Emin Efe v Broadspectrum (Australia) Pty Ltd

[2019] FWC 7442

[2019] FWC 7442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739—Dispute resolution

Emin Efe
v
Broadspectrum (Australia) Pty Ltd
(C2018/7289)

DEPUTY PRESIDENT SAMS SYDNEY, 14 NOVEMBER 2019

Alleged dispute about matters arising under an enterprise agreement – cleaning employee required to move locations due to complaint being made by client – applicant disputes basis of complaint – respondent redeploys applicant pursuant to redeployment terms under enterprise agreement – applicant disputes redeployment and reduction in hours – applicant claims other recent grievances have been ignored or not dealt with sufficiently by respondent – no evidence to support non-compliance with enterprise agreement by respondent – application dismissed.

INTRODUCTION

[1] On 21 December 2018, Mr Emin Efe (the ‘applicant’), filed an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (the ‘Act’), seeking to have the Fair Work Commission (the ‘Commission’) deal with a dispute under the NSW Government Cleaning Contractors Multi Enterprise Agreement 2016 [AE422556] (the ‘Agreement’). The applicant is employed by Broadspectrum (Australia) Pty Ltd (‘Broadspectrum’ or the ‘respondent’) as a Cleaner in the Western Sydney region.

[2] Shortly stated, the applicant in his Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, makes a number of allegations against the respondent as to its alleged non-compliance with the Agreement. These include, inter alia:

•  the respondent making false allegations about the applicant whilst working at the Parramatta Local Courts and Parramatta Community Services – Macquarie Towers sites (the ‘Parramatta Sites’);

•  the respondent failing to adequately provide reasons for the applicant being stood down from his duties at the Parramatta Sites;

•  respondent failing to ‘honour’ the applicant’s Services Contracts at the Parramatta Sites;

•  a reduction in the applicant’s regular hours from 43.45 hours to 40 hours per week; and

•  the respondent failing to pay the applicant for his accrued Rostered Days Off (‘RDOs’) (this matter was resolved).

The dispute therefore concerns a number of issues, including the interpretation and application of Clauses 15, 18.1 and 18.5 of the Agreement, which I set out later in the decision.

[3] In accordance with my usual practice, I held a conference between the parties on 4 February 2019. The parties discussed settlement offers both during and after the conference, but the matter was ultimately unable to be resolved.

[4] At this juncture, I note that the matter was set down for a hearing on 31 July 2019. The applicant failed to attend. Notwithstanding this failure, I proceeded with the hearing and heard the submissions and evidence of the respondent. Following the hearing, the applicant sent an email to my Chambers and called my Associate, advising that he simply forgot about the hearing. Accordingly, I had cause for my Chambers to send the following email to the applicant:

‘The Deputy President proceeded with the hearing yesterday notwithstanding your non-attendance. Your explanation that you forgot about the hearing is not acceptable.

However, you will be provided with an opportunity to respond to the matters raised by the respondent in yesterday’s hearing. The transcript of the hearing has been ordered, and is due to arrive within the next 4-5 business days. You will be emailed a copy of the transcript by Epiq, the Commission’s transcription and court monitoring service. You will have seven days from being issued with the transcript to provide a response to any of the matters raised. Failure to respond within this timeframe will result in the Deputy President considering the matter on the materials before him.’

[5] The applicant complied with this direction, and I will therefore consider his further response submissions ‘on the papers’.

BACKGROUND

[6] Broadspectrum is an international facilities management and maintenance services company. Part of its portfolio includes the provision of cleaning services to facilities operated by the New South Wales Government. The applicant commenced employment with Broadspectrum on 4 December 2012 as a Casual Cleaner, and commenced as a Full-Time employee on 23 July 2016.

[7] On 26 September 2017, Broadspectrum was instructed by a contact person at the Parramatta Local Courts to remove the applicant from the Parramatta Local Court building due to concerns with the applicant’s behaviour. Following his removal, the applicant received a letter from Broadspectrum advising him that he was to be stood down on full pay, whilst Broadspectrum investigated the issue.

[8] On 28 September 2017, the applicant’s stand down was revoked and he was advised of his transfer as a Full-Time employee to Wentworth Public School working 40 hours per week on a temporary basis, until further notice. The applicant was later transferred to Pendle Hill Public School, and was subsequently removed upon the request of the client. At the time of the hearing, the applicant works at Telopea Primary School.

EVIDENCE

For the applicant

[9] In his written submissions, the applicant outlined the purpose of lodging his application with the Commission , which was to ‘clear [his] name’ over the false accusations made against him on 26 September 2017, which he believed referred to a conversation he had with a person named ‘Jaklin’ at the Parramatta Site. He had made an internal attempt to resolve the incident via an email, dated 29 September 2017 to ‘Robyn’ (McKinlay - HR Manager) and Mr David Zenzea (Contract Manager). In this email, he set out the facts of his conversation with Jaklin as follows:

‘The facts are as I recall is at about the 4th or the 5th of September at around 7.30am Jaklin approached me near the basement elevator and said good morning I said good morning back to her, then I asked Jaklin if she remembered me from Lidcombe Catholic Club going back about 6years, Jaklin said no I do not go to Lidcombe Catholic Club, I said the reason I ask is I use to work at Lidcombe Catholic Club, and I remember seeing her there with other patron, one patron in particular, a gentleman by the name of Azziz and his wife, I continued to tell her that Azziz was a Building Engineer and he had helped me out with a plumber in the past and that I had lost his phone number, Jaklin said no I do not know a person by the name of Azziz, but if you need a plumber I know a good plumber and I can give you his number, I said that would be good, we walked to Jaklin’s office and she wrote down a phone number of a plumber and his name (George), Jaklin also wrote on this note her name and another name (Sam) and Sydney net Computers in Dural, not sure why she wrote this (see attachment #2).

The other thing that I can recall is that I apologised to Jaklin and said that I may be mistaking her for someone else, I added that Azziz was of Lebanese back round, Jaklin stated that her back round was not Lebanese and that she was Persian, Jaklin then asked me what my back ground was, I told her that my back ground was Turkish but I had been in Australia since 1969, Jaklin then said that the president of Turkey is not a good person and that he was taking their country backwards, I replied to this and said that there is good and bad in every country, the way I see it is their is about 3 million refugees in Turkey, this president has taken them in, he could of closed all the borders.

At about this stage of the conversation I thanked Jaklin for the phone number for the plumber and left her office.

I repeat at no stage of the conversation did I say I support President Assad or suggested anything like it.’

[10] The applicant submitted that Broadspectrum had no intention of providing him with a ‘fair go’ in responding to the allegations against him. As a result of being stood down on 26 September 2017, he had ‘lost’ 4 hours and 45 minutes of regular working hours each week. The applicant requested that he be reallocated these additional hours and be compensated for the 18 months of accrued losses as a result of his reduced regular hours. The applicant went further and alleged that Broadspectrum had not provided him with ‘Equal Employment Opportunity’, and had discriminated, harassed, intimidated and bullied him. He wished to resolve this matter in a ‘dignified way for all that is concerned’.

[11] In reply submissions, the applicant claimed that he did not work in close proximity to ‘Jaklin’. He also noted that Ms Robyn McKinlay, who was a Human Resources advisor at the time of the 2017 incident, ‘blatantly ignored’ his request to note the allegation and his request to respond to it. He acknowledged that he did not dispute that Broadspectrum has ‘rights’ under the Agreement, but the allegations are severe and Ms McKinlay has failed to document anything regarding the 2017 incident.

[12] The applicant referred to a letter he sent to Mr Peter Shields, Parramatta Local Court Registrar on 29 September 2017, which recounted the conversation he had with ‘Jaklin’ and included a handwritten note with the phone number of a plumber which he said was ‘the real subject of the so called discussion’.

[13] In his response submissions to the transcript of 31 July 2019, the applicant focused on a more recent incident between him and Broadspectrum at the Pendle Hill Public School site. On 28 June 2019, he was informed by Mr Paul Harrigan, his Operations Manager, that an incident had occurred on 3 May 2019. He was not provided with any forewarning of the complaint before the meeting, which caused him a degree of stress when the allegations were put to him. During the meeting, which was also attended by his Union representative, ‘Amelia’, he was informed that a pre-school staff member had made a complaint about him approximately eight weeks earlier. He requested time to recall the incident. This was granted on the basis that he left Pendle Hill Public School immediately and was transferred to Telopea Public School; which he agreed to.

[14] The applicant and his Union representative attended a further meeting on 24 June 2019, in which they were informed that a warning letter would be placed on his file for three months and that he was to remain at Telopea Public School. This was agreed to on the basis that he could reply to the warning letter.

[15] The applicant then referred to a further incident between him and his supervisor, ‘Mobin’. On or around 30 July 2019, ‘Mobin’ called him and asked if he was coming into work on 31 July 2019, to which he replied ‘yes’. He was informed that ‘Mobin’ would be making a site visit. At 2:30pm on 31 July 2019, he called ‘Mobin’ as he had not yet attended the site. ‘Mobin’ said he now intended on coming in later in the week. The applicant responded by stating that ‘Mobin’ had ‘basically lied’ to him about attending the site.

[16] The applicant alleged that at 5am the next day (1 August 2019), ‘Mobin’ tried to bully and intimidate him when he came to the worksite, to which he responded that he cannot be shouted at, or treated in a demeaning way. That afternoon, he informed Mr Harrigan about his concerns, to which he received no reply. The following day, ‘Mobin’ engaged in further intimidating behaviour with another unidentified person, and as a result, the applicant recorded the conversation. ‘Mobin’ did not give the applicant permission to record their discussion, to which he responded by stating that he would be seeking ‘legal advice with the police’ as to recording the incident. Upon finishing work at 9am, he attended Ermington Local Police Station. He spoke with Constable Keskin and he recounts the advice he received as follows:

‘Constable Keskin advised me that I should try to resolve the matter with my employer and as for the recording Constable Keskin advised me that I can record in a public place but he was not sure about recording on Telopea Public School grounds, Constable Keskin again advised me the best way is to resolve the matter with the company management.’

[17] The applicant then emailed Mr Harrigan advising that he had sought advice from the Police. He added that if ‘Mobin’ did not behave inappropriately, then Broadspectrum should have no issue with him recording their conversations.

[18] In response to Ms McKinlay’s witness statement and examination at the hearing, he again referred to the conversation he had with ‘Jaklin’ in 2017, asserting that at no point did he say he supported the President of any country. He then cited a number of security clearances he had received during his time working for the United States Air Force Security Police.

[19] The applicant believed it was ‘pretty obvious’ that Broadspectrum had denied him procedural fairness by not giving him the opportunity to seek legal advice, not allowing him to have a support person and not providing him with an opportunity to fully recall the matters relating to the 2017 incident at the meeting on 26 September 2017.

For Broadspectrum

[20] Broadspectrum noted that the subject matter of this dispute had changed throughout the course of the proceedings. Notwithstanding this, it submitted that at all times the Company had complied with the Agreement and relevant legislation. In particular, it submitted that the applicant was lawfully removed from the Parramatta Local Courts building upon the instruction of its client, consistent with the relevant provisions of the Agreement which are as follows:

‘15. Permanent Transfers / Re-deployment

15.1. The employer maintains the right to determine the facility or facilities that the Employee is to attend on a permanent basis.

15.2. In the event that the Employer proposes to change the facility that the Employee regularly attends, then this is to be made in writing and must contain the reason for the proposed transfer, the date of the proposed change, the address/location of the new facility and the rostered working times.

15.3. The Employer will provide not less than one (1) week’s notice to an Employee of permanent transfer/re-deployment except in the following situations:

a. Alleged breach under Working With Children legislation or contract rules;

b. At the written direction of the Facility Manager;

c. Instances that have created unacceptable safety or risk situations.’

[21] Additionally, it submitted that the Inclosed Lands Protection Act 1901 (NSW) applies to these circumstances. The relevant provisions of that legislation are as follows:

‘“Inclosed lands” means:

(a) prescribed premises, or

(b) any land, either public or private, inclosed or surrounded by any fence, wall or other erection, or partly by a fence, wall or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognised, including the whole or part of any building or structure any any land occupied or used in connection with the whole or part of any building or structure.

…

4 Unlawful entry on inclosed lands

(1) Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, I liable to a penalty not exceeding:

(a) 10 penalty units in the case of prescribed premises; or

(b) 5 penalty units in any other case.

[22] Broadspectrum submitted that in practical terms, its clients can request the removal of Broadspectrum employees from their sites verbally or in writing, without having to apply any particular procedure, or provide reasons for the directed removal of employees. Put simply, when Broadspectrum receives such requests, it must act on these requests in order to comply with the relevant legislation.

[23] Broadspectrum relied on a witness statement of Ms McKinlay. On 26 September 2017, she was advised that the applicant was to be removed from the Parramatta Local Courts site, following behavioural concerns. The client advised Ms McKinlay that the applicant was ‘expressing political views in relation to a President of another country’, which were deemed to be inappropriate. The client also raised potential concerns that the applicant’s views supported terrorism. The client subsequently conducted a Working With Children Check and a check regarding a terrorism threat, which both came back clear.

[24] Following the incident, the applicant received a letter advising that he was to be stood down on full pay, and was subsequently transferred to Wentworth Public School commencing on 3 October 2017.

[25] Broadspectrum acknowledged the applicant’s secondary concerns as a result of the transfer, being the loss of additional hours worked. However, it referred to the following provisions of the Agreement:

‘18.1 Full-time Employees

The ordinary working hours for full time employees will average 38 hours per week on not more than five days, on any day Monday to Sunday inclusive.

…

‘18.5. Second Engagement’

18.5.1 The engagement of a full-time Employee on a second engagement is subject to a permanent roster arrangement or a defined period of relief engagement, which must be clearly set out in writing and signed by the Employee.

18.5.2 After the cessation of ordinary hours of work, a full-time Employee may, by agreement, be engaged on a second engagement as a part-time Employee on the following basis:

a. The second engagement as a Part-Time Employee will be a separate engagement from the Employee’s full-time position and will attract and be paid all Agreement and statutory payments.

b. The provisions of sub-clauses 18.4.1, 18.4.2 and 18.4.3 shall not apply to Employees on a second engagement.

c. The hours of work for the second engagement will, as far as possible, be continuous with the cessation of the ordinary hours of work as a full-time Employee.

d. Termination of employment in either engagement will not prejudice employment in the other engagement, unless in circumstances of serious misconduct.’

[26] The removal of the applicant from the Parramatta Sites affected his schedule, including a ‘Second Engagement’ arrangement between the applicant and Broadspectrum, which resulted in the applicant working 6.45 hours per week above ordinary full-time hours. The applicant’s transfer to a school location resulted in him working the minimum full-time hours. It submitted that the additional hours which he worked at the Parramatta Sites did not constitute ‘ordinary’ hours, pursuant to the Agreement.

[27] In oral submissions, Mr Matthew Cook, Human Resources Manager, correctly identified that the dispute ‘appears to have morphed throughout the course of dealing with this matter from lodgement of the F10 applicant form through to submissions for arbitration’. He understood that the relief sought by the applicant was reinstatement to the Parramatta Sites and to be compensated for the losses accrued over the past 18 months for the reduction in the applicant’s hours. In response to the applicant wishing to ‘clear his name’ over the allegations made in 2017, Mr Cook submitted that as the client chose to issue the direction, there is no ‘right of reply’. Further, as the client did not lodge a formal complaint, Broadspectrum was not required to enter into a disciplinary process with the applicant. Finally, Mr Cook submitted that the application should be dismissed on the basis that all of Broadspectrum’s actions were in accordance with the Agreement.

CONSIDERATION

[28] It seems plan enough from what is earlier described that the applicant’s more recent complaints have nothing to do with the subject matter of his originally filed s 739 application to the Commission; see [2] above. It is fair to say that the applicant has sought to raise unrelated grievances he has had with other employees and Broadspectrum management under the guise of his complaint about him being removed from the Parramatta Sites in 2017. In short, this dispute has been a ‘moving feast’ dependent on what the applicant perceives to be new grievances he has in his ongoing employment with Broadspectrum. This is an impermissible use of the Commission’s dispute resolution powers under s 739 of the Act, not to mention it is uncertain that the applicant has taken any, or all of the steps in the Agreement’s dispute settlement procedure. This would render his continued grievances being agitated as part of the original dispute, as being beyond the Commission’s jurisdiction.

[29] As to the applicant’s original grievance, it cannot be disputed that Broadspectrum had acted entirely within the relevant provisions of the Agreement, particularly Cl 15. Notwithstanding the direction to Broadspectrum to remove the applicant from the Parramatta Sites, the facts were that he did not lose his employment, he was placed on paid suspension, and he has worked continuously since then, including by agreeing to move from Pendle Hill Public School to Telopea Public School; a transfer consistent with what the applicant had originally objected to and consistent with Cl 15. The fact that Broadspectrum was not able to maintain his original hours is irrelevant to any consideration of unfairness, when the Company had acted strictly in accordance with the hours of work provisions in the Agreement.

[30] As I attempted to explain to the applicant in an earlier conference, a notorious feature of the contract cleaning industry is that employees may be transferred by the employer according to the ordinary and customary winning and losing of cleaning contracts, or as in this case, directions from the client. The Agreement recognises these acknowledged features and although the applicant might perceive a transfer to be unfair, it is the job he signed on for, it is the nature of the industry in which he works, and it is what the Agreement’s terms contemplate.

[31] In any event, the 2017 incident is now over two years old, the applicant has not suffered any reduction in full time hours and the Company has acted, at all times, in accordance with its legal, contractual and Agreement obligations. The applicant was not subject to any disciplinary action and he received clearances from the authorities as to his views. Thus, there is nothing to be done to ‘clear his name’.

[32] In these circumstances, there is no dispute to be resolved and the applicant’s original remedies for compensation for a loss of non-guaranteed hours, are not an option for the Commission to order, either as a matter of jurisdiction, or as a matter of merit.

[33] The dispute is determined accordingly and dismissed.

DEPUTY PRESIDENT

Appearances:

No appearance for the applicant.

Mr M Cook, Human Resources Manager, and Mr D Huthnance, Human Resources Adviser, for the respondent.

Hearing details:

2019.

Sydney:

31 July.

Printed by authority of the Commonwealth Government Printer

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