Health Services Union v Alfred Health
[2012] FWA 9096
•8 NOVEMBER 2012
[2012] FWA 9096 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Health Services Union
v
Alfred Health
(C2012/515)
Health and welfare services | |
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 8 NOVEMBER 2012 |
Dispute regarding a change in rostering and location; jurisdiction
Introduction
[1] On 21 May 2012 the Health Services Union of Australia (HSU) made an application for Fair Work Australia to deal with a dispute in accordance with the dispute settlement procedure 1 of the Public Health Sector (Medical Scientists, Pharmacists and Psychologists) Multi Enterprise Agreement 2008-2011 (the Agreement).
[2] Conciliation took place on 24 May 2012 and 25 June 2012 and was unsuccessful.
[3] The HSU now seeks a determination pursuant to the dispute settling procedure, to the effect that Alfred Health is precluded from altering the roster of Ms.Fiona Carter in any manner that would require her to rotate or transfer from the Caulfield Hospital pharmacy department to any other pharmacy department or hospital campus within the Alfred Health network 2.
[4] Alfred Health considers that the tribunal has no jurisdiction to make such a determination or otherwise and submitted that the matter should be dismissed 3. The HSU disagrees.4
[5] At a directions hearing held on 26 September 2012 the parties agreed that this question would be dealt with by a preliminary jurisdictional decision based on written submissions 5. Directions were issued and written submissions filed. I have had regard to the submissions and other material put by the parties.
Submissions of the HSU and Alfred Health
[6] The HSU submits on behalf of Ms Carter that clause 6 of Schedule D of the agreement is a roster provision which provides that the tribunal may exercise a power of arbitration if the parties failed to reach agreement 6. Because of this provision the dispute is one that may be arbitrated pursuant to the dispute settlement procedure. The HSU put submissions relating to the facts of the case, the interaction of clause 6 of Schedule D with clause 9, relevant tribunal authorities, the phrase ‘any dispute arising’, the interpretation proposed by Alfred Health, and alleged merit submissions.
[7] Alfred Hospital submits that rosters are dealt with in the agreement in clauses 47 and clause 6 of Schedule D. It submitted that there was no dispute about anything in clause 47. It submitted that clause 6 of Schedule D is ‘merely concerned with process’. It provided an employee with the opportunity to seek an alternative arrangement or have the matter drawn to the attention of the Joint Consultative Committee (JCC). It preserves the status quo until either an alternative arrangement is agreed, or the dispute is referred to the JCC. It does not confer the power on the JCC to make a binding decision. Clause 6 does not confer a power of arbitration on the tribunal over roster matters. It submitted that the HSU had failed to identify any provision of the agreement that could throw up a controversy involving the merit of the dispute between Ms.Carter and Alfred Health over the roster change 7.
Decision
[8] Sections 738-739 of the Act provide:
738 Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.
739 Disputes dealt with by FWA
(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.
(2) FWA must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to FWA dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter.
Note: This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.
Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) FWA may deal with a dispute only on application by a party to the dispute.
[9] In this case the agreement contains a procedure for dealing with disputes within s.738(b). I am required pursuant to s.739(3) to comply with the terms of the procedure, and s.739(4) in conjunction with the disputes procedure provide that the tribunal may arbitrate certain disputes.
[10] The approach to be taken in the construction of agreements is usefully discussed in Watson v. ACT Department of Disability Housing and Community Services 8. It is not necessary that I repeat the discussion here.
[11] Schedule D of the agreement is entitled ‘Schedule D - Alfred Health General Conditions’. Those general conditions include merit criteria, overtime, roster changes, enhanced leave flexibility, personal leave, occupational health and safety. Clause 6 of Schedule D is entitled ‘Roster Changes’, and provides:
‘Where a dispute arises between an employee and the manager of a unit or department in any attempt to alter the current rostering arrangements, the status quo will remain until an alternative arrangement is agreed or resolved by referral of the matter to the Alfred Health (Medical Scientists/Psychologists) Joint Consultative Committee (JCC). Any dispute arising from this clause shall be dealt with as per the Disputes Settling Procedures of the Agreement.’
[12] Clause 6 contains specific terms relating to a dispute which arises between an employee and the manager of a unit or department in any attempt to alter the current rostering arrangements. It contains one specific obligation on the employer, namely that the status quo remains until an alternative arrangement is agreed or resolved by referral of the matter to the JCC.
[13] Clause 6 does not provide that roster disputes generally may be resolved through the disputes procedure in clause 9. It provides that a dispute ‘arising from this clause’ shall be dealt with under clause 9. Nothing in the present matter ‘arises’ from clause 6. The employer has complied with the obligations and procedures in clause 6. The dispute has on its face nothing to do with clause 6 in the sense of arising from that clause. At most it arises from a proposed exercise of the employer rights under clause 47, a different clause.
[14] If a different approach were sought to be taken, the result would be difficult to reconcile with the terms of clause 6. The status quo only remains until the JCC resolves the matter. The matter is resolved by agreement or referral of the matter to the JCC. It is not resolved by agreement, referral of the matter to the JCC, or further referral to this tribunal. All of this suggests that the JCC is the final determinative body.
[15] Then there are the terms of clause 47. Clause 47 provides a scheme for change of roster, under which an employer can do so on seven days notice, or by making payments in the alternative. Instead of the scheme of notice or payment, the question of whether or not a roster change will actually occur as a matter of merit would somehow be subject to tribunal decision on the basis of submissions and evidence. It is not clear to me how a provision operating in this manner would work. There is an irreconcilable conflict between an employer right to change rosters by notice or payments, and a general tribunal discretion as to whether or not the roster should be changed on some basis which is not spelt out anywhere. There is little or no guidance in the agreement as to how the clauses would be reconciled in practice. Would the tribunal simply ignore the seven days notice and payment scheme, give it some discretionary weight, greater or lesser, and in what circumstances would it be overridden? If it was making a general merit assessment, how could this be reconciled with the long standing principles in AFULE v. State Rail Authority 9(the XPT Case)? If it is a general discretionary matter, why was clause 47 included in the agreement in its application to Alfred Health?
[16] It is however easy to reconcile clause 47 with a clause 6 of Schedule D which provides an additional step of discussion and review in the JCC, which completes the matter. Such a result also meets any relevant standard of commonsense and practicability. While clause 9 is referred to elsewhere in the agreement, such as in clause 29.2, the references to determination are different in nature and are not problematical in the same way.
[17] I am obliged to interpret clause 6 in the context of the agreement as a whole, including having regard to clause 47. The scheme of seven days notice or payments provided in that clause is relevant as a matter of context of the agreement which counts against any attempt at an alternative interpretation: Amcor v. CFMEU 10.
[18] It is open to the parties to agree that roster changes be determined by this tribunal, on the basis of submissions and evidence, rather than by the employer providing seven days notice. However, this would be a major change to the agreement as it applies to other workplaces. One would expect that such a major change would be made clearly, and without any suggestion of ambiguity. It has not been. In fact the terms of the agreement suggest the opposite was decided by the parties.
[19] I was referred by the parties to the decision of a Full Bench in Sydney Ferries v. AMOU 11. In that decision the Commission decided that it did not have jurisdiction under the relevant dispute settling procedure in the agreement to arbitrate a change of rosters. Each case must depend on the terms of the specific agreement, rosters clause, dispute settling clause, and other clauses. However, the Bench came to the same conclusion as I have done for reasons which are not entirely dissimilar to those which are relevant in this present matter:
‘[20] While cl.4.3 confers a power of arbitration, the agreement must be interpreted as a whole. The power to arbitrate conferred in general terms by cl.4.3 must be interpreted in light of the specific provisions dealing with rosters. There are a number of indications in the roster provisions that the parties did not intend that the Commission could exercise a power of arbitration if they failed to reach agreement on new rosters. First, there is no provision expressly giving the Commission the power of arbitrating new rosters. Secondly, the Agreement provides for the manner in which new rosters will be reached – by agreement between the parties. Thirdly, as the Commissioner pointed out, the Agreement provides a dispute resolution role for the Commission in relation to the implementation or proposed implementation of new rosters, by implication excluding the Commission from the role of arbitrating the rosters themselves. These specific indications of the parties’ intention lead us to conclude that, determined objectively, the parties did not intend the power of arbitration conferred on the Commission by cl.4.3 to extend to arbitrating the new rosters if they were not agreed.’
[20] I have no jurisdiction to hear the matter. I dismiss the HSU application. An order is contained in PR530894.
DEPUTY PRESIDENT
Appearances:
Mr Elliott of the Health Services Union of Australia
Mr West for Alfred Health
Hearing details:
2012
Melbourne
26 September
Final written submissions:
2012
12 October
19 October
23 October
1 Schedule 1 to this decision
2 HSU draft determination, submission of 12 October 2012
3 Alfred Health letter of 15 August 2012
4 HSU letter 21 August 2012
5 PN74-104
6 HSU Submission, 12 October 2012, paragraphs 6-24; HSU Submission, 23 October 2012, paragraphs 6-13
7 Alfred Health Submission, 19 October 2012, paragraphs 6-23
8 (2008) 171 IR 392 at 8-15
9 (1984) 295 CAR 188. See also Re Cram(1987) 163 CLR 117 at 136-137, and Pulle [2011] FWA 7462 per Lawler VP.
10 (2005) 222 CLR 241 at 258, per Gummow, Hayne and Heydon JJ, at 50
11 [2007] AIRCFB 909, Giudice J, President, Lawler VP, Roberts C
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