Mark Skurnik v Australian Broadcasting Corporation - [2011] FWA 8069

[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

FAIR WORK AUSTRALIA

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…

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: [2011] FWA 8069
Decision Date: 15 DECEMBER 2011

CaseChat Overview and Summary

In the Fair Work Commission, Mark Skurnik commenced proceedings against the Australian Broadcasting Corporation. The matter related to a dispute about the manner in which the ABC had handled Skurnik's redundancy. Skurnik claimed that the ABC had breached the terms of their enterprise agreement by failing to properly follow its dispute settlement procedure. The ABC argued that the Commission did not have the jurisdiction to hear the case, and that even if it did, the dispute was not properly characterised as a dispute concerning redundancy. The ABC also claimed that the Commission had erred in its interpretation of the enterprise agreement provisions.

The key legal issues before the Commission were whether it had jurisdiction to hear the case, the proper characterisation of the dispute, and the interpretation of the enterprise agreement. The Commission considered the nature of the dispute, the terms of the enterprise agreement, and the applicable legislation. The Commission found that it did have jurisdiction to hear the case, and that the dispute was properly characterised as one concerning redundancy. The Commission also held that the ABC had breached the enterprise agreement by not following the dispute settlement procedure correctly. The ABC's argument that the Commission had erred in its interpretation of the enterprise agreement was rejected.

The Fair Work Commission held that it had jurisdiction to hear the case, and that the dispute was properly characterised as one concerning redundancy. The Commission found that the ABC had breached the enterprise agreement by not following the dispute settlement procedure correctly, and that this constituted a failure to act in accordance with natural justice. The Commission ordered the ABC to pay Skurnik compensation for the breach, and to follow the correct dispute settlement procedure in the future. The ABC was also ordered to take steps to ensure that its employees were aware of the correct dispute settlement procedure.

Orders