Joyce Nallathamby v Monash Health T/A Dandenong Hospital

[2019] FWC 6750

[2019] FWC 6750

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Joyce Nallathamby
v
Monash Health T/A Dandenong Hospital
(C2018/6849)

Health and welfare services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 30 SEPTEMBER 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – dispute about matters arising under the Allied Health Professionals (Victorian Public Health Sector) Single Interest Enterprise Agreement 2016-2020 – jurisdictional objection – s.739 Fair Work Act 2009.

[1] This matter came to the Fair Work Commission (Commission) by way of an application under s. 739 of the Fair Work Act 2009 (the Act) by Ms Joyce Nallathamby (the Applicant). The respondent to the application is Monash Health T/A Dandenong Hospital (Monash Health).

[2] The application relates to a dispute between Ms Nallathamby and Monash Health regarding the operation of the Allied Health Professionals (Victorian Public Health Sector) Single Interest Enterprise Agreement 2016-2020 (the Current Agreement) and a number of other instruments that have applied throughout Ms Nallathamby’s employment.

Background

[3] By way of background to this application, Ms Nallathamby commenced her employment with Monash Health in September 2000 as a Sri-Lankan Support Worker, classified as Sundry Medical Support, on a rate of $14 per hour. Monash Health reclassified Ms Nallathamby as a Community Development Worker (CDW) Class 1 from 8 July 2013. 1

[4] On 7 May 2018 Ms Nallathamby wrote to Monash informing them that she had not received either a CPI or award increase since the commencement of her employment in September 2000 to 7 July 2013, and that her classification prior to July 2013 did not reflect her qualifications or experience. 2

[5] On 21 September 2018, Monash Health advised Ms Nallathamby that they would only rectify the underpayment and pay her as a CDW1 Class 1 Year 2 for the period from when she raised the complaint to 7 May 2012, which came to an amount of $2486.56. 3

[6] Ms Nallathamby wrote to Monash and provided further information in support of her request on 24 September 2018. On 5 October 2018, Monash Health advised Ms Nallathamby that they were reviewing her request for back pay and the additional information provided and would provide her with an outcome by no later than 12 October 2018. On 11 October 2018, Monash Health advised Ms Nallathamby that they did not consider that the additional evidence she had provided was sufficient to support her claim that a request for back pay had been made earlier and confirmed that they were only amenable to providing back pay for the six years of her employment prior to 7 May 2018. 4

[7] Monash Health did not dispute that Ms Nallathamby had been underpaid, however limited the back pay to a period of 6 years, relying on the operation of section 545(5) of the Act which provides;

“(5) A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.”

[8] Further correspondence was exchanged between the parties until 9 November 2018 when Ms Nallathamby’s employment was terminated by way of redundancy. 5 On 5 December 2018, Ms Nallathamby lodged her application with the Commission.

[9] The application was the subject of a conference before me however the matter remained unresolved.

[10] Monash Health objected to the application, submitting that the Commission does not have the power to deal with the dispute under s.739 of the Act as Ms Nallathamby did not have standing to make an application under the Current Agreement because she was no longer an employee at the time the application was lodged. They further submitted that prior to her cessation of employment Ms Nallathamby had not raised a dispute about her classification or the higher qualifications allowance in accordance with the dispute resolution clause in the Current Agreement.

[11] The parties filed submissions in support of their positions however I did not consider that I had sufficient materials before me to determine the Respondent’s jurisdictional objection. Accordingly, the matter was listed for a hearing before me.

Submissions of the Respondent

[12] The Respondent submitted that the Applicant lodged her dispute under s.739 of the Act on 5 December 2018. 6 They submitted that s.739 is found under Part 6-2 – Dealing with Disputes of the Act, with s.735 (Guide to this Part) providing that Part 6-2 is about dealing with disputes between national system employees and their employers.7

[13] They submitted that s.736 provides that for the purposes of this Part an employee is a national systems employee while an employer is a national system employer, defined in ss.13 and 14 of the Act as follows:

“a. A national system employee is an individual so far as he or she is employed, or usually employed…. by a national system employer (as defined in section 14); and

b. A national system employer includes a constitutional corporation, so far as it employs, or usually employs, an individual. We accept that Monash Health constitutes a national system employer for the purposes of the Act.” 8

[14] The Respondent submitted that, in order for the Applicant to seek the assistance of the Commission to deal with a dispute under s.739 of the Act, at the time of making the application the Applicant must be an employee of the Respondent and be covered by the Agreement. 9

[15] They submitted that Ms Nallathamby’s employment was terminated on 9 November 2018 by way of redundancy. Accordingly, at the time that she lodged the dispute on 5 December 2018, Ms Nallathamby was no longer an employee of Monash Health and therefore was not covered by the Agreement under which she filed the application. 10

[16] Monash Health further submitted that Ms Nallathamby had at no stage prior to the filing of her application raised a dispute in accordance with the dispute resolution clause in the Current Agreement about being wrongly classified or being entitled to the higher qualifications allowance.

[17] The Respondent submitted that as Ms Nallathamby was not an employee of Monash Health and not covered by the Agreement at the time of making the application, nor had she followed the disputes resolution steps in clause 14 of the Current Agreement, she does not have standing to make a s.739 application to the Commission. Accordingly, they submitted that the Commission does not have the power to deal with the dispute under s.739 of the Act. 11

Submissions of Nallathamby

[18] Ms Nallathamby submitted that she had worked 8 hours per fortnight for 15 years running using her skills and experience to service clients at the Springvale Community Aid and Advice Bureau. She submits that she was paid $14 per hour without consideration of her qualifications, professional experience and expertise. 12

[19] Ms Nallathamby submits she had raised the dispute about her underpayment claim in accordance with the dispute resolution procedure. The evidence Ms Nallathamby sought to rely on in support of her claim is an email she sent on 6 May 2011 to ‘Payroll Enquiries’ in which she states inter alia that she is being underpaid and she should be paid the “award rate”. Ms Nallathamby received a response by email from Payroll on 23 May 2011 stating that she was on a fixed classification and that a variation would need to be provided stating what she should be paid in order for any adjustment to be actioned. Ms Nallathamby took no further steps to follow this matter up until Ms Quayle, Social Work Manager, raised the issue in December 2012. 13

[20] Ms Nallathamby submits that an email sent by her husband Mr Nallathamby on 17 December 2012, which was subsequently forwarded to Ms Quayle, should be considered as evidence that Ms Nallathamby pursued her claim. The email states as follows;

“That is a great letter and now gives you a foothold for a claim, even if they discontinue the position. Carol seems to be a genuine and good manager with guts.

Love Dev” 14

[21] On 14 December 2012 Ms Quayle wrote to the then Deputy Director of Nursing informing her that Ms Nallathamby was employed under an “anomaly award” and had been paid $14 per hour for 12 years. In her email Ms Quayle stated she had discussed the matter with Human Resources at Dandenong and suggested that Ms Nallathamby be classified as a Community Development Worker Class 1 Year 2 and that she be paid at the relevant classification. 15

[22] Ms Nallathamby wrote to the Deputy Director of Nursing in May 2013 requesting that the review of her position be resolved by the end of the financial year. Ms Nallathamby was reclassified effective July 2013. Whilst Ms Nallathamby made inquiries about missing payments, she made no further inquiries about her classification until she met with Monash Health in April 2018. 16

[23] On 23 April 2018, Ms Quayle and Ms Nim, Business Partner met with Ms Nallathamby to discuss the proposed changes which would ultimately have the effect of making her position with the organisation redundant. On 7 May 2018 Ms Nallathamby wrote to Monash informing them that she had not received either a CPI or award increase since the commencement of her employment in September 2000 to 7 July 2013, and that her classification prior to July 2013 did not reflect her qualifications or experience. 17

[24] Ms Nallathamby again raised those same issues on 4 June 2018 after a consultation meeting with Monash Health on 1 June 2018. She wrote to Ms Quayle informing her she was not satisfied with the consultation meeting and that her concerns had not been considered. Ms Nallathamby wrote;

“[7] I have pointed out clearly that we cannot move forward in the CIS process, without addressing my underpayment over 12 years before a CDW classification was made.

Recently, the Fair Work Commission has come down hard on employers who do not pay the rightful wages of employees and the lack of Union backing should not be considered as a weakness and I am serious about pursuing an equitable solution to the issue. The loss in wages over 12 years is considerable.” 18

[25] Monash Health responded on 25 June 2018 advising that the request for back pay from 7 May 2018 was being looked into and advising that back pay for an underpayment may only be claimed by employees within the previous six years from the time the request was made. 19

[26] On 19 July 2018 Ms Nallathamby again wrote to Ms Quayle informing her that she had reluctantly resigned herself to the Change Process and advised her expectations were that the matter of back payment should be resolved equitably and any limitations would be counter-productive. Ms Nallathamby went on to state that she did not wish to seek redress through the Commission. 20

[27] On 10 August 2018 Ms Quayle formally notified Ms Nallathamby of the outcome of the consultation, being that she would formally be entering into the Monash Health Redeployment Program. Ms Nallathamby replied to Ms Quayle on 16 August 2018 accepting the outcome and reiterating that the anomaly in underpayment was yet to be resolved. 21

[28] On 4 September 2018 Ms Nallathamby was notified that she was formally in the redeployment process. On 10 September 2018, Ms Nallathamby sought an update on her underpayment claim. That same day Ms Quayle responded requesting to meet with Ms Nallathamby in person. On 21 September 2018, Ms Quayle informed Ms Nallathamby in writing that Monash Health had agreed to back pay Ms Nallathamby for the six years prior to the date that she had raised her dispute, being 7 May 2018. The back payment was made for the period of 7 May 2012 to 7 May 2018 at the classification rate of a Community Development Worker Class 1 Year 2. 22

[29] Ms Nallathamby was not satisfied with the outcome and requested her service as an employee prior to 7 May 2012 also be considered. On 23 September 2018 Ms Nallathamby provided Ms Quayle with the email she had sent to payroll in 2011 as evidence that she had previously raised an underpayment query. 23

[30] On 24 September 2018 Ms Nallathamby wrote to Ms Quayle expressing her disappointment that she had not been back paid for the 12 years that she alleges she was underpaid. Ms Nallathamby stated that if a compromise could not be reached she may be compelled to take the matter to the Commission. 24

[31] On 3 October 2018 Ms Nallathamby again wrote to Ms Quayle expressing her dissatisfaction with the alternative duties positions offered during the redeployment process and requesting that there be a quick resolution to her “pay anomaly”. Ms Nim replied to Ms Nallathamby in the absence of Ms Quayle offering other alternative duties that may have been more suitable to Ms Nallathamby’s skills.  25

[32] Ms Nallathamby again wrote to Ms Quayle on 7 October 2018 requesting that her pay anomaly be dealt with. In her letter she states inter alia that “the variation called for on 23/05/11, to make back payment, should address issues like increments lost due to remaining on a fixed classification after the first year, unpaid annual leave loading, higher qualification allowance etc., to be equitable.”  26

[33] Ms Nim responded informing Ms Nallathamby that her request regarding back pay had been considered and determined in light of the information provided and that Monash Health’s position remained the same.  27

[34] Ms Nallathamby again wrote to Ms Quayle on 12 October 2018 with a copy to Ms Nim and Ms Re, Head of Social Work. In her letter rejecting the assertion that the offer was fair she states “we should consider the next step of dispute resolution before proceeding to the Fair Work Commission”.  28

[35] Correspondence was sent by Ms Quayle to Ms Nallathamby on 23 October 2018 again reiterating Monash Health’s position. Ms Nallathamby replied on 23 October 2018 stating that she was not satisfied with the outcome, requesting that the formal dispute resolution process commence. She stated that should Monash Health not comply then she would seek permission to proceed to have the matter referred to the Commission. Ms Quayle responded on 24 October 2018 stating that she would follow the matter up with Ms Nim. Ms Nallathamby opposed this course of action and requested that the Head of People and Culture be involved.  29

[36] Ms Gaylene-Giles, Senior Manager People and Culture, replied on 7 November 2018 acknowledging Ms Nallathamby’s request for back pay. Ms Gaylene-Giles informed Ms Nallathamby that she had reviewed the matter and was satisfied that the back pay request had been resolved in accordance with the industrial requirements.  30

[37] The parties again exchanged correspondence on the 9 November 2018 with Ms Nallathamby’s again seeking to engage the dispute resolution process before proceeding to the Commission. Ms Gaylene-Giles responded reconfirming Monash’s position that the back pay claim had been adequately considered and resolved in accordance with the industrial requirements. Ms Gaylene-Giles wrote that Monash Health considered the matter to be closed. Ms Nallathamby’s employment ceased effective that same day due to her position becoming redundant.  31

The Legislative Framework

[38] 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) 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.”

[39] The Dispute Resolution Procedure of the Current Agreement can be found at clause 14 and provides as follows:

“14. Dispute Resolution Procedure

14.1 Resolution of disputes and grievances

(a) For the purpose of this clause 14, a dispute includes a grievance.

(b) This dispute resolution procedure will apply to any dispute arising in relation to:

(i) this Agreement;

(ii) the NES;

(iii) a request for an additional 12 months parental leave; or

(iv) a request for flexible working arrangements.

(c) A party to the dispute may choose to be represented at any stage by a representative including a Union or employer organisation. A representative, including a Union or employer organisation on behalf of an Employer, may initiate a dispute.

14.2 Obligations

(a) The parties to the dispute and their representatives must genuinely attempt to resolve the dispute through the processes set out in this clause 14 and must cooperate to ensure that these processes are carried out expeditiously.

(b) While the dispute resolution procedure is being conducted work will continue normally according to the usual practice that existed before the dispute, until the dispute is resolved.

(c) This requirement does not apply where an Employee:

(i) has a reasonable concern about an imminent risk to their health or safety;

(ii) has advised the Employer of the concern; and

(iii) has not unreasonably failed to comply with a direction by the Employer to perform other available work that is safe and appropriate for the Employee to perform.

(d) No party to a dispute or person covered by the Agreement will be prejudiced with respect to the resolution of the dispute by continuing work under this subclause 14.2.

14.3 Dispute settlement facilitation

(a) Where the chosen representative is another Employee of the Employer, that Employee will be released by the Employer from normal duties as is reasonably necessary to enable them to represent the Employee/s including:

(i) investigating the circumstances of the dispute; and

(ii) participating in the processes to resolve the dispute, including conciliation and arbitration.

(b) An Employee who is part of the dispute will be released by the Employer from normal duties as is reasonably necessary to enable them to participate in this dispute settling procedure so long as it does not unduly affect the operations of the Employer.

14.4 Discussion of dispute at workplace

(a) The parties will attempt to resolve the dispute at the workplace as follows:

(i) in the first instance by discussions between the Employee/s and the relevant supervisor; and

(ii) if the dispute is still unresolved, by discussions between the Employee/s and more senior levels of local management.

(b) The discussions at subclause 14.4(a) will take place within fourteen days or such longer period as mutually agreed, save that such agreement will not be unreasonably withheld.

(c) If a dispute cannot be resolved at the workplace it may be referred by a party to the dispute or representative to the Commission for conciliation and, if the matter in dispute remains unresolved, arbitration.

14.5 Disputes of a collective character

Disputes of a collective character may be dealt with more expeditiously by an early reference to the Commission. However, no dispute of a collective character may be referred to the Commission directly without a genuine attempt to resolve the dispute at the workplace level.

14.6 Conciliation

(a) Where a dispute is referred for conciliation, the Commission member will do everything the member deems right and proper to assist the parties to settle the dispute.

(b) Conciliation before the Commission is complete when:

(i) the parties to the dispute agree that it is settled;

(ii) the Commission member conducting the conciliation, either on their own motion or after an application by a party, is satisfied there is no likelihood that further conciliation will result in settlement within a reasonable period; or

(iii) the parties to the dispute inform the Commission member there is no likelihood the dispute will be settled and the member does not have a substantial reason to refuse to regard conciliation as complete.

14.7 Arbitration

(a) If, when conciliation is complete, the dispute is not settled, either party may request the Commission proceed to determine the dispute by arbitration.

(b) The Commission member that conciliated the dispute will not arbitrate the dispute if a party objects to the member doing so.

(c) Subject to subclause 14.7(d) below, a decision of the Commission is binding upon the persons covered by this Agreement.

(d) An appeal lies to a Full Bench of the Commission, with the leave of the Full Bench, against a determination of a single member of the Commission made pursuant to this clause 14.

14.8 Conduct of matters before the Commission

Subject to any agreement between the parties to the dispute in relation to a particular dispute or grievance and the provisions of this clause 14, in dealing with a dispute or grievance through conciliation or arbitration, the Commission will conduct the matter in accordance with sections 577, 578 and Subdivision B of Division 3 of Part 5-1 of the Act.”

Consideration

[40] In her application Ms Nallathamby raises three matters, the first being the alleged underpayment for the period of employment from 2001 to 2012; the second being that she should have been classified as a CDW Class 2B Year 6 instead of a CDW Class 1 Year 2; and the third being that she should have been paid a higher qualifications allowance.

[41] The relief sought by Ms Nallathamby was that the Commission review her classification as at the end of her trial period, being 11 September 2001, and award back payment of her entitlements for her period of employment from September 2001 to July 2013. Ms Nallathamby also sought that she be classified as a CDW Class 2B year 6 from July 2013 to 11 September 2018. Finally, Ms Nallathamby sought that in calculating her redundancy, consideration should have been given to the inclusion of a higher qualifications allowance.

[42] Monash Health submit Ms Nallathamby does not have standing to make an application under the Current Agreement because she was no longer an employee at the time the application was lodged and during her employment she had not raised her dispute in accordance with the dispute resolution clause in the Current Agreement. Monash further submit Ms Nallathamby was not entitled to be paid the higher qualifications allowance because she was not required to have those qualifications in order to perform her role.

[43] Ms Nallathamby submitted that the dispute should be dealt with under the Health Services Union of Australia, Health Professionals, Victorian Public Sector Multi Employer Certified Agreement 2000 to 2004 (2000 Agreement) and the Victorian Public Health Sector (Health Professionals, Health and Allied Services, Manager and Administrative Officers) Multiple Enterprise Agreement 2011-2015 (2011 Agreement) or alternatively the model dispute resolution clause in the Act. Ms Nallathamby asserts that the Commission has jurisdiction to arbitrate a dispute under the 2000 and 2011 Agreements because she raised her dispute with the Commission and in the current circumstances it would be unfair not to do so. Ms Nallathamby objected to the Commission proceeding with Monash Health’s objection submitting that the Commission should instead hear her merits argument relying on section 3(e) and s.577 (a) and (b) of the Act.

[44] Although I am sympathetic to Ms Nallathamby’s situation, it is well established that the Commission only has the power that is specifically conferred on it by the Act, that is the Commission can only deal with matters that fall within its jurisdiction. Applications may be legally challenged by employers who believe the Commission does not have jurisdiction to hear a matter. Jurisdiction objections must be dealt with by the Commission before the merits of a matter can be determined.

[45] Section 738 of the Act states that Division 2 of Part 6-2, which includes s.739, applies if (relevantly) ‘an enterprise agreement includes a term that provides a procedure for dealing with disputes…’. Section 739 applies if a term referred to in s.738 ‘requires or allows’ the Commission to deal with a dispute (s.739(1)), and s.739(4) provides that if, in accordance with such a term, the parties have agreed that the Commission may arbitrate the dispute, the Commission may do so.

[46] The Current Agreement that applies to Ms Nallathamby is the Allied Health Professionals (Victorian Public Health Sector) Single Interest Enterprise Agreement 2016-2020. The Current Agreement operates to the exclusion of any award, workplace determination or other agreement which previously applied to her employment and there is no term within the Current Agreement that provides an avenue for the raising or determination of a dispute from an agreement that is no longer in operation. Therefore the 2004 and 2011 Agreements no longer apply to Ms Nallathamby’s employment. Further, neither of those Agreements have remained in operation, therefore I do not have the jurisdiction to hear or determine a dispute about a breach of a term of either the 2004 or 2011 agreements.

[47] Ms Nallathamby has also misconstrued the purpose of Schedule 6.1 of the Fair Work Regulations 2009 (Regulations) being the model term for dealing with disputes for enterprise agreements. The Act requires that all modern awards and agreements include a term which sets out a procedure for resolving disputes between employers and employees. In the case of an enterprise agreement, the dispute resolution clause must provide a process to resolve disputes arising under the agreement or relating to the National Employment Standards. The purpose of the ‘model dispute resolution clause’ contained in the Regulations is that it can be used to develop a dispute resolution term in an enterprise agreement. It is not an alternative mechanism for which an employee can utilise to attempt to resolve applications in the Commission.

[48] The second part of Ms Nallathamby’s claim was that the Commission deal with the underpayment claim by awarding a back payment for the period of September 2001 to July 2013. As previously stated, the Commission does not have the power to arbitrate a matter pertaining to an enterprise agreement that has ceased to operate. Further the relief sought by Ms Nallathamby is a civil remedy, and an order for back pay is not an order that the Commission can make. Section 739 provides that the Commission must not make decisions that are inconsistent with the Act, or a Fair Work instrument that applies to the parties. If a term of an enterprise agreement has been contravened then section 544 of the Act allows a person to sue for a contravention of a civil remedy provision (such as s.50 of the Act), however it is relevant to note that there is a time limit on applications, being that an application is to be made within 6 years after the day on which the contravention occurred. The part of Ms Nallathamby’s underpayment claim she is seeking for the Commission to determine relates to a period from September 2001 to July 2013 which falls outside of the statutory time frame.

[49] I now turn to the remaining items raised in Ms Nallathamby’s application, being that Ms Nallathamby should have been classified as a CDW Class 2B year 6 instead of a CDW Class 1 year 2 and that she should have been paid a higher qualifications allowance.

[50] Monash Health submits that they first became aware of the classification dispute and the claim for a higher qualifications allowance upon receiving Ms Nallathamby’s application and Ms Nallathamby had at no time prior to making her application raised a dispute of this nature with Monash Health.

[51] During the hearing Ms Nallathamby gave evidence consistent with the correspondence submitted as evidence. Ms Nallathamby’s oral evidence was that she had both verbally and in writing raised her concerns about the underpayment of wages from 2000 to 2012 however she had not at any time during her employment raised a dispute about being classified as a CDW Class 2B Year 6 or being eligible for a higher qualifications allowance in accordance with clause 14 of the Agreement.

[52] Monash Health relied on a number of decisions in support of their jurisdictional objection, including the decision in ING Administration Pty Ltd v Jajoo 32 in which the majority of the Full Bench found;

“[38] We accept that a single person dispute which arises for the first time after the termination of employment is not a dispute between an employer and an employee. However, many disputes will arise while employment exists and continue after the termination of employment. In such a case, when the dispute arises, it is a dispute between an employee and an employer. If the dispute is progressed to the point of seeking the assistance of the Commission, the ING interpretation would require the employee to remain in employment. If it was intended to incorporate a limitation in s 170LW of the nature contended for by ING, we would expect there to be a clear express reference to that effect.”

[53] Monash Health submit that Jajoo is supportive of the proposition that in order for the Commission to have jurisdiction the dispute has to have been notified in accordance with the dispute resolution term and have progressed to a stage that it could be referred to the Commission for assistance in resolving the matter. They submitted that this is not the case in the current matter, as Ms Nallathamby had neither raised the dispute pertaining to her classification or the higher qualifications allowance or followed the dispute resolution procedure as set out in the current agreement prior to the cessation of her employment. Monash Health further submit that Ms Nallathamby was reclassified in 2013 as a CDW Class 1 year 2 and at no time during the process or after being reclassified did she raise the dispute outlined in her application that she should have been in a higher classification.

[54] Monash Health also relied on the decision of The Australian Workers’ Union v MC Labour Services Pty Ltd 33 in which the Full Bench found that once an agreement had been approved by the Commission, in dealing with a s.739 application about a term of that agreement, it would not be permissible for the Commission to recast or ignore certain components of the dispute settlement procedure.34 Therefore if a dispute settlement clause of an agreement sets pre-conditions for the capacity of the Commission to deal with a dispute, and those pre-conditions have not been met, there is no general discretion afforded to the Commission under the Act to deal with the dispute.

[55] It was incumbent on Ms Nallathamby to comply with the dispute resolution clause in the Current Agreement prior to the dispute being referred to the Commission. The dispute resolution clause as set out above in paragraph [39] requires a party to the dispute to follow the steps set out in the dispute resolution clause. Monash Health argue that Ms Nallathamby in raising her dispute before the Commission had failed to comply with the steps required in clause 14 of the Agreement.

[56] The evidence supports a finding that at the time Ms Nallathamby made her application she was no longer an employee of Monash Health. For the jurisdiction of the Commission to be enlivened Ms Nallathamby would have been required to have raised her dispute in accordance with and followed the dispute resolution steps in clause 14 of the Agreement that applied to her at the time of her employment.

[57] The email correspondence provided by Ms Nallathamby as evidence that she had raised the dispute and complied with the dispute resolution process in the agreement pertains to Ms Nallathamby’s claim for back payment for the underpayment of wages, statutory entitlements such as leave, higher duties and increments not received due to remaining on a fixed classification for the period between 2001 and 2013. The evidence led by Ms Nallathamby does not support her claim that a dispute was raised during the consultation period that she should have been classified as a CDW Class 2B Year 6, nor was there evidence to support a claim that a dispute was raised with Monash Health about a higher qualifications allowance after July 2013. During the hearing Ms Nallathamby gave oral evidence that she had not raised either of those matters as a dispute in accordance with the dispute resolution clause prior to her role being made redundant by Monash Health.

Findings

[58] I am not satisfied that Ms Nallathamby had agitated or notified a dispute about either the classification or higher qualifications in accordance with the dispute resolution clause during her employment. It follows, and I find, that the disputes procedure in clause 14 of the Agreement has not been followed. The Commission therefore has no jurisdiction to deal with the alleged dispute.

[59] The application is therefore dismissed.

COMMISSIONER

Appearances:

D. Nallathamby for the Applicant;

N. Fletcher for the Respondent.

Hearing details:

2019

Melbourne

22 August

Printed by authority of the Commonwealth Government Printer

<AE424114  PR712881>

 1   Respondent’s Form F1

 2   Exhibit A1

 3   Ibid.

 4   Ibid.

 5   Ibid.

 6   Exhibit R1, [1]

 7   Ibid., [2] – [3]

 8   Ibid., [4]

 9   Ibid., [8]

 10   Ibid., [9]

 11   Ibid., [10] – [11]

 12   Exhibit A1

 13   Ibid.

 14   Ibid.

 15   Ibid.

 16   Ibid.

 17   Ibid.

 18   Ibid.

 19   Ibid.

 20   Ibid.

 21   Ibid.

 22   Ibid.

 23   Ibid.

 24   Ibid.

 25   Ibid.

 26   Ibid.

 27   Ibid.

 28   Ibid.

 29   Ibid.

 30   Ibid.

 31   Ibid.

 32   PR974301

 33   [2017] FWCFB 5032

 34   Ibid at [37]