Mark Skurnik v Australian Broadcasting Corporation
[2011] FWA 8069
•15 DECEMBER 2011
[2011] FWA 8069
The attached document replaces the document previously issued with the above code on 15 December.
The decision issued by Fair Work Australia on 15 December 2011 [2011] FWA 8069, PR517069] is amended as follows:
By deleting the word ‘within’ where occurring on the second occasion in the third to last sentence in paragraph [37] and inserting the word ‘with’; and
By deleting the word ‘accordingly’ from paragraph [38].
Kate Schaffner
Associate to Commissioner Lewin
Dated 23 December 2011
[2011] FWA 8069 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Mark Skurnik
v
Australian Broadcasting Corporation
(C2011/302)
Broadcasting and recorded entertainment industry | |
COMMISSIONER LEWIN | MELBOURNE, 15 DECEMBER 2011 |
Alleged dispute concerning redundancy - dispute settlement procedure - provisions of enterprise agreement - jurisdiction - power - remedy - characterisation of dispute - natural justice
Background
[1] This is an application made under s.739 of the Fair Work Act 2009 (the Act) for the settlement of a dispute said to arise under the ABC Enterprise Agreement 2010 - 2013 (the Agreement). The dispute has been notified by the Community and Public Sector Union (CPSU). The dispute concerns the proper application of the Agreement to the circumstances of Mr Mark Skurnik. Mr Skurnik is an employee of the Australian Broadcasting Corporation (ABC) whose employment is covered by the Agreement and who the ABC has decided is redundant. The CPSU disputes the actions of the ABC in relation to Mr Skurnik’s employment.
[2] In the Form F10 notifying the dispute the CPSU refers to Clause 55 - Redundancy of the Agreement and describes what the dispute is about as follows:
“1. The ABC notified the applicant on 20th April 2011 that he is redundant per clause 55.6 due to his position being no longer required, however the ABC failed to genuinely consider alternatives to redundancy per clauses 55.1.1 and 55.4.1(c) during the consultation process.
2. The ABC alleges that the applicant’s position is no longer required for the efficient and economical operation of the ABC, however the work is still required to be performed.
3. The ABC failed to use the relevant provisions of the Enterprise Agreement to discuss with the applicant how his skills and experience could be better utilised or how training would help him meet the ABC’s changing requirements. The applicant has been denied any re-training because the ABC unreasonable alleges that training would be too costly and lengthy.
4. The applicant elected the redeployment and retraining period per clause 55.7 which ends 1st June 2011 and now faces notification of retrenchment per clause 55.9.”
[3] The Agreement prescribes a dispute settlement procedure, the terms of which are set out below:
“61. Prevention and Resolution of Disputes
61.1 General
61.1.1 Subject to the exceptions in subclause 61.2 , if a dispute relates to:
a. a matter arising under this Agreement; or
b. the National Employment Standards; or
c. the application of the Recruitment and Selection Guidelines as in place from time to time; d. the application of the Performance Management Guidelines as in place from time to time,
this term sets out procedures to settle the dispute.
61.1.2 An employee who is a party to the dispute may appoint a representative for the purpose of the procedures in this term.
61.1.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.
61.1.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Australia.
61.1.5 Fair Work Australia may deal with the dispute in two stages:
a. Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
b. if Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:
i. arbitrate the dispute; and
ii. make a determination that is binding on the parties.
61.1.6 While the parties are trying to resolve the dispute using the procedures in this term an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health and safety, in which case the employee must comply with a direction given by the ABC to perform other available work at the same workplace, or at another workplace, unless:
a. the work is not safe; or
b. applicable occupational health and safety legislation would not permit the work to be performed; or
c. the work is not appropriate for the employee to perform; or
d. there are other reasonable grounds for the employee to refuse to comply with the direction.
61.1.7 The parties to the dispute agree to be bound by a decision of Fair Work Australia in accordance with this term, provided that a party to the dispute may appeal the decision to a Full Bench of Fair Work Australia in accordance with section 604 of the Fair Work Act 2009.
61.2 Exceptions to subclause 61.1
61.2.1 The disputes procedure in subclause 61.1 does not apply to a dispute about subsection 65(5) or 76(4) of the Act.
61.2.2 The disputes procedure in subclause 61.1 does not apply to disputes regarding: a. a salary outcome or rating of an Appraisal, including an Overdue Appraisal or 2010 Appraisal, or b. an employee who believes that they have regularly been performing, and were required to perform, tasks beyond the level specified in their Job Plan.
These disputes will be dealt with in accordance with subclause 61.4 Reconsideration and Appeal Against an Appraisal Decision.
61.2.3 The disputes procedure in subclause 61.1 does not apply to a dispute regarding a Selection Decision under clause 13. These disputes will be dealt with in accordance with subclause 61.3 – Right of Appeal Against a Selection Decision.”
[4] The Tribunal has conducted conciliation conferences since the notification of the dispute pursuant to clause 61.1.5(a) of the Agreement. In the course of those proceedings, which have not been transcribed, the CPSU has outlined various aspects of the ABC’s actions in relation to Mr Skurnik’s employment which it says do not comply with the provisions of clause 55 and other terms of the Agreement. The conciliation has not been successful in settling the dispute. The CPSU seeks that the Tribunal arbitrate the dispute and make a determination of the dispute that is binding on the parties, in accordance with the terms of clause 61.1.5(b) if the Agreement. At the conclusion of the conciliation process the ABC raised issues concerning the jurisdiction of the Tribunal in relation to the determination of the dispute.
[5] Before proceeding to arbitration of the dispute the Tribunal directed that the CPSU file submissions in relation to the characterisation of the dispute and the jurisdiction of the Tribunal in relation to the dispute which, was done on 12 October 2011. The ABC responded to those submissions on 19 October 2011. The matter was then listed on 25 November 2011, for short oral argument in relation to the characterisation of the dispute and the jurisdiction of the Tribunal, particularly in light of the submissions filed by the ABC on 19 October 2011 which maintain that certain limitations on the jurisdiction of the Tribunal exist in relation to the dispute, which should be determined.
Jurisdiction - Source and nature
[6] The written submissions of the parties’, with the greatest of respect, do not, in my view, succinctly differentiate the various questions arising in relation to the dispute concerning the jurisdiction, power, discretion and form of remedy that may be available to the Tribunal and the proper characterisation of the dispute. The distinction of these aspects of a proceeding under s.739 in relation to the settlement of a dispute in accordance with a dispute settlement procedure prescribed by an enterprise agreement is important.
[7] In the circumstances therefore it is appropriate to address the contest between the parties concerning the role of the Tribunal under the terms of the clause 61 of the Agreement in a fundamental manner and then proceed to deal with the details of the dispute, the extent to which the dispute arises under to the terms of the Agreement and the role ascribed to the Tribunal by the dispute settlement procedure of the Agreement.
[8] It is useful to commence by establishing the statutory basis upon which the Tribunal acts to settle a dispute in accordance with a dispute settlement procedure prescribed by an enterprise agreement having regard to the authority in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (“Gordonstone”). 1 In that matter the High Court of Australia have as follows:
“Where parties agree to submit their differences for decision by a third party, the decision-maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator’s powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator’s award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.” 2
[9] The decision of the High Court in Gordonstone concerned the operation of predecessor provisions to s.739 which were contained in the Workplace Relations Act 1996 (Cth). There is no reason to believe that the conceptual basis of private arbitration pursuant to the provision of a dispute settlement procedure prescribed by an enterprise agreement made under the Act is any different than as determined by the High Court in Gordonstone. Therefore, the nature of the jurisdiction and power to determine a dispute by arbitration, where performed by the Tribunal, is derived from the terms of the dispute settlement procedure agreed between the parties to the enterprise agreement, except to the extent that such jurisdiction and power may be otherwise circumscribed by specific statutory provisions in the Act. In this latter respect it may be conveniently noted that the statutory conditioning of the role which may be performed by Fair Work Australia under a dispute settlement procedure of an enterprise agreement made under the Act has been considered by a Full Bench of Fair Work Australia in Boral Resources (NSW) Pty Ltd v Transport Workers’ Union of Australia (“Boral”) 3and Painter v Commonwealth of Australia (Department of Defence) (“Painter”).4
[10] It follows from the authority of those decisions that the possible extent of any arbitration and determination of the dispute notified by the CPSU is limited by the terms of the dispute settlement procedure in clause 61 of the Agreement. In this respect the ABC draws attention to the limiting provisions of clause 61.1.1 of the Agreement, which describe those disputes which may be dealt with according to those terms. In particular, the ABC draws attention to the provisions of clause 61.1.1(a):
“61.1.1 Subject to the exceptions in subclause 61.2, if a dispute relates to:
a. a matter arising under this Agreement; or
b. the National Employment Standards; or
c. the application of the Recruitment and Selection Guidelines as in place from time to time;
d. the application of the Performance Management Guidelines as in place from time to time,
this term sets out procedures to settle the dispute.”
[11] It is clear from the originating notification of the dispute, that the dispute, does not relate to the subject matter of clause 61.1.1, subclauses (b), (c) or (d). Nor are the exceptions in subclause 61.2 relevant to the dispute notified. Accordingly, the provisions of clause 61 apply to the dispute, as originally notified, to the extent that the dispute relates to a matter arising under [the] Agreement, as provided for by clause 61.1.1(a). Subsequent to the filing of the form F10, in written submissions dated 24 June 2011 the CPSU, referred to various terms of the Agreement which it alleges are relevant to Mr Skurnik’s employment and have not been complied with by the ABC, in addition to the terms of clause 55 of the Agreement.
Jurisdiction - Characterisation
[12] The determination of disputes under certified and enterprise agreements made pursuant to the Workplace Relations Act 1996 and the Fair Work Act 2009 respectively has been the subject of decisions both of the Full Bench of FWA and the Australian Industrial Relations Commission, its predecessor. While there are some differences in the statutory provisions governing the settlement of such disputes under the respective legislation, 5 in my view, some fundamental principles which are common to the exercise of the Tribunal’s jurisdiction under each of the relevant statutes are clearly discernable.
[13] The first is that the Tribunal must properly characterise a dispute said to arise under the terms of a certified agreement made under the Workplace Relations Act 1996. In Maritime Union of Australia v Australian Plant Services Pty Ltd 6 Lacy SDP stated the following:
“An important limitation on the Commission’s powers under s 170LW is the kind of disputes that may be subject to resolution by the Commission. Parliament has authorised the Commission to exercise powers under an agreement “to settle disputes over the application of the agreement” and, accordingly, its powers are limited to disputes of that kind. Therefore it is necessary for the Commission, in each case where it is asked to deal with a matter arising under the dispute settling procedure in an agreement, to ascertain the character of the dispute that is before it in order determine whether the matter is a dispute over the application of the agreement. And, importantly, the character of the dispute is distinguishable from the orders that may be made in settlement of the dispute. 7
Original citations omitted
The observations of the Senior Deputy President have been widely approved by Full Bench decisions of the AIRC including CEPU v Goodman Fielder Cowper Foods Ltd, 8 CPSU v Seven Network (Operations) Limited9and United Firefighters Union v Metropolitan Fire and Emergency Services Board.10
[14] I consider the observations of Lacy SDP, as so approved, have application to the role of the Tribunal in relation to disputes arising under the terms of an enterprise agreement made and approved under the Act. The distinction which arises under the Act following the decisions in Boral and Painter above is that the relevant characterisation will be in the context of the provisions of the dispute settlement procedures of the enterprise agreement, rather than the provisions of s.170LW of the Workplace Relations Act 1996.
[15] Whilst the CPSU engross with other clauses of the Agreement, to which I will return, the dispute was originally notified with reference to the terms of clause 55 of the Agreement. Clause 55 of the Agreement is set out below:
“55. Redundancy
55.1.1 Wherever possible, the ABC will adopt positive alternatives to redundancy, and will seek to minimise the need for redundancies through workforce planning, employee development and performance management strategies, backed up by an active redeployment and retraining policy.
55.2 Reasons for Redundancy
55.2.1 An employee is redundant where:
a. they are no longer required for the efficient and economical operation of the ABC; or
b. they cannot be effectively employed because of technological change or other changes in work practices; or
c. their function is transferred to another location that is not within reasonable commuting distance of their current location, they are not willing to relocate and there is no suitable alternative position available within reasonable commuting distance; or
d. their skills, talents or perceived audience appeal are no longer relevant to the ABC’s overall program requirements.
55.3 Exclusions
55.3.1 This clause does not apply to:
a. Fixed term or specified task employees;
b. Employees employed on phased retirement employment if the employment is terminating at the agreed end date;
c. Employees on probation; or
d. Casual employees.
55.4 Consultation
55.4.1 Where likely redundancies have been identified, the ABC will at the earliest opportunity hold discussions with affected employees and their representatives concerning: a. the reasons for the redundancies and the measures taken to avoid or minimise those redundancies; b. the process to be followed where the redundancies arise from there being an excess number of employees within a class of employees (i.e. the redundancy selection process); and c. alternatives to redundancy, including natural attrition, transfer and any opportunities for redeployment and/or retraining.
55.4.2 Provided that where the matters required to be discussed under this clause are covered in discussions under Clause 54. Consultation, those discussions will also be regarded as satisfying the requirements of this clause.
55.5 Substitution and Redeployment
55.5.1 At any time after likely redundancies have been identified, the ABC may at its discretion canvas interest for voluntary redundancies from unaffected employees in substitution for affected employees and/or opportunities for redeployment for affected employees.
55.5.2 In assessing the viability of substitution, the ABC will have regard to the relative competency, experience and efficiency of the employees in question and the relative costs of redundancy between the affected employee/s and the proposed substitute employee/s. The final decision in relation to substitution and/or redeployment will rest with the ABC.
55.5.3 Where the ABC agrees to a substitution:
a. the substitute employee will, as soon as practicable, be formally notified that they are to be retrenched in accordance with 55.9.1c; and
b. the original employee will be redeployed into the substitute employee’s position.
55.6 Notification of Redundancy
55.6.1 Where, following initial discussions and completion of a redundancy selection process if applicable, the ABC has determined that an employee is redundant for a reason or reasons specified in 55.2.1 (other than a substitute employee who is to be made redundant under clause 55.5.3), the ABC will ensure that the employee receives written notification inviting them to consider and choose from the following options:
a. To accept immediate retrenchment under 55.9.1a; or
b. To explore redeployment and retraining opportunities in accordance with 55.7.
55.6.2 In the event the employee fails to advise the ABC of their choice within seven days of being informed under 55.6.1, the employee will be deemed to have chosen option (a) above. 55.6.3 An employee who is absent on approved annual leave, long service leave or leave without pay at the date of notification under 55.6.1 will be entitled to complete that leave and will not be required to make the choice under 55.6.1 until the conclusion of that leave, unless they agree otherwise. If the employee decides to complete their leave, that decision will not of itself delay progression of the reason/s giving rise to the redundancy.
55.7 Redeployment and Retraining Period
55.7.1 If an affected employee chooses to explore redeployment and retraining opportunities as allowed by clause 55.6.1b, the ABC will:
a. make an assessment of their competencies;
b. provide advice on employment options;
c. canvas work areas for possible suitable vacancies;
d. assess reasonable retraining options;
e. assist with interview and job search skills;
f. take other appropriate action.
55.7.2 At the employee’s discretion, the ABC will continue to explore redeployment and retraining possibilities for up to six weeks from the date the employee was first notified under 55.6.1 that they are redundant.
55.7.3 An employee who takes personal leave during the redeployment and retraining period may apply, on production of a medical certificate, for an extension of the redeployment period for a period equal to the personal leave taken. An extension of the redeployment period will be at the discretion of the ABC, depending on the employee’s prospects of redeployment and any other factor it considers relevant. If the period of personal leave is more than two weeks and the ABC declines an application for an extension, the employee will, in addition to the retrenchment payments set out in 55.10.1 receive a payment equal to the period of personal leave taken up to a maximum of four weeks.
55.8 Decision to Redeploy
55.8.1 The ABC may redeploy an employee to a vacant position above, at or below the employee’s substantive salary, provided that:
a. the employee is assessed by the ABC as possessing the competencies required for the position, or may be able to attain those competencies with reasonable training; and
b. the employee agrees to the redeployment.
55.8.2 Where an employee is to be redeployed to a position at a lower substantive salary band, they will be entitled to income maintenance from the date of redeployment. The duration of income maintenance will be calculated incrementally at the rate of four weeks for each year (or part year thereof to a completed month) of continuous service. The minimum period of income maintenance will be 12 weeks and the maximum period 44 weeks.
55.8.3 Salary for income maintenance purposes will be fixed in dollar terms other than for increases applying under clause 17.1 . Salary for income maintenance purposes will include any regular shift penalties received (on average) over the 12 months preceding the date of redeployment.
55.8.4 The amount of income maintenance will be reduced by the amount of any increase payable through the performance management and development system.
55.9 Notification of Retrenchment
55.9.1 The ABC will formally notify an employee in writing that they are to be retrenched if:
a. following initial discussions they do not wish to examine redeployment and retraining options; or
b. after choosing to examine redeployment and retraining options no suitable alternative employment has been found; or
c. the employee has agreed to be substituted under 55.5.
...”
[16] In order to properly characterise the dispute in the circumstances of this case I should have regard to the information and knowledge that I have of the dispute including the original notification, the relevant factual circumstances, my understanding of the various dimensions of the dispute derived during the conciliation process, the various submissions of the parties and the terms of the Agreement. This broad approach was endorsed by a Full Bench of the Australian Industrial Relations Commission in the case of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Holden Limited 11 where the following is stated:
“[45] A dispute referred to the Commission must be properly characterised before powers conferred by a dispute settlement provision in a certified agreement are exercised. This is necessary in order to determine whether the dispute is `over the application of the agreement’ within the meaning of s.170LW of the WR Act. As noted by a majority of the Full Bench in Automated Reading Services (AMRS) v ASU, this expression has not been judicially considered. The majority went on to observe that:
“A relationship between the provisions of the relevant agreement and the subject matters in dispute would appear to be an essential element in the identification of any dispute over the application of the agreement. ...”
[46] We adopt these observations. Further, in our view the expression should not be narrowly construed. In this context we agree with the observation of the Full Bench in Shop, Distributive and Allied Employees Association v Big W Discount Department Stores that:
“...what comprises a dispute over the application of the agreement should not be narrowly construed; to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”
[47] In characterising the nature of the dispute in this matter the Commission is not confined to the dispute notification document. The entire factual background is relevant, including matters such as the submissions advanced. In this context we note that in TWU v Mayne Nickless Ltd the Full Court of the Federal Court held that in determining whether an application calls on the Commission to exercise judicial, as opposed to arbitral, power `a court should review the entire factual background to properly characterise the claim and the power sought to be invoked’“ 12
Original citations omitted.
[17] I shall adopt this approach.
[18] The ABC’s submissions relevantly identify and categorise different aspects of all the facts and circumstances referred to above so as to construct and characterise what they submit are three disputes.
[19] At paragraph 1 of the ABC’s submission of 19 October 2011 the following is contained:
“1. On 1 June 2011, the CPSU on behalf of the Applicant, lodged an application with Fair Work Australia (FWA) pursuant to section 739 of the Fair Work Act 2009 (Cth) (the Act) claiming that there was a dispute which it described as follows:
a. ABC failed to genuinely consider alternatives to redundancy per clause 55.1.1 and 55.4.1(c) during the consultation process (Consultation Dispute Matter);
b. The work is still required to be performed by the Applicant (Redundancy Dispute Matter); and
c. The ABC failed to use the relevant provisions of the Enterprise Agreement to discuss with the Applicant how his skills and experience could be better utilised or how training would help him meet the ABC’s changing requirements (Skills Dispute Matter).”
[20] It is convenient to address the categorisation of the issues as advanced by the ABC above for the purpose of dealing with their submissions concerning the existence of, or limitations upon, the Tribunal’s jurisdiction.
[21] It is appropriate to note the following aspects of the ABC’s submissions in relation to the Tribunal’s jurisdiction which distinguish matters which it would seem the ABC concedes are within the Tribunal’s jurisdiction and matters which it submits are not.
“In the present case, the Consultation Dispute Matter and, on a generous reading, the Skills Dispute Matter, may be characterised as matters arising from the Enterprise Agreement in that they both can be read as relating to alleged non-compliance with the respondent’s obligation to consult pursuant to clause 55.4.1(c) of the enterprise agreement. In relation to the Skills Dispute Matter, this could be, on a generous view, read as taking issue with an alleged failure to discuss alternatives to redundancy, such as redeployment and and/or retraining of the applicant under clause 55.4.1(c)...”
As opposed to the concessions concerning the jurisdiction of the Tribunal to deal with the “consultation dispute” and the “skills dispute” the ABC submitted that the Tribunal does not have jurisdiction to deal with what it describes as the “redundancy dispute”.
[22] However, having reviewed the notification, the CPSU submissions of 24 June 2011 and the submissions of filed on 12 and 19 October 2011 by the parties, by the time of the hearing on 29 November 2011 it seemed to me the scope of the dispute alleged by the CPSU included, at least, the following:
1. Whether the ABC complied with its obligations under clause 55.1.1;
2. Whether Mr Skurnik is redundant in accordance with the terms of clause 55.2.1;
3. Whether the ABC discharged its duties under clause 55.4;
4. Whether or not the ABC discharged its duties under clause 55.7;
5. Whether or not clause 55.8 obliged the ABC to redeploy Mr Skurnik;
6. Whether the terms of clause 55.2.1 of the Agreement applies in such a way that the ABC’s decision as to whether Mr Skurnik is required for the ‘efficient and economic operation of the ABC’ is a subjective decision reserved for the ABC, or whether it requires an objective evaluation by the Tribunal.
[23] For the purposes of my consideration and characterisation of the dispute I invited the parties to make responses in relation to this list of matters which it seemed to me formed various dimensions of the dispute which is alleged to arise concerning the application of the terms of the Agreement to the employment of Mr Skurnik. In addition I sought to identify any other provisions of the Agreement which the CPSU considered had not been applied by the ABC in the manner required by the Agreement.
[24] The CPSU submits that while the dispute is comprised of all 6 of the matters identified above they also submit that the dispute has additional and more extensive dimensions, as set forth in their submissions of 24 June 2011.
[25] The ABC submitted that the dispute does not extend to the proper application of clause 55.7 and 55.8 in the items scheduled 1 to 6 above and does not extend to any other provisions of the Agreement than those it has categorised as the “consultation dispute” and the “skills dispute”, as categorised by the ABC’s submission of 19 October 2011.
[26] I will deal first with the ABC’s submission that the characterisation of the dispute does not include the matters identified in item numbers 4 and 5 above concerning the application of clause 55.7 and 55.8. As I understand the ABC’s submissions in these respects they rely upon a construction of the original notification of the dispute in the Form F10 referred to previously. In addition, the ABC submits that it would be a denial of natural justice if the characterisation of the dispute were to include these matters. This is because, it is submitted, the CPSU has not at any time indicated that such matters are included within the scope of the dispute over the application of Clause 55 of the Agreement and consequently the ABC has not had the opportunity to be heard in relation thereto.
[27] This submission would seem to require that the characterisation of the dispute should be confined within the terms of the original notification. As will have already been noted this narrow approach to the characterisation of a dispute concerning the application of a certified agreement under the Workplace Relations Act 1996 did not find favour with a Full Bench of the AIRC. In my view, the jurisdiction of the Tribunal to deal with a dispute is a statutory question and cannot be limited to the semantic and syntactic formulation of an alleged dispute contained in the answers to the questions set out in a Form F10 which commences the proceedings. Rather, where a question of jurisdiction arises, the Tribunal must enquire into and determine the jurisdiction within which it may fulfil the function prescribed by the terms of a dispute settlement procedure of an enterprise agreement and characterise the dispute having regard to the entire factual background, without adopting the narrow approach submitted by the ABC.
[28] Moreover, it seems to me that, either expressly or by inference, disputation by the CPSU of the ABC’s application of the provisions of clause 55.7 and 55.8 is evidenced in the original notification. It will have been observed above that the CPSU contested the ABC’s “allegation” that Mr Skurnik is redundant and claimed that “the work [of Mr Skurnik] is still required to be performed” at paragraph 2 of its answer to the question 4 in the Form F10. By this, the CPSU disputed the validity of the redundancy of Mr Skurnik. This, in my view, is encompassed within the rubric of the “redundancy dispute” referred to in the ABC’s submission of 19 October 2011. Moreover, by its written submissions of 24 June 2011, among other things, the CPSU made it clear that it disputed the redundancy of Mr Skurnik and sought that Mr Skurnik continue to be employed by the ABC in accordance with the terms of the Agreement and that a recommendation be made to that effect.
[29] In my view, the Tribunal has jurisdiction to hear and determine, by arbitration, a dispute arising under any of the terms of clause 55 of the Agreement in relation to the alleged redundancy of Mr Skurnik and the application of such other terms of the Agreement which are said to be relevant or incidental to the proper application of clause 55, as has been notified as in dispute by the CPSU in the original notification and in the submissions of 24 June 2011 and 12 October 2011. Consequently, I reject the ABC’s submission concerning the so called “redundancy dispute”
[30] I now turn to consider whether the matters identified by the CPSU which are not the subject of clause 55 of the Agreement may be characterised as within the jurisdiction of the Tribunal. In this respect it is necessary to disaggregate a number of considerations.
[31] To commence it is useful to distinguish two aspects or dimensions of the relevant jurisdictional question. The first is fundamental. The Tribunal may deal with any dispute arising under the terms of the Agreement, subject to the exceptional terms of clause 61.2 However, there must be a dispute which is, factually, about the application of a term or terms of the Agreement. The ABC may well say that there is no dispute over the proper application of certain terms of the Agreement as a matter of fact. A dispute over the application of the Agreement will not exist simply because the CPSU asserts that this is so. In order for the dispute to be characterised as over the application or arising under the Agreement the Tribunal will have to be satisfied of a meaningful relationship between the facts relied upon and the terms of the Agreement said to be in dispute. The relevant questions before the Tribunal in this regard can be formulated as follows: what terms of the Agreement are subject to dispute by the CPSU in relation to the alleged redundancy of Mr Skurnik? That is to say, which terms of the Agreement has the CPSU identified the proper application of which are in dispute, in relation to the employment of Mr Skurnik? Do those terms bear some logical connection with the factual basis of the dispute over Mr Skurnik’s continued employment by the ABC or the end of that employment due to redundancy as provided for by the Agreement?
[32] The answer to these questions is dependent upon what is raised in the notification, the submissions of the CPSU of 24 June 2011 and 12 October 2011, of which the ABC has had ample notice. In my view the terms of the Agreement referred to in the original notification and the submissions of 24 June 2011 arguably go to factual circumstances of Mr Skurnik’s employment and the operation of clause 55 of the Agreement in those circumstances, some directly and some incidentally.
Natural Justice
[33] To the extent that the ABC submits that a denial of natural justice would arise if matters identified in items 4 and 5 above concerning clauses 55.7 and 55.8 where to be included within the characterisation of a dispute arising under the agreement by the Tribunal I consider this submission to be misconceived. On a careful reading of the ABC’s submissions of 16 October 2011 I think it is tolerably clear that the ABC has identified what it categorises as “the redundancy dispute”. It should be obvious, I think, that items 4 and 5 referred to above concerning the application of clauses 55.7 and 55.8 are matters which would fall within the ABC’s categorisation of “the redundancy dispute”. The ABC’s submissions deal at some length with why they submit “the redundancy dispute” is beyond the jurisdiction of the Tribunal. Clearly the ABC had the opportunity to make submissions and be heard about the Tribunal’s jurisdiction to deal with a dispute about the application of the provisions of clause 55, which govern what the ABC categorises as “the redundancy dispute” and did so in writing. Moreover, the ABC had the opportunity to support those submissions more specifically in relation to the invitation to address the description of “the redundancy dispute” in the terms expressed in items 1 to 6 above at the hearing on 29 November 2011.
[34] Additionally, at the hearing on 29 November, the Tribunal offered the ABC the opportunity to file further submissions in relation to the jurisdictional issues arising from the Tribunal’s formulation in items 1 to 6 above and the oral submissions made on that day by the CPSU, concerning the submissions of 24 June 2011, which was declined. In my view, in respect of these matters the ABC’s submissions confuse the procedural requirements of the obligation upon the Tribunal to afford natural justice to a party interested in the outcome of its consideration and determination of matters before it with the substantive validity or otherwise of its decisions and determinations. Those procedural requirements are to afford a party whose rights, duties and obligations may be affected a reasonable opportunity to be heard.
[35] It cannot be said that the ABC has not had an opportunity to be heard in relation to the jurisdiction of the Tribunal and the proper characterisation of the dispute, either in relation to the original notification or the submissions of the CPSU of 24 June and 12 October 2011. The submission of 24 June engages with various terms of the Agreement which the CPSU claims have not been applied by the ABC, the ABC has had ample time to consider and address those submissions.
Jurisdiction - Power - Remedy
[36] In their submission concerning the jurisdiction of the Tribunal to deal with a dispute arising under the Agreement the ABC addressed various questions concerning remedies which might or might not be determined by arbitration. I gather that these submissions were designed to be persuasive that the “redundancy dispute” was beyond the jurisdiction of the Tribunal to deal with and to delimit what remedies might be determined by arbitration in relation to what the ABC categorised as the “consultation dispute” and the “skills dispute”.
[37] I am not persuaded that the remedial powers of the Tribunal in relation to a dispute over the application of the terms of an enterprise agreement bear the definitive function of determining the Tribunal’s jurisdiction as contended for by the ABC. There may well be limits on the power of the Tribunal to deal with a matter within its jurisdiction as arbitrator provided for by the terms of a dispute settlement procedure. However, as has been observed elsewhere in the authorities above, the confusion of jurisdiction and power is to be avoided and the characterisation of a dispute and remedies which might be sought or available are different considerations. To proceed from a restrictive catalogue of hypothetical remedies to the characterisation of the dispute and then to make jurisdictional findings, in my view, is a methodological error. The direction of that procedure is the reverse of what is required. What remedies would or would not be within the power of the Tribunal in a particular case will always depend upon a requisite finding that there exists a factual nexus with a term of an agreement and the particular nature of that nexus. Such findings are invariably specific and particular to the terms of an Agreement and a given set of circumstances. No evidence has been brought which would enable such a procedure.
[38] In this respect what may be observed is that the discursive sequence of a determination of an alleged dispute said to “arise under” an agreement would require findings of fact concerning actions or inactions by a party to an agreement and findings that those actions are or are not governed by a term of the Agreement, for jurisdictional purposes. Consequently, a judgement of whether or not the relevant actions or inactions accord with the terms of the Agreement would be necessary. Where such actions or inactions were judged not to accord with those terms, identification of the inconsistency between the action or inaction and the terms of the Agreement may give rise to an appropriate exercise of power to provide a remedy. For the exercise of power to remain with the scope of the necessary finding of jurisdictional fact the remedy would have to have a clear connection with and logical tendency to redress the inconsistency between the requirements of the terms of the Agreement determined and the facts relevantly identified.
Conclusion
[39] I characterise the dispute as about the proper application of those terms of the Agreement identified by the CPSU in the proceedings, by way of the notification of 1 June 2011 and the submissions of 24 June 2011, as applicable to the employment of Mr Skurnik. The dispute concerns the alleged redundancy of Mr Skurnik under the relevant terms of the Agreement and includes all of the matters referred to in items 1 to 6 in paragraph [22] of this decision. I find that the Tribunal has jurisdiction to determine the dispute, as so characterised, by arbitration. The ABC has had a fair opportunity to be heard in relation to the characterisation of the dispute accordingly. I will list the matter for mention and directions.
COMMISSIONER
Appearances:
H Jones for the CPSU.
K Heraghty for the ABC.
Hearing details:
2011.
Melbourne and Sydney (video hearing):
November, 29.
1 [2001] HCA 16.
2 Ibid, PN31.
3 [2010] FWAFB 8437.
4 [2011] FWAFB 8043.
5 Ibid.
6 PR908236.
7 Ibid, PN57.
8 PR921688.
9 PR933766.
10 PR973884.
11 PR940366.
12 Ibid, PN45-47.
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