Mr Kevin O'Brien v State of Victoria (Department of Education and Early Childhood Development)

[2015] FWC 58

[2015] FWC 58

FAIR WORK COMMISSION

DECISION

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

Mr Kevin O’Brien
v
State of Victoria (Department of Education and Early Childhood Development)
(C2014/8286)

State and Territory government administration
DEPUTY PRESIDENT SMITH	MELBOURNE, 6 JANUARY 2015

Dispute settlement procedure; the proper operation of Clauses 11 and 17 of the Victorian Public Service Workplace Determination 2012.

[1] By notification dated 18 December 2014, Mr Kevin O’Brien lodged an application for the Fair Work Commission to deal with a dispute in accordance with a dispute settlement procedure. Mr O’Brien was represented by Mr H. McArdle.

[2] Mr O’Brien stated in his notification that there was a dispute about the proper operation of Clauses 11 and 17 of the Victorian Public Service Workplace Determination 2012 (VPS Determination) together with Schedule A. The relief sought by Mr O’Brien was for the Commission to determine that he be assigned duties under s.31A of the Public Administration Act 2004 (Vic). Mr O’Brien was to have his employment terminated on 31 December 2014.

[3] Clause 11 of the VPS Determination is the Resolution of Disputes clause; clause 17 is the Redeployment clause and refers to Schedule A, which reflects the VPS redeployment policy. A hearing was set for 22 December 2014.

[4] At the time of the hearing permission to appear was given to Mr McArdle and Mr R. Jackson for the State of Victoria (Department of Education and Early Childhood Development) (SOV). Mr Jackson had, prior to the hearing, forwarded an outline of submissions in which the SOV challenged the jurisdiction of the Commission.

[5] It was the submission of Mr Jackson that:

● Mr O’Brien has entered into a deed of release in relation to the dispute which was before the Commission and as such could now re-agitate the dispute.

● The Commission could not assign duties under the Public Administration Act 2004 (Vic).

● The application offended the principles contained in Re; Australian Education Union; Ex parte Victoria [(1995) 194 CLR 188] (Re: AEU).

[6] Mr McArdle had not seen the submission of Mr Jackson and was granted an adjournment to consider the matters raised. He was asked to provide submissions in reply, in writing, by close of business on 23 December 2014. Mr McArdle complied with those directions and rejected the submissions put by the SOV.

[7] Given the urgency of the matter, I replied by email the next morning in the following terms:
Dear Mr McArdle,
I have examined your response to the submissions made by the Department of Education and Early Childhood Development. The application seeks to inhibit the right of the State to terminate the employment of Mr O’Brien. Notwithstanding your proposition that this is not the case, there is clear authority to support the proposition that what cannot be done directly cannot be done indirectly. In this connection Re: AEU is directly on point. On this point alone the Commission lacks the jurisdiction to deal with the matter notified. I also express apprehension about the application in light of other matters raised by the Department, however I need not decide those matters.
In light of the urgency of the matter I have decided to advise you by email that your application is dismissed.

[8] On the basis of the decision communicated to the parties, via email on 24 December 2014, this application is dismissed and the file will be closed.

DEPUTY PRESIDENT

Appearances:

H. McArdle Solicitor for Mr K. O’Brien.

R. Jackson Solicitor on behalf of the State of Victoria (Department of Education and Early Childhood Development).

Hearing details:

2014.

Melbourne:

December, 22.

Final written submissions:

Submission by the applicant, 23 December 2014.

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