Ms Julie Clarkson v Melton Shire Council

[2011] FWA 4951

[2011] FWA 4951

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

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

Ms Julie Clarkson
v
Melton Shire Council
(C2011/4944)

Local government administration
COMMISSIONER SMITH	DARWIN, 29 JULY 2011

Alleged dispute regarding a redundancy.

[1] The following decision, now edited, was issued during proceedings conducted on 21 July 2011.

[2] I am grateful to the parties for the comprehensive nature of their submissions and I am in a position to outline my decision in the matter.

[3] This is an application by Miss Julie Clarkson to determine the proper application of the Melton Shire Council Enterprise Agreement No. 6. 2010 [AE882265] (the Agreement). There is no issue in relation to jurisdiction, and the approach to these matters of statutory construction of agreements is well settled. The issue arises in relation to the difficult circumstances facing Miss Clarkson. Miss Clarkson is an administrative support officer in the food services area of the Council.

[4] On 4 March she was advised that a proposal existed to abolish her position. Miss Clarkson believes that she was told that she was made redundant, and I understand the way in which she greeted this information and perhaps did not fully appreciate the subtleness of the message, about the difference between a proposal and a definite decision. Perhaps that is why her union—and also having regard to the agreement—was notified. In the submissions today comprehensive submissions have been put by Mr Michelson on behalf of the Australian Municipal, Administrative, Clerical and Services Union (ASU) that there has not been consultation in accordance with clause 11 of the agreement. That clause provides that:

Where council has a definite proposal to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the council shall notify the employees who may be affected by the proposed changes, and the union and/or employee representatives.

[5] There is no doubt that this is going to have a significant effect on Miss Clarkson and therefore the clause is enlivened. The background to the matter, it seems from the submissions and evidence of the parties today, is that over a period of time there has been discussion about a community chef being created where a number of Councils would use regional kitchens. This has meant that the Melton Shire Council would no longer perform some functions that it has performed in the past. This was going to occur, or as said by one witness “go live”, on 31 January 2011. It was the evidence of Miss Crameri that the Council was going to wait until 31 January to see what changes, if any, were needed to the systems and work and how that would impact upon the employees in that area.

[6] In relation to consultation, Mr Michelson argues that there was no discussion regarding the possibility of Miss Clarkson’s redundancy prior to the meeting of 4 March 2011 and that she and the ASU were not given an opportunity to respond to any proposals. The Council argues that following the establishment of the community chef role on 31 January 2011 it reviewed the food services area. Following that review it devised a proposal which it conveyed to Miss Clarkson on 4 March, and it forwarded a letter to the ASU.

[7] Council argues that the meeting of 4 March with Miss Clarkson was attended by the ASU delegate, Mr Peter O’Brien, and Miss Crameri, where a proposed new structure was advised in which her position would be abolished. It further argues that the letter of 4 March to the ASU advised of the proposed structure and advised that discussions would be held with employees to provide the opportunity for feedback prior to implementation. On 14 April Mr O’Brien from Council wrote to Miss Clarkson advising—and I quote:

I hereby formally confirm that your position of administrative officer within food services has been abolished with effect from 11 April 2011. Therefore you are eligible to be considered for redeployment, retraining and/or redundancy in accordance with clause 13 of the Melton Shire Council Enterprise Agreement No. 6 2010. I have attached a copy of clause 13.

[8] Clause 11 requires Council “to notify employees who may be affected by the proposed changes, together with the ASU and/or employee representatives.” The notification requirement arises when there is a definite proposal, as opposed to a decision. Council is required to consult. Consultation has been outlined in a number of decisions and in particular I refer to the decision of the Federal Court of Australia in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591] (Queensland Rail).

[9] In addition to the failure to consult, Mr Michelson also argues that Council had not given proper consideration to redeployment and retraining, and I have considered in this connection the evidence of Mr O’Brien where he outlined the discussions he held with Miss Clarkson; the referral to Hudson’s, a consulting firm, and the temporary positions offered. Against the background of the evidence and the submissions to date I am satisfied that Melton Shire Council has consulted, in that it advised Miss Clarkson of a proposal which abolished her position and implemented a new structure. The ASU was advised. A period of approximately five weeks passed before Miss Clarkson was advised that her position was abolished effective from 11 April, although it was said in evidence that a period of two weeks was provided for feedback, from 4 March.

[10] As to redeployment and retraining I am satisfied that Council genuinely explored redeployment opportunities. There were positions vacant. I do believe that there is a strong responsibility on the employer to use its best endeavors to provide opportunities for employees who are being made redundant to redeploy within the enterprise. As to the retraining, the issue of a home care person was raised and, whilst an appropriate objective, that requires certain qualifications and training which may well not be consistent with the agreement. However, there were other vacancies and a vacancy was applied for by the applicant. In all the circumstances I find that Council has properly applied clauses 11 and 13 of the Agreement and I now adjourn the matter and wish Miss Clarkson the best.

COMMISSIONER

Appearances:

S. Michelson Solicitor for the applicant.

S. Wilson with P. O’Brien on behalf of the Melton Shire Council.

Hearing details:

2011.

Melbourne:

July, 21.

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