Mr Srikumar Arampamoorthy v Ausgrid Management Pty Ltd T/A Ausgrid

[2018] FWC 7137

[2018] FWC 7137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute in relation to flexible working arrangements

Mr Srikumar Arampamoorthy
v
Ausgrid Management Pty Ltd T/A Ausgrid
(C2018/4600)

DEPUTY PRESIDENT BULL SYDNEY, 21 NOVEMBER 2018

Dispute about redundancy process under Agreement. S.739(5) claims inconsistent with Agreement, dispute unable to be dealt with by the Commission..

[1] On 20 August 2018, Mr Srikumar Arampamoorthy (the applicant) filed an application pursuant to s.739 of the Fair Work Act2009 (the Act) in respect to a dispute with his employer Ausgrid Management Pty Ltd (Ausgrid). The application seeks to have the Fair Work Commission (the Commission), in accordance with clause 42 - Dispute Settlement Procedure (Dispute Procedure) of the Ausgrid Enterprise Agreement 2018 (the ‘2018 Agreement’), resolve a dispute relating to the applicant’s permanent position being made redundant.

[2] A conciliation conference was held before the Commission on 14 September 2018, following which the applicant requested that the matter be referred for hearing. 1

[3] At the hearing Mr Arampamoorthy represented himself and Mr G McDonald, a Senior Industrial Relations Advisor, appeared for Ausgrid.

[4] The application proceeds on the basis that the Dispute Procedure allows the applicant to refer a ‘dispute’ to the Commission for arbitration where it remains unresolved, subject to the process under the Dispute Procedure having been complied with.

[5] While the 2018 Agreement does not provide a definition for the word ‘dispute,’ subclause 42.1.1(e) states that the objective of the Dispute Procedure is to ensure that disputes relating to the relationship between the employer and employees are dealt with according to the Dispute Procedure. As such, it would appear that any matter related to the employment relationship can be addressed under the Dispute Procedure.

[6] The Dispute Procedure also provides that where a dispute relates to an action proposed by Ausgrid that directly affects an employee, that if taken, would materially disadvantage the employee or prejudice the ultimate resolution of the dispute, Ausgrid will not implement that action while the dispute procedure is being followed. 2

[7] The Dispute Procedure further provides that the status quo may be maintained or lifted at the discretion of the Commission and that both parties will accept the Commission’s decision on status quo, subject to any appeal.

Mr Arampamoorthy’s submissions

[8] The applicant states that prior to a 2014 restructure he worked as an Engineer for Ausgrid. After the restructure he worked as a Performance Analyst. In this role, although not contained in his position description, he performed the ‘Primavera administration’ function for the Program Coordination section under the Operational Performance Management Branch. Primavera is a software program which provides for portfolio project management which is used across various divisions of Ausgrid.

[9] In 2017, a new branch, the Integrated Works Management Office (IWMO) was created. A consultation process was undertaken by Ausgrid prior to finalising the IWMO restructure. As part of the IWMO restructure the applicant’s Primavera administration function was moved into a new role titled Master Planner. Mr Arampamoorthy was not advised of this change which he alleges was a breach of the Ausgrid Agreement 2012 which was in operation at the time.

[10] Mr Arampamoorthy states that the role of Master Planner was initially advertised as ‘part of a confined restructure’. The positon was not filled and was re-advertised throughout Ausgrid. As a result of advertising the role to all Ausgrid employees, he became aware that the Primavera administration function had been moved to the new Master Planner role.

[11] Mr Arampamoorthy subsequently applied for the position of Master Planner but was unsuccessful. He states that the required minimum of three days’ notice under Ausgrid’s Merit Appointment Policy 2009 3was not provided prior to the interview; the notice he received was 3-4 hours short of the full three days.

[12] Mr Arampamoorthy contends that had he been consulted, he could have participated in the ‘confined restructure process’ and had a good chance of being offered the Master Planner role. As a result of not being consulted about the change to his role, and not having been given a full three days’ notice prior to the interview for the role, the applicant states he has been prejudiced in applying for the position of Master Planner.

[13] As it is no longer practical to find a suitable permanent position within Ausgrid, Mr Arampamoorthy seeks that the Commission determine that Ausgrid:

•  Approve an $8,000 budget towards training, additional to the standard allocation of $2,000 for redeployees.

•  Defer the additional voluntary redundancy (AVR) payment of $75,000 by 12 months commencing from the time the dispute is finalised.

[14] Mr Arampamoorthy submits that the above outcomes would provide a fair and just resolution to his dispute.

Ausgrid’s submissions

[15] Ausgrid stated that it has been undertaking a significant level of transformation, including changes to its operating model to streamline decision-making and approve accountability and effectiveness, while creating an affordable and sustainable cost base for their customers by reducing operating expenditure.

[16] Part of the change has required a rebalance of the workforce. In mid-2017, Ausgrid commenced consulting on the establishment of the IWMO as part of the Program Delivery Division to replace the previous Program Coordination team. A new role of Master Planner was created following consultation with the impacted employees. The role of Master Planner differs significantly from the role of Performance Analyst. A minor function of the new Master Planner role includes Primavera administration.

[17] The applicant was initially appointed as a Performance Analysis in Portfolio Management for the Network Operations Division of Ausgrid. While the applicant undertook a level of Primavera administration, this was not a major or substantial function of his role and these activities were performed in addition to the duties carried out in line with the position description for Performance Analyst.

[18] Employees who were previously responsible for similar types of work including, but not limited to Primavera administration in the Program Coordination team and whose positions have been deemed excess to requirements, were given a priority for the first round of recruitment to apply for the role of Master Planner.

[19] The applicant, as a Performance Analyst in a different division, was not given priority status to apply for the role at the time. With the Master Planner role remaining vacant after the priority first round recruitment exercise was completed, the second round recruitment was opened up to all Ausgrid employees.

[20] The applicant applied for the role and was interviewed but found to be unsuitable as he did not meet the essential criteria. The key accountabilities of the role are to provide change management and leadership skills which the applicant did not possess.

[21] The applicant sought a review of the Merit Appointment process, however his appeal was unsuccessful. The two other candidates for the Master Planner role had stronger experience in change management and leading teams.

[22] The applicant’s position as a Performance Analyst and the position of Operational Analyst were removed and replaced by new Business Analyst roles. The applicant was consulted about this change. As the applicant was directly impacted by the change he was also given priority to apply for the new positions of Business Analyst, but chose not to apply.

[23] Ausgrid oppose the applicant’s remedy which seeks a budget of $8,000 towards training in addition to the standard allocation of $2,000 to redeployees. Ausgrid also oppose the applicant’s deferment of the additional AVR payment of $75,000 by 12 months, commencing from the time the dispute is finalised.

[24] The applicant has been placed in the Career Transition Program consistent with the 2018 Agreement as his position has been deemed excess to requirements.

Evidence of Tim Thorncraft

[25] Mr Thorncraft is Ausgrid’s Senior Human Resources Business Partner. Mr Thorncraft advised the Commission that the applicant’s role of a Performance Analyst, while involving a level of Primavera administration, was not a major or substantial function of the role.

[26] In mid-2017, Ausgrid commenced consulting on the establishment of the IWMO with the relevant Unions and employees involved. Employees consulted were those significantly impacted, typically with their pre-existing role having been deemed surplus and replaced with a new position.

[27] The Performance Analyst position of the applicant was not impacted by the proposed restructure within IWMO. As part of the new IWMO structure a new role of Master Planner was created following the consultation. This role is significantly different from the role of Performance Analyst. The priority recruitment for the Master Planner role commenced on 30 October 2017, but did not lead to any employee being appointed as they did not meet the criteria and requirements for the role.

[28] When the Master Planner role was advertised more broadly there were three applicants including Mr Arampamoorthy. As there were limited applicants all were contacted on 12 December 2017 and invited to an interview on 15 December 2017. All applicants had the same time to prepare for the interviews.

[29] The applicant was deemed not suitable for appointment to the position of Master Planner as he did not demonstrate the experience and knowledge of the business to perform the role and did not demonstrate change management or team leading experience.

[30] On 21 March 2018, consultation commenced on the restructure of the Portfolio Management section. As a result of the consultation, the roles of Operational Analyst and Performance Analyst were removed and replaced by new Business Analyst roles.

[31] On 16 April 2018, the applicant was advised in writing that his position of Performance Analyst was ‘reform affected’. The correspondence stated that the designation of ‘reform affected’ meant that he was in an area of the business which needs to reduce the number of positions or where new positions have been created which are significantly different from the previous positions.

[32] Mr Thorncraft’s evidence was that a ‘reform affected’ employee indicates that the employee’s position is directly impacted by a reform or restructure and allows the employee priority access to apply for positions within the restructure of the work area. In the applicant’s case, his work area was the Field Services division. 4

[33] The applicant applied for the new positions of Business Analyst through the priority access process, but subsequently withdrew his application. The Business Services branch’s new positions were then filled and the applicant’s substantive position of Performance Analyst was deleted.

[34] The 2018 Agreement at Appendix 5 – Redundancy, Redeployment and Salary Maintenance defines, at clause 2.2, that an ‘Excess Employee’ is an employee who has received notice from Ausgrid that their position is redundant.

[35] A declaration that the applicant was an ‘Excess Employee’ for the purposes of the 2018 Agreement was delayed due to a dispute being lodged by Professionals’ Australia who were representing the applicant at that time. 5

[36] Prior to the 2018 Agreement coming into operation Ausgrid had a significant problem in having a large number of excess employees within the Career Transition Program. This was substantially due to employees not accepting a Voluntary Redundancy offer as they could be made an offer at a later time which would be of the same value and they would be able to continue being paid salary maintenance in the meantime. Employees are not able under the 2018 Agreement to be made compulsorily redundant until 1 July 2020. 6

[37] To address this problem, the 2018 Agreement provided an additional incentive of $75,000 for Excess Employees to take an early redundancy.

[38] The 2018 Agreement 7 provided all employees who are declared excess with an AVR once only offer. The Excess Employees have three weeks to consider an AVR offer. If an Excess Employee does not accept the AVR offer, the offer expires and the employee foregoes any further AVR offer. The employee may then search for permanent redeployment within Ausgrid, be temporarily redeployed, or be reassigned to undertake other work within Ausgrid.

[39] On 14 August 2018, the applicant was advised in writing by Ausgrid that he was to become a redeployee effective from 15 August 2018. As such, he should attend the Career Transition Program as of 20 August 2018.

[40] Due to the applicant’s ongoing claims that the status quo provision in the 2018 Agreement prevents Ausgrid issuing an AVR offer, 8 Ausgrid has not yet issued the applicant with an AVR offer.

Jurisdictional argument

[41] Ausgrid state that they will apply the terms of Appendix 5 of the 2018 Agreement to the applicant, however it is contended by Ausgrid that the remedies sought by the applicant to resolve his dispute are statute barred as per s.739(5) of the Act.

[42] Section 739 is in the following terms:

“739 Disputes dealt with by FWC

(1) This section applies if a term referred to in section 738 requires or allows FWC to deal with a dispute.

(2) 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 FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises FWC to deal with the matter.

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

(3) In dealing with a dispute, FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that FWC may arbitrate (however described) the dispute, FWC may do so.

Note: 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), FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) FWC may deal with a dispute only on application by a party to the dispute.”

(My emphasis)

[43] Appendix 5 of the 2018 Agreement at subclause 2.4.4 provides that employees who have not completed a career transition program within Ausgrid or a career coaching service external to Ausgrid are entitled to a payment of $2,000 gross for outplacement support.

[44] Further, at subclause 2.8.5 an employee who has not completed a career transition program within Ausgrid, or a career coaching service external to Ausgrid, may receive a $2,000 gross allowance for outplacement support if requested by the employee, which is to be paid directly to the service provider.

[45] In the case of the applicant, Ausgrid submit that it has been proposed that he undertake an internal career transition program within Ausgrid, and he therefore does not satisfy the criteria specified in Appendix 5.

[46] More importantly though, Ausgrid submit that the applicant’s claims are not provided for in the 2018 Agreement, hence pursuant to s.739(5) of the Act in dealing with a dispute the Commission cannot make a decision in the applicant’s favour as the remedies sought are inconsistent with the 2018 Agreement.

[47] This submission applies to the applicant’s claim of an $8,000 training allowance and having the AVR offer deferred by 12 months following the resolution of his dispute as both outcomes are inconsistent with the 2018 Agreement.

[48] Ausgrid submit that the applicant’s remedy in seeking an $8,000 budget towards training in addition to the standard allocation of $2,000 for redeployees is inconsistent with the terms of the 2018 Agreement at 2.4.4 and 2.8.5 of Appendix 5 of the 2018 Agreement.

[49] As per Appendix 5 of the 2018 Agreement an Excess Employee is an employee who has received notice that their position is redundant. The offer of an AVR is to be given to an Excess Employee whose Notification Date occurs before 1 January 2020. The term ‘Notification Date’ is defined in Appendix 5 of the 2018 Agreement at 2.6, as the date on which an employee is notified that they are an Excess Employee.

[50] The applicant was notified on 14 August 2018, that he was a redeployee and therefore an Excess Employee effective from 15 August 2018. As the applicant’s claim provides a benefit greater than that provided by the 2018 Agreement it cannot be entertained by the Commission.

Conclusion

[51] Mr Arampamoorthy did not attempt to deal with the jurisdictional issues raised by Ausgrid. His submission was simply that the Commission, in resolving his dispute, should make a decision that was fair and just. In his written submission of 25 September 2018, in reply to Ausgrid’s submission that his training allowance claim was inconsistent with the 2018 Agreement, he states that his training claim is not part of the 2018 Agreement.

[52] The meaning of s.739(5) of the Act was outlined in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“Endeavour Energy”), 9 where the Full Court said:

“Section 739(5) does not alter the character of the arbitration which the Commission undertakes under an enterprise agreement … It merely places a limit on the range of arbitrated (but not conciliated, it may be noted) outcomes available to the Commission in those cases in which the parties have agreed that the Commission may arbitrate.”

[53] There is no dispute between the parties that the 2018 Agreement provides for disputes that remain unresolved at the workplace being arbitrated by the Commission. In doing so, the Commission must be cognisant of any legislative curtailment of this private arbitration power. Section 739(5) curtails the Commission’s role in determining a dispute referred to it via a dispute settlement procedure in an industrial instrument to the extent that any decision must not be inconsistent with the referring industrial instrument. To do otherwise would be to provide entitlements or rights not otherwise provided for in the industrial instrument.

[54] The dispute remedies sought by Mr Arampamoorthy may in his view be fair and just, but they run afoul of s.739(5) in that they are outside of what the 2018 Agreement provides. The Commission’s power under s.739 is not at large. As stated in Endeavour Energy, there is a limit on the range of outcomes available to the Commission. There is no entitlement under the 2018 Agreement for an $8,000 training allowance, nor is there a right to require Ausgrid to defer the AVR offer by 12 months following the ‘Notification Date’.

[55] The applicant’s claim is not a case of determining a right under the 2018 Agreement or interpreting the meaning of any particular clause of the 2018 Agreement. The claim seeks benefits in excess of the 2018 Agreement that the Commission is statute barred from awarding.

[56] Irrespective of whether Ausgrid did or did not consult as required under the 2012 Agreement, or provide the required notice prior to arranging the applicant’s job interview as per its Merit Appointment Policy 2009 for the position of Master Planner, the outcomes sought by the applicant are not permitted to be ordered by the Commission as they would be inconsistent with the 2018 Agreement.

[57] As such, for the reasons stated above, the applicant’s claim is dismissed for want of jurisdiction.

DEPUTY PRESIDENT

Appearances:

Mr Srikumar Arampamoorthy on his own behalf

Mr G McDonald for Ausgrid Management Pty Ltd

Hearing details:

SYDNEY

November 12

Printed by authority of the Commonwealth Government Printer

<PR702511>

 1   Email of 14 September 2018 at 5:07pm

 2   Subclause 42.1.1(g)

 3   Merit Appointment Policy 2009 at (14.0)

 4   Witness Statement of Tim Thorncraft Exhibit R2 at [44]

 5   Witness Statement of Tim Thorncraft Exhibit R2 at [49]

 6   2018 Agreement at Appendix 5

 7   The approval decision [2018] FWCA 2960 states the Agreement operates from 16 May 2018, this dates appears inconsistent with s.54 of the Act as the Agreement was approved on 24 May 2018.

 8   Witness Statement of Tim Thorncraft Exhibit R2 at [55]

 9 [2016] FCAFC 82 (‘Endeavour Energy’).