Kim Lock v Ergon Energy Corporation Limited
[2009] FWA 1447
•2 DECEMBER 2009
[2009] FWA 1447
The attached document replaces the document previously issued with the above code on 2 December 2009.
Kate Turner
Associate to Commissioner Larkin
Dated 3 December 2009
[2009] FWA 1447 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
v
Ergon Energy Corporation Limited
(C2009/10226)
COMMISSIONER LARKIN | SYDNEY, 2 DECEMBER 2009 |
Alleged dispute concerning the unsatisfactory redeployment of an ASU member and her entitlement to retrenchment benefits as outlined in Clause 10, Schedule 2 of the Ergon Energy Certified Agreement 2005.
[1] On 21 October 2009 I issued a decision 1 whereby I determined that Fair Work Australia (FWA) had jurisdiction to hear and determine a dispute lodged by the Australian Services Union (ASU) under s.739 of the Fair Work Act 2009 (the Act) on behalf of its member, Ms Lock. The dispute between Ms Lock and her employer Ergon Energy Corporation Limited (Ergon) concerned redeployment and retrenchment benefits contained in agreements. The jurisdictional challenge raised by Ergon related to the ASU’s reliance upon the Ergon Energy Certified Agreement 2005 in the application lodged under s.739 of the Act, as opposed to the existing agreement, the Ergon Energy Union Collective Agreement 2008 (the agreement).
[2] In that decision, I concluded:
“In conclusion, I am satisfied that FWA does have jurisdiction to hear and determine the s.739 application lodged by the ASU on behalf of its member Ms Lock.
I am satisfied that the parties were in dispute in June 2009 when Ergon’s Chief Executive Officer advised Ms Lock that she did not have an entitlement to voluntary redundancy and the ASU lodged an application on 11 August 2009 for FWA to deal with a dispute pursuant to s.739 of the Act.
I accept that there was an error in that application and pursuant to s. 586 I am satisfied that I should allow an amendment to that application to identify the 2008 agreement, which includes a term that provides a procedure for dealing with disputes as required by s.738 of the Act.”
[3] The substantive application under s.739 of the Act was heard on 28 October 2009. Ms Sheppard, ASU, appeared for and with Ms Lock. Mr Montgomery, Industrial Relations Advisor, appeared on behalf of Ergon.
[4] As stated in the decision of 21 October 2009, the agreement includes a term that provides a procedure for dealing with disputes. Those terms are found at Part 2 Grievances and Disputes. Relevant to this matter is:
“Arbitration by the Commission
2.1.19 In the event the matter is not resolved through conciliation and proceeds to arbitration either party to the dispute may request another member of the Commission to arbitrate and hand down a binding decision. In arbitrating the matter the Commission will give the parties an opportunity to be heard formally on the matter(s) in dispute.
2.1.20 In making its decision the Commission:
(a) will have regard to the materials, including witness evidence, and submissions put before it at the hearing and will disregard any admissions, concessions, offers or claims made in conciliation or mediation;
(b) will be governed in its decisions by equity, good conscience and the substantial merits of the case;
(c) will not be bound by technicalities, legal forms or rules of evidence; and
(d) may inform itself on any matter it considers appropriate to resolve the grievance or dispute.
2.1.21 After the hearing, the Commission will provide the decision in writing to the parties to the dispute as quickly as practicable.”
[5] The parties’ agreed procedure requires or allows the Commission, which under the provisions of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 at Schedule 3, Part 2, item 6 is now FWA, to deal with the dispute by conciliation or arbitration. Neither party has requested another member to arbitrate. Pursuant to ss 739(3) of the Act, FWA must not exercise any powers limited by the term. Under clause 2.1.20 the parties have determined what FWA can and cannot do in making its decision. I have had regard to the requirements of clause 2.1.20 and also clauses 2.1.19 and 2.1.21 of the parties’ agreed procedure.
[6] As stated, the dispute between Ms Lock and her employer concerns clause 10, Redeployment, of Schedule 3, Redundancy Provisions, of the agreement, which reads:
“10. REDEPLOYMENT
Following the consultative steps detailed in Clause 6 of this Schedule, all efforts will be made to find suitable alternative employment for employees whose positions are declared redundant. Each affected employee will be individually interviewed to determine what options may exist for the management of that employee’s future.
Where an employee is redeployed they will retain their Base rate of Pay prior to redeployment as a minimum. This will not include shift loadings unless applicable to the redeployed position.
Where applicable, payment of redeployment expenses will be in accordance with Ergon Energy’s Relocation Policy applying at the time.
Redeployed employees will be eligible for retrenchment benefits if it is found within three (3) months by either themselves or Ergon Energy, that the alternative position is unsatisfactory.”
[7] The issue in dispute is whether Ms Lock is entitled to retrenchment benefits in accordance with the above agreement provision.
[8] The background to this matter is outlined in my decision of 21 October 2009. Not all of that background is relevant to the question to be answered in this decision. Relevant to this decision are the following dates.
- April 2006 Ms Lock commenced employment with Ergon.
- 18 July 2006 Ms Lock was advised that the area/department in which she worked was to be sold. Ms Lock requested redeployment within Ergon.
- 7 August 2006 Ms Lock is redeployed from Ergon Energy’s retail business unit (EEPL) to Ergon’s Customer Service business unit as Operations Officer, position number 116249.
- 30 January 2007 Ms Lock is advised of a restructure of the Customer Service Group and that the impact of the restructure “is that your position remains unchanged, although reporting through to a new manager and workgroup. The transfer of your current position of OPERATIONS OFFICER to Service Operations Group reporting to Chris Carter effective from 2nd April 2007”. 2
- March to July 2007 Ms Lock was seconded to the Full Retail Contestability project (FRC) as an FRC project officer.
- June 2007 Ms Lock is provided with an updated position profile for her role as Operations Officer.
- 1 July 2007 Ms Lock returns to the Operations Officer role at the conclusion of her secondment.
- August 2007 Ms Lock commences maternity leave. Ms Lock sought and was granted extensions to her original maternity leave period.
- May 2008 Ms Lock requests voluntary redundancy (VR). Ms Lock is advised by Human Resources that her request was not approved. Ms Lock continued to seek a review of the Ergon position throughout 2008 and 2009.
[9] On my understanding, at the time of this decision, Ms Lock remains on leave of absence from Ergon.
[10] The ASU submitted:
“In April 2007 the new structure of the retail business was announced. Ms Lock was advised what team she was going to be allocated to. In July 2007 Ms Lock was appointed to her alternative substantive position as a market operations officer. Whilst employed in this position Ms Lock performed duties including actioning received emails by sending national meter identity numbers for publication. This function is significantly different to the duties performed when Ms Lock was a pricing officer.
Upon commencing the new position Ms Lock continually questioned the relevance of the position as a marketing operations officer as the role did not resemble the role of her redundant position. Ms Lock was advised that a review of the structure would occur and after the review the role descriptions would be clarified providing her with a more in depth understanding of her alternative position to determine whether or not the position was actually satisfactory. Ms Lock took on faith what she was told by Ergon and waited patiently for the new structure to be completed. In doing so Ms Lock has been significantly disadvantage.
Ms Lock requested a copy of the position description for the position that she was being allocated to. This was not provided, however she was advised that once the review was complete she would receive a copy of her position description. This review wasn't completed until September 2007. Our member has been on maternity leave since August 2007 and her child was actually born on 20 August. Ergon denied Ms Lock's entitlement to a voluntary redundancy as they claim that the three month period as outlined in schedule 2 of the agreement had expired.” 3
[11] Whether the August 2006 redeployment was an interim or substantive position is in dispute between the parties. The ASU contend that the August 2006 redeployment was an interim position and that Ms Lock commenced her substantive redeployment in July 2007. Ergon’s position is that Ms Lock commenced her redeployment as an Operations Officer on 7 August 2006.
[12] If the ASU’s argument is correct, the next question to be addressed is whether or not Ms Lock was redeployed on 1 July 2007 into a suitable alternative position for a period of less than three months and therefore was eligible for retrenchment benefits. The issue concerns the interpretation and meaning of the stated time frame of three months and whether or not it is time based or occupancy based.
[13] Was Ms Lock redeployed to suitable alternative employment in August 2006? If this was the case, Ms Lock had until November 2006 to advise Ergon that the alternative position was unsatisfactory.
[14] The ASU argued:
“We believe Ms Lock was not deployed in August 2006 as Ergon Energy states. We believe Ms Lock was advised that until the full retail contestability was introduced and the new structure was implemented her alternative deployment position was unable to be announced. We believe that this only occurred in July 2007. Ms Lock took on faith what she was told by Ergon Energy and waited patiently for the new structure to be completed. Ergon advised that the new structure was not complete until September 2007, and this was after our member actually went on maternity leave.” 4
[15] The ASU contend that “the position that Ms Lock was in from August 2006 until 30 June 2007 was actually an interim position and the real position of operations officer didn’t actually start until 1 July 2007 so therefore my member had only been in that position for one month before she actually went on maternity leave”. 5
[16] Ergon argued that Ms Lock was redeployed from EEPL to suitable alternative employment with Ergon Energy’s Customer Service business unit as Operations Officer on 7 August 2006. Ergon contends that “Whilst the role is not the same as the role she held with EEPL this does not stop it being redeployment within the meaning of this provision”. 6
[17] The alternative position does not have to “resemble” the redundant position. The requirement of the redeployment provisions is that “suitable alternative employment for employees whose positions are declared redundant” is found. In August 2006 Ms Lock was redeployed to Ergon’s Customer Service business unit as Operations Officer, position number 116249. On my understanding, Ms Lock occupied that position until March 2007, a period of seven (7) months. I am not persuaded that this position was an interim position.
[18] In January 2007 Ms Lock was advised, by correspondence from Mr Crosby, Executive General Manager Customer Service, that effective April 2007 her “position remains unchanged, although reporting through to a new manager and workgroup”. 7 Mr Montgomery submitted that this correspondence confirmed that Ms Lock would be reporting to a new manager but that the position she was undertaking as Operations Officer since August 2006 had not changed. Mr Montgomery then referred to correspondence dated June 2007 to Ms Lock attaching an updated position profile for the role of Operations Officer. Mr Montgomery submitted that “the position profile which was reviewed in May 2007, confirming the operations officer role that Ms Lock was undertaking prior to the secondment and then returning from the secondment”.8Mr Montgomery submitted that there was no difference in the position occupied in August 2006 and that “I don’t think there was a position profile in place so discussions had obviously occurred to provide a position profile at that time. I believe they were operating under, without a position profile at that time Commissioner”.9
[19] I am not persuaded that a change in reporting responsibility and workgroup could be classified as a restructure of Ms Lock’s position. As stated in the correspondence, Ms Lock’s position of Operations Officer remained unchanged. Furthermore, the absence of a formal position profile does not support an argument that the position that Ms Lock had occupied from August 2006 was an interim position and not suitable alternative employment. Regardless of what appears to be a minor restructure in April 2007, Ms Lock had occupied the Operations Officer’s role for a period of seven (7) months at thattage and, on my understanding, had not advised Ergon that the alternative position was unsatisfactory.
[20] On 18 October 2007, while on maternity leave, Ms Lock sought an extension to her maternity leave and also put to Ergon that “There is another option that I had considered and that is ‘coming back’ part time and doing all the meter data stuff from home (i.e. working Tuesday and Thursday from home). I would be happy to do this instead of being away entirely, if that is preferred by you (I do understand I am the only one insane enough to actually like doing the meter data reporting!!)”. 10
[21] The above correspondence does not indicate that Ms Lock, as at October 2007, was dissatisfied with the alternative position, which, in my view, she had occupied since August 2006. On the contrary, Ms Lock appears eager to return to work and putting to Ergon an option of part time work. It is not until May 2008 that Ms Lock makes application to be considered for voluntary redundancy, a period of approximately 21 months after she was redeployed into the Operations Officer role.
[22] Attachment 6 to the Ergon submissions is an Employee Position document relevant to Ms Lock. The document reflects that Ms Lock held the position of Operations Officer, position number 116249, during the periods 7 August 2006 to 1 March 2007 and again from 7 July 2007 to 15 February 2009. 11
CONCLUSION
[23] Having considered the material before me I am not persuaded that Ms Lock was redeployed into an alternative position on 1 July 2007. In my view, Ms Lock was redeployed from EEPL to alternative employment with Ergon’s Customer Service business unit as an Operations Officer, position number 116429, on 7 August 2006.
[24] In July 2006 Ms Lock sought redeployment and signed an acknowledgment whereby she “acknowledge and agree that, where suitable alternative employment is made available, I will have no redundancy entitlements as a consequence of the sales;”. 12
[25] I am satisfied that Ms Lock did not advise Ergon, within the stipulated time frame of three (3) months that the alternative position that she occupied from August 2006 was unsatisfactory. I am not persuaded that Ms Lock is eligible for retrenchment benefits as outlined in clause 10 of the agreement.
COMMISSIONER
Appearances:
Ms J Sheppard, Australian Services Union, for the applicant.
Mr B Montgomery for the respondent.
Hearing details:
2009.
Brisbane:
October, 28.
1 [2009] FWA 699
2 Exhibit R1 at Attachment 7
3 PN192 to PN195.
4 PN314.
5 PN388.
6 Exhibit R1 at paragraph 37.
7 Exhibit R1 at Attachment 7.
8 PN364.
9 PN366.
10 Exhibit R1 at Attachment 10.
11 Exhibit R1 at Attachment 6.
12 Exhibit R1 at Attachment 5.
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