Helmut Ponczek v Serco Group Pty

[2013] FWC 3773

[2013] FWC 3773

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Helmut Ponczek
v
Serco Group Pty
(C2012/4555)

COMMISSIONER LEE MELBOURNE, 13 JUNE 2013

Alleged dispute concerning travel time and travel allowances - Fair Work Act 2009 s.739.

[1] This matter involves an application made by Mr Helmut Ponczek (the Applicant) pursuant to section 739 of the Fair Work Act 2009 (the Act) for Fair Work Australia (now the Fair Work Commission (the Commission)) to deal with a dispute with Serco Group Pty. Ltd (the Respondent) in accordance with a dispute settlement procedure. The application was lodged by the Applicant on 13 July 2013. The Applicant was represented through the proceedings by United Voice (the Union).

[2] On 12 March 2013, I issued an interim decision 1 which set out in detail the background to the dispute and dealt with a jurisdictional matter which arose during the proceedings held before me on 7 January 2013. The interim decision advised that it was my preliminary view that it was necessary to dismiss the application for want of jurisdiction. The interim decision provided the parties an opportunity to provide any further submissions on the issues discussed and I directed that any further submissions in relation to these matters were to be filed by close of business Thursday 28 March 2013.

[3] Both parties availed themselves of the opportunity to provide submissions, and both parties did so in compliance with my direction. This decision deals with whether there is jurisdiction to arbitrate the dispute as it is now framed by the Applicant.

Submissions of the Applicant

[4] The Union, in written submissions, relies on section 577 of the Act both in relation to the error in the identification of the relevant instrument under which the dispute is brought (the Serco Immigration Detention Centres Agreement 2009 (the 2009 Agreement) and the Serco Immigration Services Agreement 2011 (the 2011 Agreement)) and the error in identifying the clause contained in the Serco Immigration Detention Centres Agreement 2009 which was in dispute (clause 19(d)(v) and clause 19(d)(ii)).

[5] Section 577 of the Act provides;

“577 Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).”

[6] With respect to the identification of the correct agreement for the purposes of the dispute settlement procedure to have been adopted, the Union concede that they erred in identifying the incorrect agreement on the originating application.

[7] The Union submit that that the error should not prevent the Fair Work Commission from resolving the matter for the following reasons;

“a. The 2011 Agreement operated from 20 January 2012 (‘the operative date’) onwards;

b. The Applicant sent correspondence to the Respondent to discuss the substantive matter after the operative date of the 2011 Agreement [See: Witness Statement – Helmut Ponczek, para. 99];

c. Similarly the Union started its correspondence with the Respondent after the operative date of the 2011 Agreement [See: WS – Helmut Ponczek, para. 106];

d. None of this correspondence makes any reference to clause 45 of the 2009 Agreement;

e. The Union submits that the dispute was therefore initially brought under the 2011 Agreement;

f. The Union relied on the 2011 Agreement as the basis for the power of arbitration to be exercised in its initial and subsequent submissions.”

[8] With respect to the error in identifying the clause to which the dispute relates, the Union submitted that there was never any confusion between the Applicant and the Respondent as to what was in dispute - identified by the Union as a dispute about payment for excess travel time when the Applicant was on secondment.

[9] The Union relies on initial emails between the parties in relation to the dispute, as well as correspondence dated 13 and 21 August 2013. The Union asserts that correspondence from the Union to the Respondent dated 21 August 2013 provided “a summary of the discussions that occurred between 3 August and 20 August [which] again illustrated that the dispute was about the payment of excess travel time when the Applicant was sent on secondment by the Respondent.” 2

[10] The Union also relies on an email sent by the Respondent to the Union, which made “no reference to clause 19(d)(v) of the 2009 Agreement. Instead, excess travel time was again argued.” 3

[11] The Union asserts that the dispute settlement steps have been complied with in relation to this dispute.

[12] Relying on section 577 of the Act, the Union asserts that should I dismiss the application “it would only delay a final hearing in the matter by some months without any significant increase of the likelihood that the parties will manage to settle on a friendly basis”. The Union asserts that should the application be dismissed by me, the Applicant intends to “raise the same dispute under the 2011 Agreement without any reference to clause 19(d)(v) of the 2009 Agreement.”

Submissions of the Respondent

[13] The Respondent submitted that it generally supports my Interim Decision. The Respondent argues that “while the matter might be about disputed facts; however:

1. It is clear in the Applicant’s submissions and the evidence adduces in support by the Applicant that the dispute is about whether clause 19(d)(v) of the 2009 Agreement applies to waiting time not simply applies to actual travel;

2. The essence of the Applicant's submission on this point has not changed, although the Applicant referred in the hearing on 4 January 2013 to a different clause 19 (d) (ii) of the 2009 Agreement.

3. FWA cannot resolve the matter under s 739 of the Act unless it is resolved as a dispute by arbitration.

4. FWA cannot resolve the matter under s 739 of the Act unless it is resolved in accordance with the application the dispute settlement clause in 2009 Enterprise Agreement and within FWA's powers granted to FWA by the Fair Work Act 2009 (Cth) in accordance with the dispute settlement clause in the 2009 Agreement.” 4

Consideration

[14] There are two issues to be determined in this matter. The first is whether or not the dispute was agitated under the terms of the dispute settlement clause in the 2011 Agreement.

[15] The second issue is whether the steps in the dispute settlement procedure of the 2011 Agreement have been complied with and whether the arbitration requires the Commission to exercise powers which are limited by the term

The first issue: was the dispute agitated under the terms of the dispute settlement clause in the 2011 Agreement?

[16] The operation of the 2009 Agreement has come to an end by virtue of its replacement by the 2011 Agreement. The law on this is clear. 5

[17] It therefore follows that there is no jurisdiction to determine the matter pursuant to the dispute settling clause in the 2009 Agreement. The only basis on which there can be jurisdiction to determine the matter is through the dispute settlement procedure contained in the 2011 Agreement.

[18] The Union does not dispute this and argues that, in fact, the dispute was brought under the 2011 Agreement and that the reference to the 2009 Agreement in the Form F10 lodged with the Commission was an error. They point out that it is clear the Applicant relied on the 2011 Agreement’s dispute settlement procedure in its written submissions. They point to the chronology of exchange of emails indicating that it was clear that the dispute was agitated after the coming into effect of the 2011 Agreement.

[19] Having considered the submissions of the Applicant on this point, I agree that the reference to the 2009 Agreement in the Form F10 can reasonably be considered an error. Whether or not the Union thought they were agitating the dispute under the 2009 Agreement, the chronology makes clear that the dispute was agitated during the life of the 2011 Agreement.

[20] The steps to be followed in the dispute settlement clauses in the 2009 Agreement and the 2011 Agreement are for all material purposes, the same. Both clauses are annexed to this decision. To the extent that the steps in each clause are the same even if the Union were of the impression that they were proceeding through the dispute resolution steps contained in the 2009 Agreement, it could be said that they have complied with the dispute resolution steps as required by the 2011 Agreement.

[21] To dismiss the application on the basis that the application filed referred to the incorrect Agreement would in these circumstances be unnecessarily technical. If the circumstances where that the dispute settlement clauses were materially different, perhaps requiring different steps to be followed at the local level discussions, I would likely reach a different view.

[22] Having regard to the above consideration, I have determined that the dispute was in fact brought under the 2011 Agreement dispute settlement clause. As the 2011 Agreement remains in operation, there is jurisdiction to arbitrate the dispute in accordance with that clause, subject to the steps in the dispute settlement procedure being followed and the dispute that is sought to be determined does not require the Commission to exercise any powers limited by the term.

The second issue: have the necessary steps of the 2011 Agreement dispute settlement procedure been complied with?

[23] The 2011 dispute resolution clause is attached to this decision at Annexure B.

[24] There is no doubt that there is a dispute or grievance involving the Applicant and Respondent. There is a real question however as to what the dispute or grievance is in this matter. Depending on the answer to that question I must determine whether the necessary steps have been taken under the dispute procedure to allow the matter to be arbitrated in accordance with clause 45(d) of the Agreement.

[25] The Unions submissions refer me to the history of the dispute. It is submitted that from the onset there was never any confusion between the parties as to what the substantive matter of the dispute was, that is, “...the payment of excess travel time when the applicant was sent on secondment by the Respondent”. 6

[26] The Union refers me to emails exchanged between the Applicant and the Respondent as evidence that reflects that the substantive matter of the dispute was in the terms described by the Union and reproduced above. Having examined the correspondence that the Union has referred me to, as well as other correspondence filed as part of the Applicant’s witness statement, it seems that the correspondence contradicts the submission of the Union on this point.

[27] The email dated 6 December 2011 at 9.55am from the Applicant to a Ms. Munusamy of the Respondent is headed with the subject heading, “Avoidance of entitlement payments”. In the second paragraph under the heading “(1) Travel time”, the Applicant writes, “[a]s per EBA clause 19(d) (v) where the employee accepts a secondment....”. The balance of the paragraph sets out the basis of the Applicant’s claim by reference to the wording in clause 19(d)(v) of the 2009 Agreement. On the basis of the Applicant’s interpretation as to how the clause should apply, he asserts an entitlement to a payment of $1,822.10.

[28] On 3 January 2012, a Ms Erica Garrido on behalf of the Respondent replies by letter to the Applicant disputing the claim and again refers to clause 19(d)(v) of the 2009 Agreement.

[29] On Friday 16 March 2012 at 12.30 pm the Applicant emails a Ms Gail Wilcox. In this email, he states, “I am sure you are aware of the EBA clause 19(d)(v)” and goes on to quote from the clause. He then restates the claim for a payment of $1,822.00 based on the application of clause 19(d)(v) of the 2009 Agreement.

[30] On 2 April 2012, there is reply from Ms Wilcox. In the reply, Ms. Wilcox rejects the claims of the Applicant, disputing the travel time claimed and refers to clause 19(d)(v) of the 2009 Agreement. On 4 April 2012, the Applicant replies to Ms Wilcox, not mentioning any particular clause on this occasion but asserts again a claim to $1,822.00, presumably based on the application of clause 19(d)(v) as referred to earlier. 7

[31] On 19 June 2012, the Union wrote to Ms. Garrido. In that letter the Union asserts that “[t]ravel allowance is provided for in clause 19(d)(v) of the 2009 agreement” and then further assert in the letter that “[a]ccording to clause 19(d) v., Mr. Ponczek is owed the difference between his normal travel time and the travel time spent while on secondment”. 8 Any reply which may have been received from the Respondent was not tendered in evidence.

[32] There is a further letter from the Union to the Respondent dated 3 July 2012. The third paragraph of that letter reads:

“In our letter dated 19 june 2012, we outlined a discrepancy in [the Applicant’s] pay resulting from a breach of clause 19(d)v. of the 2009 Agreement.” 9

[33] The application notifying a dispute to Fair Work Australia (as the Commission then was) was made on 13 July 2012. The Form F10 indicated that the clause to which the dispute relates is clause 19(d)(v) of the 2009 Agreement. The following was included in that form;

“4. What is the dispute about?

[Using numbered paragraphs, set out a description of what the dispute is about, including by reference to the clauses set out above.]

“According to clause 19(d)(v) of the 2009 agreement, the applicant is owed the difference between his normal travel time and the travel time spent while on secondment””

[34] During the conciliation conducted by me on 30 June 2013, no reference was made to clause 19(d)(ii) of the Agreement. Not surprisingly, the Union and the Respondent agreed that the questions to be determined in the arbitration, aside from the question of jurisdiction, related to clause 19(d)(v) of the 2009 Agreement. Directions were set for the filing of materials in relation to this clause.

[35] The Union’s outline of submissions state:

“The dispute is over the application of clause 19(d)(v) of the Serco Immigration Detention Centres Agreement 2009”.

[36] As already indicated in the Interim Decision, the applicability of clause 19(d)(ii) was raised by the Applicant in an email to the Respondent and Chambers which was received on the Friday evening before the hearing. In the email the Applicant stated that this clause would also be relied on. On the day of the hearing it was said by the Union that clause 19(d) (v) did not apply at all to this dispute. 10

[37] It is evident from the foregoing that the dispute was about the application of clause 19(d)(v) during the time of the Applicant’s secondment to Christmas Island. The dispute was never about the application of clause 19(d)(ii) of the 2009 Agreement. There is no evidence that the steps taken under the dispute settlement procedure involved a discussion about the application of clause 19(d)(ii) of the 2009 Agreement.

[38] In that context, should there be no difference or perhaps even no material difference between the two sub-clauses, as a matter of practicality and avoiding technicality; one could consider that the steps in the dispute settlement procedure had, in fact, been followed.

[39] However, in this case the sub clauses are quite different in their terms. The clauses are reproduced below:

“19. Allowances

...

(d) Excess Travelling and fares.

...

(ii) Where the employee is required by the company to commence and cease work at other than his/her normal place of work, (i.e. at the site where normally employed), he/she shall, in addition to all other entitlements, be paid for all time in excess of that normally taken to travel between the employee’s residence and his/her normal place of work at the relevant ordinary time rate in clauses 16(a) or 18(a) hereof. In addition, if an employee uses his/her own vehicle, he/she shall be paid for all excess travelling at the rate prescribed by the Australian Taxation Office.

...

(v) Where the employee accepts a secondment to work at a detention centre other than his or her normal place of work, he/she shall, in addition to other entitlements, be paid for all travel time on both the forward and return journey. The travel time calculated on each leg will less the time that it normally takes to travel to and from their normal place of work.”

[40] I find it is not possible to now reframe the dispute as a more general dispute about the payment of excess travel time against the background of the evidence as outlined above.

[41] There is no doubt that the dispute involved contested facts about the amount of travel time incurred by the Applicant. However, these disputed facts are inextricably linked with the dispute over the application of 19(d)(v) of the 2009 Agreement. To make the point, and as the Respondent pointed out, it is relevant that a significant component of the dispute relates to the issue of “waiting time” and whether this should be included as part of “travel time” within the meaning of clause 19 (d)(v) of the 2009 Agreement. Clause 19 (d) (ii) of the 2009 Agreement, does not refer to “travel time”, it is structured quite differently. There are other differences between the clauses. However, the above is one significant example of how the character of the dispute changes if one is to seek to apply a provision that is quite different. The relevance of the facts may well differ depending on what sub clause is applied, indeed the discussions at a local level, in accordance with the clauses a, b and c of the dispute settlement procedure may well have had a different character and outcome had the application of clause 19 (d)( ii) been asserted as the basis for the entitlement.

Section 577 of the Act

[42] The Union submits that, having regard to section 577 of the Act, the Commission would be relying on unnecessary technicality in dismissing the application. However, the matter of jurisdiction is not a technicality. It is a pre-requisite to exercising power.

[43] Section 577 of the Act also requires the Commission to perform its functions and exercise its powers in a manner that is fair and just. It is not fair and just, after more than one year of asserting rights under a particular provision of an agreement, having had the tribunal set a matter down for arbitration to determine particular questions, having made submissions on those questions to be determined to then fundamentally alter the claim on the day of the hearing. Such an approach is not fair and just.

Conclusion

[44] The steps in the dispute settlement procedure at subclauses (a), (b), (c) and (d)must be followed before the matter can be referred to the Commission. Once referred, arbitration is not possible pursuant to sub clause (d) unless the matter remains unresolved by mediation/conciliation. The steps in sub clauses a, b, c and d were not followed in respect to a dispute about clause 19(d)(ii) of the 2009 Agreement.

[45] As the terms of the clauses are quite different, there may well be differences as to how the clauses are applied, particularly on the key issue of “waiting time” as a component of travel time.

[46] The procedures for local discussions and preliminary conciliation in dispute settling clauses are an important part of the dispute settlement framework under the Act. They provide an opportunity for matters to be resolved at the workplace or by conciliation at the Fair Work Commission. Importantly, they are a prerequisite to the exercise of power to arbitrate under the dispute settlement clause. The evidence is clear that the steps were not followed in respect of a dispute about clause 19(d)(ii) of the 2009 Agreement. It follows that there is no power to determine the dispute by arbitration and the application is accordingly dismissed.

COMMISSIONER

Appearances:

I Patin of United Voice for the Applicant

C Graham from the Respondent

Hearing details:

2013.

Melbourne:

January 7

Annexure A: Clause 45 of the Serco Immigration Detention Centres Agreement 2009

Annexure B: Clause 45 of the Serco Immigration Services Agreement 2011

 1   [2013] FWC 1482

 2   Further Submissions (Interim Decision) - United Voice, filed 28 March 2013, [12]

 3   Ibid, [13]

 4   Final Submissions - Serco Pty Ltd, filed 28 March 2013, page 2

 5   See Coles Supermarkets Australia Pty Ltd v Transport Workers’ Union of Australia[2012] FWA 8772; Transport Workers’ Union of Australia and others v Coles Supermarkets Australia Pty Ltd [2013] FWCFB 276

 6   Further submissions (Interim Decision) - United Voice, filed 28 March 2013, [8]

 7   See Exhibit HP 4 to witness statement of Helmut Ponczek dated 21 October 2012

 8   Exhibit HP7 to witness statement of Helmut Ponczek dated 21 October 2012

 9   Exhibit HP8 to witness statement of Helmut Ponczek dated 21 October 2012

 10   PN156-157

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