Mr Grant Brow v National Offshore Petroleum Safety and Environmental Management Authority T/A NOPSEMA

[2016] FWC 4416

[2016] FWC 4416

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute in relation to flexible working arrangements

Mr Grant Brow
v
National Offshore Petroleum Safety and Environmental Management Authority T/A NOPSEMA
(C2016/1329)

COMMISSIONER CLOGHAN PERTH, 8 JULY 2016

Application to deal with a dispute - jurisdictional objection - Commission does not have jurisdiction to deal with the dispute - application dismissed.

[1] This is an application to the Fair Work Commission (Commission) by Mr Grant Brow (Mr Brow or Applicant) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (FW Act).

[2] Mr Brow is in dispute with the National Offshore Petroleum Safety and Environmental Management Authority trading as NOPSEMA (NOPSEMA or Employer).

[3] The dispute is referred to the Commission purportedly pursuant to NOPSEMA’s “Review of Actions” Policy.

[4] The application was the subject of a conference on 22 June 2016 but remained unresolved. A hearing took place on 1 July 2016.

[5] At the hearing, Mr Brow represented himself and gave written evidence on his own behalf.

[6] NOPSEMA was represented by Mr P Macliver, Senior General Counsel, Australian Government Solicitor. Mr J Dunster, acting Head of Division, Safety and Integrity gave evidence on behalf of the Employer.

[7] At the conclusion of the hearing, I dismissed the application because the Commission does not have jurisdiction to deal with the dispute. These are the reasons for dismissing the application on jurisdictional grounds.

THE DISPUTE

[8] Mr Brow is employed in the Australian Public Service pursuant to the Public Service Act 1999. Mr Brow is employed by NOPSEMA as an Occupational Health and Safety Regulatory Specialist.

[9] Mr Brow is employed on a full-time basis, located in Perth, Western Australia and, on occasions, is required to perform his duties in Commonwealth waters inspecting petroleum facilities.

[10] On 27 November 2014, Mr Brow put a proposal to Mr Dunster based on a NOPSEMA website document which indicated that there was “scope for the negotiation of flexible working arrangements [FWA] to help create a work/life balance”. 1 Mr Brow sought a Home Based Work (HBW) arrangement.

[11] Mr Dunster responded and advised Mr Brow that, “working from home or home based work was not an entitlement and ‘will only be used for temporary arrangements’.” 2

[12] Subsequently, on 18 January 2016, Mr Brow requested to work from home for a period of six (6) months from July 2016. Mr Brow’s home, for the six (6) months, would be in the Netherlands.

[13] Mr Brow’s wife is pregnant and he wishes to be with her up to and subsequent to the birth of their child.

[14] NOPSEMA advised Mr Brown on 3 February 2016, that it was unable to agree to his request on reasonable business grounds.

[15] Mr Brow sought a review of NOPSEMA’s decision. This was considered by an independent reviewer who came to the conclusion that Mr Dunster’s decision was reasonable and appropriate.

[16] Subsequent to the reviewer’s decision, Mr Brow made this application.

[17] Following a conference, Mr Brow put an alternative proposal for HBW but which still involved working in the Netherlands. NOPSEMA was unable to agree to the alternative proposal, and consequently, Mr Brow sought that his application be heard and determined.

RELEVANT LEGISLATIVE FRAMEWORK

[18] The FW Act relevantly provides at ss.595, 738 and 739 as follows:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.
(2) …
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.
(4) …
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”

“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.

...”

[19] Accordingly, for the Commission to have the power to deal with a dispute pursuant to s.739(1) of the FW Act, a pre requisite is that one of the terms of s.738 applies and allows the Commission to deal with a dispute.

s.738(a): Modern Award

[20] NOPSEMA submit that Mr Brow’s employment is covered by the Public Service Enterprise Award 2015 (PS Award) which is a modern award.

[21] Clause 26 of the PS Award deals with dispute resolution. Clause 26 relevantly reads:

“26.1 In the event of a dispute about a matter under this award, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.

26.2 If a dispute about a matter arising under this award is unable to be resolved at the workplace, and all appropriate steps under clause 26.1 have been taken, a party to the dispute may refer the dispute to the Fair Work Commission.

26.3 The parties may agree on the process to be utilised by the Fair Work Commission including mediation, conciliation and consent arbitration.

26.4 Where the matter in dispute remains unresolved, the Fair Work Commission may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute.

…”

[22] HBW or FWA are not matters dealt with in the PS Award. Consequently, pursuant to subclause 26.1 of the PS Award, Mr Brow’s dispute is not a “matter under this award”.

[23] It is not disputed that FWA is a matter dealt with in the NES at s.65 of the FW Act. However, the extent to which a dispute in relation to the NES is resolved, it is limited to subclause 26.1 of the PS Award. The breadth of resolution of a NES matter only goes so far as discussions between the employee, supervisor or more senior management, as appropriate.

[24] In contrast, subclause 26.2 provides for the referral to the Commission in relation to a “matter arising under this award”.

[25] On the evidence, the process in subclause 26.1 of the PS Award, in relation to Mr Brow’s dispute, has been followed without resolution. However, the PS Award does not give the Commission the power to deal with a NES matter, as it is excluded from the parameters set out in subclause 26.2.

[26] In conclusion, I find that Mr Brow’s contract of employment or written agreement (PS Award) does not provide a term to deal with the substantive matter of Mr Brow’s dispute.

[27] Putting aside Clause 26 of the PS Award, s.47(2) of the FW Act provides:

“However, a modern award does not apply to an employee (or to an employer, or an employer organisation in relation to the employee) at a time when the employee is a high income employee.”

[28] The meaning of a high income employee is set out in s.329(1), in conjunction with s.330, of the FW Act. Mr Brow’s annual income is considerably more than the high income guaranteed annual earnings.

[29] Taking guidance from the distinction between an enterprise agreement “covering” and “applying” to an employee in s.52 of the FW Act, I find that, although Mr Brow may be covered by the PS Award, s.47(2) of the FW Act specifically excludes that it applies to Mr Brow. It is only when a modern award applies to an employee does it create an obligation.

[30] In the event I am wrong in relation to Clause 26 of the PS Award, I find that the PS Award does not apply to Mr Brow as he exceeds the high income guaranteed annual earnings threshold.

s.738(b): Enterprise Agreement

[31] Mr Brow does not assert nor does an enterprise agreement apply to his employment.

s.738(c): Contract of employment or other written agreement

[32] Mr Brow’s contract of employment provides at Clause 40 a dispute resolution procedure.

[33] Subclause 40.1 of the contract of employment confines disputes to, “a matter arising under this Contract”.

[34] The contract of employment does not state where work is to be performed nor does it have a term which facilitates HBW.

[35] Clause 5 of Mr Brow’s contract of employment is entitled “Polices”, and states:

“The terms and conditions in this Contract will be administered in accordance with the relevant NOPSEMA policies and guidelines as varied from time to time. Policies and guidelines are not incorporated into and do not form part of this Contract.

A NOPSEMA policy or guideline will apply in the form it is in at the time of any relevant action or decision. If there is any inconsistency between this Contract and the policies or guidelines, the Contract prevails to the extent of any inconsistency.” (my emphasis)

[36] I find that NOPSEMA’s rejection of Mr Brow’s request for HBW is not a dispute about a matter arising under this contract of employment. Further, all NOPSEMA policies are excluded from Mr Brow’s contract of employment.

[37] Subclause 40.5 of Mr Brow’s contract of employment sets out a process for settling disputes “arising under” his contract but only, “to the extent that the matter relates to the National Employment Standards or a safety net contractual entitlement”.

[38] Mr Brow’s contract is silent in relation to HBW or FWA. Accordingly, I find that the process, in subclause 40.5 of the contract of employment, is not applicable.

s.738(d): Determination under Public Service Act 1999

[39] Mr Brow did not contend nor is there a determination applicable.

[40] I now turn to further matters related to whether the Commission has jurisdiction to deal with Mr Brow’s HBW dispute with NOPSEMA.

OTHER MATTERS

Section 65 of the FW Act

[41] Section 65 of the FW Act provides that an employee may make a request for FWA. The relevant provisions are as follows:

“65 Requests for flexible working arrangements

Employee may request change in working arrangements

(1) If:
(a) any of the circumstances referred to in subsection (1A) apply to an employee; and
(b) the employee would like to change his or her working arrangements because of those circumstances;
then the employee may request the employer for a change in working arrangements relating to those circumstances.
Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.
(1A) The following are the circumstances:
(a) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
(b) …
(1B) …
(2) …” (my emphasis)

[42] Mr Brow made his request to NOPSEMA on 18 January 2016. Mr Brow’s wife is expected to give birth at the end of July 2016.

[43] The word “is” in s.65(1A)(a) of the FW Act means in existence or present. Mr Brow is not yet a parent.

[44] I intend to deal with Mr Brow’s contention that he is a parent even though his child has not been born, by reference to the definition of a “parent” in the Australian Concise Oxford Dictionary (ACOD). The ACOD definition of “parent”, relevantly reads “one who has begotten a borne offspring”. Mr Brow will become a parent on his child coming into existence by birth.

[45] Consequently, as at 18 January 2016 and also at the date of the hearing, Mr Brow was not entitled to make a request pursuant to s.65(1) of the FW Act, because he did not meet any of the circumstances set out in s.65(1A).

[46] The Commission has no power to deal with the dispute because it has not been properly made pursuant to s.65 of the FW Act.

s.739(2)(a) of the FW Act

[47] Section 739(2)(a) of the FW Act states that the Commission:

“…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) [of the FW Act], 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.”

[48] Firstly, I have found that Mr Brow’s application has not been properly made pursuant to s.65(1) of the FW Act. Secondly, even if it had been properly made, there is no reference in Mr Brow’s contract of employment or the PS Award which particularises that the parties have agreed to the Commission dealing with a dispute where NOPSEMA has refused a FWA request pursuant to s.65(5) of the FW Act on “reasonable business grounds”. I say particularly, because, in my view, a general reference to dealing with a NES dispute is insufficient when considering the distinctive characteristic of the statutory exclusion in s.739(2) of the FW Act.

REVIEW OF ACTIONS POLICY

[49] Mr Bow’s contract of employment specifically excludes at Clause 5, NOPSEMA’s policies or guidelines.

[50] However, NOPSEMA’s Review of Actions Policy provides employees with the ability to refer matters to the Commission, if a matter, including a dispute relating to the NES, is not resolved internally.

[51] At first blush, it may seem that the Review of Actions Policy is an “avenue” for employees to refer a dispute to the Commission in relation to NOPSEMA’s refusal, on reasonable business grounds, to a request for FWA. However, a referral to the Commission must meet the following conditions:

• the application has been properly made; and



• in the event the application is properly made, the parties must have agreed in a contract of employment, enterprise agreement or other written agreement to a procedure for the Commission to deal with a dispute where an employer has refused a FWA on “reasonable business grounds”.

[52] As I have found above, the application was not properly made. Secondly, the Review of Actions Policy is specifically excluded in Mr Brow’s contract of employment, and furthermore, the Policy is not an “agreement” but a written internal instrument of NOPSEMA to reflect how it wants to runs its business, and not subject to the agreement of employees. Consequently, given all three circumstances, Mr Brow cannot rely upon the Review of Actions Policy to refer to, and give the Commission, power to deal with his dispute with NOPSEMA.

ORDER PURSUANT TO SECTION 593 OF THE FW ACT

[53] By email dated 30 June 2016, Mr Brow requested that the Commission, “consider making an order for the upcoming hearing to remain private, as per section 593 of the FW Act, on the basis that it may have a negative impact on his career and the very personal nature of my request”.

[54] The substantive issue of my Decision, irrespective of the merits of Mr Brow’s application to NOPSEMA, is whether the Commission has the power or authority to hear and determine his application.

[55] Put shortly, it is a legal question to be determined.

[56] NOPSEMA’s jurisdictional objection is not “private” or “confidential”. It is simply a legal question which can be distinguished easily from the nature of Mr Brow’s HBW request.

[57] There was no evidence to suggest that the Commission determining a legal issue would have a negative effect on Mr Brow’s career. Further, it is in the interests of “open justice” 3 that hearings be public, including identifying the parties participating.

[58] Having considered the nature of the proceedings and the evidence, I am not satisfied that it is desirable to make any orders pursuant to s.593 of the FW Act.

CONCLUSION

[59] For the above reasons, I dismissed Mr Brow’s application on 1 July 2016. An Order to this effect is attached to these Reasons for Decision.

COMMISSIONER

Appearances:

G Brow, the Applicant on his own behalf.

P Macliver, Senior General Counsel on behalf of NOPSEMA.

Hearing details:

2016:

Perth,

1 July.

 1   Exhibit R2 JD(2)

 2   Exhibit R2 JD(2)

 3 Section593(2) of the FW Act

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