Despina Drakoulis v Kangan Institute

[2020] FWC 592

[2020] FWC 592

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Despina Drakoulis
v
Kangan Institute
(C2019/7240)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 7 FEBRUARY 2020

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

[1] Ms Despina Drakoulis has applied under section 739 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (Commission) to deal with an alleged dispute about whether in her current role with Kangan Institute she has been correctly classified under the Victorian TAFE Teaching Staff Agreement 2018 1 (the Agreement).

[2] Ms Drakoulis’ application seeks primarily to deal with the alleged failure by Kangan Institute to form a Disputes Settlement Committee (DSC) in accordance with clause 10.11 of the Agreement.

Relevant law

[3] Section 595 of the Act empowers the Commission to deal with disputes if it is expressly authorised to do so. The Commission can deal with disputes in a number of ways, including by mediation or conciliation, making a recommendation or expressing an opinion. The Commission can only arbitrate a dispute with the express agreement of the parties to the dispute. 2

[4] Section 739 of the Act provides that the Commission can deal with certain disputes in accordance with a term in an enterprise agreement for dealing with disputes.

[5] The Agreement contains a comprehensive procedure for dealing with disputes at clause 10 now set out in part below:

“10 Disputes resolution

10.1 Unless otherwise provided for in the Agreement, a dispute about a matter arising under the Agreement or the National Employment Standards, other than termination of employment, must be dealt with in accordance with this clause. This includes a dispute about whether an Employer had reasonable grounds to refuse a request for flexible working conditions under the National Employment Standards or an application for extended family leave under the National Employment Standards as well as a dispute about workload.

10.2 The Employer or an Employee may choose to be represented at any stage by a representative, including an employer or employee organisation.

Obligations

10.3 The parties to the dispute, and their representatives, must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.

10.4 Whilst a dispute is being dealt with in accordance with this clause, work must continue in accordance with usual practice, provided that this does not apply to an Employee who has a reasonable concern about an imminent risk to their health or safety, has advised the Employer of this concern and has not unreasonably failed to comply with a direction by the Employer to perform other available work that is safe and appropriate for the employee to perform.

10.5 No Employee will be prejudiced as to the final settlement of the dispute by the continuance of work in accordance with this clause.

Agreement and dispute settlement facilitation

10.6 For the purposes of compliance with this Agreement (including compliance with this dispute procedure) where the chosen Employee representative is another Employee of the Employer, they must be given reasonable opportunity to enable them to represent Employees concerning matters pertaining to the employment relationship including but not limited to:

(a) investigating the circumstances of a dispute or an alleged beach of this agreement or the National Employment Standards;

(b) endeavouring to resolve a dispute arising out of the operation of the Agreement or the National Employment Standards; or

(c) participating in conciliation, arbitration or agreed alternative dispute resolution process.

10.7 Any release from normal from normal duties is subject to the proviso that it does not unduly affect the operations of the Employer.

Discussion of dispute

10.8 The dispute must first be discussed by the aggrieved Employee(s) with their immediate supervisor.

10.9 If the matter is not settled, the Employee(s) can require that the matter be discussed with another representative of the Employer appointed for the purposes of this procedure.

Internal processes

10.10 There will be two alternative internal dispute resolution processes established by the Employer.

10.11 The first will deal with disputes arising out of this Agreement or the National Employment Standards. These disputes will be dealt with by a Dispute Settlement Committee (DSC) consisting of two nominees of the Employer, and two nominees of the Employee (excluding family members or legal practitioners) one of whom may be an officer of the Union entitled to represent the interests of the employee.

10.12 The DSC will be a committee of the Employer and will determine its own procedures to consider the dispute but will be required to report to the Employer within five working days of being established. This may be a final report or a report that mediation or conciliation processes have been agreed to be undertaken by the parties.

10.13 On receiving the report from the DSC, the Employer will indicate in writing to the DSC and the parties to the dispute whether the recommendations of the DSC have been accepted or not within ten working days of receiving the report.

…..

10.18 If the dispute is not settled through an internal dispute resolution process, a party to the dispute may refer the dispute to the Commission for conciliation and if the matter remains unresolved, arbitration.

10.19 If an Employee lodges a dispute characterised as a dispute arising from this Agreement or National Employment Standards and at approximately the same time lodges a dispute about workload both disputes will be referred to a DSC.

10.20 The procedures for both internal processes will be conducted in a timely manner and be consistent with the following principles:

(a) the rules of natural justice;

(b) appropriate mediation or conciliation of the dispute is available;

(c) any views on the composition of the DSC or WPD as appropriate will be considered by the Employer;

(d) the process is conducted as quickly, and with as little formality, as a proper consideration of the matter allows.

……

Arbitration

10.25 If the dispute has not been settled when conciliation has been completed, either party to the dispute may request that the Commission proceeds to determine the dispute by arbitration.

10.26 Where a member of the Commission has exercised conciliation powers in relation to the dispute, the member will not exercise, or take part in the exercise of, arbitration powers in relation to the dispute if a party to the dispute objects to the member doing so.

10.27 Subject to sub-clause 10.28, the determination of the Commission is binding upon the parties to the dispute.

10.28 An appeal lies to a Full Bench of the Commission, with the leave of the Full Bench, against a determination of a single member of the Commission made pursuant to this clause.

Conduct of matters before the Commission

10.29 Subject to any agreement between the parties to the dispute in relation to a particular dispute and the provisions of this clause, in dealing with a dispute through conciliation or arbitration, the Commission may conduct the matter in accordance with Subdivision B of Division 3 or Part 5.1 of the Act.”

[6] In The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 3, a Full Bench of this Commission set out the relevant principles to be applied in the construction of agreements. These principles were revised in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited4.

[7] I adopt and apply these principles in reaching this decision.

Background

[8] This matter was listed for conference before the Commission on 21 January 2020, however the matter remained unresolved.

[9] On 23 January 2020 Ms Drakoulis emailed the Commission advising that she had consulted with the Australian Education Union and wished to have her matter heard and determined by way of Arbitration. In that same email Ms Drakoulis invited Kangan Institute to engage with her directly in an attempt to resolve the matter.

[10] Kangan Institute in reply reiterated the options made available to Ms Drakoulis resulting from the previously held conference.

[11] The parties were again unable to reach an agreement and the matter was listed for a mention/directions hearing before the Commission on 5 February 2020.

[12] During the hearing Kangan Institute raised a jurisdiction objection. Ms Drakoulis also raised the same jurisdiction objection. I heard submissions from both parties and Ms Drakoulis in addition sought to rely on the materials filed with her Form F10 Application.

[13] Kangan Institute submitted that the Dispute Resolution procedure of the Agreement had not been complied with and therefore Ms Drakoulis’ application was premature. They submitted that they had taken an alternative approach to the dispute and Ms Drakoulis had not objected to that approach.

[14] Ms Drakoulis submitted that she had raised the matter of jurisdiction in her application and that Kangan Institute had failed to set up a Disputes Settlement Committee as requested in writing on 8 October 2019. Ms Drakoulis further submitted she had concerns that if left to their own devices Kangan Institute would unreasonably delay forming a DSC to deal with her grievance.

[15] During the hearing the parties sought to rely on their oral submissions and it was settled that that the Disputes Resolution clause had not been complied with and therefore the Commission has no present jurisdiction to deal with the alleged dispute. I informed the parties I would issue a decision to that effect.

Consideration

[16] The internal processes set out in Clauses 10.10 through to 10.20 (inclusive) of the Agreement are clear in their terms. Clause 10.11 of the Agreement explains the circumstances in which a DSC will be established. Clause 10.11 provides disputes arising out of the Agreement or the National Employment Standards if unresolved in accordance with 10.8 and 10.9 of the Agreement will proceed to be dealt with through a DSC.

[17] Clause 10.12 provides that the DSC will be a committee of Kangan Institute (as the employer in this instance) and will determine its own procedures to consider the dispute. Although there is a timeframe specified for when the DSC is required to report to the Employer, there is no specified timeframe for establishing the DSC upon the employer being notified of a dispute. However, clause 10.20 provides that the internal processes for resolving a dispute will be conducted within a timely manner and be consistent with inter alia the principles of natural justice.

[18] It is not in contention that Kangan Institute was in receipt of a dispute notification from Ms Drakoulis and a subsequent request for a DSC to be convened to deal with the dispute was made on 8 October 2019.

[19] Ms Drakoulis asserts and Kangan Institute concedes that the Dispute Resolution procedure set out in clause 10 of the Agreement has not been followed.

[20] I find that the disputes resolution procedure has not been complied with, therefore it follows that the Commission has no present jurisdiction to deal with the alleged dispute. However, it is recommended that the parties comply with the requirements set out in clause 10.20 of the Agreement and make every attempt to deal with the dispute in a timely manner and in accordance with the rules set out in the Agreement. It is further recommended that the parties proceed with the establishment of a DSC in accordance with clause 10.11 and that the establishment of the DSC take place within 2 weeks of the issuing of this decision, subject to the availability of the nominees.

[21] The Application is therefore dismissed.

COMMISSIONER

Appearances:

D Drakoulis on her own behalf.

K Minogue from the Respondent.

Hearing details:

2020.

Melbourne (by telephone):

February 5.

Printed by authority of the Commonwealth Government Printer

<PR716430>

 1   AE500437

 2   CC Pty Ltd T/A Cook Colliery v Construction, Forestry, Mining and Energy Union[2017] FWCFB 2749

 3   [2014] FWCFB 7447

 4   [2017] FWCFB 3005