John Papadimitriou v Origin Energy Limited T/A Origin Energy

[2021] FWC 5109

[2021] FWC 5109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

John Papadimitriou
v
Origin Energy Limited T/A Origin Energy
(C2021/1391)

COMMISSIONER YILMAZ MELBOURNE, 18 AUGUST 2021

Dispute arising under an enterprise agreement – redundancy and severance payment - jurisdiction – whether former employee enlivened dispute settlement procedure and whether the enterprise agreement applies to the former employee.

[1] Mr John Papadimitriou has made an application under s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute in accordance with clause 8 of the Origin Energy Enterprise Agreement 2008 (the Agreement). Mr Papadimitriou alleges that the severance payment under the terms of the Agreement applies to his termination of employment.

[2] Origin Energy Limited T/A Origin Energy (Origin) submits that the Commission does not have jurisdiction to conciliate and/or arbitrate the dispute as it cannot be satisfied that there is a dispute, or that the Agreement applied to Mr Papadimitriou and that the required steps under the dispute settlement procedure had been taken, if assuming, the Agreement applied to him.

[3] The Agreement is a transitional instrument preserved under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act). The Agreement is an industrial instrument made under the Workplace Relations Act 1996 which was repealed, but it continues in existence in accordance with the Transitional Act. The transitional instrument applies to the employees, employer and any other person that it would have been covered had the Workplace Relations Act 1996 continued in operation.

[4] I issued directions for the filing of submissions. The parties agreed that I determine the matter on the papers.

[5] Origin was granted leave to be legally represented.

Background

[6] Mr Papadimitriou was an employee of Citipower’s retail business and transferred to Origin on 1 October 2002 after Origin acquired the business.

[7] Mr Papadimitriou was employed to perform the role of Account Manager from 2007, which was renamed to New Business Manager in June 2013. In June 2019 the role was renamed Business Development Manager – LPG (Field Based). Origin state that there was no change to duties with the name change, that the role continued to comprise field-based sales of LPG to Origin’s customers. 1 Mr Papadimitriou contends that the change to title in 2019 included substantial changes to the position which would require considerable training and because he was unsuitable to fill the role, he was entitled to redundancy under the Agreement.2

[8] In 2017 Mr Papadimitriou sustained an injury to his knee while driving a company vehicle which led to a period of absence on sick leave followed by workers compensation. In or around May 2018, Mr Papadimitriou commenced a period of personal leave and from 21 October proceeded on workers compensation. He did not return to work. Origin wrote to Mr Papadimitriou on 22, 27 and 29 October 2020 seeking information regarding his prospect of returning to his pre-injury duties or to alternative duties, but it did not receive either a response or any information that informed them of a time frame for a potential return to work. 3 On 11 November 2020, Origin wrote to Mr Papadimitriou while he was still absent from work4 and terminated his employment with notice paid in lieu, due to his inability to return to work in the foreseeable future. Mr Papadimitriou submits that his workers compensation claim continued until 21 May 2021.5

[9] Section 739 of the Act empowers the Commission to deal with disputes concerning dispute settlement terms in an industrial instrument. Mr Papadimitriou submits that the Agreement applied to his employment, while Origin submit it did not. Clause 4 of the Agreement states that it is binding on Origin Energy, the Australian, Municipal, Administrative, Clerical and Services Union (ASU), APESMA and its members and employees of Origin Energy eligible to be members of the ASU.

[10] Mr Papadimitriou’s dispute with Origin relies on the premise that his employment was covered by the Agreement. Clause 13 of the Agreement relates to redundancy and provides:

…a redundancy occurs where a position ceases to exist (or where it has been substantially redefined and the incumbent is clearly unsuitable to fill the redefined position) and the company does not provide a transfer to another position with similar accountabilities and on terms and conditions no less favorable than previously applying.

…………….

The retrenchment severance is three weeks of salary per year of service, calculated pro rata in the final year of service, subject to a maximum of 74 weeks’ salary, plus notice in accordance with clause 10.5…..

[11] Correspondence from the AWU to Origin on behalf of Mr Papadimitriou states that on or about 1 July 2020, following a company restructure, the position of Business Development Manager involved a greater proportion of field work and no work from home. It further states that due to his injury, he was not suitable for the “post-restructure role of Business Development Manager – LPG (Field Based)”. 6 On this basis, the AWU states that clause 32 is enlivened and given the weekly rate at the time of $1814.12 multiplied by the provision, yields a result of $97,962.48 owed by Origin. In subsequent correspondence, the AWU corrects the name of the Agreement and relies on clause 13 as described above to demand the payment of the severance payment. It further states that it is not arguing that the position ceased to exist, but rather that the position was “substantially redefined” and well within the defined entitlement under the Agreement.7

[12] The Agreement contains a pay structure in Appendix A, but the 40 steps provide no descriptors. Further the weekly rate of pay identified by the AWU is not reflected in Appendix A.

[13] Clause 8 (Disputes procedure) in the Agreement contains 2 steps before a dispute can be referred to the Commission for resolution by conciliation and arbitration. The clause also provides for steps to be by-passed in the interests of a speedy resolution.

Applicant’s submissions

[14] Mr Papadimitriou submits that he was entitled to the severance payment of 54 weeks under the Agreement (based on 18 years of employment with 3 weeks of severance pay per year) because he was covered by it, and further he submits that he initiated operation of the dispute settlement clause. In support, Mr Papadimitriou referred to the correspondence from the AWU to Origin, dated 18 December 2020, enquiring about payment of severance pay and further AWU correspondence dated 28 January 2021, plus his own letter to Origin dated 26 February 2021. 8

[15] Further, Mr Papadimitriou submits that the delay in initiating the dispute settlement clause was due to his letter of termination that was emailed on 11 November 2020 which failed to include a payment summary. This payment summary was received on 27 November, while the payment was made on 20 November 2020 and he says not until after “numerous phone calls” from him to Origin. 9 Mr Papadimitriou also explains the delay in the AWU correspondence due to a delay in response to his calls to the AWU.10

[16] In addition, Mr Papadimitriou submits that despite the termination of employment on 11 November 2020 he remained an employee “on a legal technicality” because Origin continued to make workers compensation payments instead of the payments made by the insurer which he submits constitutes the existence of an employee relationship. 11 Tendered in evidence were payslips for payment periods in 2021. These payslips identified workers comp payments and tax deducted.

[17] Mr Papadimitriou submits that he was a member of the ASU while employed by Citipower and following his transfer to Origin. At some point this membership did not continue and Mr Papadimitriou was represented by the AWU. The evidence shows that Mr Papadimitriou was represented by the AWU from 18 December 2020 until 28 January 2021. 12

[18] Mr Papadimitriou also maintains that he was covered by the Agreement because he found an email from Michelle Zoetemeyer of 21 January 2019 regarding the Agreement and because the AWU advised him of such. 13 This email was not tendered in evidence and in any event, coverage is an objective assessment, an advice that one is covered does not make it so unless factually the individual is covered.

Respondent’s submissions

[19] Origin submit that Mr Papadimitriou’s employment was terminated because his medical condition meant that he was unable to perform the essential requirements of his role and no suitable alternative positions were available. The submission that the position has substantially changed or was redefined is contested, and it submits that the central feature of the role was selling LPG to customers with only the administrative function which was ancillary to his role altered with the introduction of new software. 14

[20] Origin submit the Agreement did not apply as Mr Papadimitriou was not eligible to be a member of the ASU. His work involved travelling sales work in relation to wholesale and retail of LPG, and such work does not fall within the coverage of the ASU rules. Origin refer to the ASU Rules in support of this contention. It further submits that even if he was eligible to be a member of the ASU, the Agreement ceased to apply when he ceased to be an employee of Origin on 11 November 2020. 15

[21] Origin submit should the Agreement apply to Mr Papadimitriou’s employment, the dispute settlement clause applies to the “employee or employees concerned” and requires compliance with the stepped process. The process relates to steps an “employee” should take in resolving a dispute firstly at supervisory level before escalation to a more senior management level. It relies on the reference to employee in the context of clause 8 of the Agreement rather than a broader reference to the term employee. 16 Origin submit that Mr Papadimitriou did not enliven the dispute settlement clause while an employee. The first contact disputing the non-payment of the severance payment occurred after 11 November 2020 (the date of the dismissal). It relies on section 3 of schedule 3 of the Transitional Act to submit that Mr Papadimitriou did not meet the definition of a person whom clause 8 of the Agreement applied.17

[22] Origin contests that the dispute settlement clause was enlivened as no action was taken to allege the decision to dismiss was a redundancy or that severance pay was payable until after the termination of employment and after the Agreement ceased to apply, if it did apply during his employment. Consequently, the Commission has no jurisdiction to settle the dispute. 18

The legislation

[23] The Agreement that Mr Papadimitriou relies on and submits that it applies to his employment with Origin is an instrument of the repealed Workplace Relations Act 1996 (WR Act). The Fair Work (Transitional Provisions and Consequential Amendment) Act 2009 (Transitional Act) preserved agreements that were in operation under the repealed Act as at 1 July 2009, and they continue to apply as transitional instruments. Relevantly, Part 2- section 3 (1) of the Transitional Act provides:

(1) A transitional instrument covers the same employees, employers and any other persons that it would have covered (however described in the instrument or WR Act) if the WR Act had continued in operation.

[24] Part 2, schedule 3 of the Transitional Act provides that employee and employer have their ordinary meanings. Further an enterprise agreement confers rights and responsibilities while the agreement applies. The agreement only applies to those prescribed in clause 4 and sub clause (d) provides for “employees of Origin Energy eligible to be a member of the ASU” (my emphasis). Mr Papadimitriou therefore can enliven the dispute settlement clause if he is an employee covered by the Agreement but cannot do so post-employment. Sub Clause 4 (d) of the Agreement also requires that an employee is eligible to be a member of the ASU.

[25] The jurisdiction of the Commission to deal with a dispute is conferred where an enterprise agreement contains a dispute settlement clause and where its terms allow the Commission to deal with the dispute. Further, there is no jurisdiction to deal with a dispute if the dispute settlement term in the Agreement has not been complied with. 19

[26] The WR Act similarly contained provisions enabling the Commission jurisdiction where an agreement’s terms were followed, and the terms refer the dispute to the Commission. 20 This application was made pursuant to s.739 and the relevant provisions are:

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) effect as 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.

Consideration

[27] I am satisfied that Mr Papadimitriou’s employment came to an end on 11 November 2020, the fact that he was still entitled to worker’s compensation payments which were administered by Origin does not mean that the employment relationship continued after the dismissal initiated by the employer in November 2020. In Victoria it is common practice and generally a requirement for employers to continue to administer workers compensation payments post termination of employment, and direct payments from the insurer are less common.

[28] Origin submits and Mr Papadimitriou does not dispute, that his role was within the LPG sales team. Mr Papadimitriou submitted extracts from his performance reviews, a work from home arrangement and job description which all consistently provides for the primary function of LPG sales to customers. The evidence concerning the work from home arrangement makes clear that the purpose of the home base is for contacting customers and general admin associated with sales work, but the sales were expected to be conducted on the road. This type of work is not generally the nature of coverage of ASU membership.

[29] Further, Origin submit that Mr Papadimitriou was not eligible to be an ASU member and therefore could not have coverage under the Agreement. Mr Papadimitriou submits that he was a member of the ASU while employed with Citipower and eligible for membership of the ASU while employed with Origin. No evidence was tendered in support of Mr Papadimitriou’s contentions that he was eligible for ASU membership. Origin referred to part XIX of the ASU Rules which provided for orders regarding coverage made under the Workplace Relations Act 1996 to include “employees engaged in administrative, clerical, technical, engineering, scientific, professional, supervisory, managerial and operational classes of work of the following employers: …Citipower Ltd.” This rule was relevant at the time Citipower employees that were eligible for ASU membership transferred to Origin and subsequently gained coverage under the Agreement. There was no evidence tendered that the work conducted by Mr Papadimitriou met the ASU membership rules, hence on this basis, I cannot be satisfied that the Agreement applied.

[30] It is not contested that Mr Papadimitriou did not take steps to have discussions with or allege to Origin that he was redundant or entitled to severance pay prior to his termination of employment. It is not contested that the first contact with Origin occurred on 18 December 2020, even though reference to an irrelevant agreement was made in the correspondence. 21

[31] Assuming the Agreement applied, the dispute settlement clause was not enlivened as Mr Papadimitriou was not an “employee” when the AWU wrote to Origin in December 2020 and January 2021 alleging an entitlement to severance pay. Clause 8 (Disputes Procedure) states that the “employee or employer concerned will first meet and confer with their immediate supervisor”, the clause contains no language that contemplates a dispute between an ex-employee and the ex-employer.

[32] The principles relevant to construing an enterprise agreement is to firstly ascertain a plain language approach. The reference to “employee” has a plain meaning and is not ambiguous, and furthermore, the Transitional Act provides that the word has its ordinary meaning for the purpose of transitional instruments.

[33] Mr Papadimitriou referred to reasons why he delayed action pursuant to the dispute clause. Despite the reasons provided by Mr Papadimitriou for any delay, those reasons do not affect the plain language of the clause. It is evident that no dispute was actioned while Mr Papadimitriou was an employee.

[34] Assuming the Agreement applied to Mr Papadimitriou’s employment, which I cannot find, the dispute settlement clause was not complied with and therefore the Commission is not authorised to deal with the dispute.

[35] For the above reasons, pursuant to s.739 of the Act, the Commission does not have jurisdiction to deal with the dispute. Therefore, the application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR732941>

 1   Letter from Origin to the AWU dated 22 December 2020, document 15 of the Applicant’s materials.

 2   Letter from AWU to Origin dated 28 January 2021, document 16 of the Applicant’s materials.

 3   Op Cit.

 4   Letter from Simon McDougall dated 11 November 2020 Document 1 of the Applicant’s materials, and SM-04 attached to witness statement of Mr McDougall.

 5   Applicant’s outline of submissions at part 4.

 6   Letter from AWU to Origin dated 18 December 2020, document 14 of the Applicant’s materials.

 7   Letter from AWU to Origin dated 28 January 2021, document 16 of the Applicant’s materials.

 8   Applicant’s outline of submissions at part 2.

 9   Applicant’s outline of submissions at part 3.

 10   Ibid.

 11   Applicant’s outline f submissions at part 5.

 12   Correspondence by the AWU submitted in evidence.

 13   Applicant’s outline of submissions at part 1.

 14   Letter from Origin to the AWU dated 4 February 2021, document 17 of the Applicant’s materials.

 15   Respondent’s outline of submissions at [14] – [16].

 16   Respondent’s outline of argument at [8] – [10].

 17 Ibid at [16].

 18   Respondent’s outline of submissions at [17] – [21].

 19   The Australian Workers’ Union v MC Labour Services Pty Ltd[2017] FWCFB 5032.

 20 See ss.710 and 711 Workplace Relations Act 1996.

 21   Affidavit of Michelle Zoetemeyer, Senior Consultant – People and Culture; Applicant’s outline of submissions, and Affidavit of Simon McDougall, National Manager Business Sales.