David Cantrick-Brooks v The University of Newcastle

[2019] FWC 2782

[2019] FWC 2782

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.576(2)(aa) - Promoting cooperative and productive workplace relations and preventing disputes

David Cantrick-Brooks
v
The University of Newcastle
(C2019/478)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 24 APRIL 2019

Application for the Commission to deal with a New Approaches application.

Introduction and background

[1] Mr David Cantrick-Brooks is employed by the University of Newcastle (University) in the position of Secretary and Chief Governance Officer, within the Council and Records Management team in the Office of the Chancellor.

[2] In late September 2018, Mr Nat McGregor, Chief Operating Officer within the Resources Division of the University, made allegations of misconduct and serious misconduct against Mr Cantrick-Brooks and other employees of the University. The allegations relate to conduct going back some years in connection with the design, development and commercialisation of computer software that improves, and makes more efficient, the University’s internal processes.

[3] In November 2018, Mr Cantrick-Brooks provided Mr McGregor with his written response to the allegations. Thereafter, the University established a Committee of Inquiry to investigate the allegations made against Mr Cantrick-Brooks and other employees of the University. To date, Mr Cantrick-Brooks has declined to participate in the Committee of Inquiry process.

[4] On 18 January 2019, Mr Cantrick-Brooks and two other employees of the University filed an application (Dispute Application) in the Commission for it to deal with a dispute in accordance with the dispute resolution procedure in clause 75 of the University of Newcastle Professional Staff Enterprise Agreement 2014 (Enterprise Agreement). The dispute proceeded to conciliation before the Commission on 4 February 2019. The University participated in that conciliation, but reserved its right to raise jurisdictional issues in relation to the Dispute Application. The conciliation was unsuccessful.

[5] On 8 March 2019, Mr Cantrick-Brooks filed a New Approaches application in the Commission (New Approaches Application), which concerns the same subject matter as the Dispute Application filed on behalf of Mr Cantrick-Brooks.

[6] In an earlier decision, 1 I determined that the Commission does not have jurisdiction under clause 75 of the Enterprise Agreement to deal with a dispute raised by Mr David Cantrick-Brooks because he is not covered by the Enterprise Agreement.

[7] This decision concerns whether the Commission should accept, or deal with, the New Approaches Application.

Mr Cantrick-Brooks’s submissions

[8] Mr Cantrick-Brooks makes application for the Commission to perform a function under section 576(2)(aa) of the Fair Work Act 2009 (Cth) (Act). Mr Cantrick-Brooks requests that the Commission perform its function by conducting a compulsory conference or hearing, taking evidence and issuing written recommendations. In the alternative, Mr Cantrick-Brooks requests that the Commission perform its function by conducting an arbitration.

[9] Mr Cantrick-Brooks submits that the text of the legislation should be given primacy and that in construing the meaning of the function conferred on the Commission by section 576(2)(aa) of the Act, section 15AA of the Acts Interpretation Act 1901 (Cth) is to be applied. It provides:

“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act … shall be preferred to a construction that would not promote that purpose or object.”

[10] Mr Cantrick-Brooks submits that there is nothing in the wording of section 576(1) of the Act or in the content of the list of subject matters in respect of which functions have been conferred on the Commission that suggests Parliament intended that the conferral of function be discretionary.

[11] Similarly, section 576(2) comprises a list of five subject matters in respect of which Parliament has conferred power on the Commission. Mr Cantrick-Brooks submits that there is nothing in the content of this list or the wording of subsection (2) that suggests Parliament intended that the conferral of function be discretionary. Mr Cantrick-Brooks submits it is mandatory that the Commission perform the functions conferred by section 576 of the Act.

[12] In performing its function, and exercising its power, pursuant to section 576(2) of the Act, the Commission must do so in accordance with its obligations under sections 577 and 578 of the Act, including performing its functions and exercising its powers in a manner that promotes harmonious and cooperative workplace relations. 2

[13] The Commission must also take into account the objects of the Act, any objects of chapter 5 of the Act and equity, good conscience and the merits of the matter. 3

[14] The construction for which Mr Cantrick-Brooks contends is that where the Commission is placed on notice of a circumstance in which the promotion of cooperative and productive workplace relations between an employee, or group of employees, and an employer, is placed at risk, the Commission’s function pursuant to section 576(2)(aa) includes taking steps to promote cooperative and productive workplace relations and prevent disputes.

[15] Mr Cantrick-Brooks submits that section 576(2)(aa) of the Act does not confer on the Commission a discretion as to whether or not to deal with the matter on the basis of resourcing. It is submitted that this is consistent with the objects of the Act as set out in section 3.

[16] Mr Cantrick-Brooks submits that by his New Approaches Application, the Commission has been placed on notice of a set of circumstances that place at risk the promotion of cooperative and productive workplace relations between Mr Cantrick-Brooks and the University, and risks the escalation in continuation of disputes between Mr Cantrick-Brooks and the University.

[17] It is submitted that the function conferred by section 576(2)(aa) of the Act is a broad one. In order to determine whether or not the Commission has been placed on notice of matters that would enliven its function pursuant to section 576(2)(aa), it is not necessary to analyse the substratum of facts through the prism of section 595 of the Act.

[18] Mr Cantrick-Brooks contends that his position is uncomplicated one. He is the subject of a serious disciplinary process, and risks adverse findings be made against him. His ongoing employment is at risk. Yet he remains in the workplace, fulfilling important functions for the University, and interacting on a daily basis with persons who are likely to be required to give evidence in an internal University process. The University has not suspended Mr Cantrick-Brooks, nor removed or amended any of the duties he is required to perform for the University.

[19] Mr Cantrick-Brooks does not seek a permanent stay in relation to the University’s internal process. It merely presses for protections during that process that are, so he contends, reasonably necessary to provide him with the assurance and assistance he requires in order to fully and fairly participate in that process.

[20] Mr Cantrick-Brooks submits that his cooperation and willing participation in the University’s internal process is an outcome that would promote cooperation between himself and the University, enhance productive workplace relations, and prevent, or significantly reduce the prospect of, further disputes between himself and the University.

[21] Mr Cantrick-Brooks seeks:

•  the right to be represented by a person of his own choosing, without limitations being placed on the representative as to his or her advocacy; and

•  protection against involvement in the inquiry and disciplinary process of a person who has an interest in the outcome of the matter and who suffers from ostensible, if not actual, bias.

[22] To date, the University has refused to accede to Mr Cantrick-Brooks requests. As a result, Mr Cantrick-Brooks has thus far declined to participate in the internal Committee of Inquiry process.

[23] Mr Cantrick-Brooks submits that, on the material before the Commission, it cannot be satisfied that an equitable outcome will be reached if the Commission determines not to deal with the New Approaches Application.

[24] Mr Cantrick-Brooks contends that it falls within the Commission’s power to:

•  pursuant to section 590 of the Act, further inform itself of the matters and issues - and that it may do so by way of hearing or conference; and

•  pursuant to sections 592 and 593 of the Act, issue written recommendations or opinions about the concerns raised by Mr Cantrick-Brooks.

[25] It is contended that the conduct of a compulsory conference or hearing in which attendance is required, evidence is adduced and submissions are made, and following which written recommendations are provided, will be the most effective and equitable way of dealing with the New Approaches Application.

University’s submissions

[26] The University has three main objections to the New Approaches Application:

(a) the University submits an individual cannot make an application under the Commission’s New Approaches strategy. There is nothing in the history and guidance material issued by the Commission about the New Approaches strategy which indicates it is intended to deal with individual employee matters. To accept an application under section 576(2)(aa) from an individual would create a new ‘claim’ that can be made by individuals under the Act. If that had been intended, it would be clearly stated in the Act, as it is in relation to other claims such as general protections applications and bullying claims;

(b) in the alternative, the University submits that if Mr Cantrick-Brooks can make an application under the New Approaches strategy:

(i) the New Approaches Application cannot be used as a basis of the Commission dealing with a dispute or exercising arbitral power in circumstances where those powers have not been conferred on the Commission. In particular, the University relies on sections 595, 738 and 739 of the Act insofar as they deal with limitations on the Commission’s jurisdiction to exercise powers in relation to disputes and arbitration. The University contends that section 576(2)(aa) of the Act does not give the Commission jurisdiction to deal with a dispute or to exercise arbitral functions; and/or

(ii) the Commission should form the view that the New Approaches Application by Mr Cantrick-Brooks is not appropriate to be opened as a New Approaches matter. The University contends that section 576(2)(aa) does not require the Commission to accept an application pursuant to that section - the Commission has a discretion to accept or decline such an application. The University submits that it would not be appropriate for the Commission to open the New Approaches Application filed by Mr Cantrick-Brooks as a New Approaches matter and the University does not agree to the Commission providing the assistance sought by Mr Cantrick-Brooks. In particular, the University submits:

•  the purpose of New Approaches is to adopt an interest based approach to the resolution of issues and circumstances relating to “supporting parties to transform their workplace relations to facilitate change collaboratively, foster innovation and drive productivity improvement”. 4 Mr Cantrick-Brooks’ concerns are not of this nature;

•  in circumstances where the Commission’s resources for the New Approaches program are necessarily limited, and the Commission does not have power to make orders in relation to resolution of matters under New Approaches, is not an appropriate use of those resources to consider concerns that have already been subject to a lengthy conference before the Commission (on 4 February 2019) and have not been resolved;

•  in addition to the conference before the Commission on 4 February 2019, the University has taken steps to address the concerns Mr Cantrick-Brooks has about the process it has adopted to address the allegations of misconduct and serious misconduct concerning him and the University is not confident interests based discussions will resolve the matters between the University and Mr Cantrick-Brooks; and

•  even if the questions for arbitration proposed by Mr Cantrick-Brooks, Ms Davis and Mr Turner were appropriate for consideration under the New Approaches strategy, the University contends they are not relevant to Mr Cantrick-Brooks:

•  questions 1 and 2 (about clauses 14.2 and 14.3 of the Enterprise Agreement) - the Chief Operating Officer was requested by a subcommittee of the University’s Council to investigate the allegations of misconduct and serious misconduct relating to Mr Cantrick-Brooks and consequently did not need to form a view under clause 14.2 about whether the allegation should be put to Mr Cantrick-Brooks (as the subcommittee of Council had already formed that view);

•  question 3 (about clause 14.9 of the Enterprise Agreement) - the Chief Operating Officer is not the ultimate decision-maker in relation to Mr Cantrick-Brooks following the outcome of the Committee of Inquiry process under clause 74 of the Enterprise Agreement; and

•  question 4 (about clauses 71 and 74 of the Enterprise Agreement) - Mr Cantrick-Brooks has already been advised by the University that he may be represented, on certain conditions, by a person of his choosing at the Committee of Inquiry into the allegations of misconduct and serious misconduct.

Consideration

[27] The history to the introduction of section 576(2)(aa) to the Act was conveniently summarised by Deputy President Bull in Southern Ports Authority t/a Southern Ports as follows:  5

“[7] Following a recommendation contained in the Report of the Fair Work Act Review Panel in 2012, an amendment to the Act bestowed on the Fair Work Commission an additional function: ‘Promoting cooperative and productive workplace Relations and preventing disputes’.

[8] Following this amendment to the Act, the Commission’s President, after consultation with relevant stakeholders, endorsed a ‘New Approaches’ strategy to give effect to this new function. New Approaches shifts the focus of the Commission’s role from resolving disputes to supporting parties to transform their workplace relations to facilitate change collaboratively, foster innovation and drive productivity improvement.”

[28] The Explanatory Memorandum to the Fair Work Amendment Bill 2013 makes it clear that the purpose of section 576(2)(aa) is to “expressly confer on the FWC the function of promoting cooperative and productive workplace relations and preventing disputes”.

[29] Section 576(1) of the Act deals with the Commission’s functions in relation to a range of specific subject matters, such as unfair dismissal and industrial action. Section 576(2) addresses “additional functions” of the Commission:

“(2) [Additional functions]

The FWC also has the following functions:

(aa) promoting cooperative and productive workplace Relations and preventing disputes;

(a) dealing with disputes is referred to in section 595;

(b) providing assistance and advice about its functions and activities;

(c) providing administrative support in accordance with an arrangement under section 650 or 653A;

(ca) mediating any proceedings, part of proceedings or matter arising out of any proceedings that, under section 53A of the Federal Court of Australia Act 1976 or section 34 of the Federal Circuit Court of Australia Act 1999, have been referred by the Fair Work Division of the Federal Court or Federal Circuit Court to the FWC for mediation;

(d) any other function conferred on the FWC by a law of the Commonwealth.

[30] Section 577 of the Act governs the manner in which the Commission must perform its functions. Section 578 of the Act requires the Commission to take various matters into account when performing its functions and exercising its powers in relation to a matter under a part of the Act. I have had regard to the requirements of sections 577 and 578 in deciding whether to deal with the New Approaches Application.

[31] Section 576(2)(aa) of the Act stands in stark contrast to other provisions of the Act which confer rights on applicants who meet specific criteria to make applications to the Commission. By way of example:

(a) a person who is protected from unfair dismissal and who has been dismissed may apply to the Commission for an unfair dismissal remedy (s 394(1) of the Act);

(b) a person who has been dismissed and who alleges they were dismissed in contravention of Part 3-1 of the Act (General Protections) may apply to the Commission for it to deal with the dispute (s 365 of the Act); and

(c) if a modern award or enterprise agreement includes a term that provides a procedure for dealing with disputes and that procedure requires or allows the Commission to deal with a dispute, a party to the dispute may apply to the Commission to have it deal with the dispute (ss 738-9 of the Act). For the purpose of ss 738-9 of the Act, a person may be “a party to the dispute”. For example, an employee covered by the relevant modern award or enterprise agreement at the time the dispute arose.

[32] Neither section 576(2)(aa) nor any other provision in the Act confers on a person a right to make an application to the Commission if they allege that their employer or some other person is not acting in a manner which promotes cooperative and productive workplace relations and prevents disputes. Had Parliament intended to confer such a right on a person, it could reasonably be expected that there would be a provision such as s 394(1), 365 or 738-9 in the Act.

[33] Because the Act does not confer on a person a right to make a New Approaches application to the Commission, there is no obligation on the part of the Commission to deal with a particular New Approaches application which has been filed. Whether the Commission does so is in the discretion of the Commission. To assist the Commission in determining whether or not to exercise the discretion in a particular case, the Commission has developed and published a form (Form F79 – Application for the Commission’s assistance to promote cooperative and productive workplaces and prevent disputes), which an applicant is required to complete and lodge in the Commission. One of the questions asked in the Form F79 is whether “all parties to the application agree to the Commission providing assistance”. The answer to that question is, in my view, very important. If all relevant parties do not agree to the Commission providing assistance in accordance with its functions under section 576(2)(aa) of the Act, there would, in my opinion, need to be some compelling countervailing reason to warrant exercising the discretion in favour of dealing with the application. That is because the exercise of a function of “promoting cooperative and productive workplace relations and preventing disputes” requires a willingness on the part of the relevant parties to engage in the process in a constructive and meaningful way to have any realistic prospect of producing a successful or productive outcome. Principally for that reason, the practice of the Commission, so far as I am aware, is not to open a New Approaches file unless all relevant parties agree to the Commission providing assistance.

[34] Notwithstanding the reasons why Mr Cantrick-Brooks submits I should deal with the New Approaches Application, I have decided not to deal with it. I have exercised my discretion in this way because the University does not agree to the Commission providing the assistance sought by Mr Cantrick-Brooks in his New Approaches Application and I am satisfied there are no countervailing considerations, whether considered in isolation or collectively, which justify or warrant a different conclusion.

Conclusion

[35] For the reasons given, I will not open a New Approaches file in relation to Mr Cantrick-Brooks or otherwise deal with the New Approaches Application.

DEPUTY PRESIDENT

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 1   [2019] FWC 2282 (Earlier Decision)

 2 s 577(d) of the Act

 3 s 578(b) of the Act

 4   [2018] FWCA 2466 at [8]

 5   [2018] FWCA 2466 at [8]