Helmut Ponczek v Serco Group Pty Ltd

[2013] FWC 1482

[2013] FWC 1482

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.739—Dispute resolution

Helmut Ponczek
v
Serco Group Pty Ltd
(C2012/4555)

Security services
COMMISSIONER LEE	MELBOURNE, 12 MARCH 2013

Alleged dispute concerning travel time and travel allowances under the agreement.

[1] This matter involves an application made pursuant to section 739 of the Fair Work Act 2009 (the Act) for Fair Work Australia (now the Fair Work Commission) to deal with a dispute in accordance with a dispute settlement procedure. The application was lodged on 13 July 2012.

[2] The applicant is Mr. Helmut Ponczek (the Applicant) and his representative is United Voice (the Union). The Respondent is Serco Group Pty. Ltd (Serco).

[3] Mr. Ponczek was seconded by Serco to work as a security officer at the Christmas Island Immigration Detention Centre for a period of 16 weeks between 19 May and 8 September 2011. Mr. Ponczek is otherwise based at the Maribyrnong Immigration Detention Centre (MIDC) in Melbourne. The dispute relates entirely to the period the Applicant was seconded to the Christmas Island facility.

[4] This interim decision deals with one aspect of the jurisdictional questions that arose during proceedings as to whether the Fair Work Commission has the necessary jurisdiction to arbitrate the dispute. The decision is an interim one as the jurisdictional question only arose during the proceedings. Accordingly, it is appropriate the parties be afforded the opportunity to make any further submissions they wish to make on the interim decision. I will consider any submissions received before making a final decision on the matter.

The dispute:

[5] The Form F10 - Application for FWA to Deal with a Dispute in Accordance with a Dispute Settlement Procedure (the Form F10) lodged by the Union on behalf of the Applicant indicated in answer to question 2 that the dispute was referred to the Fair Work Commission pursuant to a dispute settlement procedure in the Serco Immigration Detention Centres Agreement 2009.

[6] In answer to question 3 in the F10 which is headed, “Clauses to which the dispute relates” there was the following text:

“The dispute relates to the application of clause 19(d)(v) of the 2009 agreement. Clause 19(d)(v) is expressed in the following terms:

Where the employee accepts a secondment to work at a detention centre other than his/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.”

[7] In answer to question 4 of the Form F10, “What is the dispute about?” various alleged facts were set out related to the Applicant’s travel to and from his workplace to his residence on Christmas Island, during his time working on Christmas Island.

[8] At paragraph 4(d) of the Form F10, the application states:

“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.”

[9] At question 8 of the Form F10, the application listed the steps already take under the dispute settlement procedure to settle the dispute. These included email exchanges between the Applicant and the Union and managers of Serco.

The Proceedings:

[10] The matter was listed for conference before me to try and resolve the dispute by conciliation.

[11] After a period of conciliation and after consulting the parties, I issued a recommendation that the parties follow a process on investigation in an endeavour to assist the parties to resolve the matter. The Recommendation referred to clause 19(d)(v) in paragraphs 1, 2 and 4 of the Recommendation. Paragraph 1 of the recommendation was in the following terms:

“This matter involves a dispute relating to the payment of excess travelling and fares under the Serco Immigration Detention Centres Agreement 2009 (the Agreement). The relevant clause of the Agreement is clause 19(d)(v).”

[12] The parties were unable to settle the dispute after following the recommended process. I convened a second conference between the parties and after a further period of discussion, United Voice notified me that the matter remained unresolved. United Voice subsequently sought that the dispute be arbitrated.

[13] The matter was listed for a directions hearing on 9 October 2012 which was recorded on transcript. After an exchange with the parties, it was agreed that there were to be three questions determined in the arbitration. The questions were;

“ Does Fair Work Australia have the necessary jurisdiction to arbitrate this matter?

• For the purposes of 19(d)(v) of the Agreement, what was Mr Ponczek’s travel time to and from his place of employment between 19/05/2011 and 08/09/2011 (the relevant period)?



• Having determined the answer to the second question, what is the payment, if any, owed to Mr Ponczek pursuant to clause 19(d)(v) of the Agreement?”

[14] The directions allowed for either party to request a hearing should they wish. A hearing was requested by United Voice on behalf of the Applicant and listed for 7 January 2013.The directions also encouraged parties to continue discussions to resolve the matter.

[15] The parties complied with the directions issued and extensive material was filed including witness evidence. The material filed dealt with the questions to be determined.

[16] On Friday 4 January 2013, my Chambers was copied into an email sent by United Voice to the Respondent, which stated the following;

“I have read your submissions and wish to advise you the Union also intends to rely on clause 19(d)(ii) of the Serco Immigration Detention Centres Agreement 2009”

[17] On the day of the hearing, United Voice made submissions at the commencement of the hearing that that they no longer held to the view that the dispute was about the application of clause 19(d)(v). It was in fact about another sub-clause of the agreement clause 19(d)(ii).

[18] Clause 19(d)(ii) is in the following terms:

“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.”

[19] At no time, until this time, did the union indicate that this was the clause that was in dispute, except for the email received 4 January 2012, described above.

[20] At the hearing I expressed my serious concerns about this fundamental change of submissions of the union at the latest possible time and after a long period of discussion, the issuing of directions and the filing of materials.

[21] Mr. Graham for Serco sought that I dismiss the application as it had no prospects of success because the Union had withdrawn the dispute. Mr Graham argued that there was no longer a dispute about clause 19(d)(v) but now a new dispute about something else. 1

[22] Mr. Patin for United Voice submitted that the evidence in the matter was still essentially the same. Mr Patin argued that the case was still about the time it took to go from Poon San to Lilac Compound (when on Christmas Island).

[23] After an adjournment to consider the application by Mr. Graham to consider whether or not to dismiss the application, I made the following statement:

“This matter was originally a dispute that was notified by United Voice, applicant Helmut Ponczek, and it was notified, the dispute, on 13 July 2012. Paragraph 3 of the form F10 contained as follows:

The dispute relates to the application of clause 19(d)(v) of the 2009 agreement. It is expressed in the following terms-

and the terms of 19(d)(v) are therein set out. There were conferences chaired by me between the parties and ultimately directions were set down to determine the answer to the following three questions. Firstly, does Fair Work Australia have the necessary jurisdiction to arbitrate this matter, and secondly, for the purposes of 19(d)(v) of the agreement what was Mr Ponczek's travel time to and from his place of employment between 19 May 2011 and 8 September 2011, the relevant period, and having determined the answer to the second question, what is the payment, if any, owed to Mr Ponczek pursuant to clause 19(d)(v) of the agreement.

The applicant has confirmed only today that they now hold a position that clause 19(d)(v) is not relevant to the dispute. There was an email received from the applicant on Friday which was ambiguous as to what was held to be the relevance of 19(d)(ii) but it's been clarified before me today that the position of the applicant is that 19(d)(ii) is the provision that is relevant and that 19(d)(v) is not relevant in determining the matter. This is despite the fact that the applicant received submissions of the respondent in reply on 6 November which, as I understood the submissions of the applicant today, gave rise to this new-found notion that it is actually 19(d)(ii) that the applicant thinks should apply and indeed the applicant confirmed in their submissions in response to the respondent's submissions that the dispute was about clause 19(d)(v).

The respondent asks that I dismiss the matter pursuant to section 587 of the Act and has said that a fresh application needs to be made. The applicant asks that I hear the evidence as to the factual matters as the factual matters in the dispute, notwithstanding the change of position, do not change. I need to be clear to the parties that I am not ruling out that I may in fact dismiss this application, however time does not permit me to finalise a consideration on that matter today. A determination as to whether I do so will require some time for me to deliberate upon.

The facts are that witnesses are here, some at considerable expense, based on the submissions of the respondent, and they're present to give evidence in this matter. Section 577 of the Act says that Fair Work Australia must perform its functions and exercise its powers in a manner that is quick and informal and avoids unnecessary technicalities. It is, in all of the circumstances, desirable that the evidence of the witnesses in relation to factual matters be heard today, and I'm particularly minded on that score on the basis that it would be, I think, most seriously inconvenient to all parties, including the tribunal, were the matter to continue to proceed, that there would be a need to recall witnesses to the tribunal.

If the application is not dismissed then further directions and further witness statements may be required and the parties will be informed of my decision on that score in due course, but for the purposes of today we'll proceed to hear the evidence on the factual matters.” 2

[24] The remainder of the proceedings on the day dealt with the evidence. At the conclusion of the hearing, I held a further conciliation conference, with the consent of the parties, where I further sought to have the parties resolve the matter by agreement. The parties agreed as an outcome of that conference to have further discussions to try and resolve the matter. I was subsequently advised by email on 12 February 2013, by Mr. Patin that those discussions did not resolve the dispute.

Jurisdiction

[25] The history of this matter is clearly set out above. The dispute was from the beginning and up until the point of the hearing, about clause 19(d)(v).

[26] Section 739 of the Act provides as follows:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC 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 the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC 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, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC 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), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[27] Section 739(3) of the Act provides that the Fair Work Commission cannot exercise any powers limited by the term. The dispute settlement term referred to throughout by United Voice is Clause 45 Grievance and Dispute resolution procedure of the Serco Immigration Detention Centres Agreement 2009. That clause is in the following terms:

“45. Grievance and disputes resolution procedure

(a) In the event that any grievance or dispute arises, every effort shall be made by the parties to resolve the issue at the workplace level in accordance with the process set out in this clause.

(b) The aggrieved employee/employees shall discuss the issue with their immediate supervisor in an attempt to resolve the matter at the workplace.

(c) If such discussions do not resolve the dispute, then discussions are to be held between the employee or employees concerned and more senior levels of management as appropriate. At and from this stage, a party to the dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute.

(d) If the dispute or grievance is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred by either party to Fair Work Australia for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration. If arbitration is necessary, the FWA may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.

(e) It is a term of this Agreement that while the dispute settlement procedure is being conducted work shall continue normally unless an employee has a sustainable concern about an imminent risk to his or her health or safety.

Subject to the concern about safety, the employee must comply with lawful and reasonable directions given by the company to perform other available work, whether at the same location or another location that is appropriate for the employee to perform.

(f) To allow for the orderly resolution of grievances and disputes, the parties are committed to avoiding stoppages of work, lockouts or any other bans or limitations on the performance of work while the processes of discussion, negotiation, conciliation and arbitration are being followed.”

[28] The term provides for a process of discussions to take place in order to resolve the issue in accordance with sections a, b and c. It is only after these stages are completed and the dispute has not resolved that it can be referred by either party to Fair Work Australia for mediation and conciliation and then, if that does not resolve the dispute, arbitration.

[29] In this matter, the steps in clause 45 a, b and c have not occurred in relation to the matter that the United Voice now say is in dispute, that is the application of section 19(d) (ii) of the 2009 agreement. It is therefore not possible for the Fair Work Commission to exercise arbitral power over that dispute as to do so would be exercising powers outside of that permitted by the term.

[30] Having regard to Section 739(4) of the Act, it was clear that the parties had agreed, in accordance with the term that the Fair Work Commission may arbitrate (however described) the dispute. It is clear the dispute was described as a dispute about the application of clause 19(d)(v). The dispute is now said to by the union to be about 19(d)(ii). There is not agreement to arbitrate that dispute in accordance with the term.

[31] For these reasons I conclude that there is not the necessary jurisdiction to determine the revised application by United Voice as it is now framed.

[32] A second consideration is that the application by United Voice was made pursuant to the dispute settlement procedure in the 2009 agreement. It is clear that the agreement has ceased to operate. It is clear that the Commission does not have the power to exercise the private arbitration power in that agreement.

[33] I note that in its written submissions the United Voice referred to the dispute settlement procedure in the 2011 Agreement, which is in operation, as the basis for the power to be exercised. However, up until that point, it seems reference was made only to the 2009 agreement as the source of the power of private arbitration. It is possible that the 2011 agreement could be used as the source of power for a private arbitration over a dispute over the application of a matter arising in the 2009 agreement. However, that would require a consideration of the character of that dispute against the terms of the dispute settlement procedure in the 2011 agreement.

[34] For these reasons, I have formed the preliminary view that it is necessary to dismiss the application for want of jurisdiction. However, I will afford an opportunity for the parties to provide any further submissions they wish to make on these issues. Given the circumstances, there was not a sufficient opportunity on the day of the hearing to allow the parties to give the matter their full consideration.

[35] I direct that any further submissions in relation to these matters be filed by close of business Thursday 28 March 2013.

COMMISSIONER

Appearances:

I Patin of United Voice for the Applicant

C Graham of the Respondent

Hearing details:

2013.

Melbourne:

January 7

 1   PN184 - 185

 2   PN224 - 230

Printed by authority of the Commonwealth Government Printer

<Price code C, AE871468  PR534664>