Jeff Higgins v Visy Packaging Pty Ltd

[2016] FWC 4070

[2016] FWC 4070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Jeff Higgins
v
Visy Packaging Pty Ltd
(C2016/2279)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 23 JUNE 2016

Application to deal with a dispute.

Introduction

[1] On 18 January 2016 Mr Jeff Higgins (the Applicant) lodged an application for the Fair Work Commission (the Commission) to deal with a dispute in accordance with the dispute settlement procedure in an agreement pursuant to s.739 of the Fair Work Act 2009 (the Act).

[2] The application was lodged on the Applicant’s behalf by his union, United Voice.

[3] The Respondent is Visy Packaging Pty Ltd (Visy) in respect of its plastics manufacturing plant located at Kings Park in western Sydney.

[4] The relevant agreement is The Visy (Kings Park, Cavan and Forrestfield) and United Voice Enterprise Agreement 2013 [AE410569] (the Agreement).

[5] The Applicant commenced at the Visy site in July 2002 and has been promoted to team leader. On 15 December 2015 the Applicant received a “first written warning”. This followed an investigation report into allegations of harassment by the Applicant in respect of another employee. The Applicant admits that he tried to email the report to the United Voice Organiser, Mr Dave Webb, but was unsuccessful. Meetings took place between the Applicant, Mr Webb and Mr Angel and Mr Black from Visy on 22 and 23 December 2015. It was denied that Mr Webb had seen the report. On 14 January 2016 the Applicant received a “final written warning” for breach of confidentiality and company policy. This followed a meeting on that day.

[6] The dispute is about the Applicant’s claim that this final warning should be removed. He submits that he had a right to provide a copy to the union, which was his representative, for the purpose of obtaining legal and industrial advice.

Relevant Provisions of the Agreement

[7] Clause 3.14 “Dispute Resolution” applies to “matters arising from this Agreement and the National Employment Standards”. It provides, at sub-clause (d) for arbitration.

[8] The Agreement contains generalised provisions with respect to performance management in clause 3.15 which I do not propose to set out in full. I note that clause 3.16 “Performance Counselling” sets out the operation of the disciplinary process and the warning system.

The Warnings by Visy

[9] The 15 December warning was for the Applicant’s harassment of another employer. It resulted from a report by Mr Angel into the earlier incident which was provided to the Applicant on 11 December 2015. The covering letter stated that confidentiality provisions were applied to it consistent with Visy’s policies (Exhibit A3).

[10] The 14 January 2016 final warning letter specifies that the Applicant had denied that he had sent the report to Mr Webb or anyone else. Visy’s internal auditor had searched the Applicant’s emails and found out that he attempted to send them. The warning was given for the breach of the confidentiality directive given to the Applicant and Visy’s policy and the Applicant’s alleged dishonesty in responding to Visy’s questions during the 22/23 December meetings.

Commission Proceedings

[11] The matter was dealt with in conference on 18 February and 29 February 2016 but not resolved.

[12] Directions were issued for the filing of submissions and evidence and the matter was set down for hearing on 16 May 2016.

[13] The Applicant was represented by Mr Haren Pararajasingham and Mr Tom Craven of United Voice. Visy was represented by Mr Warren Angel and Mr William Black, the plant manager.

[14] The Applicant gave evidence and evidence was also given by Dave Webb. Visy’s evidence consisted of witness statements and oral evidence from Mr Angel (Exhibit P4) and Mr Black (Exhibit P5).

The Applicant’s case

[15] The Applicant’s submission is that the final written warning should be cancelled because:

● Visy’s direction not to disclose the investigation report into the harassment complaint was not lawful or reasonable.

● The Applicant was not dishonest and did not lie to Visy in the 22/23 December meetings.

[16] The Applicant’s case is that he was open and honest in the meeting explaining that he had tried to send an email to Mr Webb but it had bounced back.

[17] The Applicant acknowledges that Visy’s policies provide for confidentiality in respect of an investigation of a harassment complaint. However, this conflicts with an employee’s right to have industrial advice from their union in dealing with a complaint or industrial dispute. The union’s role is set out in the dispute settlement clause and the agreement more generally. The direction was also unreasonable because it deprived the Applicant of representation.

[18] The Applicant also seeks an order that the investigation report be provided to United Voice, as the Applicant’s representative.

[19] The Applicant’s evidence of the 23 December meeting was, when asked whether he had sent it to anybody, that he had sent it to “Liam of member services” and David Webb. However, it bounced back. David Webb’s evidence supported this version.

[20] United Voice requested a copy of the report on 5 January 2016 but were denied it by Visy.

Visy’s case

[21] Visy challenges the Commission’s jurisdiction to hear this matter because it says that the steps in the dispute settlement clause have not all been gone through. In addition, it is submitted that the dispute about the final warning is not a matter that can be arbitrated in accordance with the clause 3.14 because it does not arise under the Agreement or the NES.

[22] Visy’s version of the 23 December meeting is different to the Applicant’s. They say that the Applicant, when asked, denied that he had sent a copy of the report to Mr Webb or anyone else. It was only when he was shown the email report from Visy’s internal auditor that he admitted that he had done so.

[23] Visy asserts that there is no right for the Union to obtain a copy of the report as the Applicant’s representative. Visy denies that it prevented the Applicant obtaining appropriate advice. A number of meetings were held at times to suit United Voice’s convenience.

[24] The direction not to distribute the report was lawful and reasonable. Visy cannot condone breaches of its policies and therefore needs to discipline the Applicant.

[25] The Applicant was advised on a number of occasions, in writing, that the report and the investigation process were confidential.

[26] Visy also submits that the Union’s demand that the report be provided to United Voice is not properly before the Commission. There is no provision in the Agreement that provides for this. The union has not provided any undertakings as to the use the report would be put to.

[27] Mr Angel’s evidence was that because of the exchange at the 22 December meeting, he caused a search of the Applicant’s emails to be done. The report which contained the failed emails to Dave Webb and Liam of United Voice were provided to him on the afternoon of 22 December. This was tabled at the meeting once the Applicant denied that he had sent the report to anyone. It was only then that the Applicant admitted that he had attempted to send the report to the Union.

[28] Attached to Exhibit P4 was Visy’s Equal Opportunity, Promoting Diversity and Complaint Policy. It provides, in clause 7, for confidentiality in handling complaints.

[29] Mr Black’s evidence was consistent with the evidence of Mr Angel with respect to the 22/23 December meetings.

Jurisdiction of the Commission

[30] Despite clause 3.14 providing for arbitration, Visy submitted that the dispute was not within the Commission’s jurisdiction to arbitrate. Firstly, it is put that United Voice had not exhausted the steps in the dispute settlement procedure. Secondly, that the dispute does not fall within the clause because it does not relate to a matter arising under the Agreement or the NES.

[31] The Commission’s jurisdiction to arbitrate arises from a combination of the Dispute Settlement Clause 3.14 and ss. 738, 739 and 595 of the Act. Clause 3.14 is drafted in broad terms and deals with disputes about a matter arising under the Agreement or the NES. The nature of the power to arbitrate derives from the dispute settlement clause. However, in exercising that power the Commission has a broad power, pursuant to s.595, to settle the dispute by making orders it considers appropriate.

[32] The relevant sections provide:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”

“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 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.

(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.

(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.”

[33] In upholding my decision in a dispute between the CFMEU and Lend Lease, a recent Full Bench decision, Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union ([2015] FWCFB 1889) has confirmed the broad discretion given to the Commission to arbitrate pursuant to a dispute settlement clause:

‘[22] No relevant limitation on the scope of the Commission’s power to arbitrate a dispute under clause 19 may be identified in the terms of clause 19 itself. It is not necessary to explore the outer limits of what might constitute a “dispute” for the purpose of clause 19, since there was no issue that the dispute concerning Mr Genovese’s return to work was one to which clause 19 applied. We consider that an unrestricted power to arbitrate a dispute involves the conferral on the decision-maker of a broad discretion. Lend Lease accepted in its submissions that the power exercised by the Deputy President was discretionary in nature and that (leaving aside for present purposes Lend Lease’s jurisdictional ground of appeal based on alleged inconsistency with State OHS laws), it was necessary for it to demonstrate error of the type identified in House v The King (1936) 55 CLR 499 at 504-5.’.”

[34] I am satisfied that the steps in the Dispute Resolution clause have been exhausted. There have been a number of conferences between the parties and there have been two conference before myself in which settlement proposals were explored. In any event, the question for the Commission to be satisfied about before exercising its jurisdiction to arbitrate is whether there is a dispute to be settled. The procedures in the clause should not be interpreted in a mechanistic way.

[35] I am also satisfied that the dispute falls within Clause 3.14. It is about whether an employee should receive a final warning or not. In a broad sense the disciplining of employees necessarily relates to the Agreement because of its close nexus to their employment. In any event, Clause 3.16, as I noted earlier, deals with the application of discipline and warnings to employees.

[36] Of course, it is necessary to properly characterise the dispute. Vice President Watson in Maritime Union of Australia v ASP Shipping Management Pty Ltd[2015] FWC 4523 summarised the approach taken in various decisions:

“[18] In the Private Arbitration Case, the High Court made it clear that the power of arbitration under a dispute settlement clause is a power conferred by the parties under their agreement. The Commission's jurisdiction is therefore derived from the dispute resolution term in the relevant workplace instrument, and qualified by any limitation in the agreement. This notion is reflected in s.739 of the Act.

[19]In Re PKIU; Ex parte Vista Paper Products Pty Ltd Gaudron J (with whom Brennan, Dawson and Toohey JJ relevantly agreed) noted that:

‘…an industrial dispute is not necessarily fixed and definite, either in terms of its subject-matter or in terms of the parties to it; a dispute “may be diminished or ended or enlarged or altered during ... proceedings in the Commission” (R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163, per Murphy J at p 168) or, for that matter, at any stage during the course of the dispute itself’

[20]A Full Bench has observed thatalthough that comment was made in the context of an “industrial dispute” within the meaning of s.4 of the Industrial Relations Act 1988, it is equally applicable to a dispute notified pursuant to a dispute settlement procedure in a certified agreement.

[21]In Maritime Union of Australia v Australian Plant Services Pty Ltd, Lacy SDP expressed the importance of characterising a dispute in this way:

‘Parliament has authorised the Commission to exercise powers under the agreement to settle disputes over the application of the agreement and, accordingly, its powers are limited to disputes of that kind. Therefore it is necessary for the Commission, in each case where it is asked to deal with the matter arising under the disputes settling procedure in an agreement, to ascertain the character of the dispute before it in order to determine whether the matter is a dispute over the application of the agreement, and, importantly, the character of the dispute is distinguishable from the order that may be made in settlement of the dispute.’

[22]These observations have been approved by Full Bench decisions of the Commission including Goodman Fielder Consumer Foods Limited v CEPU, Seven Network (Operations) Limited v CPSU, and United Firefighters’ Union v Metropolitan Fire and Emergency Services Board.

[23]It is therefore necessary to have regard to the nature of a dispute said to arise under the terms of the agreement having regard to the original notification and the relevant factual circumstances as they evolve through the process of conciliation and arbitration of the dispute. Such a broad approach was endorsed by a Full Bench of the Australian Industrial Relations Commission in the case of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Holden Limited where the following is stated:

‘[45] A dispute referred to the Commission must be properly characterised before powers conferred by a dispute settlement provision in a certified agreement are exercised. This is necessary in order to determine whether the dispute is ‘over the application of the agreement’ within the meaning of s.170LW of the WR Act. As noted by a majority of the Full Bench in Automated Reading Services (AMRS) v ASU, this expression has not been judicially considered. The majority went on to observe that:

“A relationship between the provisions of the relevant agreement and the subject matters in dispute would appear to be an essential element in the identification of any dispute over the application of the agreement. ...”

[46] We adopt these observations. Further, in our view the expression should not be narrowly construed. In this context we agree with the observation of the Full Bench in Shop, Distributive and Allied Employees Association v Big W Discount Department Stores that:

“...what comprises a dispute over the application of the agreement should not be narrowly construed; to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”

[47] In characterising the nature of the dispute in this matter the Commission is not confined to the dispute notification document. The entire factual background is relevant, including matters such as the submissions advanced. In this context we note that in TWU v Mayne Nickless Ltd the Full Court of the Federal Court held that in determining whether an application calls on the Commission to exercise judicial, as opposed to arbitral, power ‘a court should review the entire factual background to properly characterise the claim and the power sought to be invoked’

[24]In the United Firefighters’ Union case, referred to above, a Full Bench considered the scope of a dispute over a consultation provision. It said:

“Policies which are not dealt with in the Agreement are subject to the consultation processes in clause 9. Although the consultation processes end with a disputes resolution clause, we are of the view that on its proper construction, that clause concerns disputes over the consultation process under the clause, rather than disputes over matters which are subject to consultation.”

[25]I am satisfied that the dispute that has evolved during the course of discussions, conciliation and arbitration extends to consultation. Through the dispute settlement processes there has been a consideration of consultation obligations. Insofar as there remains a dispute about the application of the consultation clause I consider that the Commission has jurisdiction to deal with it. Hence the Commission has jurisdiction to consider those aspects of the dispute summarised in paragraph 2(a) and (b) of the MUA’s formulation set out above.”

[37] In this case, the dispute is about whether the final warning given to the Applicant should be upheld or overturned. It is not a dispute about whether the report should be given to United Voice. That issue does arise, as will be seen, but will need to be resolved in negotiation between Visy and United Voice. On that basis, I am satisfied that the Commission has jurisdiction to arbitrate.

Should the Final Warning stand?

[38] I accept that Visy’s policy and practice with respect to confidentiality of a report into a harassment case is appropriate. Indeed, it would be pretty standard in respect to relevant company policies and EBA provisions. However, this ignores the right of an employee to be represented by their union. It can be argued that this is implied in the Agreement and the Act. However, there is no specific provision that gives the Union access to the report or allows the Applicant to provide it to United Voice.

[39] Therefore, I consider that the direction to the Applicant to keep the report confidential was lawful and reasonable. On the other hand, the Applicant’s desire for the Union to have the report so that he could be properly represented in disciplinary proceedings is understandable. In my view, the Applicant or United Voice should have advised Visy that it was proposed to provide the report to United Voice. Appropriate protocols for its use by the Union, including confidentiality, could then have been negotiated. That did not occur.

I would urge Visy and United Voice to discuss the insertion of such a protocol into the Agreement so that this issue does not arise again.

[40] If this had been the only issue, my conclusion would have been that the final warning was too harsh. However, the issue of whether the Applicant was truthful at the 23 December meeting needs to be considered. The conflict between the two versions has already been described. Both sets of witnesses were subject to exhaustive cross-examination and did not alter their evidence. There was no “knock-out blow” which showed an internal inconsistency in the evidence.

[41] On the balance of probabilities, I have decided that the version of events provided by Mr Angel and Mr Black is more credible. The Applicant had maintained the rather artificial defence that no-one had been sent the report on the grounds that the emails had bounced back. He had sent it but no-one had received it. It seems to me that it is unlikely he would have confessed to sending the report without being faced with the email report evidence from Visy which showed that he had in fact tried to send it. I find therefore that the Applicant was dishonest during the 23 December meeting.

[42] Because of the Applicant’s response to Visy’s questions in the 23 December meeting, I am satisfied that the final warning is appropriate. I am therefore not prepared to disturb it and it will stand.

[43] I note, also that under Visy’s policy, the warning is to remain in force for six months. This means it has only a short time to run. Mr Angel suggested, at the end of his closing submission that the warning should be reissued so that a “proper” six month period applied, unencumbered by Commission proceedings. I am not sure I have the power to do this. In any event, I do not think it should be done. The warning was in accordance with the Agreement and Visy’s policies and they should be applied.

Conclusion

[44] In summary:

(a) I dismiss the Applicant’s claim that the final warning given to him on 14 January 2016 be removed.

(b) I recommend that Visy and United Voice agree on a provision whereby the Union is provided with relevant documentation, with appropriate confidentiality and other protections, so it can properly represent its members in disciplinary matters.

DEPUTY PRESIDENT

Appearances:

H. Pararasingham with T. Craven for the Applicant.

W. Angel for Visy.

Hearing details:

2016

Sydney:

February

18, 29 (Conference);

May

16 (Hearing).

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