Mr George Nantsou v University of Newcastle

[2016] FWC 1360

[2016] FWC 1360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr George Nantsou
v
University of Newcastle
(C2016/173)

Educational services
COMMISSIONER SAUNDERS	NEWCASTLE, 8 APRIL 2016

Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement - jurisdiction

[1] In 2015, the University of Newcastle commenced a change process to restructure its information technology services unit to address staffing, organisation structures, systems and business process issues that had been identified by both internal and external reviews. The restructure involves a new organisational structure being implemented in the information technology services unit, with the result that many current positions in that unit have been, or will soon be, made redundant.

[2] Mr Nantsou is employed by the University in the position of Manager Enterprise Solutions. His position is one of the positions to be made redundant as a consequence of the restructure.

[3] As part of the restructuring process, the University prepared a Consultation Paper and following consultation with staff and relevant unions the University prepared a formal Proposal Paper. Clause 6.1 of the Proposal Paper sets out a number of “general principles” to be applied by the University in connection with the restructuring process. One such principle is as follows:

“Where a high level of alignment exists between the role and responsibilities of a ‘new’ position and an identified existing substantive position, the staff member will be placed or transferred to the ‘new’ position. Consideration of required training and development will apply.”

[4] Mr Nantsou contends there is a “high level of alignment” between the role and responsibilities of his existing position (Manager Enterprise Solutions) and the role and responsibilities of a new position in the structure (Manager, Application Support & Maintenance), with the result that he should be placed or transferred to the new position. The University disagrees.

[5] Mr Nantsou has made an application (the Application) to the Fair Work Commission (the Commission) for it to deal with his dispute with the University in accordance with the dispute resolution clause in the enterprise agreement which covers him in his employment with the University (University of Newcastle Professional Staff Enterprise Agreement 2014 (the Enterprise Agreement)).

[6] Notwithstanding the fact that Mr Nantsou and the University followed the initial steps in the dispute resolution procedure in the Enterprise Agreement prior to the Application being filed, there is an issue about whether the dispute between Mr Nantsou and the University, properly characterised, falls within the scope of disputes which may be dealt with in accordance with the dispute resolution procedure in the Enterprise Agreement. I identified that issue on the first occasion the matter came before the Commission and then invited the parties to make written and oral submissions on the question of jurisdiction, which they did. This decision deals solely with that question.

Legal principles concerning the proper characterisation of the dispute

[7] The Application has been made under section 739 of the Fair Work Act 2009 (Cth) (the Act). The test under section 739 of the Act is whether the dispute resolution clause “requires or allows” the Commission to deal with the dispute. It is therefore necessary to look at the text of the dispute resolution clause, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 1

[8] The scope of a dispute settlement clause in an enterprise 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.” 2

[9] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. 3 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.4 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.5

[10] It is also important to note that the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute. 6 However, the relief sought may cast light on the true nature of the dispute in some cases.7

[11] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant in such circumstances will depend on the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the Enterprise Agreement to which the dispute relates. 8

What is the scope of disputes which may be dealt with under the dispute resolution clause in the Enterprise Agreement?

[12] Clause 75.0 of the Enterprise Agreement provides as follows:

“Where a dispute arises, or is considered likely to arise, regarding the interpretation, application or operation of any provision of this Agreement or the National Employment Standards, the procedures contained in this clause will be followed.”

[13] The dispute settlement procedure (clause 75) in the Enterprise Agreement is plainly intended to have operation in a wide range of circumstances, but its reach is not unlimited. 9 It prescribes procedures designed to resolve disputes which arise, or are considered likely to arise, “regarding the interpretation, application or operation of any provision of this Agreement or the National Employment Standards”. However, not all disputes and grievances which might conceivably occur at, or in connection with, the workplace will be subject to the dispute resolution procedure in the Enterprise Agreement. The operation of clause 75 will only be attracted if the dispute can be linked in the requisite way to “the interpretation, application or operation” of the Enterprise Agreement or the National Employment Standards.10

[14] The word “regarding” in clause 75.0 is of wide import. 11 The use of the word “arises” in clause 75.0 implies “a sense of consequence”.12 It suggests “a less immediate association than a direct causal relationship between the dispute … on the one hand and the application, interpretation [or operation] of the agreement on the other”.13

[15] There is no suggestion in this case that the dispute the subject of the Application is in any way concerned with the National Employment Standards or the “interpretation” of any provision of the Enterprise Agreement. The issue is whether the dispute “arises, or is considered likely to arise, regarding the … application or operation of any provision of” the Enterprise Agreement.

[16] The phrase “application … of any provision of this Agreement” in clause 75.0 of the Enterprise Agreement 14 means to make use of, implement or apply a provision of the Enterprise Agreement, such as a decision by the employer, under a clause of the Enterprise Agreement, to make some change in the workplace15 or a dispute as to whether a particular employee should be classified under one or another category in the Enterprise Agreement.16

[17] A dispute cannot “arise … regarding the … operation … of any provision of this Agreement” within the meaning of clause 75.0 of the Enterprise Agreement unless the dispute has a relationship with the provisions of the Enterprise Agreement itself. 17 The nature of the relationship which is necessary to meet the test may be in issue in particular cases.18

What is the proper characterisation of the dispute between Mr Nantsou and the University?

[18] Section 1.4 of the Application completed by Mr Nantsou states as follows:

“What clause of the industrial instrument or other written agreement does the dispute relate to?

PART D: MANAGING CHANGE specifically:

20.0 ORGANISATIONAL CHANGE and

21.0 JOB REDESIGN

of the University of Newcastle Professional Staff Enterprise Agreement 2014

plus

6.1 Staffing the Structure

(iv) Where a high level of alignment exists between the role and responsibilities of a “new” position and an identified existing substantive position, the staff member will be placed or transferred to the “new” position. Consideration of required training and development will apply

of the University of Newcastle Proposal Paper.”

[19] Mr Nantsou describes the dispute in the following way in section 2.1 of the Application:

“1. The dispute is that I believe that there exists a “high level of alignment” as per:

6.1 Staffing the Structure

(iv)
of the University of Newcastle Proposal Paper …

between the new position titled “Manager, Application Support & Maintenance” and the role that I am currently undertaking titled “Manager Enterprise Solutions”.

2. I submitted that there exists a high level of alignment between the new position’s roles, responsibilities and characteristics as documented in the Position Description against my current position’s Position Description and that I should be directly appointed into the new position.

3. I have not received a satisfactory rationale why and how the University indicates that the new position has been identified as substantially different, and seek an independent assessment by the Fair Work Commission of Newcastle.”

[20] Mr Nantsou seeks the following relief in section 3.1 of the Application:

“The Fair Work Commission to provide an:

a) independent assessment on whether a “high level of alignment exists” under 6.1 Staffing the Structure (iv) of the University of Newcastle Proposal Paper …

b) independent facilitation and arbitration as per the process described in clause 75.7(i) and (ii) of the University of Newcastle Professional Staff Enterprise Agreement 2014 …”

[21] In addition to considering the Application made by Mr Nantsou, in determining the proper characterisation of the dispute I have also had regard to the 25 supporting documents provided by Mr Nantsou to the Commission by email dated 1 February 2016 (at 1:49pm). Those documents provide a significant amount of detail about the process which has been undertaken by the University to consult with staff and implement the restructure, the extensive analysis undertaken by Mr Nantsou in support of his contention that there exists a “high level of alignment” between the role and responsibilities of his existing position and the new position, and the communications between Mr Nantsou and various employees of the University in relation to that issue. Further, in determining the jurisdictional question I have had regard to the written submissions filed by Mr Nantsou on 23 March 2016, the oral submissions made by Mr Nantsou on 7 April 2016, together with the oral information provided by Mr Nantsou to the Commission on 24 February 2016 about the background to the dispute and his reasons for making the Application. That oral information did not differ in any material respect from the information provided by Mr Nantsou in his Application, the 25 supporting documents, and his written submissions filed on 23 March 2016.

[22] There is no suggestion in this case that the University has failed to properly or adequately consult with Mr Nantsou in relation to the restructure, in accordance with clause 20 of the Enterprise Agreement, or that it has failed to comply with its obligation to prepare a Proposal Paper (clause 20.9) or any other obligation it has under the Enterprise Agreement.

[23] The proper characterisation of the dispute the subject of the Application is a dispute about whether there is a “high level of alignment” between the role and responsibilities of Mr Nantsou’s existing position (Manager Enterprise Solutions) and the role and responsibilities of a new position in the structure (Manager, Application Support & Maintenance).

Does the dispute, properly characterised, fall within the scope of the dispute resolution clause in the Enterprise Agreement?

[24] Mr Nantsou contends that the dispute falls within the scope of the dispute resolution clause in the Enterprise Agreement because there are the following “links” between the Proposal Paper and the Enterprise Agreement:

(a) First, clause 20.9 of the Enterprise Agreement obliges the University to “prepare a formal Proposal which includes the details specified in clause 20.4 above and the outcome of any consultations”. Mr Nantsou relies on this provision to contend that the Proposal Paper, including the “high level of alignment” general principle, forms part of the Enterprise Agreement;

(b) Secondly, clause 6.0 of the Proposal Paper states that “the organisational change process will be carried out in accordance with the Agreement and the principles of sound management of workplace change”. Mr Nantsou contends that this “links” the Proposal Paper and the Enterprise Agreement;

(c) Thirdly, clause 8.0 of the Proposal Paper requires a number of actions to occur following the Vice Chancellor having considered and approved the implementation of the proposal. Those actions include the Director, People and Workforce Strategy or their delegate assisting staff to work through available options, particularly those relating to the Enterprise Agreement, such as secondment, transfer, pre-retirement contracts etc. Mr Nantsou contends that this “links” the Proposal Paper and the Enterprise Agreement; and

(d) Fourthly, attachment D to the Proposal Paper sets out “guidelines” for managing the organisational change. Clause 2 of attachment D states that the “University will apply the principles and processes contained in the Agreement, and the principles of sound management of workplace change.” Mr Nantsou contends that this “links” the Proposal Paper and the Enterprise Agreement.

[25] I reject Mr Nantsou’s contention that the Proposal Paper forms part of the Enterprise Agreement, for the following reasons. There is no statement in the Enterprise Agreement to the effect that any Proposal Paper developed by the University forms part of the Enterprise Agreement. The Enterprise Agreement requires the University to prepare a Proposal Paper as a step along the way to potentially implementing workplace change. In particular, clause 20 of the Enterprise Agreement requires the University to (a) consult with, and provide relevant information to, affected staff concerning workplace change, (b) prepare a Consultation Paper for comment, (c) prepare a Proposal Paper which includes the outcome of the consultation, and (d) provide the Proposal Paper and any recommendations to the Vice Chancellor for his or her consideration and determination. The requirement to prepare such a Proposal Paper as part of this process does not, in my view, result in the Proposal Paper becoming a part of the Enterprise Agreement. My conclusion in this regard is also supported by clause 2.4 of the Enterprise Agreement, which provides that “where policies, codes, procedures, guidelines and other administrative arrangements of the University are referred to in this Agreement, the terms thereof are explicitly not incorporated into the Agreement and do not form part of the Agreement.” In my view, the Proposal Paper is a “policy, code, procedure, guideline or other administrative arrangement of the University” within the meaning of clause 2.4 of the Enterprise Agreement.

[26] I accept that there are the “links” between the Proposal Paper and the Enterprise Agreement identified by Mr Nantsou. However, the existence of such “links” is not, of itself, determinative of the question of whether the dispute is of the requisite character, namely a dispute which “arises, or is considered likely to arise, regarding the interpretation, application or operation of any provision of this Agreement or the National Employment Standards”.

[27] The present dispute can be properly characterised as a dispute about the application or operation of the Proposal Paper, in that it concerns whether the University has complied with its obligation under clause 6.1(iv) of the Proposal Paper to place or transfer an employee into a new position if there is a high level of alignment between the role and responsibilities of the employee’s current position and a new position. I agree with the University’s submission that such a dispute is at least “one step removed” from a dispute that “arises, or is considered likely to arise, regarding the interpretation, application or operation of any provision of the Agreement” [emphasis added].

[28] Put another way, in deciding not to place or transfer Mr Nantsou into the new position identified by him on the basis that there is not a high level of alignment between the role and responsibilities of his current position and the new position, the University has not made use of, implemented, applied or given operation to any provision of the Enterprise Agreement, nor has it failed to do any of those things. Rather, the University has made use of, implemented and applied (or, as Mr Nantsou contends, failed to make use of, implement and apply) the general principle in clause 6.1(iv) of the Proposal Paper.

[29] Further, as was the case in United Firefighters’ Union v Metropolitan Fire and Emergency Services Board 19, the present dispute does not concern consultation, rather it is a dispute about the outcome of that consultation. That is not a dispute of the requisite kind.

[30] Mr Nantsou also relies on the fact that the University has followed the initial steps under clause 75 of the Enterprise Agreement in connection with his dispute as an indication that “clause 75 is a valid process for this type of dispute”. The University accepts that it followed those initial steps in an endeavour to resolve the dispute, but says it did so by mistake, having not given any real consideration to the question of whether the dispute is one, on its proper characterisation, which “arises, or is considered likely to arise, regarding the interpretation, application or operation of any provision of the Agreement” as required by clause 75.

[31] The parties to a dispute cannot confer jurisdiction on the Commission to deal with their dispute by their conduct or agreement alone. Either the dispute, on its proper characterisation, falls within the scope of disputes which may be dealt with under the disputes resolution procedure in an enterprise agreement or it does not. Accordingly, I reject the argument that “clause 75 is a valid process for this type of dispute” by reason of the fact that the parties participated in the initial steps under clause 75 of the Enterprise Agreement in connection with the dispute.

[32] Mr Nantsou’s final submission in his written submissions dated 23 March 2016 is in the following terms:

“3. Clause 21.0 under PART D: MANAGING CHANGE of THE UNIVERSITY OF NEWCASTLE PROFESSIONAL STAFF ENTERPRISE AGREEMENT 2014 (AG2014/9877) indicates that:

a. Clause 21.1 states “The University will utilise job redesign, consistent with other provisions of this Agreement, so as to:

i. fully utilise staff members’ potential and enhance their skills, knowledge and career opportunities, subject to University needs, and consistent with the University of Newcastle Classification Descriptors – Schedule 3 of this Agreement;

ii. promote job security and not diminish work value, conditions or level;”

b. Clause 21.2 indicates “The University will provide training and development programs for staff in support of job redesign.”

[33] However, Mr Nantsou has not suggested, so far as I am aware, that there is any dispute about whether the University has failed to comply with any of its obligations under clause 21 of the Enterprise Agreement, or how clause 21 should operate, be applied, or interpreted. In the event that such a dispute arises between the parties, it would, in my view, be a dispute within the scope of clause 75 of the Enterprise Agreement and could be the subject of a further application by Mr Nantsou under section 739 of the Act.

Conclusion

[34] Even in the context of a broad disputes procedure, and the wide import of phrases such as “arises”, “likely to arise” and “regarding”, the necessary connection between the “interpretation, application or operation of” the Enterprise Agreement and the dispute between Mr Nantsou and the University is absent in this case.

[35] For the reasons set out above, I find that the dispute the subject of Mr Nantsou’s Application is not a dispute which “arises, or is considered likely to arise, regarding the interpretation, application or operation of any provision of this Agreement or the National Employment Standards”. It follows that the Commission does not have jurisdiction to deal with the dispute, whether by way of arbitration or otherwise. The Application is therefore dismissed.

COMMISSIONER

Appearances:

Mr G Nantsou on his own behalf;

Mr M Kelly on behalf of the University.

Hearing:

2016.

Newcastle:

April, 7.

 1   CEPU v Thiess Pty Ltd (2011) 212 IR 327 (CEPU vThiess) at [42] & [47]; see too CFMEU v AIRC [2001] HCA 16

 2   SDA v Big W Discount Department Stores PR924554 at [23]

 3   AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 (ASP) at [23]

 4   AMWU v Holden Limited PR940366 at [47]; ASP at [23]

 5   ASP at [19] & [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884

 6   MUA v Australian Plant Services Pty Ltd PR908236; ASP at [21]-[22]

 7   United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20]

 8   MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32]

 9   AMWU v Thiess Degremont Joint Venture (2012) 226 IR 390 (AMWU v Thiess) at [10] & [21]

 10   CEPU v Thiess at [47]; AMWU v Thiess at [21]

 11   CEPU v Thiess at [49]-[50]

 12   CEPU v Thiess at [51]

 13   CEPU v Thiess at [51]

 14   Which is “perhaps narrower” than “operation of the agreement” (Australian Municipal, Administrative, Clerical and Services Union v Automated Meter Reading Services PR922053 at [73])

 15   CEPU v Thiess at [64]

 16   Australian Municipal, Administrative, Clerical and Services Union v Automated Meter Reading Services PR922053 at [136]

 17   Australian Municipal, Administrative, Clerical and Services Union v Automated Meter Reading Services PR922053 at [73]-[74]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [29]-[31]

 18   Alcoa of Australia Pty Ltd v Amalgamated Engineering Union (1965) 7 FLR 180 at 183

 19   PR973884

Printed by authority of the Commonwealth Government Printer

<Price code C, AE411609  PR577587>