Ms Vicki Molloy v RMIT University

[2015] FWC 2944

[2015] FWC 2944

FAIR WORK COMMISSION

DECISION

Workplace Relations Act 1996
s.709—Application to FWC to have a dispute resolution process conducted (Div 5)

Ms Vicki Molloy
v
RMIT University
(DR2015/24)

Educational services
DEPUTY PRESIDENT SMITH	MELBOURNE, 1 MAY 2015

Alleged dispute regarding the process that relates to allegations of bullying.

[1] By notification dated 26 February 2015, Ms Vicki Molloy made application to the Commission to deal with a dispute in accordance with a dispute settlement procedure under the Victorian TAFE Teaching Staff Multi-Business Agreement 2009 [AC323525] (The Agreement).

[2] Ms Molloy’s concerns arose as a result of allegations of bullying made by other staff members against her and, in her view, the failure of RMIT to properly implement the staff complaints procedure.

[3] In the notification, it is said that the relief sought is “conciliation in the first instance regarding an orderly framework for the investigation of any genuine employee complaints and considered approach thereafter to any further conduct related actions. RMIT observed its own procedures and those set out in the enterprise agreement. A withdrawal of suspension”.

[4] Without prejudice to any argument which might be raised by either party, conciliation was conducted. Regrettably this failed and Ms Molloy pressed the Commission to hear and determine the matter. The parties agreed that jurisdictional arguments would be presented and that the Commission could decide the matter on the papers. It is a short point which permits this approach.

[5] RMIT raised, as it had foreshadowed, a jurisdictional impediment to the Commission determining the dispute. It was argued that the Commission only derived its power to resolve disputes through arbitration by the terms of the dispute settlement procedure contained in the Agreement. Clause 10 of the Agreement is the dispute settlement procedure and clause 10.11 provides:

“The procedures outlined above do not apply to a bone fide health and safety issue”.

[6] RMIT argued that the subject matter of Ms Molloy’s complaint was in relation to the RMIT’s investigation into a bullying complaint and this was a bona fide health and safety issue. As such, the Commission lacked the jurisdiction to deal with the matter under the dispute settlement procedure.

[7] Ms Molloy argues:

● that RMIT misconstrued the scope and effect of clause 10, as clause 10.11 does not deny jurisdiction to deal with the bona fide health and safety dispute, but rather, relieves the parties from the procedure outlined in clause 10.

● In the alternative, RMIT wrongly characterises the dispute in that the applicant doesn’t seek the Commission to deal with the health and safety issue but rather, the process for investigating that issue.

● Finally and again in the alternative, RMIT wrongly characterises the health and safety issue as a bone fide health and safety issue.

[8] It is appropriate to examine each of these matters. To begin, it is important to note that the jurisdiction of the Commission is drawn from the agreement of the parties. The Commission has no independent or original jurisdiction in these matters. So much was decided in Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission (and another) [(2001) HCA 16](the Private Arbitration Case).

[9] The dispute settlement clause importantly provides:

10.1 A dispute or grievance arises where an employee on the one hand or the employer on the other are aggrieved by a decision or action, or a failure to make a decision or act in relation to matters that arise out of, or are reasonably incidental to, matters covered by this Agreement.

[10] That is the scope of the power conferred by the parties on the Commission. It also needs to be said at this stage that the Fair Work Act 2009 (the Act) is in different terms from s.170LW of the Workplace Relations Act 1996 (the WR Act). The WR Act contained an examination of a matter arising from the provisions of the Agreement. There was no scope to examine matters not specifically covered by the Agreement. The Act requires parties to have a dispute settlement provision to settle disputes “about any matters arising under the agreement”. 1 This is in contradistinction to disputes “over the application”.2 Therefore in the present matter, the power given to the Commission is in relation to “matters that arise out of, or are reasonably incidental to, matters covered by this Agreement”. Of course sight must not be lost of s.739(5) of the Act which limits power.

[11] I propose to deal firstly with the characterisation of the dispute. This is a critical element of any matter which comes before the Commission under a dispute settlement clause. What is the matter over which Ms Molloy seeks relief? Ms Molloy does not seek that the Commission deal with the allegation of bullying or take any decision in relation to the alleged bullying. Ms Molloy seeks to agitate the “failure of RMIT to properly implement the staff complaints procedure”. Therefore the question is whether or not that matter is “a decision or act in relation to matters that arise out of, or are reasonably incidental to, matters covered by this Agreement”.

[12] In her notification of dispute Ms Molloy relies on Clause 8 “Commitment”. The clause provides:

8.2 Industrial relations principles

The parties commit themselves to the following industrial relations principles:

8.2.1. cooperative and consultative relationships between management, their Employees and the representative organisations of their choice;

8.2.2. management, Employee and union relationships based on mutual respect, trust and preparedness to consider alternative viewpoints;

8.2.3. collective negotiations between management and their Employees, involving a mutual problem solving approach focusing on long term gains for all parties;

8.2.4. to work within a progressive industrial relations culture to achieve high performance TAFE institutes with effective workplace partnerships;

8.2.5. recognition of an appropriate role for workplace representatives.

[13] In relation to this RMIT stated:

On face value a failure to follow its own staff complaints procedure or to provide procedural fairness when dealing with the allegations may amount to a possible breach of clause 8.2 of the Agreement and so would fall within the coverage of clause 10.1 of the dispute resolution procedure. 3

[14] The matter in dispute is not a bona fide safety issue. The matter in dispute is the adherence or otherwise of the staff complaints procedure. The matter is an issue, controversy or topic. 4 Properly characterised, the matter is not whether or not bullying occurred, but if the staff complaints procedure was followed. I express no view on that matter but simply find, with some hesitation around clause 8, that the Commission does have jurisdiction to deal with the matter which is raised under the disputes procedure. That matter will be subsequently listed for hearing.

[15] Given this conclusion, it is unnecessary to deal with the other arguments raised by Ms Molloy.

DEPUTY PRESIDENT

Appearances:

D. Macken Solicitor for the applicant.

A Shepherd on behalf of RMIT University.

Hearing details:

2015.

Melbourne:

March, 30.

Further written submissions

D. Macken, 10 April 2015.

A. Shepherd, 30 April 2015.

D. Macken, 30 April 2015.

 1 S.186(6)(a)(i) of the WR Act.

 2 S.170LW(a) of the Act.

 3   Written submission dated 1 April 2015.

 4 Sensis Pty Ltd v. members of the Full Bench of the Industrial Relations Commission [2005] FCAFC 74; 12 May 2005.

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