Mark Johnson v Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater

[2017] FWC 1237

[2017] FWC 1237

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Mark Johnson
v
Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater
(C2017/24)

DEPUTY PRESIDENT WELLS HOBART, 2 MARCH 2017

Alleged dispute; whether Commission has jurisdiction to deal with dispute under the dispute settlement procedure; jurisdiction not enlivened under dispute settlement procedure; application dismissed.

[1] This is an application made by Mr Mark Johnson (the Applicant), on 3 January 2017, under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (FWC) to deal with a dispute pursuant to a dispute settlement procedure at clause 63 in the TasWater General Employees (Southern Region) Enterprise Agreement 2015 (the Agreement). 1

[2] Mr M Swanton appeared for the Applicant and Mr I Nelson appeared on behalf of Tasmanian Water and Sewerage Corporation Pty Ltd trading as TasWater (TasWater). Leave was granted by me for both parties to be represented.

[3] The application was initially dealt with by way of a conciliation conference on 10 January 2017. At that conference TasWater advanced a jurisdictional objection on the basis that the Applicant had not followed all of the required procedures within the dispute resolution procedure and therefore, the dispute was incapable of being submitted to the FWC for assistance in resolving the dispute. However, TasWater agreed to participate in the conciliation, whilst seeking to rely on its objection should the matter remain unresolved.

[4] The conciliation concluded without resolution and formal directions for the provision of witness statements and submissions were issued on 12 January 2017.

[5] With the exception of a 24 hour extension being granted to Mr Swanton, documentation was filed in accordance with the directions. TasWater filed two witness statements of Kate Luckman (Human Resource Business Partner) 2 and Catherine Cuthbertson (General Manager People and Safety),3 together with written submissions.4 Mr Swanton, for the Applicant, filed submissions5 only. The parties were offered the opportunity to be heard in person, but both advised they were content for me to determine the jurisdictional objection ‘on the papers’.

Background to the dispute

[6] The Applicant is an employee of TasWater and is covered by the Agreement, which contains a dispute resolution procedure (DRP) at clause 63.

[7] On 21 September 2016 the Applicant returned a positive alcohol and other drug test and was stood down on pay pursuant to TasWater’s Alcohol and Other Drugs Policy. 6 The Applicant underwent a retest on 28 September 2016 and was deemed fit and returned to work.

[8] On 30 September 2016 TasWater provided the Applicant with a letter advising that they intended to issue him with a formal warning in line with its Alcohol and Other Drugs Policy (AOD Procedures). The letter requested a response from the Applicant by 4 October 2016. No formal response was received.

[9] TasWater, represented by Ms Luckman and Mr Tony Willmott (Acting General Manager Service Delivery), met with the Applicant and Mr Swanton on 6 December 2016 to provide the Applicant with a formal warning. Mr Swanton disputed the formal warning under the DRP, stating that a ‘status quo’ applied and therefore any formal warning could not be issued until the dispute was resolved.

[10] The meeting of 6 December 2016 then proceeded in accordance with sub clause 63.3(b) of the DRP. Ms Luckman asked what the basis of the dispute was. At that time Mr Swanton provided TasWater with a statement of mitigating personal circumstances on behalf of the Applicant. Ms Luckman and Mr Willmott advised the Applicant they would ask Ms Cuthbertson and Mr Bennie Smith (General Manager Service Delivery), to consider the personal circumstances as presented by Mr Swanton. Ms Luckman undertook to advise Mr Swanton of the outcome. 7

[11] Between 6 and 9 December 2016 Ms Cuthbertson and Mr Smith were advised of the Applicant’s personal circumstances. Both were of the view that the formal warning should still be issued to the Applicant. On 9 December 2016 Ms Luckman emailed Mr Swanton and advised him that TasWater did not consider the personal circumstances of the Applicant mitigated against the breach of the AOD Policy and that a formal warning would issue. Mr Swanton provided a response stating “…we will not be accepting a warning and as further advised to you both as this is step two in the disputes resolution process and we do not accept your response we wish the matter to proceed to step 3 of the disputes resolution process.”

[12] Ms Luckman understood Mr Swanton’s reference to “step 3” to be a reference to sub clause 63.3(c) relating to the internal disputes resolution procedure, which is the third step in the internal dispute procedure.

[13] Ms Luckman was unclear as to the basis of the Applicant’s dispute of the formal warning. On 15 December 2016 Ms Luckman emailed Mr Swanton requesting him to provide details of the dispute in accordance with sub clause 63.3(c) of the Agreement. Mr Swanton did not respond to Ms Luckman’s email.

[14] On 19 December 2016 Mr Swanton emailed Ms Cuthbertson suggesting that they meet and discuss the dispute in order to avoid Mr Swanton referring the dispute to the FWC. Ms Cuthbertson wrote to Mr Swanton 8 on that day requesting him to advise of the nature of the dispute and pointing out that Ms Luckman had previously requested the same details.

[15] Mr Swanton then lodged this s.739 application with the FWC on 3 January 2017.

The dispute resolution procedure

[16] Clause 63 of the Agreement provides the resolution procedure for disputes as follows:

“63 DISPUTE RESOLUTON PROCEDURE

Subject to the provisions of the Act, any dispute arising out of the application of the NES, this Agreement or a matter pertaining to the employment relationship of TasWater and the Union will be dealt with according to the procedure set out below:

63.1 General Considerations

(a) Where a dispute arises, the parties to the dispute will genuinely and promptly attempt to settle it in the workplace (in accordance with the internal dispute resolution process below) before proceeding to external dispute resolution.

(b) Unless a reasonable concern related to the health and safety or any person exists, or the parties agree otherwise, that the position that existed prior to the dispute situation arising will prevail. This requirement does not apply in circumstances where an Employee has been suspended on full pay as a part of an investigation or disciplinary process involving alleged serious misconduct in accordance with the definition of serious misconduct contained in the Act and the Regulations.

63.2 Representation

(a) At all stages in this dispute resolution procedure, Employees may request a Union or other representative of their choosing (other than a TasWater manager) to represent them.

(b) If a request for representation is made by the Employee, the Union or representative shall not unreasonably be refused access to enter the workplace to represent the Employee or be prevented from contacting the relevant Employee by TasWater.

(c) When on TasWater’s Premises or worksites pursuant to this sub-clause the Union or other representative must comply with all reasonable directions given by, and procedures of, TasWater including work health, safety and security in operation at those premises or worksites.

63.3 Internal Dispute Resolution Process

(a) In the first instance, the Employee(s) is to refer the dispute to the affected Employee’s immediate supervisor who will discuss the dispute with the Employee(s) concerned, unless the issue is related to the immediate supervisor then clause 63.3(b) applies.

(b) If agreement is not reached after this discussion, the matter will be referred to the Employee’s manager one removed who will convene a meeting with the Employee(s) concerned to further discuss the dispute.

(c) If agreement is not reached after this further discussion, the dispute must be set out in writing including a description of the nature of the dispute, disclosure of the factual basis for the dispute and describe the outcome sought. The dispute will then be referred to the relevant manager nominated by TasWater who will convene a meeting with the Employee(s) concerned and relevant managers of TasWater.

(d) Unless otherwise agreed, clauses 63.3(a)-(c) above are to be completed within 14 days of the dispute being raised with TasWater.

63.4 External Dispute Resolution Process

(a) If the dispute is still not resolved in accordance with the requirements of clause 63.3 (Internal Dispute Resolution Process) above, or if it is not practicable for the steps in each process to be completed because of the urgency or nature of the dispute, the dispute may be submitted, by either party, to FWC for assistance in resolving the dispute by conciliation which includes expressing an opinion or making a recommendation.

(b) If an application is not filed within 14 days to FWC following completion of the steps under clause 63.3 (Internal Dispute Resolution Process) the dispute is deemed to have been resolved.

(c) Unless otherwise agreed, if the conciliation process fails to resolve the dispute, then subject to FWC considering that there is reasonable cause, the dispute may be referred, by either party, to FWC within 14 days for arbitration, otherwise the dispute is deemed to have been resolved…”

The Jurisdictional Objection

[17] TasWater contend that, in accordance with sub clause 63.3(c) of the Agreement, it twice requested Mr Swanton, via email, to provide information in writing regarding the nature of the Applicant’s dispute about the issuing of a formal warning; the factual basis for the dispute and the outcome sought. It states that as Mr Swanton failed to provide details of the dispute within the required 14 days of the dispute being raised (see sub clauses 63.3(c) and (d); he has not completed the mandatory steps required under the DRP and therefore the dispute is closed.

Submissions

The Respondent

[18] TasWater submitted that the FWC only has power to deal with a dispute such as this through the application of ss.595, 738 and 739, which requires a term of an industrial instrument giving the FWC that function.

[19] It is contended that when the DRP is read as a whole, it is clear that the parties intended that the DRP apply to workplace disputes; that the internal DRP must be applied in the first instance; and that a referral to the FWC can only occur if the dispute is not resolved in accordance with the internal DRP process (unless the nature of the dispute is so urgent as to necessitate a direct referral to the FWC).

[20] TasWater argued that the Applicant did not comply with the requirements of the DRP (specifically sub clause 63.3(c)), prior to referring the matter to the FWC, as he failed to particularise the nature and factual basis of the dispute, even when requested to do so. It is also asserted that Mr Swanton did not conduct himself in a manner that would reasonably have completed the internal part of the DRP within the required 14 day period. 9

[21] TasWater submitted that Mr Swanton’s refusal to provide the particulars as requested led directly to a delay and the 14 day time limit for the conduct of the internal DRP elapsing (see sub clause 63.3(d)).

The Applicant

[22] The Applicant’s submissions contained four paragraphs which, put at their highest, asserted that:

● TasWater relied on a jurisdictional argument to negate a conciliation process which may assist the parties to resolve the dispute;
● The FWC should determine that a conciliation conference be undertaken;
● As the step at sub clause 63.3(c) was not undertaken, a conciliation conference should occur. 10

Consideration

[23] The Commission’s power to deal with disputes is not at large and is constrained by ss.738 and 739 of the Act and by the terms of the disputes settling procedure contained in the relevant enterprise agreement under which the dispute is being advanced.

[24] Relevantly, sections 738 and 739 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.

(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.

(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.

[25] The manner in which the FWC handles a dispute under s.739 of the Act is subject to the scope of the term or clause conferring the dispute resolution power to it and the limitations set out in s.739. In Shields v Alfred Health [2012] FWC 162 (Shields), Kaufman SDP relevantly held at paragraph [34] that:

“Apart from the manifest public interest in parties abiding by the dispute resolution processes upon which they have agreed, Fair Work Australia in dealing with a dispute pursuant to a term in an enterprise agreement may not exercise any powers limited by the term. Here the term precludes Fair Work Australia from dealing with dispute unless there has been a genuine attempt by the parties to resolve the dispute.” [footnotes omitted]

[26] Having considered the DRP of the Agreement as a whole, I am of the view that the jurisdiction of the FWC is not enlivened unless the internal dispute resolution procedure contained in sub clause 63.3 has been completed and the dispute remains on foot, with the exception that the dispute is of such an urgent nature it is not practicable to undertake the steps in sub clause 63.3.

[27] There is nothing before me that indicates that the nature of the Applicant’s dispute was so urgent as to make the steps within sub clause 63.3 impracticable. What is clear is that Mr Swanton was in contact with TasWater management via email, but failed to detail the dispute in writing, as required by the DRP, despite being requested to do so by both Ms Luckman and Ms Cuthbertson. I note that sub clause 63.3(c) relevantly provides:

“If agreement is not reached after this further discussion, the dispute must be set out in writing including a description of the nature of the dispute, disclosure of the factual basis for the dispute and describe the outcome sought…” [my emphasis]

[28] It is clear from the wording above that there is no discretion allowed for in the DRP as to the form of the particulars of the dispute. The Applicant was required to provide those particulars in writing disclosing the facts as he saw them, the nature of the dispute and the outcome he sought.

[29] I have considered if there were any circumstances which may have arisen that would have precluded Mr Swanton from providing the written information requested by TasWater. I must conclude that, on the information before me, it was an appropriate request for TasWater to have made and that it was possible for Mr Swanton to accede to the request. However, did not do so.

[30] I accept the submissions of TasWater that at that time there was no genuine attempt by the Applicant to resolve the dispute in accordance with the agreed DRP. Applying the authority of Shields and a number of other authorities of the FWC and its predecessors, 11 I am of the view that if the FWC were to deal with this application, it would require the exercise a power which is limited by sub clauses 63.3(c) and (d) of the DRP, which is a term of the Agreement.

Conclusion

[31] I have determined that the jurisdiction of the FWC has not been enlivened as the Applicant failed to particularise the dispute as required by sub clause 63.3(c) and within the timeframe provided for under sub clause 63.3(d).

[32] For the reasons above, I have determined the application is dismissed.

DEPUTY PRESIDENT

Written submissions:

For the Respondent – 24 January 2017

For the Applicant – 8 February 2017

 1   AE416859

 2   Exhibit R1, Witness Statement of Kate Louise Luckman

 3   Exhibit R2, Witness statement of Catherine Cuthbertson

 4   Exhibit R3, Respondent’s written submissions

 5   Exhibit A1, Applicant’s written submissions

 6   Exhibit R1, attachment

 7   Exhibit A1, paragraph 16

 8   Exhibit A2, attachment “B”

 9   Exhibit R3 – paragraph 29

 10   Exhibit A1 – paragraph 4

 11   National Tertiary Education Union v Charles Sturt University[2005] AIRC 860; New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union v Essential Energy[2013] FWC 675

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