DECISION

Fair Work Act 2009
s 739—Dispute resolution

Manchula Vendrig
v
Ausgrid Pty Ltd
(C2020/5081)

Electrical power industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 DECEMBER 2020

Application to have the Commission deal with a dispute under the disputes settlement procedure in an enterprise agreement – redeployed engineer of Ausgrid – employee accepts voluntary redundancy and employment ends on same day as this application filed – claim for payment of an allowance from December 2018 – 30 June 2020 – jurisdictional objection – whether steps in the DSP complied with – characterisation of dispute/issue – doubt as to jurisdiction – merits considered – claim pursued for 1½ years – difference with rate of pay and allowance for which accreditation is required – applicant fails to obtain accreditation before ‘cut off’ date – not treated any differently to other employees in same position – applicant not entitled to the allowance – no breach of ‘grandparenting’ arrangement or Agreement – no merit to application – application dismissed.

BACKGROUND

[1] Ms Manchula Vendrig commenced employment with Ausgrid (as the entity is now known) as an Electrical Fitter/Mechanic on 16 January 1995. On 3 October 1995, Ms Vendrig was appointed to a Project Officer, Building and Mechanical role in the Distribution Engineering Branch. Ausgrid operates and maintains the electricity distribution network in Sydney and the Hunter, and its employees (including Ms Vendrig), are employed under the terms and conditions of the Ausgrid Enterprise Agreement 2018 (the ‘Agreement’).

[2] On 21 March 2016, Ms Vendrig’s role was made redundant. As a consequence, she became a redeployee and moved to Ausgrid’s Career Transition Program (‘CTP’). On 4 May 2020, Ms Vendrig was offered voluntary redundancy (‘VR’) by 30 June 2020, or she would be given notice of involuntary redundancy by 1 July 2020. Both schemes provide three weeks’ pay for each of year of service. The difference between the two schemes is an additional early acceptance payment of up to eight weeks’ pay for VR. On 30 June 2020, Ms Vendrig accepted VR and her employment was terminated that day. She received a total of $374,949.96 in accrued entitlements and redundancy pay.

[3] On the same day her employment came to an end, Ms Vendrig filed an application under s 739 of the Fair Work Act 2009 (the ‘Act’), seeking to have the Fair Work Commission (the ‘Commission’) deal with a dispute in accordance with the dispute settlement procedure (the ‘DSP’) in the Agreement. The dispute concerns Ms Vendrig’s claim that she was entitled to the payment of a Registered Professional Engineers’ Allowance of $159.83 per week since November 2018, hereafter referred to as the ‘NPER2 allowance’ (National Professional Engineers’ Registration Stage 2, Allowance) . This allowance is found in at Cl 47.2.1(h)(i)-(ii) of the Agreement, and reads:

‘(h) A weekly skills retention allowance payable for all purposes.

(i) Employees who qualify for stage one competency recognised by the Engineers Australia as having completed a qualification in one of the disciplines of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 6278
Decision Date: 2 DECEMBER 2020

CaseChat Overview and Summary

In the matter of Manchula Vendrig v Ausgrid Pty Ltd, the applicant, a former employee of Ausgrid, sought to have the Fair Work Commission deal with a dispute under the enterprise agreement's disputes settlement procedure. The applicant, a redeployed engineer, had accepted a voluntary redundancy offer, leading to the termination of his employment on the same day as the filing of this application. The applicant sought payment of an allowance from December 2018 to 30 June 2020.

The court was required to determine several legal issues, including whether the steps in the disputes settlement procedure were correctly followed, the characterisation of the dispute, and the jurisdictional objections raised by the respondent. The court also had to consider whether the applicant's failure to obtain accreditation before the specified date was a bar to his claim and whether he was treated any differently to other employees in a similar position.

The court found that the applicant had not complied with the necessary steps in the disputes settlement procedure and that there was doubt as to the court's jurisdiction. The court further determined that the applicant's claim was without merit, as he had failed to obtain accreditation before the 'cut-off' date and was not treated any differently to other employees in the same position. The applicant's argument regarding the 'grandparenting' arrangement and the enterprise agreement was also found to be without merit. Consequently, the application was dismissed.

The court did not make any specific orders as the application was dismissed on the basis of the jurisdictional objections and the lack of merit in the applicant's claims. The applicant was not entitled to the allowance sought, and there was no breach of the 'grandparenting' arrangement or the enterprise agreement.

Orders