Department of Health and Human Services East Division v Health Services Union
[2015] FWCFB 7095
•10 NOVEMBER 2015
| [2015] FWCFB 7095 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Health Services Union
(C2015/3769)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 10 NOVEMBER 2015 |
Appeal against decision [[2015] FWC 2463] of Commissioner Bissett at Melbourne on 15 April 2015 in matter number C2015/145.
[1] This is an application for permission to appeal and an appeal from a decision 1of Commissioner Bissett.The Department of Health and Human Services East Division (the Department) has lodged an appeal from the decision. The decision arose from an application pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with the dispute in accordance with the dispute settling procedure of the HACSU Department of Human Services Disability Services Enterprise Agreement 2012 -2016 (the Agreement).
[2] Permission was granted to both parties to be legally represented before the Full Bench. Ms Symons of counsel appeared for the Department. Mr Harding of counsel appeared for the Health Services Union (HSU).
[3] This is an appeal pursuant to s.604 of the Act. This Full Bench must determine whether or not to grant permission to appeal. Permission to appeal must not be granted unless it is in the public interest to do so.
[4] The Commissioner characterised the dispute before her as follows:
“[16] The matter to be determined in this case is whether clause 17.7.1 or clause 17.1 of Schedule C places some limitation on the jurisdiction of the Commission to deal with a dispute arising under Schedule C of the Agreement prior to the completion of the Schedule C process.”
[5] The Commissioner’s decision sets out the relevant clauses of the Agreement and of Schedule C as follows:
“[5] The dispute resolution procedure of the Agreement is at clause 13. It states in part:
13. DISPUTE SETTLING PROCEDURES
13.1 Resolution of disputes and grievances
13.1.1 Unless otherwise provided for in this Agreement, a dispute or grievance about a matter arising under this Agreement or the National Employment Standards, other than termination of employment, must be dealt with in accordance with this clause. This includes a dispute or grievance about whether an Employer had reasonable grounds to refuse a request for flexible working conditions or an application to extend unpaid parental leave.
13.1.2 This clause does not apply to any dispute on a matter or matters arising in the course of bargaining in relation to a proposed workplace agreement.
13.1.3 The Employer or an Employee covered by this Agreement may choose to be represented at any stage by a representative, including a union representative or Employer’s organisation.
……
[7] Clause 17 of the Agreement deals with grievances and discipline procedures. It provides:
17. GRIEVANCES AND DISCIPLINE
17.1 Employees shall be subject to and entitled to the benefit of the grievance procedure as set out in this clause and Schedule B, and the discipline procedure as set out in Schedule C.
...
17.7 Reference to FWC
17.7.1 Matters which remain in dispute at the completion of the grievance and discipline procedures may be dealt with under the dispute settlement clause of this Agreement (Clause 13).
……
[13] Clause 17 of Schedule C states:
17. REVIEW OF DECISIONS
17.1 Where allegation/s under this Schedule are proven and remedial or disciplinary action of any kind are applied against the Employee, the Employee may use the Disputes Settlement Procedures under this Agreement to seek a review of findings or outcomes.
17.2 Where the Employee's employment is terminated, the Employee may apply for relief at the Fair Work Commission, but may not use the Disputes Settlement Procedures under this Agreement to seek a review of the findings or of the termination of the Employee's employment.”
The Commissioner’s Decision
[6] The Commissioner applied the principles set out in Golden Cockerel 2 and noted the remarks of Justice Kirby in Amcor.3 The Commissioner concluded that there was ambiguity in the wording of Clause 13 of the Agreement, particularly when considered in conjunction with clause 17.7.1 of the Agreement and clause 17.1 of Schedule C, noting that the only material she had to assist in the resolution of the dispute was “…the language of the Agreement itself and, as relevant the predecessor Agreements.”4
[7] Specifically, the Commissioner determined that neither Clause 17.7.1 nor Clause 17.1 of Schedule C to the Agreement operate to limit the Commission’s jurisdiction to deal with the dispute notified by the HSU. In the decision the Commissioner observed that clause 17.7.1 of the Agreement does not suggest that disputes regarding grievance or disciplinary procedures cannot be dealt with prior to the end of the process but rather proposes how they should be dealt with should they remain in dispute at the end of the process. 5
Permission to Appeal
[8] The Department seeks permission to appeal in the public interest. It submits:
“1. It is in the public interest to permit the appeal because Bissett C’s construction of clause 13, read with clause 17.1 of Schedule C and clause 17.7.1 of the Agreement, raises the issue of the proper application of principles of construction to an Enterprise Agreement.
2. It is in the public interest to permit the appeal because Bissett C’s construction of clause 13, read with clause 17.1 of Schedule C and clause 17.7.1 of the Agreement, has the effect of transforming a streamlined and certain discipline procedure into a protracted and uncertain process that will limit the ability of the Department of Health and Human Services to carry out its obligations to make appropriate provision for the safety and welfare of the community of disabled residents within its care.”
Grounds of Appeal
“1. Bissett C erred in concluding that neither clause 17.7.1 nor clause 17.1 of Schedule C to the HACSU Department of Human Services Disability Services Enterprise Agreement 2012-2016 (Agreement) operated to limit the Fair Work Commission dealing with a dispute in relation to Schedule C to the Agreement.
2. Bissett C should have concluded that clause 17.7.1 and clause 17.1 of Schedule C to the Agreement, read with clause 13 of the Agreement, operated to limit the jurisdiction of Fair Work Commission to deal with a dispute in relation to Schedule C to the Agreement in circumstances where:
(a) The process established under the discipline procedures in Schedule C to the Agreement has been exhausted; and
(b) Allegations against an employee have been proven; and
(c) a remedial or disciplinary action has been applied against an employee.
3. In determining the jurisdictional objection, Bissett C erred by failing, in accordance with settled principles of construction and in circumstances where she had found ambiguity in the wording of clause 13 of the Agreement, to:
(a) Have regard to surrounding circumstances;
(b) To consider the need to achieve a sensible industrial outcome; and
(c) to consider the need to achieve a meaning which avoided inconvenience.”
Conclusion
[9] The Department characterised the question before the Commissioner as whether or not, in particular circumstances, the HSU or any other party, was entitled to bring a dispute to the Fair Work Commission (the Commission) in relation to a matter that had arisen under Schedule C. The Department argued that the usual situation, i.e. that matters arising under the Agreement are matters that can engage the dispute settling procedure, was displaced by the combination of clause 17.1 to Schedule C and clause 17.7.1. of the Agreement which set out a number of steps that are to be taken in relation to unsatisfactory performance or discipline.
[10] The Department submitted that matters referred to in the Commissioner’s conclusion at paragraphs 55 and 56 of the decision did not inform her substantive decision, that they were not fully addressed or grappled with. We reject that submission. We are satisfied that in paragraphs 55 and 56 of the Commissioner’s decision the Commissioner was outlining matters she took into account in her decision making.
[11] The Department also submitted that the Commissioner did not consider which construction of the Agreement provisions contributed to a sensible outcome and avoided inconvenience or injustice as per Amcor.
[12] At the hearing on this submission the Presiding Member put to the Department the proposition that matters proceeding inappropriately pursuant to Schedule C might be referred to the Commission. Ms Symons responded that it is the Department’s position that it is only in exceptional circumstances that the dispute resolution procedure pursuant to Clause 13 can be accessed in relation to matters being dealt with pursuant to Clause 17.1 before those matters have resulted in either a finding or an outcome.
[13] We are not persuaded by this submission. In circumstances where the Commissioner considered the words to be ambiguous and in the absence of any extrinsic material to aid her, the Commissioner had to determine the provisions on their face value consistent with established principles. We find no error in the Commissioner’s construction of the relevant provisions of the Agreement.
[14] Members of the Commission would not normally hear matters that are properly part of a grievance procedure. As a practical matter Members will identify those matters that ought to be referred back to the grievance procedure, rather than allowing a delay of the procedure by notifications pursuant to the dispute settlement process. Generally, matters appropriately involved in the grievance procedure should remain in that process until completion of the procedure. It is only a rare matter that would appropriately be the subject of a dispute notification.
[15] The Presiding Member put to Ms Symons that there might be a class of notifications that involve a failure to apply the grievance procedure in a proper or appropriately timely fashion. Examples of these notifications might be those involving a gross impropriety, a subversion of the process, a failure to proceed with the process at all in a timely fashion, the conduct of a rogue manager or discriminatory or unlawful conduct. The example raised by Mr Harding regarding the opportunity to dispute the validity of a finding pursuant to Clause 8 might in some circumstances be such a matter. Those matters might properly be the subject of dispute notifications rather than complaints about ordinary and compliant processes in a comprehensive grievance procedure.
[16] A Member of this Commission can and will distinguish between those matters that ought properly be before the Commission, and those that ought to be sent back to the grievance procedure without involving any great inconvenience to the parties.
[17] The Department cannot fail to deal with issues of that kind or defer their consideration by obliging employees to wait until completion of the process before being able to obtain redress. It would be a waste of the resources of both parties and manifestly unjust in those circumstances.
[18] As to the public interest, the Department submitted that, if its submissions were accepted by the Commission, the decision was based on a flawed application of the principles of construction of enterprise agreements which attracted the public interest and warranted the grant of permission to appeal.
[19] The HSU submitted that unless the Department established public interest, permission to appeal must be refused. The HSU further submitted that were permission to appeal granted, the appeal should be dismissed as there is no error in the Commissioner’s decision.
[20] We are not satisfied that the Commissioner was in error in her conclusion. We do not consider that the public interest is attracted in respect of the decision.
[21] For all these reasons, permission to appeal is refused and the appeal is dismissed.
SENIOR DEPUTY PRESIDENT
1 [2015] FWC 2463
2 The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447
3 Amcor Limited v Construction Forestry Mining & Energy Union [2005] HCA 10 at 96
4 [2015] FWC 2463 at paragraph 40
5 Ibid at paragraph 50
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