s738 apply the Division if a modern award, contract of employment or other written agreement, or a determination under the Public Service Act 1999 include a term that provides for a procedure for dealing with disputes. None of those paragraphs apply in the present case.
[17] An enterprise agreement is defined in s12 of the Act to mean either a single-enterprise agreement, or a multi-enterprise agreement. A single-enterprise agreement is further defined by s12 to mean an enterprise agreement made as referred to in subsection 172(2) of the Act.
[18] Section 739(3) provides that:
“In dealing with a dispute the FWC must not exercise any powers limited by the term.”
[19] The Agreement (which is a single enterprise agreement made in accordance with s172 of the Act) includes a term that provides for a procedure for dealing with disputes at clause 54. Sub-clause 54.1 provides that:
“If a dispute relates to a matter under this Agreement, or the National Employment Standards, 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/manager.” (Emphasis added).
[20] The final step in that dispute resolution procedure is for a party to the dispute to refer the matter to Fair Work Australia, now the Commission. If a dispute is referred to the Commission, clause 54.4 applies:
- Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
- if Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:
“54.4 Fair Work Australia may deal with the dispute in two stages:
- arbitrate the dispute; and
- make a determination that is binding on the parties.”
[21] The term “a dispute relates to a matter under this Agreement, or the National Employment Standards” should not be narrowly construed. The words should be given their ordinary meaning. 3 However, even where the term is not narrowly construed, there still must be a relationship between the actual dispute and a matter under the agreement or the National Employment Standards. If there is not, it follows that there is no jurisdiction for the Commission to arbitrate the matter.
Other possible sources of jurisdiction canvassed by the Applicant.
[22] I note that the Applicant has nominated that Australian Public Service Employment Conditions as a basis for making the orders sought. The Respondent submits that there are no conditions of employment which apply to the Applicant’s employment in the Australian Public Service that confer jurisdiction on the Commission. The Applicant does not object to this submission. It is apparent that Australian Public Service Employment Conditions do not confer a jurisdiction on the Commission to determine the matters in dispute.
[23] The Applicant relies on the Act as a general power for dealing with the orders sought. The Respondent submitted that no specific provision of the Act is pointed to by the Applicant. The Applicant responded by referring to Part 2-9 of the Act (ss. 385 and 386). I note that sections 385 and 386 in fact form part of Part 3-2 of the Act, which deals with unfair dismissal. The Applicant has not applied for an unfair dismissal remedy. Part 2-9 of the Act deals with other terms and conditions of employment. Neither of these provisions appear relevant to the matters in dispute.
[24] The Applicant has also made reference to the common law as a source of power. The Respondent’s objection makes clear that the Commission does not have common law jurisdiction. The Applicant in reply did not object to that submission. It is well understood that the Commission cannot exercise judicial power and cannot determine disputes in relation to common law rights.
Jurisdiction for an arbitration related to the orders sought by the applicant.
Order 1 - I seek urgent declaratory orders that, as a result of AFSA’s actions (or failure to Act) my employment has been effectively terminated by AFSA on an involuntary basis and that the involuntary termination provisions of the ITSA Enterprise Agreement 2011-14 and any related AFSA or APS policies governing involuntary termination of employment, should be applied without delay.
[25] The Commission does not have the jurisdiction to make declaratory orders. To make declaratory orders involves the use of judicial power. There is no jurisdiction to make a declaratory order that the Applicant’s employment has been terminated.
[26] The Applicant refers in the 2 June 2014 letter to clause 55 of the Agreement. However, this clause deals with limitations of the use of the dispute settling power to deal with termination of employment disputes. The Applicant has not been terminated.
[27] The Agreement does include provisions dealing with involuntary termination. The Respondent points out that the only clauses of the Agreement that refer to being involuntarily terminated are those relating to the retrenchment of excess employees. The relevant provisions are in clauses 48.22 through to 48.33. This part of the Agreement sets out the rights of the employee, such as a minimum retention period, in circumstances where the employee has been “involuntarily terminated”.
[28] These clauses are a part of clause 48 “Redeployment and Retrenchment” The commencement of clause 48 sets out the following:
- they are in a class of employees, which class comprises a greater number of employees than is necessary for the efficient and economical working of ITSA;
- the services or the duties of an employee cannot be effectively used because of technological, or other changes in the work methods of ITSA, or structural or similar changes in the nature, extent or organisation of functions of ITSA; or
- where the duties usually performed by the employee are to be performed at a different locality and the employee is not willing to perform the duties at that locality and the National Manager has determined that the provisions of this clause apply to the employee.”
“48.1 The following provisions will apply to excess ongoing employees of ITSA. For the purposes of this clause, an ongoing employee is excess if:
[29] It is clear that the provisions of clause 48 only operate when an employee is an “excess on-going employee”. Neither the Applicant nor the Respondent has provided any indication that the Applicant meets the definition of “excess” set out in clause 48.1. The Applicant’s claim that he is involuntarily terminated is related to AFSA’s actions or failure to act, rather than any suggestion that he is an excess employee. In that context, this clause appears to have no relationship to the “involuntary termination” sought be declared by the applicant.
[30] I conclude that there is no jurisdiction to grant the first order sought by the applicant.
Order 2 - In the absence of orders that there has been an effective termination of my employment, and noting that (1) I am currently not permitted by AFSA to enter my workplace in order to earn my wage; (2) that paid discretionary leave has been denied (3) that a return to work plan has not been provided; and (4) that I have exhausted my leave accruals; I seek alternate orders that I be permitted immediately to return to my work on a full time basis in order that I may earn my usual wage.
[31] The Applicant in his letter of 2 June 2014 asserts that “the powers conferred by clause 54 also enable the FWC to arbitrate the dispute raised by order 2”.
[32] The key issue in this matter is that the Respondent has insisted that the Applicant not return to work until he provides medical evidence that certifies that he is fit to return to work. The most recent medical certificate supplied by the Applicant to the Respondent stated that he will be unable to work from 31 May 2014 to 14 July 2014.
[33] The Applicant has not identified a matter under the agreement or the National Employment Standards to which this dispute relates and therefore there is no jurisdiction to grant the second order sought.
Order 3 - that in the event that full time work is not deemed appropriate at this time, that AFSA grant me discretionary paid leave equivalent to my usual full time wage whilst the details of a return to work plan for which I have already been waiting approximately 6 months, can be agreed and given full effect.
[34] The Respondent accepts that the Applicant has raised a dispute in relation to a matter under the Agreement, namely whether discretionary leave should have been granted with or without pay to the Applicant. Clause 22.11 sets out the provisions of the Agreement as they relate to discretionary leave.
[35] The Respondent also accepts that the Applicant has followed the necessary steps under clause 54.1 and clause 54.2 of the Agreement. Accordingly, the Respondent accepts the Commission has jurisdiction to arbitrate and make a determination that is binding on the parties about whether the Respondent should have been granted discretionary leave-miscellaneous with pay, during any of the various periods from 21 October 2013-14 July 2014. 4
[36] I am satisfied that order 3 falls within the jurisdiction of this Commission.
Conclusion
[37] The matter can proceed to substantive hearing to determine the question as to whether the relief at order 3 should be granted. There is no jurisdiction to grant the first and second orders sought by the Applicant and therefore the application for the making of the first and second orders is dismissed and will not be further dealt with.
[38] I will list this matter for mention by telephone to set further directions for filing in relation to order 3. A formal notice of listing will be sent to the parties shortly.
COMMISSIONER
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1 See file note 24/03/2014
2 See letter dated 23 April 2014
3 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426
4 Submissions of the Respondent, [33]
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