Mr Michael Konstantinou v Ambulance Victoria
[2011] FWA 3635
•15 JUNE 2011
[2011] FWA 3635 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Michael Konstantinou
v
Ambulance Victoria
(C2010/2767)
COMMISSIONER CRIBB | MELBOURNE, 15 JUNE 2011 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] An application has been lodged by the then Liquor, Hospitality and Miscellaneous Union (now United Voice) on behalf of Mr Michael Konstantinou, an employee of Ambulance Victoria (AV). The application was made under section 739 of the Fair Work Act 2009 (the Act) which allows a dispute to be dealt with by Fair Work Australia if a term of an industrial instrument requires or permits Fair Work Australia to deal with a dispute.
[2] The dispute, as set out in the application, relates to the refusal by AV to extend Mr Konstantinou’s appointment as a Senior Reserve Paramedic (SRP) and also AV’s refusal to deal with Mr Konstantinou’s grievance. It was common ground that, at the time the grievance was lodged, the applicable industrial instrument was the Metropolitan Ambulance Service MX Award 2005 (MX Award). 1 There was a conciliation conference held by the Tribunal but the dispute was not resolved. The union then sought that the dispute be arbitrated.
[3] An objection was raised by AV regarding whether the Tribunal had jurisdiction to determine the matter. This was on the grounds that there was no provision in the MX Award dealing with any matter raised in Mr Konstantinou’s grievance. A hearing of the employer’s jurisdictional objectiontook place on 12 August 2010. It was decided at the beginning of the hearing that the jurisdictional argument would be dealt with first and, if necessary, the merits of the application after that. 2
[4] United Voice and AV filed written submissions pursuant to Directions issued by the Tribunal and made oral submissions at the hearing. Ms B. Forbath appeared on behalf of the union and Mr C. Broadbent, solicitor, on behalf of AV.
[5] This decision will deal with the respondent’s jurisdictional objection only.
BACKGROUND
[6] It is useful, in this matter, to set out the background to it.
[7] Mr Konstantinou, an Ambulance Paramedic, lodged a grievance with his employer on 10 September 2009 regarding AV’s refusal to extend the term of his appointment as a SRP and over its refusal to consider the matter as a grievance. 3
[8] A position as a SRP had been offered to Mr Konstantinou and he had accepted. A written contract dated 14 August 2006 set out the terms of this appointment and specified that the appointment commenced on 11 September 2006 and ended on 11 September 2009. 4 Towards the end of the contract period, Mr Konstantinou had approached AV and requested an extension of the appointment. AV declined to do so.5 A dispute was then lodged in the Tribunal on his behalf by the union on 11 February 2010.
Ambulance Victoria’s submissions
[9] Mr Broadbent submitted that it was AV’s understanding that the matters to be determined by the Tribunal were whether there was a grievance that falls within the provisions of the MX Award or a term of a contract of employment relating to the National Employment Standards (NES) or safety net provisions. 6 It was argued that, for a valid dispute to be raised by Mr Konstantinou, it must relate to a matter that is covered by the MX Award. It was stated that sections 738(b) and (c) of the Act give the Tribunal jurisdiction to hear a dispute where there is an award or agreement which provides for a dispute resolution procedure that includes the Tribunal.7 Clause 11 of the MX Award contains a dispute resolution process which provides for the Australian Industrial Relations Commission to exercise conciliation and arbitration. Therefore, it was contended that, if the dispute fell within the dispute resolution clause of the award or the agreement, the Tribunal would have jurisdiction.8
[10] Further it was argued that clause 11 of the MX Award states that the dispute procedure applies if there is a dispute about “matters arising under this award”. 9 Mr Broadbent submitted that the dispute before the Tribunal needed to reflect the grievance that was lodged by Mr Konstantinou. The grievance was said to be his request to extend his SRP contract.10
[11] The respondent contended that clause 37 of the Award, which deals with SRP positions, does not extend to include an issue about an extension of a SRP contract. It was stated that the clause only set out the pre-requisites and the minimum length of time of the appointment. 11 Mr Broadbent said that Mr Konstantinou had been appointed pursuant to a contract of employment which provided the details of that appointment. This included the conditions regarding renewal or extension of the contract.12 It was highlighted that the contract set out the start and finish dates and the ability to apply to renew tenure as a SRP.13 The respondent argued that the contract dealt with the issue of renewal or extension because the MX Award does not – as there is no provision in it for extension or renewal.14 It was stated that awards and agreements set out the basic framework of the employment relationship. However, the detail is left to common law contracts which contain matters that are over and above what is provided for by the award.15
[12] In addition, it was submitted that the grievance that was raised was a grievance about the contract rather than the MX Award. 16 Mr Broadbent argued that the employer was entitled to reject the request for an extension to the contract under both the contract and the MX Award. As the grievance relates to the contract and not the MX Award, the Tribunal was precluded from dealing with it for want of jurisdiction.17
[13] With respect to whether the grievance about the contract falls within the National Employment Standards or a safety net contractual entitlement, the respondent argued that the answer was no on both counts. 18
[14] In terms of the dispute notification, AV argued that, as it was stated to be – refusal by AV to extend employment as a SRP – it is not covered by the MX Award. Therefore, it is not a dispute capable of being heard by Fair Work Australia. 19 The respondent said that, if the Tribunal finds that the original grievance was a matter outside of the MX Award then the same situation would apply to the dispute notification.20
[15] Finally, Mr Broadbent made submissions regarding certain documents from early 2006. He indicated that the MX Award came into effect on 9 December 2005. To add or subtract from the MX Award required an application to the Tribunal. As this had not been done with the documents in question, it was stated that the terms of the MX Award stood. 21
[16] In his submissions in reply, Mr Broadbent argued that the starting point was what the dispute that was lodged related to. He said that originally the dispute or grievance concerned AV’s decision to reject Mr Konstantinou’s request to extend his appointment as a SRP. Mr Broadbent stated that, between the lodging of his grievance and the expiry of the contract on 11 September 2009, Mr Konstantinou continued to work as a SRP. From 12 September 2009, Mr Konstantinou worked as a temporary reserve paramedic which is a virtually identical role to that of a SRP except for different methods of payment. Therefore, from AV’s perspective, Mr Konstantinou did not work as a SRP after 11 September 2009. 22
[17] The respondent contended that the first issue was whether the grievance that was lodged was proper having regard to clause 11 of the MX Award. If the answer is ‘no’, Mr Broadbent argued that then the decision by AV that Mr Konstantinou did not have a grievance under clause 11 of the MX Award is right. Therefore, there is no dispute under clause 11 of the MX Award which could be escalated up to the Tribunal. 23 To bring in the question of alleged underpayment was described as putting the cart before the horse. This was said to be on the basis that, if there is no grievance that can be categorized under clause 11 of the MX Award, it does not matter because the Tribunal cannot deal with it.24
[18] With respect to the issue of whether section 738(c) of the Act required a contract to be a stand alone contract, Mr Broadbent submitted that this was not specified in section 738(c). He queried whether any contract could truly be stand alone. 25
[19] In terms of the word “minimum” in clause 11 of the MX Award, AV argued that the contract specified the actual period and that “a minimum of three years” means that one cannot go below three years. It was stated that the MX Award did not require AV to go above that or that it had to renew it. Mr Broadbent contended that it meant that a SRP could not be appointed without a contract for a minimum period of three years. 26
[20] In conclusion, it was submitted that a contract should come to an end when it is due to do so. If not, every employee could lodge a grievance in order to extend a contract. This would be patently ridiculous. Mr Broadbent argued that clause 19 was not relevant to the Tribunal’s consideration of the jurisdiction question. The dispute is over a contractual term which does not fall within the terms of the MX Award and which was never envisaged by the MX Award. 27
United Voice’s Submissions
[21] In response to AV’s submissions, Ms Forbath, on behalf of Mr Konstantinou, stated that the dispute before the Tribunal was about the failure of AV to pay the applicant the SRP rate. Therefore, it is a dispute over the application of clauses 37 (Reserve Paramedic) and 19 (wage rates) of the MX Award. 28 It was recounted that Mr Konstantinou was appointed as a SRP in September 2006, initially for a minimum period of three years, which is contemplated by the MX Award. Ms Forbath argued that, however the letter of offer was characterised (common law contract or over award contract), it was subject to the conditions and qualifications on such appointments contained in the MX Award.29
[22] Ms Forbath submitted that clause 37.1 of the MX Award provides for a relevantly qualified ambulance paramedic to be appointed as a SRP for a minimum period of three years. 30 It was stated that Mr Konstantinou continued to perform the duties of a SRP for nine months beyond the third anniversary. Therefore, it was argued that he was entitled to be paid the rate set out in the MX Award for a SRP for three years and nine months.31 Mr Konstantinou’s grievance was said to arise under clauses 37 and 19 of the MX Award and is brought to Fair Work Australia under clause 11 of the MX Award. That is, Mr Konstantinou’s entitlement to be paid as a SRP for the whole period when he fulfilled those functions and responsibilities.32
[23] With respect to the letter of offer sent to and accepted by Mr Konstantinou regarding a SRP position, it was submitted that it could not be characterised as a stand alone contract of employment as envisaged by section 738(c) of the Act. The union stated that, as it did not contain all of the terms of employment of a SRP, it could not be characterised as an employment contract. Clause 37.2 of the MX Award was said to create the right to appoint to a SRP position for a minimum of three years. This was said to be reflected in the letter of offer but with additional provisions about renewal of tenure which were consistent with clause 37.2 of the MX Award – “a minimum period of three years”. Given the clear and absolute connection between the letter of offer and clauses 19 and 37 of the MX Award, it was submitted that the letter of offer could not be characterised as a stand alone contract of employment. 33 Further, the union argued that, by inserting the word “minimum”, there was a clear possibility or likelihood that the appointment to that position could be extended.34
[24] The union also referred to the consultative structures clause in the MX Award (clause 12). It was indicated that there had been no consultation with Mr Konstantinou or his union about AV’s decision to interpret the “minimum period of three years” as effectively a three year maximum period. 35 Ms Forbath stated that Mr Konstantinou’s grievance goes to this issue of the minimum appointment, together with his ongoing payment in that position for nine months after AV ended Mr Konstantinou’s SRP position. This was on the basis that he had accepted the option of continuing to work on the reserve roster and be appointed to the SRP position for the duration of his part-time employment.36 It was undisputed that Mr Konstantinou has been a part-time employee for a long period and continued to be one.37
[25] With respect to the nature of the dispute before the Tribunal, Ms Forbath confirmed that the dispute notification described it as: the refusal of AV to extend employee’s appointment as a SRP and the refusal by AV to hear employee’s grievance. 38 However, she argued that the refusal to extend the time gives rise to the question of payment. This was on the basis that, once he had lodged his grievance, it was Mr Konstantinou’s understanding that, whilst his grievance was being dealt with, under clause 11 of the MX Award, the status quo was to remain. Therefore, he had continued to work as a SRP. The union stated that, of the two issues in dispute set out in the notification, it was the first issue that was of primary importance – the refusal by AV to extend Mr Konstantinou’s appointment which includes the issue of payment under clause 19 and 37 of the MX Award.39 Ms Forbath submitted that the grievance was genuine despite AV’s view that it was not a proper or genuine grievance. 40
CONCLUSIONS
[26] Ambulance Victoria has objected to the Tribunal arbitrating the issues in dispute in this matter on the basis that the Tribunal does not have jurisdiction to do this. The grounds of the objection are that Mr Konstantinou’s grievance is not capable of being a properly made grievance because his dispute with AV concerns his SRP contract and not a matter arising under the MX Award. It was argued that, if a dispute lodged in the Tribunal concerns a grievance that is not founded in the MX Award, then the Tribunal cannot deal with it by virtue of the requirements of section 738(b) and (c) of the Act.
[27] On the other hand, the union submitted that the dispute (and the grievance) were not about the contract but about clause 37 of the MX Award – the non renewal of Mr Konstantinou’s SRP appointment. As it was a dispute over a term of the MX Award (clause 37) and the disputes procedure in the MX Award (clause 11) included the Tribunal, it was contended that the Tribunal had jurisdiction to arbitrate.
[28] The union has lodged an application for the Tribunal to deal with a dispute under section 739 of the Fair Work Act 2009. Section 739 allows a dispute to be dealt with by Fair Work Australia if a term referred to in section 738 requires or allows Fair Work Australia to deal with a dispute.
[29] In this matter, the relevant provisions are section 738(b) and (c) which are as follows:
“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;” 41
[30] The effect of these provisions is that Fair Work Australia is empowered to deal with a dispute in either of these situations.
[31] It was common ground that, at the relevant time, Mr Konstantinou’s employment was governed by the Metropolitan Ambulance Service MX Award 2005.
[32] Clause 11 of the MX Award contains a dispute resolution procedure. It provides that, at clause 11.1:
“11.1 if there is any dispute about matters arising under this Award either between the Employer and employees or where individual employees have a grievance the following procedure shall apply:”
[33] The parties had very different views about whether the matter in dispute was a matter “arising under this Award”. AV argued that Mr Konstantinou’s grievance related to a term of his SRP contract which sat outside the MX Award. Therefore, the Tribunal did not have jurisdiction as the grievance and the dispute lodged by the union were not matters arising under the MX Award. The disputes procedure was not enlivened and, as a result, neither was the Tribunal’s ability to deal with the dispute.
[34] The union contended that the dispute and grievance related to clause 37 of the MX Award which set out the basis for the appointment of SRP’s. As the dispute was about the refusal of AV to extend Mr Konstantinou’s appointment as a SRP, clause 37 was activated as it provided for such appointments to be for a minimum of three years. It was submitted that “minimum” implied that it could be more than three years. Therefore, a dispute over the non extension of Mr Konstantinou’s appointment fell within clause 37.2 of the MX Award.
[35] Clause 37 of the MX Award sets out the parameters for the appointment of SRP’s. Specifically, clause 37.2 provides that:
“37.2 Senior Reserve Paramedics shall be appointed to the position for a minimum period of three years.”
[36] It was common ground that Mr Konstantinou’s grievance concerned AV’s refusal to extend his appointment as a SRP and AV’s refusal to hear his grievance. The application made by the union on Mr Konstantinou’s behalf cited both these issues when describing what the dispute was about. During the hearing, the union sought to extend the dispute to include clause 19 of the MX Award. This was on the basis that Mr Konstantinou had worked as a SRP for nine months after the end of the contract for which he had not been paid at the wage rate for a SRP.
[37] Having considered all the material before me, I find that the grievance raised by Mr Konstantinou and the dispute that was notified by the union concerns, primarily but not exclusively, the refusal by AV to extend his appointment as a SRP beyond 11 September 2009.
[38] The question that arises then is whether or not this is a matter arising under the MX Award. It was argued by the respondent that the dispute was one over the SRP contract which sat outside the MX Award. It could therefore not be a dispute over a matter arising under the MX Award. For its part, the union submitted that the dispute fell within clause 37.2 of the MX Award, thereby being a dispute over a matter arising under the MX Award.
[39] I have carefully considered all of the arguments and submissions from both parties. It is my view that the SRP contract sits on top of the MX Award and it gives detailed affect to the relevant provisions in the MX Award (clause 37). If clause 37 did not exist in the Award, it would be safe to say that the SRP contract would not exist. The contract is therefore founded in clause 37 of the MX Award. Looking carefully at clause 37.2, it provides that a person will be appointed to the position of SRP for “a minimum period of three years”. Because it says “a minimum period of three years”, it is open for there to be a dispute about the non renewal of an appointment which was for a period of three years. If the clause said that the appointment was for a period of three years, it would be unlikely to provide the jurisdictional basis for a grievance or a dispute before the Tribunal. However, the clause provides for appointment for a minimum period of three years which implies a longer period than three years. Therefore, a dispute or grievance about the length of appointment falls within clause 37.2 of the MX Award. The right of the employer to determine the duration of the appointment remains but it sits within the framework of the MX Award which, in this case provides for appointment for a minimum period of three years.
[40] Therefore, I find, with respect to the particular circumstances of this matter only, that the dispute notified to the Tribunal and the grievance are both about a matter arising under the MX Award (clause 37.2). Accordingly, by virtue of clause 11 of the MX Award and section 738(b) of the Fair Work Act 2009, the Tribunal has jurisdiction to arbitrate in this matter.
COMMISSIONER
1 Transcript PN 66 and 92, Exhibit A1 at paragraph 7 and applicant’s Outline of Submissions dated 27 July 2010 at paragraph 3
2 Transcript PN 76
3 Applicant’s Outline of Submissions dated 27 July 2010 at paragraph 5 and Exhibit A1 at paragraph 1
4 Witness of Michael Konstantinou at Attachment MK3
5 Exhibit A1 at paragraphs 9 and 11
6 Ibid at paragraphs 6(a) and 25
7 Ibid at paragraphs 2 - 3
8 Transcript PN 92 - 96 and Exhibit A1 at paragraphs 17 - 18
9 Transcript PN 107
10 Ibid PN 108
11 Ibid PN 108 - 119
12 Ibid PN 120 and Exhibit A1 at paragraph 29
13 Transcript PN 121 - 122
14 Ibid PN 123 - 124 and Exhibit A1 at paragraph 32
15 Transcript PN 124 - 125
16 Exhibit A1 at paragraph 19 - 24
17 Transcript PN 127
18 Ibid PN 127 - 128 and Exhibit A1 at paragraphs 25 - 26
19 Transcript PN 128
20 Ibid PN 129
21 Ibid PN 130 - 132
22 Ibid PN 181 - 182
23 Ibid PN 182
24 Ibid PN 182
25 Ibid PN 183
26 Ibid PN 184
27 Ibid PN 186
28 Ibid PN 137 - 140
29 Ibid PN 140 - 141
30 Ibid PN 141
31 Ibid PN 142
32 Ibid PN 142
33 Ibid 146 - 147
34 Ibid PN 147
35 Ibid PN 148
36 Ibid PN 147 and 150
37 Ibid PN 149
38 Ibid PN 173 - 176 and applicant’s Outline of Submissions dated 27 July 2010 at paragraph 5
39 Transcript PN 176 - 177
40 Ibid PN 177
41 Exhibit A1 at paragraph 3
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