Ms Lyndell Barbara Painter v Commonwealth of Australia (Department of Defence)

[2011] FWA 5248

Note: An appeal pursuant to s.604 (C2011/5722) was lodged against this decision - refer to Full Bench decision dated 25 November 2011 [[2011] FWAFB 8043] for result of appeal.

[2011] FWA 5248

FAIR WORK AUSTRALIA

DECISION

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

Ms Lyndell Barbara Painter
v
Commonwealth of Australia (Department of Defence)
(C2010/4216)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 12 AUGUST 2011

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] .

[1] Ms Painter lodged an application pursuant to s739 of the Fair Work Act 2009 (the Act) on 3 July 2010.

[2] At the hearing Ms Painter was represented by Mr Michael Harmer, solicitor, with Mr Yak of the same firm. The Department of Defence (Defence) was represented by Ms Eastman of Counsel instructed by Ms Christmann, solicitor, of Maddocks.

[3] The application was first listed on 26 July 2010 but was stood over on application by Mr Harmer whilst proceedings were conducted elsewhere. On the application of Mr Harmer the matter was relisted before me on 25 May 2011, 31 May 2011 and 9 June 2011.

[4] Mr Harmer provided a case outline which he modified for closing submissions 1 and written submissions in reply. Defence provided an outline2 and a response to the applicant’s submissions.

[5] Ms Painter’s employment is governed by the Defence Enterprise Collective Agreement 2009 (DECA 2009). Clause 13 of Part I of DECA 2009 is the Dispute Prevention and Settlement Process.

[6] Ms Painter is not working at present. A workers’ compensation claim made by Ms Painter against Defence has been accepted by Comcare. Defence has confirmed that they have no present intention of terminating Ms Painter’s employment.

[7] Ms Painter’s psychiatrist, Dr Pickering and treating psychologist Mr Benad both gave evidence before me. Their oral evidence and written reports confirm that Ms Painter is not fit under any circumstances to return to work with Defence. Having heard the oral evidence of both health professionals, and the evidence of Ms Painter I have concluded that Ms Painter is a very vulnerable woman. Despite Ms Painter’s best intentions I consider it unlikely that she will be able to return to full time work in the near future in anything but the most managed of environments. Her return to work in Defence is an impossibility. I am surprised that Ms Painter has not been found to be totally and permanently unfit and medically retired.

[8] Mr Harmer seeks that Fair Work Australia order the Commonwealth of Australia, as the true employer of Ms Painter, to offer her suitable work outside Defence. Mr Harmer submits that the applicant is an employee of the Commonwealth and that Defence is the Agent of the Commonwealth.

[9] It was Mr Harmer’s submission that the Commonwealth, as a national system employer pursuant to s376 of the Act, and as Ms Painter’s true employer, has an obligation to provide suitable employment opportunities to Ms Painter across the Commonwealth not limited to Defence. He submitted that the Commonwealth has no mechanism to facilitate rehabilitation based employment across its agencies but that it should have such a mechanism, pursuant to the Commonwealth’s wider obligation to rehabilitate Ms Painter into the workforce.

[10] Mr Harmer submitted that Fair Work Australia (FWA) has the power to deal with this dispute notification arising from what he alleged was the present increased breadth in the nature and extent of the power of private arbitration pursuant to the Act compared to previous legislative regimes.

[11] On 24 August 2009 Mr Harmer sought a moratorium on Defence’s attempts to return Ms Painter to work. Defence complied with that request on 3 September 2009, before the commencement of DECA 2009 on 3 November 2009. Ms Painter still does not require Defence to provide her with work that, in any event, her Doctors certify that she is unfit for.

[12] I have concluded that Defence has fulfilled its obligations towards Ms Painter. Defence is unable to provide suitable work given Ms Painter’s restrictions. In the absence of suitable work within Defence, and as long as there is a causal connection, Defence through Comcare must pay Ms Painter. It is doing so and has complied with its obligations.

[13] The parties to DECA 2009 are set out in Part 1 clause 1.5 of DECA 2009. The parties are the Secretary of Defence, Australian Public Service employees of Defence and various employee organisations who are listed under Part 1 clause 1.5 c.

[14] I accept Ms Easton’s submissions 3 regarding the identification of Ms Painter’s employer and the application of the Dispute Prevention and Settlement Procedure of DECA 2009.

[15] The parties to this dispute notification are Ms Painter and the Secretary of Defence. The application of DECA 2009 is to the parties only, not to the Commonwealth at large. There are particular matters where there is an agreement and acceptance of a wider obligation by the Commonwealth, wider than that applicable to the parties alone. Those obligations stand alone.

[16] The Commonwealth has not accepted an across all Departments obligation to rehabilitate. Whether it should do so or not is a matter of public policy and not a matter to be imposed by Fair Work Australia (FWA) through the application of the Dispute Prevention and Settlement Process of DECA 2009.

[17] Neither, in my opinion, is it in Ms Painter’s best interest to pursue this matter. She should not be used as a stalking horse to bring about Australia wide policy changes in this area.

[18] The Dispute Prevention and Settlement Process exists to resolve disputes between employees of Defence and Defence. To the extent that Ms Painter has alleged a dispute and Defence denies a dispute, I can make a finding. I find that there is no dispute between the parties pursuant to DECA 2009.

[19] The application is dismissed.

SENIOR DEPUTY PRESIDENT

 1   Exhibit P10

 2   Exhibit Defence 8

 3   Exhibit Defence 8

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