Health Services Union v Goulburn Valley Health
[2012] FWA 7488
•3 SEPTEMBER 2012
[2012] FWA 7488 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Health Services Union
v
Goulburn Valley Health
(C2012/206)
Health and welfare services | |
COMMISSIONER GOOLEY | MELBOURNE, 3 SEPTEMBER 2012 |
Alleged dispute in relation to Redeployment [clause 28].
Introduction
[1] The Health Services Union (HSU) notified a dispute with Goulburn Valley Health (GVH) to Fair Work Australia on 7 March 2012 about the decision of the GVH to transfer Mr John Robert a medical scientist at the Shepparton Hospital to the Cobram District Hospital (Cobram) after his position at the Shepparton Hospital was made redundant.
[2] The matter was conciliated and on 7 March 2012. Commissioner Jones issued an order requiring the status quo in relation to Mr Robert’s employment be maintained until the dispute was resolved. That order was appealed but the appeal was discontinued as the parties agreed to make a joint application to Commissioner Jones to have her order vacated. The matter was heard on 14 June 2012 and final submissions were received on 26 June 2012 from the HSU and 3 July 2012 from GVH.
The industrial instrument
[3] Mr Robert’s employment was regulated by the Public Health Sector (Medical Scientists, Pharmacists and Psychologists) Multi- Enterprise Agreement 2008-2011 (the Agreement).
[4] The Agreement was approved on 15 April 2010 and, in accordance with s.54 of the Fair Work Act 2009 (FW Act), operated from 22 April 2010.
[5] The Agreement provides at clause 9.8 for the resolution of disputes and relevantly provides that:
“9.8.1 If the dispute or grievance has not been settled when conciliation has been completed, either party may request that FWA proceed to determine the dispute or grievance by arbitration.
9.8.2 Where a member of FWA has exercised conciliation powers in relation to the dispute or grievance, the member shall not exercise, or take part in the exercise of, arbitration powers in relation to the dispute or grievance if a party objects to the member doing so.
9.8.3 Subject to sub-clause 9.8.4 below, the determination of FWA is binding upon the persons bound by this Agreement.
9.8.4 An appeal lies to a Full Bench of FWA, with the leave of the Full Bench, against a determination of a single member of FWA made pursuant to this clause.”
[6] The parties agreed that Fair Work Australia had the power to arbitrate the dispute.
[7] The Agreement provides at clause 28 for redeployment as follows:
“28 REDEPLOYMENT
28.1 If after consultation the employee’s position is deemed to be excess to requirements, consultation with the employee and their representatives which may include the Union will occur to endeavour to redeploy the employee to another position if a suitable vacancy exists.
“Suitable vacancy” means a position classified at the employee’s substantive level where the employee will be able to satisfactorily carry out the duties of that position with a reasonable amount of training.
If the employee is unsuccessful in being redeployed or appointed to a new position and no suitable vacancy exists, s/he shall be eligible for the relevant redundancy package available under Victorian Government policy at the time of termination.
28.2 The provisions of sub-clauses 28.3 to 28.12 shall apply to any employers who fall outside the definition of “public sector agency” under Victorian Government Public Sector Industrial Relations Policy or are not otherwise covered by a Schedule to this Agreement.”
[8] It was accepted by the parties that the GVH is a public sector agency and therefore clause 28.3 to clause 28.12 do not apply to GVH and Mr Robert.
The matter in dispute
[9] The only issue in dispute between the parties is whether the position offered to Mr Robert was a “suitable vacancy” as defined in the Agreement.
Submissions and evidence of the HSU
[10] Mr Robert was the section manager in the haematology section of the pathology department at the Shepparton Hospital. In November 2011 a restructure occurred and as a consequence Mr Robert’s position was made redundant. Mr Robert was offered the position of Section Manager at Cobram. The pathology department at Cobram is a single scientist laboratory which performs basic haematology and biochemistry testing only.
[11] Mr Robert initially refused the transfer to Cobram on the grounds of excessive travel time, as he would have to travel for up to two hours extra per day, and because his specialist haematology knowledge and skills were unsuitable for the Cobram position. Further the position required technical plus interpretive skills across a broad range of pathology areas.
[12] Further, Mr Robert considered that he would be deskilled if he took up this position. In his current position he worked with both general practitioners and specialist physicians who treated haematology oncology patients. He considered this work interesting and challenging. As well, he trained medical students in morphology and others in advanced morphology. Further, he did presentations on grand rounds on interesting cases. In contrast, at Cobram while involving work with general practitioners, he would not have the opportunity to do the complex work that he did at Shepparton Hospital. 1
[13] Mr Robert and the HSU did not consider this position to be suitable alternative employment. 2
[14] Mr Robert raised these objections with GVH and he was then told that he could travel to Cobram in work time and he would be offered additional training in biochemistry testing. 3
[15] Mr Robert rejected the offer and submitted that he was not qualified for the position at Cobram and that a number of health issues that he had, made travelling to Cobram inappropriate. 4
[16] Mr Robert gave evidence that his medical conditions would make it difficult for him to stand for long periods and that his medical conditions would be made worse by long periods of driving. 5 Mr Robert’s medical practitioner provided a medical certificate6 which advised it would be hazardous for him to drive for long periods on a daily basis. The GVH objected to this evidence being admitted because it had not been provided to them prior to the hearing. I decided to admit the certificate and advised the GVH that if they applied for an adjournment in relation to the evidence that it would be granted.7 No application for an adjournment was made.8
[17] It is not disputed that the position offered to Mr Robert at Cobram was a position classified at the same level as the position held by Mr Robert at the Shepparton Hospital.
[18] However, the HSU submitted that the position offered to Mr Robert was not suitable alternative employment. 9
[19] It was further submitted that Mr Robert is entitled to redundancy pay because his position is “deemed excess to requirements” 10. It is submitted that if Mr Robert refused to accept the position at Cobram his position will be terminated because he is redundant.11
[20] While the initial submissions of the HSU addressed other parts of clause 28 of the Agreement, the final submissions of the HSU accepted that these clauses had no application.
[21] In its final submissions the HSU accepted that the only relevant sub- clauses of the Agreement were 28.1 and 28.2.
[22] The HSU submitted that “the exclusion of sub-clause 28.8 resulting from sub-clause 28.2 of the Agreement creates a void in relation to this employment standard which is filled by the NES in this case by the provisions of section 120.”
[23] The HSU submitted that section 55 of the FW Act provides that an Agreement cannot exclude the National Employment Standards (NES). The HSU submitted that section 119 provides for redundancy pay and section 120 provides Fair Work Australia with the power to reduce the amount payable under section119 if the employer obtains acceptable alternative employment for the employee.
[24] Section 120 of the FW Act provides as follows:
“(1) This section applies if:
(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and
(b) the employer:
(i) obtains other acceptable employment for the employee; or
(ii) cannot pay the amount.
(2) On application by the employer, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA considers appropriate.
(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”
Submissions and evidence of the GVH
[25] Mr Christopher Barnard the Operations Manager of the Pathology Department with GVH gave evidence that he considered Mr Robert was qualified for the position at Cobram. It was his evidence that Mr Robert’s curriculum vitae which was dated 29 December 2003 stated that Mr Robert had experience in “all disciplines with senior roles in Biochemistry, Blood Bank, Haematology and immunology.” 12
[26] Mr Barnard gave evidence that the drive from Shepparton to Cobram would take 45 minutes and in addition to permitting Mr Robert to travel to Cobram in work time he would be provided with a fleet vehicle to use between Shepparton and Cobram.
[27] Mr Barnard understood that Mr Robert had done basic biochemistry whilst working in the Solomon Islands which he had been doing during his annual leave for the last year or so.
[28] Because of Mr Robert’s concern about biochemistry testing, it was decided that Mr Robert would be provided with training in biochemistry for six months and during that time the biochemistry testing would be performed at the Shepparton Hospital. These new conditions were included in a letter sent to Mr Robert on 5 March 2012. 13
[29] In addition to one on one training, there would be ongoing support for Mr Robert. Further because the results at Cobram are accessible from the Shepparton Hospital Mr Robert would be able to discuss the results with a senior scientist. 14
[30] As far as interpretive skills Mr Barnard considered that Mr Robert could perform this work with training.
[31] Mr Barnard, while accepting the work at Cobram would be different to that at the Shepparton Hospital, did not accept that Mr Robert would be deskilled. In any event it was his evidence that if Mr Robert had raised this concern with them then they could have made arrangements to refer some of the more complex testing currently done at the Shepparton Hospital to Cobram. 15
[32] Mr Barnard accepted that the Cobram laboratory was busy and the scientist is required to do a lot of routine work. 16
[33] It was Mr Barnard’s evidence that he was not aware of Mr Robert’s medical issues when the decision was made to offer him the position at Cobram. 17 In cross-examination, Mr Barnard was taken to the medical evidence produced by Mr Robert and he acknowledged that based on that information the position at Cobram would not be suitable.18
[34] GVH submitted that the position offered to Mr Robert was a suitable vacancy as defined in the Agreement. It was submitted “that the consideration of the redeployment position as a “suitable vacancy” should be made in conjunction with the principles enunciated in a number of cases” 19
[35] GVH submitted that the NES has no relevance to this matter as the redundancy entitlement is not that provided for in section 119 of the FW Act. If the position is not a suitable position then Mr Robert will be entitled to a superior redundancy payment as set out in government policy.
Principles of construction
[36] Vice President Lawler set out detail in Watson v ACT Department of Disability Housing and Community Services the legal principles to be adopted when construing awards and agreements. 20 A Full Bench in The Australian Workers’ Union - West Australia Branch v Co-operative Bulk Handling Limited21 cited Vice President Lawler with approval and made reference to the decision of Logan J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited.22 Logan J said:
“The starting point must always be the language employed by the parties to an industrial agreement but industrial context and purpose are always relevant when construing that language.”
[37] The Full Bench concluded that “the extract from Watson and the approach of Logan J, inform the manner in which we approach the test of construing the agreement and leads to the conclusion that regard must be had to extrinsic material in order that the meaning of the clause in question may be properly understood.”
[38] I adopt the approach endorsed by the Full Bench.
Conclusion
[39] There was no evidence that GVH had a contractual right to transfer Mr Robert to another location without his agreement. While GVH suggested that Mr Robert was appointed to work at GVH and that he could be required to work at any location, no evidence was tendered to support this submission. 23
[40] Given therefore that there was no evidence that GVH could simply relocate Mr Robert, the issue to be determined is whether the position offered to Mr Robert was suitable.
[41] There is no doubt that the position offered to Mr Robert was at his substantive level.
[42] Further I find on the evidence that Mr Robert would be able to perform the functions with a reasonable amount of training. While Mr Robert considered that the work at Cobram would lead to his deskilling and would be significantly different to the work performed at the Shepparton Hospital, I accept Mr Barnard’s evidence that Mr Robert could be given sufficient training to enable him in a reasonable time to do the work. That the work would be less interesting, challenging and varied does not make it an unsuitable position.
[43] Had it not been for Mr Robert’s health I would have found that the position was a suitable position particularly as all travel would be in work time and Mr Robert was to be provided with a vehicle.
[44] The only issue to be determined is whether regard could be had to the impact of the transfer on Mr Robert’s health.
[45] It is of concern that Mr Robert did not bring to GVH’s notice his medical condition prior to the lodgement of his witness statement. An employee cannot complain that his employer did not have regard to a factor the employer did not know about.
[46] Further the medical evidence in this matter did not suggest that his medical conditions meant that he could not perform the job at Cobram. It was that it would be “particularly hazardous for him to drive for long periods on a daily basis.” 24
[47] However, Mr Robert’s uncontested evidence was that his medical condition would impact on his ability to do the job at Cobram. He has “difficulty standing for long periods” and the driving would “make worse his migraines and apnoeic attacks. 25
[48] In Tontine Fibres 26 a Full Bench of the Australian Industrial Relations Commission had to determine whether employees who were redeployed to another site owned by their employer were redundant and if so whether they should receive redundancy pay. Having decided that the employees’ positions were redundant the Full Bench adopted the approach articulated in Derole Nominees Pty Ltd27 and had regard to the rates of pay, the distance the employees would be required to travel and the impact of that on family responsibilities. It further indicated that the medical issues raised by some employees “cannot be overlooked.”28
[49] In Derole the Full Bench made it clear that the test to be applied when determining if the employer had obtained suitable alternative employment was an objective test. 29
[50] It was these principles that GVH submitted were relevant to the resolution of this dispute.
[51] I consider that Mr Robert’s medical condition means that he would not be able to satisfactorily perform the functions of a medical scientist at Cobram. Even though I have found that he could, after a reasonable amount of training, be capable of doing the tasks required of him I consider that the additional travel time would worsen his medical condition and this will negatively impact how he performs his work. Therefore I determine that the position offered to Mr Robert was not a suitable position.
[52] Given my decision it is not necessary for me to determine the relationship between the NES and the Agreement.
COMMISSIONER
Appearances:
P Elliott for Health Services Union.
P Robinson for Goulburn Valley Health.
Hearing details:
2012.
Melbourne.
14 June.
1 Transcript PN 169-172
2 Exhibit A1 at [8]
3 Exhibit A1 at [10]
4 Ibid at [13]-[14]
5 Ibid at [14]
6 Exhibit A2
7 Transcript PN 124
8 Ibid PN 846
9 Exhibit A3 at [24]-[26]
10 Ibid at [28]
11 Ibid at [29]
12 Exhibit R3 at CB1
13 Ibid at CB8
14 Transcript PN 642
15 Ibid PN 683
16 Ibid PN 691
17 Exhibit R3 at [26(h)]
18 Transcript PN 614
19 Exhibit R4 at [48]
20 [2008] AIRC 29 at [7]-[15]
21 [2010] FWAFB 4801
22 [2010] FCA 591 at [39]
23 Transcript PN 855-856
24 Ibid PN 612
25 Exhibit A1
26 NUW v Tontine Fibres [2007] AIRC FB 1016
27 Derole Nominees Pty Ltd Print J4414 at page 3
28 Tontine Fibres op cit at [30]
29 Derole op cit at page 5
Printed by authority of the Commonwealth Government Printer
<Price code C, AE877305 PR528572>
2
1
0