Ms Shannon Hawkins v Victorian WorkCover Authority trading as WorkSafe

[2011] FWA 4913

[2011] FWA 4913

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)

Insurance industry
COMMISSIONER SMITH	MELBOURNE, 5 AUGUST 2011

Alleged dispute in relation to entitlements.

INTRODUCTION

[1] This matter involves a dispute over the proper application of the Victorian Workcover Authority Certified Agreement 2005—2008 [AG846833] and that agreement as extended and varied (EBA12). As both these agreements have very similar terms in relation to the matter at issue, I shall simply refer to them as the Agreement. Because there are different clause numbers, as a matter of convenience, I shall only refer to the clause numbers in EBA12. Save for one matter, there is no issue in relation to jurisdiction to hear and determine the dispute. The only issue is whether or not the Victorian WorkCover Authority Award 2002 [AP814027] (the award) is in some way called in aid in determining the proper application of the Agreement.

[2] The facts and circumstances which need to be considered in determining the proper application of the Agreement relate to Ms Shannon Hawkins. Ms Hawkins is employed by the Victorian WorkCover Authority (WorkSafe) as a Policy Officer and has been employed since October 2002. She is currently performing part-time duties for three days per week in the position of Administration Officer.

[3] Briefly stated, Ms Hawkins alleges that WorkSafe has not given due consideration to her request to return to part-time employment until her daughter reaches school age. At the time of hearing the matter, WorkSafe was prepared to offer a four day week but Ms Hawkins required a three day week. Ms Hawkins also alleges that she has been bullied at work arising from her actions and desire to work only a certain number of days. During the proceedings, Ms Hawkins was represented by Mr G. McConville from the Finance Sector Union of Australia (FSU) and WorkSafe was represented by Mr V. Gostencnik of counsel.

[4] I propose to deal with the bullying matter separately and at the conclusion of consideration given to the requirement for WorkSafe to give due consideration to the request made by Ms Hawkins.

[5] I should add, at this stage, that the matter has been the subject of a number of conciliations from December 2010 until March 2011. However agreement could not be reached.

THE AGREEMENT/S AND BACKGROUND

[6] Turning firstly to deal with the request to return to part-time employment, the following clause appears:

49.9 Returning to work after a period of maternity leave

(a) An employee will notify WorkSafe Victoria of their intention to return to work after a period of parental leave at least four weeks prior to the expiration of the leave.

(b) An employee will have the right to request part time work following parental leave.

(c) WorkSafe Victoria must inform employees taking parental leave of any significant changes occurring at the workplace during the employee’s absence that may affect their employment upon return from leave.

(d) An employee will be entitled to the position which they held immediately before proceeding on parental leave. In the case of an employee transferred to a safe job pursuant to subclause 49.8, the employee will be entitled to return to the position they held immediately before such transfer.

(e) Where such position no longer exists but there are other positions available which the employee is qualified for and the duties of which she is capable of performing, she will be entitled to a position of at least the same classification and salary level and as nearly comparable as practicable in status to that of her former position.

(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. 1

[7] It can be seen that the structure of the clause is that the employee must notify her manager at least eight weeks prior to her return to work. This is a threshold matter raised by WorkSafe and it argued that Ms Hawkins did not notify her manager at least eight weeks prior to her scheduled return. As a consequence, it is submitted, a precondition to the operation of the clause is not satisfied.

[8] Maternity leave is regulated by the Agreement. The relevant provision is that an employee is entitled to up to 52 weeks which may be varied by agreement on one occasion. 2 Ms Hawkins commenced maternity leave on 5 December 2007 for a period of 12 months. It follows that Ms Hawkins was due to return from maternity leave on or around 5 December 2008. On this basis Ms Hawkins would have been required to make the application no later than 10 October 2008 to satisfy the criteria for providing eight weeks notice of her wishes to be considered for temporary or part-time employment. It is submitted by WorkSafe that the application was made on 15 October 2008, some five days beyond the time determined by the Agreement. WorkSafe submitted that as this precondition was not met then the dispute about whether or not due consideration was given to her request does not arise.

[9] The FSU submitted that to apply the eight weeks so technically would be to read the clause in a narrow way. It submitted that Ms Hawkins actually sought to return to work on 15 December and therefore her application was made 8.5 weeks prior to her proposed return to work from maternity leave. Further, it was argued that WorkSafe never raised that it did not have time to give due consideration to the request. Indeed the FSU argued that WorkSafe had taken the view that it had given consideration to the request.

[10] The characterisation of the dispute is one which arises solely under the Agreement. The Agreement displaces the award to the extent of any inconsistency. The provisions of the Agreement cover the field in relation to parental leave and the submission by WorkSafe in this regard is correct. In those circumstances the terms of the award cannot be used to add to, or subtract from, the terms of the Agreement. To use the language put forward by the FSU, the terms of the award do not inform the operation of the Agreement in circumstances where the Agreement provides an exclusive code.

[11] In relation to the period of maternity leave and when Ms Hawkins was due to return some other facts are relevant. When Ms Hawkins proposed a return on 15 December 2008, WorkSafe, for various reasons, advised her not to return to work until January 2009.

[12] The Agreement provides that the period of parental leave may be varied, unless otherwise agreed, on one occasion. I am satisfied that this action by WorkSafe constituted a variation to the period of maternity leave as comprehended by the Agreement and that her request for temporary part-time employment was made at least 8 weeks prior to her return. The language used in the agreement is “return from maternity leave” as opposed to the expected date of return which would have been 5 December 2008. Further, the timeframe in the clause is designed to enable due consideration of any request. The case presented by WorkSafe is that it gave due consideration to the request.

[13] It follows that the point taken by WorkSafe that Ms Hawkins had not complied with the Agreement in relation to notice prior to the return from maternity leave cannot be sustained. I now turn to determine whether or not WorkSafe gave due consideration to the request of Ms Hawkins.

[14] In this connection Ms Hawkins relevantly submits that:

• She had a most difficult time in conceiving her daughter who was born prematurely. WorkSafe was aware of this as well as the time she needed from work to attend to her medical practitioner.



• In her letter proposing a return to work on 15 December 2008 she suggested that she work two days a week and that those days be Monday and Tuesday. Her reason was that there was uncertainty in obtaining child care and her daughter’s grandparent could care for her on Mondays and Tuesdays. At that time she also requested that she increase her part-time hours to three days per week beginning March 2009. At this stage Ms Hawkins was not aware of the days she could be available for work.



• On 10 December 2008 she was sent a letter by her Manager, Ms V. Raina advising that from 5 January 2009 her hours would be 16 per week to be worked on Mondays and Tuesdays. Ms Hawkins advised that the salary figure in the letter was too low and asked that it be reviewed. This letter advised that it was a permanent part-time arrangement.



• On 6 January (following her return on 5 January) a further letter was forwarded which included the correct salary but all other matters remained the same. This letter also advised that the new hours constituted a permanent part-time arrangement.



• On 13 January she was advised that there was a further error in the letter in that it stipulated that the new arrangements were a permanent part-time arrangement rather than protecting her full-time employment. A template clause was shown to her which stated that the part-time status was temporary and, unless otherwise agreed, would enable a transition back to full-time employment. The transition was subject to business requirements. The reliance on business requirements caused concern to Ms Hawkins.



• On 19 February 2009 a further letter was forwarded to her setting out the part-time hours as agreed until 4 January 2010 when she was expected to return to full-time employment.



• She was reluctant to sign this letter as she considered it appropriate not to return to full-time duty until her daughter was of school age. Finally she did sign and her evidence was that “you have worn me down”.



• In September of 2009 she approached Human Resources and expressed concern about her role reverting to full-time in 2010 and asked if she could be redeployed or given a redundancy package. She was advised that a redundancy package was not available.



• In October 2009 she met with her manager and one up manager to discuss a continuation of part-time employment and was asked to submit a proposal.

[15] As to the matters which were put to WorkSafe to justify a continuation of a part-time role, Ms Hawkins put forward two options on 30 October 2009: one which enabled attendance at the office on three days of the week for 8 hours per day and one day at home working for 5 hours; and the second option was a job share arrangement. In addition, Ms Hawkins wrote a letter on 2 January 2010 where she outlined her child care arrangements in both 2009 and 2010, her daughter’s health and her husband’s availability to assist with child care. She addressed a need to have flexibility in her starting and finishing times as well as being prepared to relinquish her current role in favour of another suitable role.

[16] It is appropriate at this stage to summarise the requests made by Ms Hawkins.

• On 15 October 2008 Ms Hawkins, by email, made a request for returning part-time for 2 days per week (Monday’s and Tuesday’s) until March 2009 when she sought to increase that to three days per week. The days of the week were unknown at that stage until child care access was known.



• On 30 October 2009 Ms Hawkins put forward two options which are referred to above and the letter of January 2010 outlined a proposal for flexible working hours.

[17] WorkSafe argue that it was required to give due consideration to the request by Ms Hawkins and it did. WorkSafe draw attention to the provisions of the Agreement which set up the capacity for an employee to seek an alternative to their full-time employment upon a return from maternity leave by asking to be considered for temporary or part-time employment.

[18] It submitted that it agreed with Ms Hawkins:

(a) request to return for two days a week, 3

(b) request to move from two days per week to three days per week,  4 and

(c) that she would return to full-time duty on and from 4 January 2010. 5

[19] WorkSafe submitted that it accommodated Ms Hawkins by agreeing to her requests and by ensuring that her ability to return to full-time employment was protected by the agreements she signed. 6 In addition, during the period in which the requests were made and considered, Ms Hawkins did not seek for her part-time employment to continue until her daughter reached school age.7

[20] However, it would not agree to the subsequent request by Ms Hawkins to remain on three days each week for a period until at least her daughter reached school age because of the needs of the business. It submitted that it gave ‘due consideration’ to the request made by Ms Hawkins and went so far as to offer four days per week notwithstanding that such a work pattern might prove difficult. 8

[21] WorkSafe submitted that the only limitations when construing ‘due consideration’ should be that it:

• had not acted capaciously in dealing with the request;



• had acted reasonably in all the circumstances;



• took into account relevant considerations; and



• not take into account irrelevant considerations.

[22] Evidence was given by Ms L. Hughson who is the manager of the policy branch in the premium division, and Ms Raina who is Ms Hawkin’s direct manager. The process undertaken by WorkSafe is well summarised in its final submissions:

48 In considering the Request, and ultimately reaching her decision in November 2008, Ms Hughson states that she “made an assessment of the needs of the business and Shannon’s as a carer”. [Transcript PN1363] Specifically, Ms Hughson gave uncontested evidence of considering numerous matters in relation to the Request, including:

(a) the anticipated work load of the team [Transcript PN1335],

(b) the Applicant’s family responsibilities [Transcript PN1331],

(c) the Applicant’s personal circumstances [Transcript PN1346],

(d) the effect on the workplace [Transcript PN1347],

(e) the financial cost to WorkSafe [Transcript PN1349],

(f) opportunity costs to WorkSafe; [Transcript PN1349] and

(g) the effect on customer service [Transcript PN1357].

49 In considering the anticipated workload of the team, Ms Hughson noted that around the time of the Applicant’s anticipated return from maternity leave there were “very big pieces of work to be done in that team that we needed all hands on deck at all times to get that work completed and to deliver to the business what we were required to deliver.”

50 Ms Hughson and Ms Raina had several conversations about the Applicant’s Request [Transcript PN1321], and in discussion, had particular regard to their own experiences, and difficulties faced in returning to work from maternity leave:

We discussed that having - both being mothers ourselves with babies and children who had gone to childcare, that there is definitely a transition time and children seem to catch everything when they first go to child care and, you know, it’s a difficult transition for both a mum and a baby. So we accepted that there would be a period of time when things would be unsettled for Shannon and McKenzie so, therefore, we were agreeing to the part time request and accommodating that for a period of time to allow that transition and settling in period, but after that time - as I mentioned, we needed everybody to be working at the capacity to get all of the work completed. [Transcript PN1336]

51 Ms Raina endorsed the Request with Ms Hughson and Mr Cook and noted the difficulties in “easing into child care arrangements and managing your family life as you return to work” [Transcript PN1769].

52 The matters advanced by WorkSafe in consideration of the Request as described in paragraphs 48 to 52 were not challenged by the Applicant.

53 After giving due consideration to the Request, Ms Hughson decided in November 2008 that WorkSafe would agree to accommodate the Applicant’s Request. Accordingly, the Applicant’s Request was successful, in that:

(a) WorkSafe permitted the Applicant to return to work two days per week initially, increasing to three days per week in March 2009; and

(b) despite some initial concerns expressed by Ms Raina regarding workload and supervision issues, WorkSafe agreed to accommodate the Applicant’s request to return to work on 15 December 2008. [Transcript PN523-PN535]

54 WorkSafe has complied with its obligations to consider the Request under clause 34 of the WorkSafe EBA, and ultimately granted the Applicant’s Request. [Transcript PN537]

CONSIDERATION OF THE ISSUES

The Part-Time dispute

[23] To begin I note that this matter is being considered under the clause of the Agreement relating to temporary or part-time employment as an alternative to Ms Hawkins full-time position. There has been no request made pursuant to Division 4 of the National Employment Standards (NES) contained in the Act.

[24] The other matter which I consider to be relevant arises from a question put to Ms Hughson:

THE COMMISSIONER: Can I just ask a question about structure?---Yes.

You’re in the premium division?---Yes.

There are other divisions?---Yes.

Is there movement between divisions of staff that have generic skills?---Yes, there can be and, again, it's usually a competitive process where a role is advertised and staff across the organisation are able to apply for those roles.

There’s no ad hoc backfilling of jobs between divisions?---Not that I'm aware of. There maybe some from time to time.

Each division a cost centre?---Yes. And each branch within divisions has a cost centre as well.

Thank you. 9

[25] This question followed an earlier question from the FSU.

And you agreed with me that WorkSafe is a very large organisation. Did you think that Shannon has unique skills that she utilised in her role?---No. 10

[26] It is apparent that considerable discussion took place within the business line that Ms Hawkins works. If that was the test then I would be satisfied that WorkSafe had given due consideration to the request made by Ms Hawkins. In addition, there had been considerable discussion and further examination of the circumstances since the matter came to the Tribunal. Again, this is a factor which weighs in favour of WorkSafe. Opportunities have been genuinely explored and I cannot conclude that either Ms Hughson or Ms Raina did not give due consideration to the request made by Ms Hawkins.

[27] However, it appears to me that the test is whether or not the employer, WorkSafe, has given due consideration to the request of Ms Hawkins not a particular business line or unit. The Agreement defines the scope and parties bound as:

4 Scope and parties bound

4.1 This Agreement is made between WorkSafe Victoria and the Unions.

4.2 This Agreement applies to and is binding on WorkSafe Victoria, the Unions and employees who are, or are eligible to be, members of the Union.

4.3 Employees employed under a GSERP Contract with WorkSafe Victoria are excluded from the operation of all provisions of this Agreement and the Award.

[28] The Unions are defined as the CPSU, the Community and Public Sector Union and the FSU and WorkSafe Victoria means the Victorian WorkCover Authority.

[29] It follows that the duty cast by the agreement to give due consideration to the request of Ms Hawkins is one for the employer, WorkSafe and not a particular business line or unit. This was raised by the FSU but more in the context of cost rather than the duty cast upon the employer.

[30] The responses to the questions made it clear that the employer as a whole appears not to have given due consideration to the request of Ms Hawkins. It was made clear that she could have applied for position in another business line but that would be on the basis of open competition and merit selection. This approach is not consistent with an employer considering whether or not it can accommodate a request from an employee returning from maternity leave. The requirement for due consideration rests with the employer, and not by advising the employee that they can apply for positions in open competition to see if they are selected. Further, the consideration which is given to the request will probably be by someone who has the authority to make decisions on behalf of the employer and not just the business line. Business line managers are equals and have responsibilities only for their part of the business.

[31] Lest there be any confusion about this issue I make it clear that the internal financial arrangements which employers construct is, of course, a matter for them and I don’t seek to suggest that it is not. 11 But the obligation to give due consideration does not rest with the business line it rests with the employer. There is no evidence to suggest that the employer, as a whole, gave due consideration to the request of Ms Hawkins, indeed the reverse appears to be the case, and that due consideration was only given in relation to a particular aspect of the business of the employer.

[32] I am fortified in this approach by the observations of Gay C, in the context of an employer’s duty to consider rehabilitation and redeployment; he considered the implications of an employer looking only to a cost centre:

“The practical difficulties negatively influencing rehabilitation or redeployment which derive from an enterprise’s own cost-centre budgeting arrangements, such as were described in this case, where a department or section may not for its own ‘cost-centre’ reasons wish to be host to a worker from another department or section, will be likely to require close review. It might be thought that such inter-departmental budgetary disinclinations for rehabilitation or redeployment will not readily compensate for the employer's obligation to take all reasonable steps to accommodate an employee pursuant to a rehabilitation programme, particularly where the employee has utilisable skills and evinces a real desire to get back to work. Such budgetary reasons deriving from sectional or departmental interests were given in the present case by Mr Gulia as a contributing factor as to why the relevant officers of the respondent were not disposed to consider the opportunity for redeployment for Ms Hecker whether as part of a return to work regime or otherwise. It is my view that failure to actively consider redeployment for a compensably injured employee with substantial service can be a relevant s.170CG(3)(e) consideration.” 12

[33] Given that this issue was not addressed by either party fully I shall provide a period of 7 days for submissions to be lodged by WorkSafe and a further 7 days for the FSU before I make any final findings on this aspect.

The allegations of bullying

[34] Given my conclusion on this aspect of the case I do not consider it appropriate to deal with the detail of the matter lest it be thought that my summary created an impression one way or the other. This is a matter where I agree with the submission of WorkSafe where it stated:

“First, the applicant has not utilised any procedure available to her in the workplace to agitate the issues about which she now complains: bullying policy, discrimination policy. Hasn’t utilised them. They all go to questions of our systems and our obligations and our acknowledgment that the employees are entitled to a working environment, so far as is reasonable and practical, without risk to health and safety. That's the substance of what we agreed to in the agreement.

We have systems in place. The applicant hasn't used them. How can there be a dispute about those systems when they haven't been tested? There is no refusal to investigate any complaint because no complaint has been made. There is no refusal to deal with any matter concerning occupational health and safety because no complaint has been made.

It is still open to the applicant to utilise those procedures. If we refuse to deal with them in accordance with procedures, then perhaps we'll have a dispute, but there must fundamentally be a dispute.” 13

CONCLUSION

[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.

COMMISSIONER

Appearances:

G. McConville for the applicant.

V. Gostencnik, solicitor, on behalf of the Victorian WorkCover Authority trading as WorkSafe.

Hearing details:

2011.

Melbourne:

March, 11;

May, 9, 10; 17 and 24.

 1   Clause 49.9 of EBA 2012

 2   Clause 49.6

 3   See Exhibit FSU4—Annexure SHO1 and Exhibit FSU4—Annexure SHO3, 4, 5 and 6

 4   Ibid

 5   See Exhibit FSU4—Annexure SHO10

 6   See Exhibit FSU4—Annexure SHO8 and 9

 7   See for example transcript PN632

 8   See transcript PN697

 9   Transcript PN1274 -1281. An edit has taken place. The transcript refers to a “cross centre” where what was said was a “cost centre”

 10   Transcript PN1263

 11   See Telstra v CEPU [2007] AIRCFB 374 at paragraph 50

 12   Per Gay C Print S6627 at paragraph 58

 13   Transcript PN2964-2966

Printed by authority of the Commonwealth Government Printer

<Price code C,  PR512567>