Mr Keith Hewat v Melbourne Health

[2019] FWC 6246

[2019] FWC 6246

FAIR WORK COMMISSION

DECISION

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

Mr Keith Hewat
v
Melbourne Health
(C2019/1811)

Health and welfare services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 9 SEPTEMBER 2019

Alleged dispute about any matters arising under the modern award and the NES; [s146] – dispute about matters arising under the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020 – s.739 Fair Work Act 2009.

[1] This matter came to the Fair Work Commission by way of an application under s. 739 of the Fair Work Act 2009 (the Act) by Mr Keith Hewat (Applicant). The respondent to the application is Melbourne Health (Respondent).

[2] The application relates to a dispute between Mr Hewat and Melbourne Health regarding the operation of section 2, clause 109 of the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Interest Enterprise Agreement 2016-2020 (the Agreement) and whether it places a positive obligation on Melbourne Health to offer a particular employee (Employee A) a full-time night shift position.

The Legislative Framework

[3] Section 739 of the Act provides as follows:

“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.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(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.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(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.”

[4] The dispute resolution clause of the Agreement provides as follows:

“7. Dispute Resolution Procedure

7.1 Resolution of disputes and grievances

(a) For the purpose of this clause 7, a dispute includes a grievance.

(b) This dispute resolution procedure will apply to any dispute arising in relation to:

(i) this Agreement;

(ii) the NES;

(iii) a request for an additional 12 months parental leave; or

(iv) a request for flexible working arrangements.

(c) A party to the dispute may choose to be represented at any stage by a representative including the HWU or employer organisation. A representative, including the HWU or employer organisation on behalf of an Employer, may initiate a dispute.

7.2 Obligations

(a) The parties to the dispute and their representatives must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.

(b) While the dispute resolution procedure is being conducted work will continue normally according to the usual practice that existed before the dispute, until the dispute is resolved.

(c) This requirement does not apply where an Employee:

(i) has a reasonable concern about an imminent risk to his or her health or safety;

(ii) has advised the Employer of the concern; and

(iii) has not unreasonably failed to comply with a direction by the Employer to perform other available work that is safe and appropriate for the Employee to perform.

(d) No party to a dispute or person covered by the Agreement will be prejudiced with respect to the resolution of the dispute by continuing work under this clause.

7.3 Dispute settlement facilitation

(a) Where the chosen representative is another Employee of the Employer, that Employee will be released by the Employer from normal duties as is reasonably necessary to enable them to represent the Employee/s including:

(i) investigating the circumstances of the dispute; and

(ii) participating in the processes to resolve the dispute, including conciliation and arbitration.

(b) An Employee who is part of the dispute will be released by the Employer from normal duties as is reasonably necessary to enable them to participate in this dispute settling procedure so long as it does not unduly affect the operations of the Employer.

7.4 Discussion of dispute at workplace

(a) The parties will attempt to resolve the dispute at the workplace as follows:

(i) in the first instance by discussions between the Employee/s and the relevant supervisor; and

(ii) if the dispute is still unresolved, by discussions between the Employee/s and more senior levels of local management.

(b) The discussions at subclause 7.4(a) will take place within fourteen days or such longer period as mutually agreed save that agreement will not be unreasonably withheld.

(c) If a dispute cannot be resolved at the workplace it may be referred by a party to the dispute or representative to Commission for conciliation and, if the matter in dispute remains unresolved, arbitration.

7.5 Disputes of a collective character

Disputes of a collective character may be dealt with more expeditiously by an early reference to the Commission. However, no dispute of a collective character may be referred to the Commission directly without a genuine attempt to resolve the dispute at the workplace level.

7.6 Conciliation

(a) Where a dispute is referred for conciliation, the Commission member will do everything the member deems right and proper to assist the parties to settle the dispute.

(b) Conciliation before the Commission is complete when:

(i) the parties to the dispute agree that it is settled; or

(ii) the Commission member conducting the conciliation, either on their own motion or after an application by a party, is satisfied there is no likelihood that further conciliation will result in settlement within a reasonable period; or

(iii) the parties to the dispute inform the Commission member there is no likelihood the dispute will be settled and the member does not have substantial reason to refuse to regard conciliation as complete.

7.7 Arbitration

(a) If, when conciliation is complete, the dispute is not settled, either party may request the Commission proceed to determine the dispute by arbitration.

(b) The Commission member that conciliated the dispute will not arbitrate the dispute if a party objects to the member doing so.

(c) Subject to subclause 7.7(d) below, a decision of the Commission is binding upon the persons covered by this Agreement.

(d) An appeal lies to a Full Bench of the Commission, with the leave of the Full Bench, against a determination of a single member of the Commission made pursuant to this clause.

7.8 Conduct of matters before the Commission

Subject to any agreement between the parties to the dispute in relation to a particular dispute or grievance and the provisions of this clause, in dealing with a dispute or grievance through conciliation or arbitration, the Commission will conduct the matter in accordance with sections 577, 578 and Subdivision B of Division 3 of Part 5-1 of the Act.”

[5] Melbourne Health submitted, and the Applicant did not dispute, that the necessary steps in the dispute resolution process had been undertaken to empower the Commission to arbitrate the dispute in accordance with section 2, clause 7 of the Agreement.

[6] I am satisfied that the dispute has been progressed through the steps in the dispute resolution procedure in section 2 clause 7 of the Agreement and accordingly the Commission is empowered to arbitrate the dispute.

Background to the Dispute

[7] Mr Hewat instigated a grievance with Melbourne Health on 27 February 2019 alleging a failure to consult regarding workplace changes, increases to workload, failure to investigate the impact the workplace changes would have on his team and ongoing harassment and discrimination of his team. 1

[8] Melbourne Health responded to the grievance on 27 February 2019 and advised that, as they had demonstrated that there had been no breach of the enterprise agreement, they considered the grievance closed. 2

[9] On 5 March 2019, Mr Hewat wrote to Melbourne Health submitting that they could not dismantle an existing position to make it a rotating role. 3

[10] Melbourne Health replied stating that the vacant equivalent full-time (EFT) position allocated to the night shift was not changing, no position had been dismantled, the shift length, commencement and finish times had not changed, and that the vacancy would be filled by permanent employees. 4

[11] The parties subsequently met in an attempt to resolve the grievance at the workplace level and were unable to do so. 5

[12] On 21 March 2019, Mr Hewat lodged his application with the Commission. The matter was listed for conference before me on 9 May 2019 however was unable to be resolved.

[13] A mention/directions hearing was held on 3 June 2019 in which the parties agreed that the question to be determined was whether section 2, clause 109.1 of the Agreement placed a positive obligation on Melbourne Health to offer Employee A a full-time night shift position. The parties also agreed that the matter was to be determined on the basis of written submissions.

The Substantive Matter

[14] Mr Hewat submitted that Employee A had been an employee of Melbourne Health for six years, and a permanent part-time worker on night shift for the past three years. He submitted that recently 0.75 EFT of a night shift position had become available which, if provided to Employee A, would make Employee A a full-time employee. 6 He submits that section 2, clause 109 places a positive obligation on Melbourne Health to maximise Employee A’s hours.

[15] Section 2, clause 109 of the Agreement provides as follows:

“109. Exploration of a multi-employer pool of employees for ad-hoc shifts

109.1 The parties are committed to maximizing employment opportunities for Employees and reducing underemployment.

109.2 The parties also recognise that many highly trained part-time Employees wish to work additional hours from time to time.

109.3 The parties are also committed to reducing the reliance on casual or agency staff.

109.4 To this end, over the life of the agreement, the parties are committed to exploring the development of a multi-employer process that would enable Employees from one health service take up ad-hoc additional shifts at another health service, where no Employees at that health service are otherwise available.

109.5 Discussions would commence within the first year of the Agreement between the HWU and VHIA, together with interested stakeholders.”

[16] Mr Hewat submitted that the Cambridge English Dictionary defines ‘maximising’ as ‘to make something as great in amount, size or importance as possible’, whilst the McMillan dictionary defined it as ‘to make something larger, enlarge, maximise, scale up’. 7

[17] He submitted that Melbourne Health had not shown a commitment to truly maximising any position as they had dismantled six full-time positions in radiology to part time positions, advertising and offering positions that were 0.25 EFT. 8

[18] He further submitted that Employee A is the longest serving part-time night shift worker, and as such Melbourne Health have an obligation to maximise his hours pursuant to clause 109.1. 9

[19] Finally, Mr Hewat submitted that Melbourne Health were promoting under employment by leaving employees on minimum hours and denying them access to additional hours whilst advertising new vacancies. 10

[20] Melbourne Health submitted that section 2, clause 109 of the Agreement operates to facilitate central discussions between Victorian Hospitals’ Industrial Association (VHIA) and the Health Workers’ Union (HWU) to explore opportunities for a multi-employer pool of employees to fill vacant shifts subject to clause 109.4. 11 They submitted that the clause has a plain meaning12 which is supported by the content of a Summary of Changes document for the Agreement issued by Melbourne Health to eligible employees on or around 25 October 2016.13

[21] Melbourne Health denied Mr Hewat’s contention that they were dismantling six full time positions in radiology and turning them into part-time positions. They submitted that in January of 2017, there were six permanent full-time positions in Radiology for Clinical Assistants and a total of 10.2 EFT. Since January 2017, a number of the Clinical Assistants in Radiology have requested reductions in contracted hours or sought flexible working arrangements. This request was met by Melbourne Health however the total EFT has remained the same. As of June 2019, Melbourne Health submitted that there were five permanent full-time positions in Radiology for Clinical Assistants with 10.2 EFT. 14

[22] In response to Mr Hewat’s submission that as Employee A was the longest serving part-time night shift employee Melbourne Health had an obligation to maximise his employment, they submitted that they are required to make employment decisions on merit, consistent with the Public Sector Employment Principles prescribed at section 8 of the Public Administration Act 2004 (Vic). Melbourne Health submitted that basing employment decisions on length of service creates a circumstance where older employees are inherently advantaged over younger employees, which may breach their obligations under section 2, clause 3 of the Agreement. Notwithstanding this, however, Melbourne Health submitted that there is no obligation in section 2, clause 109.1 or anywhere else in the Agreement to offer vacant hours to an employee based on their length of service. 15

[23] In response to Mr Hewat’s submission that they were promoting under employment by leaving employees on minimum hours while advertising new vacancies, Melbourne Health denied the assertion and submitted that they complied with the advertising requirements of section 2, clause 107 of the Agreement. 16

[24] Melbourne Health submitted that it was appropriate for them to advertise vacant hours internally and to appoint vacant hours internally to more than one suitable applicant. They submitted that there is no obligation in the Agreement to replace ‘like with like’ and appoint the entire EFT that becomes vacant to an individual employee. 17

[25] Melbourne Health submitted that Mr Hewat’s interpretation of section 2 clause 109.1 of the Agreement is not supported by the plain meaning of clause 109, its objective, and the common position between the VHIA and HWU as evidenced by the Summary of Changes document. They submitted that section 2 clause 109 operates to facilitate central discussions between VHIA and the HWU to explore opportunities for a multi-employer pool of employees to fill vacant shifts subject to clause 109.4. It cannot be read in isolation and contributes to the wider clause 109, and as such does not place a positive obligation on Melbourne Health to offer Employee A a full-time night shift position. 18

[26] Melbourne Health submitted that there is no basis for the Applicant to succeed and that the application should be dismissed. 19

[27] Mr Hewat submitted in response that he concurred that section 2 clause 109.1 has a plain meaning and clear objective, being to maximise employment and reduce under employment. He submitted that this must be done in house as well as across the network and that Melbourne Health have an obligation to first advertise the hours as a whole to allow for maximum hours. 20

[28] He submitted that his interpretation of section 2 clause 109.1 of the Agreement was supported by the plain meaning of the words. He submitted that he did not see why the clause could not be read in isolation as it was part of the Agreement and as such was a clause to be interpreted. 21

[29] Mr Hewat submitted that whilst he agreed that the work force was ever changing and Melbourne Health needed to respond to the changing needs of employees such as requests for flexibility and increased hours, the dismantling of six out of twelve full-time positions into part-time positions was extreme. He submitted that the last position to be broken up was divided into five separate shifts which were allocated to four separate employees and was never advertised as a full-time position. 22

[30] Mr Hewat also acknowledged that Melbourne Health was required to make employment decisions on the basis of merit however submitted that in the case of Employee A he doubted if he had been considered for any position. He also submitted that, as the position was to be broken down into three shifts so as to spread the night shift allowance, Employee A, who has one night shift, had no real hope of gaining any more. 23

[31] Mr Hewat submitted the plain reading of the clause supported his interpretation and that Melbourne Health must first fill vacant shifts ‘at home before it can do so abroad’. He submitted that Melbourne Health were required to maximise employment opportunities for employees and reduce under employment. 24

Consideration

[32] The principles to be applied in interpreting an industrial instrument, such as an enterprise agreement or Award, have been consolidated by the Full Bench in Australasian Meat Industry Employees Union v Golden Cockerel 25 (Golden Cockerel) at [41] and it is not necessary to set them out in detail at this point.

[33] These principles were recently revised in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 26(Berri). Those principles are set out in paragraph [114] of the decision in the following terms;

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

[34] In Golden Cockerel, and re-affirmed in Berri, it is clear that it is first necessary to determine whether an Agreement has a plain meaning or contains an ambiguity. In the latter case, evidence of the surrounding circumstances can be considered as an aid to interpretation. This might include evidence of prior negotiations, notorious facts, or evidence of matters in common contemplation. A common intention is also to be identified objectively by reference to that which a reasonable person would understand by the language the parties have used to express their agreement. 27 In addition, the task is not to rewrite the Agreement to achieve what might be seen as fair and just, but is instead to interpret the Agreement produced by the parties.

[35] I consider that section 2, clause 109 of the Agreement has a plain meaning and does not contain any ambiguity.

[36] The purpose of section 2, clause 109 is to provide for discussions and explorations between the parties to the Agreement of the establishment of a multi-employer pool of employees for ad-hoc shifts. This in no way creates a positive obligation on Melbourne Health to offer Employee A a full-time night shift position.

[37] Even if I were to read section 2, clause 109.1 in isolation from the rest of the clause, I do not consider that a clause confirming that the parties are committed to maximising employment opportunities for employees and reducing underemployment is in any way capable of giving rise to an obligation on an employer to offer a particular employee a full-time night shift position.

Conclusion

[38] For the reasons set out earlier in this decision, I find that section 2, clause 109 of the Agreement does not place a positive obligation on Melbourne Health to offer any particular employee a full-time night shift position. The dispute is therefore determined accordingly.

COMMISSIONER

Final written submissions:

Applicant: 17 June 2019

Respondent: 1 July 2019

Applicant reply: 8 July 2019

Printed by authority of the Commonwealth Government Printer

<AE422598  PR712120>

 1   Respondent submission, annexure MH-1

 2   Ibid., annexure MH-2

 3   Ibid., annexure MH-3

 4   Ibid., annexure MH-4

 5   Respondent submission, [9]-[10]

 6   Applicant submission

 7   Ibid.

 8   Ibid.

 9   Ibid.

 10   Ibid.

 11   Respondent submission, [17]

 12   Ibid., [20]

 13   Ibid., [18]

 14   Ibid., [26]

 15   Ibid., [27]

 16   Ibid., [28]

 17   Ibid., [29]

 18   Ibid., [30]

 19   Ibid., [31]

 20   Applicant reply submission

 21   Ibid.

 22   Ibid.

 23   Ibid.

 24   Ibid.

 25   [2014] FWCFB 7447

 26   [2017] FWCFB 3005

 27   Ibid at [114]