Mr Neville Hargreaves v DEEWR
[2010] FWA 2436
•24 MARCH 2010
[2010] FWA 2436 |
|
DECISION |
Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)
Mr Neville Hargreaves
v
DEEWR
(C2009/2398)
VICE PRESIDENT LAWLER | SYDNEY, 24 MARCH 2010 |
Dispute regarding reimbursement of relocation expenses – dispute referred to the AIRC under dispute resolution procedure in a certified agreement – jurisdiction of tribunal to deal with dispute – whether preconditions to referral satisfied – whether jurisdiction survived termination of employment.
[1] This is a dispute referred to the Australian Industrial Relations Commission (AIRC) in reliance upon a dispute resolution procedure in a certified agreement, the ‘Caring For Our People – Creating Our Future’, DEST Certified Agreement 2006-2009 (DEST CA). That dispute resolution procedure was approved under s.170LW of the Workplace Relations Act 1996 as it stood before the enactment of the WorkChoices reforms (pre-reform WR Act). The respondent challenged the jurisdiction of the AIRC to deal with the dispute. This decision deals with that jurisdictional objection. Pursuant to transitional provisions, this decision is made by Fair Work Australia on the basis of the evidence and other material before the AIRC and the Workplace Relations Act 1996 (WR Act) continues to apply in relation to this dispute notwithstanding the commencement of the Fair Work Act 2009. 1
[2] By virtue of item 2 of Schedule 7 to the WR Act various provisions of the pre-reform WR Act, including s. 170LW continue to apply to disputes referred under pre-reform certified agreements. By virtue of item(2)(1)(r) of Schedule 7, s. 111 of the pre-reform WR Act continues to apply in relation to what is often referred to as a “s. 170LW dispute” and contains the powers that the AIRC could exercise in relation to such a dispute subject always to any constraints emerging from the language of the dispute resolution procedure on its proper construction. 2
[3] The applicant commenced employment in what is now known as the Australian Public Service in 1974. By the late 1990s the applicant was employed in the Cairns office of the Commonwealth Employment Service. In the late 1990s, as a consequence of a decision by the then Commonwealth Government to close that office, the applicant transferred to a position in Canberra. The applicant remained in Canberra for a number of years but always with an intention of returning to Queensland if he could find an appropriate public service position. By 2006 he was employed in Canberra within the Department of Education Science and Training (DEST).
[4] In late 2006 the applicant applied for an APS6 vacancy in Brisbane which had been advertised in the Commonwealth Gazette. The application was successful. The applicant claims that on 7 December 2006 he received advice from DEST human resources that he would be eligible for relocation assistance if he took up offer of the Brisbane position. The applicant claims that, in reliance on that advice, he relocated to Brisbane and commenced working in his new position in Brisbane regional office of DEST on 8 January 2007. On 30 January 2007 the applicant submitted a claim for relocation assistance under clause 306a within Part L of the DEST CA The claim was for an amount of more than $42,000, most of which related to costs associated with the sale of the applicant’s Canberra home and the purchase of a home in Brisbane.
[5] The DEST CA relevantly provides:
“PART L RELOCATION
Principle
304. When an existing DEST employee relocates for employment purposes, as a result of a DEST initiated move this will not result in any unreasonable personal expense or monetary gain, for the employee. The Department will meet fair and reasonable costs associated with relocation for the individual and their dependants, as detailed in the Relocation Policy.
305. For new employees, relocation assistance may be provided at the discretion of the delegate taking into account business requirements.
Application of Relocation Assistance
306. Existing DEST employees who relocate to another geographic location within Australia are eligible for relocation assistance in accordance with the Relocation Policy if the relocation is:
a. as a result of promotion or movement to a Gazetted vacancy
b. as a result of a DEST initiated movement
c. as a disciplinary measure; or
d. for a DEST initiated temporary movement for a period of at least 13 weeks or more.
307. For new employees, the recruitment delegate will determine the level of assistance, if any, to be provided within the parameters of the Relocation Policy.”
[6] The claim was rejected by DEST on or about 2 April 2007. In its outline of submissions, the respondent suggested that such rejection was on the basis that the relocation was not as a result of a move to a gazetted vacancy. However, it seems that the position to which the applicant moved was in fact a gazetted vacancy. A chronology submitted by the applicant notes an email from the decision maker stating “your move to Brisbane was made largely for personal reasons and that your success in obtaining the APS 6 position was a matter of fortuitous circumstances.”
[7] On 27 April 2007 the applicant applied under s.33 of the Public Service Act 1999 (PS Act) and reg. 5.24(1) of the Public Service Regulations 1999 (PS Regulations) for a review of the decision to reject his claim. The decision was reviewed and, on 31 July 2007, was confirmed (s.33 Decision).
[8] On 16 August 2007 (19 October 2007) the applicant applied to the Merit Protection Commissioner for a review of the s.33 Decision in accordance with reg. 5.29(1)(b) of the PS Regulations.
[9] On 29 February 2008 the Merit Protection Commissioner recommended that the decision be confirmed except in relation to the applicant’s expenses in travelling by car to Brisbane (a very small portion of the claim).
[10] However, in the meantime, on 3 December 2007, by a determination of the Public Service Commissioner under s.72(1) of the PS Act, the applicant became an employee within the Department of Education, Employment and Workplace Relations (DEEWR) and ceased to be an employee within DEST. This occurred in the context of a rearrangement of the functions of Commonwealth government departments following the election of a new government: The functional area of DEST in which the applicant worked was moved to DEEWR and the applicant went to DEEWR with that function.
[11] On 6 December 2007 the relevant minister made a determination under s.24(3) of the PS Act which applied to the applicant. The minister determined that “the remuneration and conditions of employment of the existing APS employees to whom this Determination applies shall be the same as would have been if the Governor-General had not on 3 December 2007 abolished and established Departments of State.” 3
[12] On 7 March 2008 the applicant resigned his employment, primarily, it seems, because of dissatisfaction with the successive decisions to refuse his claim for relocation expenses.
[13] The present application to have a dispute resolution process conducted by the AIRC was filed on 6 April 2009.
[14] The respondent has challenged the jurisdiction of the AIRC to deal with the dispute on two bases:
(a) The applicant did not initiate a dispute under clause 257 of the DEST CA whilst he was an employee subject to the DEST CA. Accordingly, the dispute is not a dispute between employer and employee and not within the scope of the dispute resolution procedure in clause 257.
(b) None of the steps required by clause 257 of the DEST have been taken and therefore the requirements of s. 709 have not been met.
Whether no jurisdiction because dispute initiated after the applicant had ceased to be an employee covered by the DEST CA
[15] In relation to argument (a), the respondent relies upon the decision of the Full Bench in ING Administration Pty Ltd v Jajoo 4 where the Bench was concerned with whether the Commission’s jurisdiction in relation to a dispute of which it was already seized came to an end upon the termination of the employment of the employee who raised the dispute. The majority held that the Commission’s jurisdiction survived the termination but noted:
“We accept that a single person dispute which arises for the first time after the termination of employment is not a dispute between an employer and employee”.
[16] Although this statement is strictly obiter dicta, I proceed on the basis that I should follow it as a statement of principle. Its application calls for the characterisation of the dispute and a factual finding as to when the dispute so characterised first arose.
[17] On any view, the dispute in this case is about the applicant’s entitlement to reimbursement assistance under Part L of the DEST CA in relation to relocation expenses the applicant claimed to have incurred in connection with his relocation to Brisbane in late December 2006 or early January 2007.
[18] An employment dispute arises when one party to the employment relationship (or their representative) challenges or rejects a claim, decision, action or other conduct or the other party to the relationship and communicates such challenge or rejection to that other party. This is a question of fact that is, subject to the terms of any applicable legislation or agreement, concerned with substance rather than form. In relation to disputes that are capable of being pursued through a dispute resolution procedure in a statutory collective agreement, there is no necessity for a party to expressly identify the dispute as one in respect of which the dispute resolution procedure is being invoked unless by terms of the agreement require such express identification.
[19] The dispute resolution procedure in the DEST CA is as follows:
“Settling Disputes
257. Disputes over matters covered by this Agreement should be resolved at the level at which they are raised, and by the people directly involved in the dispute (and for the employee, where they choose their representative). If this is not possible, the dispute should be raised to successive levels of management as follows:
a. if the matter is not resolved at the workplace level, further discussions involving the employee (and where they choose, their representative) at the next level of management are to occur.
b. where the matter remains unresolved, after having been raised with successive levels of management, the parties to the dispute may agree to appoint a mutually acceptable person to mediate or review and determine the matter. The cost of engaging the independent mediator will be met by DEST.
c. if a satisfactory outcome is not achieved the dispute may then be referred to the AIRC, by either party to the dispute. The AIRC is empowered to determine the matter to the extent that it relates to the application, implementation or interpretation of this Agreement.
d. unless the parties to the dispute agree to the contrary the Commission will, in responding to notification, have regard to whether the parties to the dispute have, in good faith, undertaken the previous steps of these procedures.
258. While parties to the dispute attempt to resolve the matter work will continue as normal unless an employee has a reasonable concern about an imminent risk to their safety. Employees will not be required to work in an unsafe environment, but will undertake suitable alternative work, if available, until the environment is declared safe by an appropriate person or body.
259. Where a dispute is being settled in accordance with these provisions and an employee representative is required to attend an AIRC proceeding to assist in resolving the matter, they will be granted paid Miscellaneous Leave.”
[20] There is nothing in the words of that dispute resolution procedure to indicate any formal requirements before a dispute that has arisen can become subject to the procedure. Indeed, the opening words of clause 257 contemplate that the procedure will apply in relation to disputes as they arise.
[21] The dispute in this case first arose immediately upon the rejection by the relevant DEST delegate on 2 April 2007 of the applicant’s claim for relocation assistance and certainly no later 27 April 2007 when the applicant sought a departmental review of the rejection of his claim: the dispute had been “initiated” by that time.
[22] There was an issue as was to whether the dispute as notified to the AIRC was with DEST or DEEWR. However, neither DEST nor DEEWR are separate legal entities; rather, they are each manifestations of the legal entity that is the Commonwealth of Australia. Formally, the employer of employees within Commonwealth agencies is the Commonwealth unless there is a separate statute conferring on an agency the power to employ. 5 At all material times until 7 March 2008 the applicant was employed by the Commonwealth. DEEWR would seem to be the appropriate manifestation of the Commonwealth because the DEST no longer exists in the form it was when the dispute arose.
[23] During oral argument, the solicitor for the respondent raised an additional argument. He submitted that, as a consequence of a determination by the Minister made under the s.24(3) of the PS Act on 6 December 2007 6 (and subsequent determinations), on and from 3 December 2007, the applicant’s conditions of employment were governed not by a workplace agreement but rather by those determinations. It was submitted that, as a result, there could be no valid referral of a dispute to the AIRC in accordance with the terms of the dispute resolution procedure in certified agreement.
[24] I disagree. The determination of 6 December 2007 applied to the applicant as an APS employee who had transferred from DEST to DEEWR as a consequence of a determination under s.72(1)(a) of the PS Act. The effect of the determination, the operative words of which are set out above, was to continue the remuneration and conditions of the employment enjoyed by the applicant immediately before his transfer from DEST to DEEWR. The expression “conditions of employment” in the determination should be construed broadly and would include rights under a dispute resolution procedure. In short, the effect of the determination was to continue the right of the applicant to have a dispute dealt with in accordance with the dispute resolution procedure in the DEST CA.
[25] I am satisfied that the dispute in this case first arose before the applicant’s employment by the Commonwealth terminated and, indeed, before the applicant’s transfer to DEEWR in December 2007 and the associated ministerial determination. Accordingly, on the basis of the decision in Jajoo, the AIRC did not lose any jurisdiction it otherwise had or could have had, in relation to the dispute merely because the applicant’s employment terminated. In this regard, I can see nothing in the reasons of the majority, or any other basis, for concluding that the AIRC’s jurisdiction in relation to a dispute within the scope of a dispute resolution procedure that has arisen as a matter of fact is dependent upon employment continuing at the time the dispute is referred to the AIRC. The better view, consistent with the reasoning of the majority in Jajoo, is that once a dispute has arisen as a matter of fact between an employee and their employer the dispute is one that can be progressed through the dispute resolution procedure notwithstanding that the employment terminates before the disputes procedure has progressed to the point where the dispute can properly be referred to the AIRC. Of course, this is not to say that the fact of such termination cannot be a relevant factor in the exercise of various powers conferred on the AIRC including, in the case of disputes arising under pre-reform certified agreements, the power in s.111(1)(g) to decline to deal further with the matter, as would be arguably appropriate in a case where the outcome of the dispute could have no practical relevance in light of the employment terminating. The situation is otherwise where, as here, the dispute deals with a monetary entitlement that is asserted by the employee but not conceded by the employer such that a resolution of the dispute may see a monetary payment to the employee (although, of course, there may be other bases upon which the power in s.111(1)(g) of the pre-reform WR Act might properly be exercised in such a case).
Whether no jurisdiction because required steps in the dispute resolution procedure were not taken
[26] The respondent’s outline of submissions proceeded on an assumption that the present dispute was referred to the AIRC under s.709 of the WR Act. That assumption was incorrect. The terms of Div 5 of Part 13 of the WR Act have no bearing on whether the AIRC had jurisdiction in this matter because the AIRC’s jurisdiction and power in a matter such as this is derived from item 2 of Schedule 7 to the WR Act and the provisions of the pre-reform WR Act preserved by that item in conjunction with the DEST CA itself. That is, by virtue of item 2 of Schedule 7 to the WR Act the AIRC’s jurisdiction to deal with the present dispute arose from the approval pursuant to s.170LW of the pre-reform WR Act and the terms of the dispute resolution procedure in the relevant certified agreement.
[27] The respondent placed particular reliance on the decision of the Full Bench of the AIRC in Charles Sturt University v NTEU 7 where the majority noted:
“[10] The jurisdiction of the Commission, as a creature of statute, is limited to thejurisdiction conferred on it by the Parliament. The Parliament has authorised the Commission to accept appointment as a private arbitrator for the resolution of disputes over the application of certified agreements (s.170LW). When the Commission acts as private arbitrator under the dispute settlement procedure in a certified agreement it does so pursuant s.89(a) and an approval given pursuant to s.170LW of the Act. [CFMEU v AIRC (2001) 203 CLR 645, para [39]]. In its capacity as private arbitrator, the jurisdiction of the Commission is limited to disputes over the application of the agreement – a limitation arising from the terms of s.170LW. However, the jurisdiction and power of the Commission as private arbitrator under a dispute settlement procedure is also subject to any limitations in the agreement conferring power on the Commission. [CEPU v Telstra Corporation (2003) 128 IR 385]”
[28] The decision in Charles Sturt University v NTEU is authority for the proposition that where, on the proper construction of a dispute resolution procedure in a pre-reform certified agreement, referral of a dispute to the AIRC is subject to conditions precedent, the AIRC has no jurisdiction until those conditions have been satisfied. The proper construction of the agreement is important in this context. The principles governing the construction of industrial agreements are well-settled. 8 Those principles could often, or at least sometimes, lead to the conclusion that words which on the face appear to be a condition precedent were not, on the proper construction of the agreement, intended to have that effect or to require strict compliance with the apparent condition. It may be noted that the terms of the dispute resolution procedure in Charles Sturt University were unambiguous in conditioning the referral of a dispute upon satisfaction of specified conditions precedent. A further point may be noted: non compliance with a condition precedent to referral would only deprive the AIRC (and now FWA) of jurisdiction until such condition precedent has been satisfied. That is, where the tribunal declines jurisdiction on the basis of non-fulfilment of a condition precedent to referral of a dispute it is prima facie open to an applicant to seek to satisfy that condition precedent and then make a fresh referral of the dispute.
[29] It is unnecessary to decide whether, on the proper construction of the DEST CA, the preliminary steps in clause 257 require strict compliance because, on the evidence before me I am satisfied that they have been complied with.
[30] I do not construe the reference to “successive levels of management” in the opening words of clause 257 or in clause 257b as requiring that discussions occur in respect of every dispute at all available levels of management above the employee up to and including the departmental secretary. Such an interpretation would be impractical in the extreme. Rather, what is required is discussions at no fewer than two levels of management. That is what occurred in this case.
[31] The decision to refuse the applicant’s claim for relocation expenses was made by a departmental delegate situated in the national office. By this time, of course, the applicant had transferred to the Department’s Brisbane office. The applicant raised his dissatisfaction with the delegate’s decision to refuse his claim and his intention to contest that refusal with both his direct supervisor Mr Fraser9 and with the Queensland State Manager, Mr Whitney 10. Both indicated that the decision was a matter for the delegate and that there was nothing they could do about the decision. The applicant was advised by each that he should pursue the available APS review mechanisms and this is what he did. I am satisfied that the applicant raised the dispute at “successive levels of management” and it remained unresolved. At that point, referral to “a mutually acceptable person” to “mediate or review” the matter was optional, as indicated by the use of the words “the parties to the dispute may agree to appoint”. On one view of the evidence, that is what the applicant did in seeking a review by the Merit Protection Commissioner. Be that as it may, I am satisfied that the steps contemplated by the opening words of clause 257 and by steps a. and b. of clause 257 were carried out.
Section 111(1)(g) application
[32] I raised during the hearing of the present jurisdiction objection the potential for the application of s. 111(1)(g) of the pre-reform WR Act to this matter even if jurisdiction was established. The respondent made what I indicated I would treat as an oral application for the Commission, in the event that it rejected the respondent’s jurisdictional objections, to decline to deal with the dispute pursuant to the power in s. 111(1)(g). The basis for that application was that, in relation to the applicant’s claim for relocation expenses, there was provision for internal departmental review and then external merit review under PS Act processes, which reviews had been pursued by the applicant and had led to adverse or substantially adverse outcomes for the applicant and that, accordingly, it was appropriate for the tribunal to refuse to deal with the dispute.
[33] In correspondence subsequent to the hearing, the respondent indicated that it did not intend to make submissions in support of its application under s. 111(1)(g) before its jurisdictional objection was determined and sought to reserve a right to renew that application in the event that the tribunal found that it had jurisdiction in relation to the dispute.
[34] In light of the evidence of the applicant given after the s. 111(1)(g) application was made and in light of the totality of the documentary evidence I am disinclined to refuse to deal with the matter further in reliance on s. 111(1)(g). In this regard, the applicant gave evidence that his transfer to Canberra from North Queensland had been involuntary in the sense that the implementation of government policy had led to the closure of the Commonwealth Employment Service, the area of the Department in which he worked, and he needed to move to Canberra in order to continue his employment in the Australian Public Service. The applicant made the following unchallenged submission about his move from Canberra to Brisbane: 11
“THE VICE PRESIDENT: Are you saying that you would not have applied for the job and taken it if you'd known there was no relocation assistance?
MR HARGREAVES: Absolutely. I [was] always applying for work to work back in Queensland. I'd spent nine winters in Canberra and I guess I left from far North Queensland when the CES closed back in '98 and the reason was the Liberal government at the time closed the CES. I was quite lucky that I got a job in Canberra and I had stated before with my wife's disability, I always wanted to work and live, I guess, back in Brisbane but underlying it the motivation was to work back in Brisbane and I'd undertaken, you know, examples of evidence that I've applied for jobs, talked to the state managers about moving back to Brisbane for employment and not for personal reasons.
The argument from DEEWR seems to be that I moved for personal reasons to care for my wife, which is probably true but the main aim is that I moved here for employment and I would stay in Canberra until I had a job in Brisbane. I downgraded $18,000 in terms of, you know, employment to come back to work in Brisbane and under - my role is certainly one of, you know, training people in Brisbane and it's certainly within the department's interests and that was the key principle in determining relocation assistance, was it in the interests of the public service? This clearly was. My experience, I've worked for national office, certainly not the state office.”
[35] Moreover, it seems the decision of the Merit Protection Commissioner was contrary to the recommendation of the interview panel who dealt with Mr Hargreaves’ application for review. 12
[36] It would seem that the applicant has an arguable case, at least in relation to some additional components of his claim 13, although the major items relating to expenses associated with the sale of the applicant’s Canberra home and the purchase of a home in Brisbane are more problematic: under the Relocation Policy assistance with costs on sale/purchase of a home is dependent upon the relocation being “as a result of a promotion or movement to a Gazetted vacancy which is department-initiated”14. The indication I have just given in relation to the s.111(1)(g) application is a provisional view based on the material before me for the purposes of the respondent’s jurisdictional objection which was necessarily limited. I am open to being persuaded from that provisional view. The respondent is not precluded from renewing its application under s.111(1)(g). However, given the embarrassing delay in the production of this decision, I am inclined to deal with any such renewal of that application as part of the final arbitral hearing.
Summary
[37] I have dealt with all of the arguments advanced by the respondent in its written outline of submissions and advanced in oral argument at the hearing. For the reasons given, the respondent’s jurisdictional objection, based on the arguments advanced by the respondent, is dismissed.
[38] I note that an issue may arise as to whether FWA lacks jurisdiction on account of the decision of the Full Bench of the AIRC in Stephenson v Senator the Honourable Eric Abetz. 15 My provisional view is that the effect of the ministerial determination of 6 December 2007 means that there is no scope of the operation of the reasoning in that decision in this case. I propose to list the matter for mention by telephone for the purpose of setting an expeditious timetable for the arbitration hearing. In the event that the respondent wishes to press a jurisdictional objection based on that decision I direct it to do so by way of written submission to be filed and served by 4.00pm on 1 April 2010.
VICE PRESIDENT
Appearances:
Mr Hargreaves appeared in person.
Mr P Vane-Tempest for the respondent.
Hearing details:
2009.
Sydney:
May 20
1 Sch 19 and item 11 of Sch 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and item 2 of Sch 3 of that Act for the continued existence of the of the DEST CA after 1 July 2009.
2 Telstra v CEPU [2007] 163 IR 134.
3 Exhibit 7.
4 (2006) 58 IR 239.
5 See sections 6, 20 and 22 of the PS Act.
6 Exhibit 7
7 (2005) 145 IR 319.
8 See Watson v ACT Department of Disability Housing and Community Services (2008) 171 IR 392 for a collation of the main principles.
9 For example, transcript at PN104-5.
10 For example, transcript at PN106-7.
11 Transcript at PN 247ff.
12 Transcript at PN214.
13 For example, the cost of removal of furniture and effects: see para 26 of the Relocation Policy. I note that document was provided by the respondent after the hearing but in the expectation that I would be able to place reliance upon it: see TS at PN239-40.
14 Relocation Policy at para 52.
15 PR952743 (Acton SDP, Ives DP and Richards C, 28 October 2004).
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