Mr Patrick Thomas Freeman v The Secretary of the Department of Transport
[2022] FWC 2194
•13 SEPTEMBER 2022
| [2022] FWC 2194 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.526 - Application to deal with a dispute involving stand down
Mr Patrick Thomas Freeman
v
The Secretary of the Department of Transport
(C2022/2642)
| DEPUTY PRESIDENT CROSS | SYDNEY, 13 SEPTEMBER 2022 |
Application to deal with a dispute involving stand down – whether Applicant stood down – whether a national system employee – Application dismissed
Mr Patrick Freeman (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.526 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a stand down dispute between the Applicant and an entity he identified as Sydney Trains (the Application). The Application was filed with the Commission on 29 April 2022.
The Applicant agreed that he was employed pursuant to a Contract of Employment executed by the Applicant on 8 July 2019 (the Contract), which identified the employer party as the Secretary of the Department of Transport as the Head of the Transport Service.[1] The Applicant noted, however, that the correspondence he received that constituted what he alleged to constitute his being stood down were under the letterhead of “Transport Sydney Trains”. In the circumstance where the parties to the Contract are not in dispute, I consider it appropriate to amend the identity of the Respondent in this matter from that identified in the Application to the Secretary of the Department of Transport.
The Application was the subject of conferences on 4 May 2022 and 18 May 2022 however the parties were not able to resolve the dispute. The Respondent raised two jurisdictional objections that it submitted resulted in the Commission not having the jurisdiction or power to hear the Application (the Jurisdictional Objections), being:
(a)The Respondent is not a National System Employer as defined in section 14 of the Act, and accordingly the Applicant is not a National System Employee (s.13); and
(b)The Applicant has not been subject to a “stand down” pursuant to section 524 or another section of the Act.
In order to determine the Jurisdictional Objections, the parties were directed to file submissions, witness statements and other documentary material upon which they intended to rely. The Jurisdictional Objections were the subject of a hearing on 22 June 2022, at which the Applicant and Respondent each relied on various submissions and documents. The Respondent also relied upon a Statement of Mr Neil Quinn, who was not required for cross-examination.
The Application
In the Application, the Applicant identified that he was an employee who had been, or was going to be stood down, and that the reason given for the stand down was “A stoppage of work for any cause for which the employer cannot reasonably be held responsible.”
Regarding the enquiry in the Application “What is the stand down dispute about?”, the Application specified:
1.On 20th December 2021 I was instructed that I was to stop working and not entitled to receive salary from that point onwards as a new policy had been put in place apparently allowing them to do so. I remain without wages up to the point this application has been lodged.
2.I refer to attachment ‘Signed contract – Pfreeman’ which forms part of the conditions of my role. Clause 23 states – “No provision of this agreement nor a right conferred by it can be varied except in writing signed by the parties.” I successfully completed a standard medical for my role prior to offer and acceptance of the same during mid 2019 that meets Sydney Trains/Transport for NSW requirements. I note I have not agreed to contract variation to include a medical procedure or any other variation to my employment conditions.
3.During consultation and also the communication process aiming to resolve being put indefinitely on stand down without wages I have asked for alternative arrangements to be made and discussion of the same. I have consistently been told this is not an option my employer would explore. My understanding of section 524 of the Fair Work Act application is that this specific instance is completely within my employers control and responsibility and as such, they are unable to stand me down. I note I have not been paid during this entire period, including all public holidays.
The “new policy” referred to above was the Transport COVIDSafe Measures Policy (the Policy), which required employees who had not received an exemption from the Policy to submit a completed COVID-19 Vaccination Declaration Form, provide proof of vaccination status, and have at least two doses of a TGA approved COVID-19 vaccination by 7 February 2022.
The relief sought in the Application was:
1.All lost salary and superannuation paid to me as soon as possible (before normal payroll cycle) for the entire stand down period including public holidays and on going regardless of date for point 2.
2.Be allowed to continue my role as soon as practically possible either within my contract defined Alexandria office location or remotely as I have done since March 2020.
3.Confirmation all leave and other benefits accrued as usual and will continue to do so from 20th December 2021 onwards.
4.Refund of my Annual Leave balance taken (22/11/2021 – 3/12/2021) due to threat of stand down on 3/12/2021 under the new policy after I had tried to discuss alternate options to continue in my role, which I was already doing via remote work.
The Contract
The Contract, as noted above, listed the parties to the Contract as:
PARTIES
Secretary of the Department of Transport as the Head of the Transport Service, of Level 6, 18 Lee Street, Chippendale (Employer)
and
Patrick Freeman (Employee)
In a section titled “Background”, the Contract provided:
A.The Employee is to be employed in the Transport Service and is designated by the Employer as a Transport Service Senior Manager, in accordance with Part 7A of the TA Act.
B.The employment of the Employee under this agreement is ongoing employment (that is, employment that continues until the Employee resigns or the Employee's employment is terminated in accordance with this agreement).
C.The Employee accepts full-time ongoing employment as a Transport Service Senior Manager with the Employer on the terms and conditions set out in this agreement.
D.This agreement sets out the salary and conditions of the employment of the Employee.
E.The terms and conditions in this agreement are subject to any provisions of the TA Act, GSE Act and any applicable Rules and Regulations that apply to the Employee's employment and the roles and duties which the Employee undertakes.
The Definitions clause provides the following definitions relevant to the Application:
Agency means any NSW Government agency or corporation for whom the Employee undertakes duties, including an agency or corporation established pursuant to the TA Act and a government sector agency as defined in the GSE Act.
GSE Act means the Government Sector Employment Act 2013 and associated Regulations and Rules as varied from time to time.
Secretary means the Secretary of the Department of Transport.
TA Act means the Transport Administration Act 1988 as varied from time to time.
Regarding the Applicant’s role and any special conditions, the Contract provided in Clause 2:
(a) The Employee will perform the role of Manager Workload and Workforce Modelling (Role) within the Operations Delivery on a full-time basis. However, during the Employee's employment, the Employer may assign or transfer the Employee to another role within the Transport Service, including to the role of a Transport Service Senior Executive, in accordance with the TA Act or GSE Act.
(b) If the Employee is assigned or transferred to another role, whether at the direction of the Employer or at the Employee's request, this agreement will continue to apply to the Employee unless varied in accordance with Clause 23.
Clause 4 of the Contract outlined the Applicant’s duties, and regarding policies and procedures outlined:
(e) The Employee must comply with all Employer and Agency policies and procedures, as implemented or varied at the Employer's and Agency's discretion from time to time. The Employee will be liable for disciplinary action, up to and including dismissal, if the Employee does not comply with the Employer's and Agency's policies and procedures.
Clauses 21 and 22 of the Contract provided the governing law of the Contract is New South Wales, and the parties submit to the jurisdiction of the courts of New South Wales.
Regarding variation, Clause 23 provided:
No provision of this agreement nor a right conferred by it can be varied except in writing signed by the parties.
Background Facts
On 8 November 2021, the Policy was introduced, effective 7 December 2021. On 6 December 2021, the Applicant’s direct Manager, Ben Lowe, and a Human Resources representative, Hanh Lo, requested a meeting with the Applicant to discuss his ceasing work. The Applicant sent a number of emails to Ben Lowe and/or Hanh Lo challenging the legality and reasonableness of the Policy.
The Applicant continued to work from home until 20 December 2021. In a further meeting with Ben Lowe and Hanh Lo, the Applicant was advised the internal exemption review committee had not approved his exemption application. The Applicant was deemed no longer fit or able to work from home, and thereafter did not receive salary.
Also on 20 December 2021, the Applicant received correspondence from “Transport Sydney Trains”. A Facsimile of the first page of that correspondence was as follows:
In early February 2022, the Applicant was advised that a decision regarding his employment continuing or ceasing would occur on 7 February 2022. He was contacted for a meeting with Ben Lowe and Hanh Lo, in which he was advised that there was no update regarding returning to work.
On 1 April 2022, the Applicant received a request to submit an exemption appeal by an email address associated with Transport for NSW.
On 6 April 2022, the Applicant met again with Ben Lowe and Hanh Lo, who advised he may receive an exemption appeal process request. This was the Applicant’s last meeting with Ben Lowe and Hanh Lo. The Applicant confirmed that he had lodged an exemption appeal.
On 16 May 2022, the Respondent indicated that it had not decided whether it would terminate the Applicant’s employment due to non-compliance with the Policy.
Consideration of Jurisdictional Objections
(a) National System Employer/National System Employee
Section 553 of the Act specifies that for the purposes of Part 3-5 of the Act:
In this Part, employee means a national system employee, and employer means a national system employer.
A dispute brought in accordance with section 526 of the Act, such as the Application, must involve both a National System Employee and a National System Employer.
The definition of National System Employee is, quite simply, provided by s.13 of the Act as:
A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.
The real enquiry is whether the Respondent is a National System Employer. Section 14 of the Act is relevant and provides the definition of a National System Employer as follows:
(1) A national system employer is:
(a)a constitutional corporation, so far as it employs, or usually employs, an individual; or
(b)the Commonwealth, so far as it employs, or usually employs, an individual; or
(c)a Commonwealth authority, so far as it employs, or usually employs, an individual; or
…
Particular employers declared not to be national system employers
(2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:
(a) that employer:
(i)is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or
(ii)is a body established for a local government purpose by or under a law of a State or Territory; or
(iii)is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and
(b) that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and
(c) an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.
…
Employers that cannot be declared
(6) Subsection (2) does not apply to an employer that:
(a) generates, supplies or distributes electricity; or
(b) supplies or distributes gas; or
(c) provides services for the supply, distribution or release of water; or
(d) operates a rail service or a port;
unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body. (Emphasis added)
The second “note” to sub-section 14(1) provides:
Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.
In order to determine whether an employing entity is a “national system employer”, s.14(1) of the Act, sets out certain entities that are taken to be national system employers. Section 526 of the Act confirms the applicability of those definitions to Part 3-5 of the Act.
The Respondent is not a constitutional corporation as defined in section 12 of the Act. It is not a trading or financial corporation,[2] and it is not covered by any of the other relevant descriptions in section 14(1).
While Sections 30D and 30N of the Act extend the meaning of national system employer in relation to referring states, the extension of the definition must be supported by the terms of the reference from the referring state (Sections 30H and 30S respectively).
While the Industrial Relations (Commonwealth Powers) Act 2009 (NSW)(“the NSW Referral Act”) did in fact refer the power to make laws with respect to certain matters, section 6 of the NSW Referral Act excluded from that referral matters relating to State public sector employees, of which the Applicant was one (see Section 6(c) of the NSW Referral Act and the definition of “state public sector employee” in section 3).
Matters relating to the employment of State public sector employees, remain within the jurisdiction of the Industrial Relations Commission of New South Wales as regulated by the Industrial Relations Act 1996 (NSW) (the NSW IR Act).
The Applicant is a Transport Service Senior Manager pursuant to the operation of section 68D of the Transport Administration Act 1988 (NSW) (the TA Act), and is employed on behalf of the Government of New South Wales to enable Sydney Trains to exercise their functions under operation of 68C of the TA Act.
The Government of New South Wales is not a National System Employer in accordance with section 14 of the Act. Sub-section 68B(1) of the TA Act establishes the Transport Service of New South Wales and relevantly provides that:
68B(1) The Transport Service of New South Wales consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown.
Sub-section 68C(2) and 68D(2) of the TA Act relevantly provide:
68C(2) The Government of New South Wales may also employ persons in the Transport Service to enable Sydney Metro, Sydney Trains, NSW Trains or RTC (or a public subsidiary corporation of Sydney Metro, Sydney Trains, NSW Trains or RTC) to exercise their functions.
68D(2) Persons who are employed in the Transport Service and designated by the Transport Secretary as senior managers are Transport Service senior managers.
The Contract, being with the Secretary of the Department of Transport, specified that the Applicant “…is designated by the Employer as a Transport Service Senior Manager, in accordance with Part 7A of the TA Act”.
The Applicant is employed in the Transport Service of New South Wales under Part 7A of the TA Act however his employer is the Government of New South Wales in the service of the Crown under the GSE Act.
The Applicant did not question the applicability of the TA Act to his employment, and in fact relied upon the TA Act in his submissions as to why he could make application pursuant to the Act, and s.68O in particular. S.68O provides:
(1) The employment of a Transport Service senior executive or senior manager, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996.
(2) Parts 6, 7 and 9 of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the employment of a Transport Service senior executive or senior manager.
(3) Any State industrial instrument (whether made before or after the commencement of this section) does not have effect in so far as it relates to the employment of Transport Service senior executives or senior managers. This subsection does not prevent the provisions of any such industrial instrument being adopted by reference in the conditions of employment of any such executive or manager.
(4) No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of a matter that is declared by this section not to be an industrial matter for the purposes of the Industrial Relations Act 1996.
(5) In this section, a reference to the "employment" of a Transport Service senior executive or senior manager is a reference to—
(a) the engagement of, or failure to engage, a person as such an executive or manager, or
(b) the assignment or re-assignment of the executive or manager to a role in a band or a classification, or
(c) the removal, retirement, termination of employment or other cessation of employment of the executive or manager, or
(d) any disciplinary proceedings or action taken against the executive or manager, or
(e) the remuneration or other conditions of employment of the executive or manager.
Section 68O of the TA Act substantially mirrors parts of s.58 of the GSE Act.
The Applicant’s submission was that as his employment was not an industrial matter for the purposes of the NSW IR Act, and the Industrial Relations Commission of NSW could not hear his “matter”, the only area that can hear his matter is the Commission.[3] In particular, the Applicant submitted:[4]
So the Transport Administration Act of 1988, clause 68O, does not have me covered under the Industrial Relations Act of New South Wales. Now, that makes it a referring state, for the purposes of my role classification.
And:[5]
And I covered that off as well. The Fair Work Act basically covers this, as a referring state. The effect of the parliament of New South Wales, right in clause 68O, makes them a referring state for Transport Service senior managers. That’s the material impact.
I reject the Applicant’s submission. The referral of powers to the Commission in relation to NSW State public sector employees occurred by way of specific referral in the NSW Referral Act. It did not, and never could, be referred inferentially by the provisions of the TA Act and the exclusion of some employees, including the Applicant, from certain jurisdiction under the NSW IR Act.
The Applicant is not a National System Employee and is not employed by a National System Employer. The Applicant is accordingly precluded from making the Application.
(b) The Applicant has not been subject to a “stand down” pursuant to section 524 or any other section of the Act.
Sub-section (2) of s.524 makes clear that that a stand down pursuant to sub-section (1) of the Act cannot occur if an Applicant’s enterprise agreement or contract of employment provide for an ability to stand down that Applicant. While neither party submitted there was a clause allowing for an ability to stand down the Applicant, the Applicant did place reliance on Clause 4(e) of the contract, and that reliance informs the consideration as to whether the Applicant was stood down pursuant to s.524(1). The Applicant submitted:[6]
(Indistinct) my contract, contract clause 4(e), whilst that was raised as the supporting clause for policy roll out, that contract clause, in itself, is not actually valid. In fact, it doesn’t carry validity, as per the clause within my contract that states that the policies only apply at the relevant time. Now, I signed that contract in July 2019. Had that clause existed at the time I would not have signed the contract. That clause has changed and that policy has now changed. It is a large, material change to my common law contract, between myself and Transport Service. There is no clause in my contract that allows for an invasive medical procedure that carries the risk of disablement or death.
Clause 4(e) of the Contract specifically provided that the Applicant must comply with all the Respondent’s policies and procedures, “as implemented or varied at the Employer’s and Agency’s discretion from time to time”. The Applicant was thereby bound to comply with the Policy. He did not, and the letter of 20 December 2021, clearly advised him “Until you comply with the Policy, you are not willing, ready and able to work. Accordingly, you are not permitted to attend or perform work and you are not entitled to salary or wages.”
The Full Bench of the Commission observed the following regarding the operation of s.524 of the Act:[7]
“[31] In order for a stand down of an employee to be authorised by s 524(1), two conditions must be satisfied:
(1) the employee cannot be usefully employed during the period of the standdown; and
(2) this must be because of one of the circumstances in paragraphs (a), (b) or (c)of s 524(1).
[32] Where s 524(1)(c) is the relevant circumstance relied upon, two elements must be satisfied:(a) there must have been a stoppage of work; and (b) the employer cannot reasonably be held responsible for the stoppage.”
In the Application, the Applicant asserted the reason given for his stand down was “A stoppage of work for any cause for which the employer cannot reasonably be held responsible”. That is factually not what occurred involving the Applicant. There was not stoppage of work that enlivened a stand down by the Respondent. Rather, the Applicant had disclosed an intention not to comply with the Policy of the Respondent.
As there was no stoppage of work grounding an exercise of the ability to stand down the Applicant pursuant to s.524(1) of the Act, there was no dispute about the operation of Part 3-5 of the Act for the Commission to deal with pursuant to s.526 of the Act.
Conclusion
The Applicant is not a National System Employee and is not employed by a National System Employer. The Applicant is accordingly precluded from making the Application.
Additionally, it is clear that the Respondent did not stand down the Applicant under s.524 of the Act. Rather, the Applicant was advised by the Respondent that he was not permitted to attend and perform work, or be paid, until he complied with the Policy.
The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr P Freeman, on his own behalf
Mr J Zeng, of the Respondent
Hearing details:
2022.
June 22.
Sydney (via videoconference)
[1] Transcript PN 21 to 23, 206
[2] 1A.B. [2014] FWC 6723
[3] Transcript PN 69, 89, 90 and 94.
[4] Transcript PN 69.
[5] Transcript PN 94.
[6] Transcript PN 213.
[7] The Peninsula School T/A Peninsula Grammar School v Independent Education Union of Australia (130N)[2021] FWCFB 844.
Printed by authority of the Commonwealth Government Printer
<PR744916>