Joanne Taylor v WFI / IAG Group T/A WFI Insurance Limited. Insurance Australia Group Services Pty Limited and Insurance manufacturers of Australia Pty Ltd

[2017] FWC 3919

[2017] FWC 3919

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Joanne Taylor
v
WFI / IAG Group T/A WFI Insurance Limited. Insurance Australia Group Services Pty Limited and Insurance manufacturers of Australia Pty Ltd
(C2017/1390)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 JULY 2017

Application to deal with a dispute - jurisdiction.

Background and Directions

[1] Until her resignation, which was effective from 19 February 2016, Mrs Joanne Taylor was employed by WFI/IAG Group T/A WFI Insurance Limited, Insurance Australia Group Services Pty Limited and Insurance Manufacturers of Australia Pty Ltd (WFI). Her service had commenced on 25 August 2008.

[2] On 16 March 2017, Mrs Taylor filed a Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure (Application) under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute. She purported to bring the Application under clause 8.1 (Resolving Workplace Issues) of the Insurance Australia Group Enterprise Agreement 2012 1 (the 2012 Agreement). The 2012 Agreement had been approved by the Commission on 13 January 2012, commenced operation on 1 February 2012 and had a nominal expiry date of 1 February 2015.

[3] The alleged dispute concerns Mrs Taylor’s request for over seven years’ pro-rata long service leave, to be paid with her termination payment from WFI. In an email to WFI dated 2 February 2016, Mrs Taylor had made a request for payment pursuant to clause 6.2 of the 2012 Agreement. In the Application, Mrs Taylor referred to the provision in sub-clause 6.2.2 of the 2012 Agreement, which relevantly states:

“Key Features of Long Service Leave at IAG include:

a) two months leave (8.66 weeks) for ten years’ service;

b) access to leave after ten years; and

c) payment of pro-rata Long Service Leave on termination where an Employee has between five and ten years’ service and leaves IAG because of illness, incapacity, or other pressing necessity, or where the Employee’s employment is terminated by IAG for any reason except serious misconduct.”

[4] Mrs Taylor also stated that her claim is based on the Long Service Leave Act 1955(NSW). Section 4(2)(a)(iii) of the Long Service Leave Act 1955 (NSW) relevantly provides:

“(2)(a) …the amount of long service leave to which a worker shall be so entitled shall:

….

(iii) in the case of a worker who has completed with an employer at least five years service, and whose services are terminated by the employer for any reason other than the worker’s serious and wilful misconduct, or by the worker on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker, be a proportionate amount on the basis of 2 months for 10 years service.”

(my emphasis)

[5] In her Application, Mrs Taylor outlined the basis for her contention that she qualified for the long service leave payment under the “domestic or other pressing necessity” provision:

“…I exited the AIG group to take a higher paid position to cope with increasing financial commitments. My husband had an ongoing back- disc issue which resulted in surgery in August 2015 and December 2016. Leading up to, including and after that time we incurred/still incur a number of medical expenses. We had also been advised that our children would require extensive orthodontic work and this coupled with my husband’s ongoing issues and our existing financial commitment meant we would not have survived financially if I had not sought higher paying roles outside of WFI.”

[6] In support of her Application, Mrs Taylor provided an overview of her employment history with WFI up until her termination on 19 February 2016 and referred to the letter she received from WFI on 29 February 2016, in which her request for payment of pro-rata long service leave was denied.

[7] The matter was the subject of a telephone Mention convened by me on 31 March 2017 which did not resolve it. WFI objected to Mrs Taylor’s Application, submitting that because she failed to satisfy the conditions under the dispute resolution procedure in clause 8.1 of the 2012 Agreement, the Commission did not have jurisdiction to deal with the Application.

[8] Accordingly, on 31 March 2017, I caused directions to be sent to the parties for the filing of material in relation to the jurisdictional objection raised by WFI.

[9] WFI filed initial written submissions on 26 April 2017 and submissions in response were filed by Mrs Taylor on 15 May 2017. Further submissions in reply were filed by WFI on 24 May 2017.

[10] This Decision deals only with the jurisdictional objection raised by WFI.

The 2012 Agreement

[11] Clause 2.3 of the 2012 Agreement identifies who is covered by it as follows:

“2.3 Coverage of the Agreement

This Agreement covers Insurance Australia Group Services Pty Ltd: Insurance Manufacturers of Australia Pty Ltd: their Employees and the FSU providing FWA notes the FSU is bound by the Agreement under section 201 of the Act.”

[12] As mentioned above, the 2012 Agreement commenced operation on 1 February 2012 and had a nominal expiry date of 1 February 2015.

[13] The procedure for resolving workplace issues was set out in clause 8 of the 2012 Agreement:

“8. Resolving Workplace Issues

8.1 Procedure

This procedure will ensure that issues or grievances are resolved quickly, fairly and without disruption to business operations. Where an issue or grievance arises during the term of this Agreement about matters arising under this Agreement or the NES, it will be settled according to the following procedure:

Step Action

1. The Employee should first discuss the matter with their immediate Manager who must make every effort to resolve the matter.

2. If the matter is not resolved, or it is not appropriate to discuss the matter with their immediate Manager, the Employee should discuss the matter with their next level Manager who will attempt to resolve the matter.

Alternatively an Employee can contact their Human Resources representative directly who will work with the Employee and Manager to attempt to resolve the issue.

3. If the matter is not resolved at this point the Employee may, if appropriate, notify an employee representative (such as the FSU) who will discuss the matter further with the relevant Human Resources representative.

4. If the matter is not resolved it will be brought to the attention of the relevant Head of Human Resources. They or their nominee will discuss the matter further with the Employee/their representative.

(In the case of the FSU, the discussion will involve the FSU National Office).

5. If the matter is not resolved by the parties in steps 1-4 above, the parties may separately or jointly refer the matter to FWA for resolution.

Employees may seek guidance and assistance from the FSU or other representative of the Employer’s choice at any stage of this process.”

Submissions of the parties

[14] Both parties made submissions in writing. Upon review of them, I asked the parties whether they consented to the jurisdictional objection being determined on the basis of the material filed, or whether they would like to address me prior to my determination of it. Both parties responded and indicated they consented to the jurisdictional objection being determined on the basis of the material they had filed, without a hearing.

[15] Much of the parties’ material went to the question of whether there was a dispute in existence prior to the termination of Mrs Taylor’s employment on 19 February 2016 and whether or not the procedure in clause 8 of the 2012 Agreement had been validly triggered prior to the termination. In this regard, WFI submitted that its formal response to Mrs Taylor’s request for payment of pro-rata long service leave was not made until after the termination of her employment and as such, there was no dispute and she could not utilise clause 8.1 of the 2012 Agreement.

[16] In essence, Mrs Taylor’s response to this was there were emails sent between Mr Phillips, her immediate manager, and Ms Gooley, HR advisor, on 5 February 2016, including one in which Mr Phillips expressed a view that Mrs Taylor did not meet the criteria to be eligible for the long service leave payment. This, she submitted, indicated that a final decision had been made prior to 29 February 2016 and Mrs Taylor further submitted she had validly followed the dispute resolution procedure in clause 8 of the 2012 Agreement.

[17] The written submissions of both parties were extensive. I have had regard to them but I do not intend to reproduce them for the purposes of this decision. It is not necessary for me to do so.

[18] Ultimately, the most salient submission of WFI was that when Mrs Taylor lodged the Application on 16 March 2017, the 2012 Agreement was no longer in force, it having been replaced by the IAG Enterprise Agreement 2016 2(2016 Agreement) approved by the Commission on 20 May 20163.

Consideration

[19] This is an application made pursuant to s.739 of the Act. Relevantly, sections 738 and 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 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.”

[20] Mrs Taylor’s Application for the Commission to deal with a dispute was filed on 16 March 2017. This was over a year after her employment with WFI had terminated and at a time when the 2012 Agreement had ceased to operate. This is because the Act operates in such a way that the 2016 Agreement, which commenced operation on 1 June 2016, replaced the 2012 Agreement.

[21] Therefore, at the time of filing her Application, Mrs Taylor could not utilise the procedure for resolving workplace issues in clause 8 of the 2012 Agreement because it was no longer in operation. Additionally, as Mrs Taylor was no longer an employee of WFI when she filed the Application, she was not eligible to be covered by the 2016 Agreement. Therefore, Mrs Taylor is also not entitled to utilise the procedure for resolving workplace issues in the 2016 Agreement either.

[22] The result is that the Commission does not have jurisdiction to deal with the Application Mrs Taylor has made under s.739 of the Act and it must therefore be dismissed. An order to this effect will be issued with this decision.

[23] I note that Mrs Taylor flagged in the Application that she was also basing her claim on the Long Service Leave Act 1955(NSW). It remains open for her to explore what rights she might have in that regard.

DEPUTY PRESIDENT

 1   AE890981.

 2   AE419009.

 3   [2016] FWCA 3178.

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