Ms Shannon Hawkins v Victorian WorkCover Authority trading as Worksafe

[2011] FWA 8343

[2011] FWA 8343

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.170LW—pre-reform Act—Application for settlement of dispute (certified agreement)

Ms Shannon Hawkins
v
Victorian WorkCover Authority trading as Worksafe
(C2010/5551)

COMMISSIONER SMITH MELBOURNE, 6 DECEMBER 2011

Alleged dispute in relation to entitlements.

[1] By decision 1 dated 5 August 2011 preliminary findings were made in relation to a matter involving Ms Shannon Hawkins and the Victorian Workcover Authority trading as Worksafe. The issue for determination was the proper application of the Victorian Workcover Authority Certified Agreement 2005—2008 [AG846833] as it related to circumstances facing Ms Hawkins when she sought a return from maternity leave on a part-time basis. This decision should be read in conjunction with the earlier decision.

[2] The earlier decision concluded:

“[35] Having regard to the submissions and evidence, I find that:

• The Agreement covers the field and the award is not called in aid to inform the operation of the Agreement.



• The proposition in relation to a dispute about bullying is premature and Ms Hawkins should avail herself of processes and procedures at the workplace and I decline to deal with it at this stage.



• WorkSafe needs to address whether or not it, as an employer, has given due consideration to the request made by Ms Hawkins and provide written submissions within 7 days. The FSU can have a further 7 days in which to respond.” 2

[3] Worksafe take no issue with the duty being on the employer 3 however it submitted that the nature of the duty rests upon the request made by the employee.

[4] In this context, it was argued by Worksafe that the duty may be discharged by an employee authorised to do so. 4 I agree with this proposition, namely, that it does not matter to whom the request is made, provided that person is authorised to act on behalf of the employer having regard to the nature of the request. If that person is not authorised, the matter should be escalated to a person who is so authorised. This may be particularly important in circumstances where a manager is unable to ensure that she/he has all the relevant information across the enterprise and has the authority to action such a request.

[5] To refresh, the clause under which the request was made is:

“49.9 Returning to work after a period of maternity leave

……………..

(f) If the employee wishes to be considered for temporary or part-time employment as an alternative to her former position, the employee must notify her manager at least eight weeks prior to her return from maternity leave to enable due consideration of her request.”

[6] Worksafe submit that the proper application of the clause is to give “due consideration to her request.” It follows, it is submitted, that the principle focus will be upon the request made.

[7] There is much force in this argument. The language of the clause requires the employer to give due consideration to the request made by the employee. In the earlier decision, focus was given on where that duty lay. It does not only reside in the business line or unit, but Worksafe is correct when it states the other side of that coin, in that any consideration must be reflective of what the employee requested. Indeed Worksafe submit that:

“Clause 34.9 doesn’t limit an employee’s capacity to request a consideration for temporary or part-time employment by reference to position or to hours or to location or, indeed to a business unit. So a request once made by an employee for part-time employment in a different business unit must be considered, but we say that it’s the request once made that due consideration must be given to. It’s the request that identifies, in our submission, the four corners of the employer’s obligation.” 5

[8] It is to that matter that I now turn.

[9] The request was made in accordance with the relevant clause and was made to a person authorised by the employer as reflected in the clause; namely to Ms Hawkins manager.

[10] The request was in the following terms:

“Hi Vicki

As discussed, outlined below is a proposal for returning to work following maternity leave.

I propose returning part-time (2 days per week) with a commencement date of Monday 15th December 2008. Due to uncertainty with obtaining childcare, Monday’s and Thursday’s are currently the only days I can offer as MacKenzie’s grandmothers are available to look after her these days.

Commencing the beginning of March 2009 I would like to increase my part-time days to 3 days per week. I have been assured that I will be able to secure 1 day childcare by then but unfortunately do not know which day I will be offered at this stage.

Please let me know if the proposal is approved. Please don’t hesitate to call me to discuss.

Regards

Shannon Hawkins” 6

[11] It can be seen that the request does not focus upon any particular position but is rather a generic request.

[12] However under cross-examination, Ms Hawkins gave the following evidence:

“MR GOSTENIK: Were you asking for part-time employment as an alternative to your former position?---You know what? To be perfectly honest, I wasn’t thinking about what I asking when I came back to work following the birth of my daughter. I wanted to come back to work in a part-time capacity for as long as my daughter Mackenzie needed me, which I anticipated would be until she commenced primary school. I didn’t go through the EBA or the award or anything else. That wasn’t on my mind.

Let’s for a moment accept that, that it wasn’t on your mind. What we have here, though, is a proceeding where you allege that there’s a dispute about the application of this clause?---Yes.

So I want to know whether you had in mind returning or asking for temporary or part-time employment or something else?---Part-time employment.

As an alternative to your former position?---So when you say “as an alternative to my former position”, rather than my former position. Is that what you’re saying?

Yes?---No. Part-time employment in my former position – or my current position, actually. It’s still my substantive role.

You’d agree with me, wouldn’t you, that the right that you had to return from maternity leave was a right to return to your substantive position?---Well, it was the right to return part-time, yes.

No, just bear with me for a moment. When you took maternity leave, the right that you had after the completion of your maternity leave was a substantive right to return to your substantive position?---Yes.

You also had an opportunity to apply for part-time work?---I’m sorry, I don’t understand what you’re saying.

Well, the clause doesn’t give you a right to return to part-time work, does it? Well, read it?---I don’t claim to be an expert in this but - - -” 7

[13] In this exchange, it can be seen that Ms Hawkins was seeking to protect her substantive role. This brings into focus the proper operation of the Agreement. There is a right to return to work following a period of maternity leave to the substantive position but, under the agreement, there is no right to return to work in that position on a temporary or part-time basis. The right that exists is to be considered for an alternative position to the former position. Although, it also appears that Ms Hawkins was not aware of the nuances relevant to the legal effect of the Agreement.

[14] I shall shortly come to the evidence of Mr Gillis, but it is clear that the employer, through the managers in the business line, had focused (perhaps understandably) upon the positions available in the business and nowhere else. 8 It is not to the point to argue that Ms Hughson never understood that the applicant was asking for a different position because it appeared that no-one raised with her this option given it was known that transfers beyond the business line were conducted by way of competitive selection whether that be external or internal.

[15] The request, which is required by the agreement, contained no such restriction, although it does appear that Ms Hawkins was seeking to have her substantive position converted to part-time. If this is the case, such a request would not attract the operation of clause 49.9(f). This is an important distinction to which I shall later return.

[16] In these matters, the employer is nearly always in a position of having greater knowledge than the employees. In relation to this employer, it has specialist industrial relations capacity which could look at the request and appreciate that the request is generic in character and therefore certain steps should be taken and advice given. It is a function of the employer giving due consideration, that it draws upon its knowledge of all the circumstances and its obligations.

[17] The evidence is that Ms Hawkins was engaging with the employer on a suitable return in her substantive position through the various communications, but again these were done against the backdrop of the parameters set by the business environment. This is not a criticism of the managers involved as they made extensive efforts to accommodate Ms Hawkins within the business line. I have already found that had the scope of enquiry only been the business line then due consideration had been given to her request. Indeed, Ms Hawkins reached agreement with the employer and then sought to revisit that agreement.

[18] It can also be said that Ms Hawkins was seeking to have the best of both worlds—part-time employment in her substantive position with a right to revert, rather than part-time employment as an alternative to her former position. As the matter progressed it is also clear that Ms Hawkins was seeking part-time employment in any position for which she was qualified.

[19] Before reaching a conclusion on this aspect there needs to be an examination of the evidence of Mr Gillis.

[20] Mr Gillis provided extensive evidence about the process involved in considering the options for Ms Hawkins. However, it did appear that those options were focused upon opportunities for varying her working arrangements within the business line so that Ms Hawkins could maintain her substantive position. I do not criticise the effort and consideration given to Ms Hawkins, but it was within the general approach. Indeed it was the experience of Mr Gillis that all requests have been accommodated within a business line. 9

[21] This case is simply about whether or not the employer should give due consideration to a request. It imposes no other obligation. If there are sound business and/or operational reasons why Ms Hawkins cannot be accommodated then that will be the result. However, Ms Hawkins needs to make a decision. That decision is: does she wish to retain her substantive role or seek part-time employment in an alternative position?

[22] If Ms Hawkins seeks to retain her substantive position and have that converted into a part-time one then clause 49.9(f) has no work to do but her desire has been given proper consideration and was not able to be accommodated. If Ms Hawkins seeks to obtain part-time employment as an alternative to her former position then 49.9(f) applies and there has not been due consideration of her request. Due consideration would require that her request be considered by the business as a whole. Ms Hawkins should make her position clear within 7 days so that Worksafe may respond.

[23] I see no further need for this file to remain open.

COMMISSIONER

 1   [2011] FWA 4913

 2   Ibid at paragraph 35

 3   [PN3281]

 4   [PN3282]

 5   [PN3288]

 6   See exhibit FSU4 Annexure SHO1

 7   Transcript PN474-482

 8   Print [2011] FWA 4913 at 24-26

 9   Transcript PN3156-7

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