New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union v Essential Energy

[2013] FWC 675

[2013] FWC 675

FAIR WORK COMMISSION

DECISION

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

New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union
v
Essential Energy
(C2013/9)

Electrical power industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 18 FEBRUARY 2013

Jurisdiction to deal with a dispute.

[1] On 2 January 2013 the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Services Union (USU/ASU) applied for the Fair Work Commission to deal with a dispute in accordance with the dispute settlement procedure (DSP) in the Essential Energy Enterprise Agreement 2011 (the enterprise agreement). The dispute was said to be about the failure of Essential Energy to consult adequately concerning a restructure of administrative roles.

[2] A hearing was conducted on 24 January 2013 and a decision issued ex tempore. This is an expanded version of that decision.

Background

[3] The DSP in the enterprise agreement is set out at clause 1.15:

‘1.15 DISPUTE & GRIEVANCE RESOLUTION PROCEDURE

Where an employee has a grievance or dispute concerning a matter pertaining to the employment relationship, they will complete a Grievance Form and the following steps will be taken:

Step 1

The Grievance Form shall first be discussed with their immediate manager/team leader who will make the necessary enquires, forward the Grievance Form to the Regional HR adviser for recording and assistance if required, and give the employee or employees a response. Every effort will be made to give the employee or employees a response within two (2) working days.

Step 2

Should the grievance or dispute remain unresolved, the employee or employees should request the Regional HR adviser to forward the Grievance Form and any further details to the Regional or Business Unit Manager who will arrange a meeting within ten (10) working days with the relevant people to discuss the matter with a view to resolving the grievance or dispute.

Step 3

If the grievance or dispute is still unresolved, the General Manager Workplace Relations (or his/her nominee) and the appropriate Union Official or their respective nominees shall be notified and a conference arranged to examine and resolve the matter.

Step 4

If the grievance or dispute is not settled by the conference, Essential Energy and the Union may refer the matter to an agreed mediator for a mediation conference which shall be attended by the employee with their Union representative and a person with appropriate authority from Essential Energy. The costs of the mediation shall be met by Essential Energy.

a) The mediation conference is not to be conducted in a legalistic fashion and shall be approached by all concerned to bring about an agreed solution. The mediator will not make decisions or impose a solution on the parties unless requested to do so, in writing, by both parties.

b) If a settlement is reached, the terms of the settlement must be written down and signed by both parties and the mediator before the mediation conference is terminated.

c) Either party may terminate the mediation conference, in writing, at any time prior to any agreed settlement being reached.

d) An agreed settlement shall be binding on the parties and enforceable.

Step 5

If the grievance or dispute still remains unresolved, either party has the right to have the matter referred to Fair Work Australia for conciliation and/or arbitration with the rights of the parties to appeal being reserved.

Notwithstanding the above, the parties may agree that the matter may be referred to the President of the Industrial Relations Commission of New South Wales for resolution by conciliation and/or arbitration in accordance with Section 740 of the Act. In the absence of such agreement, the dispute will be dealt with by Fair Work Australia. Such agreement will not be unreasonably withheld by either party.

During the grievance and dispute resolution procedure, the normal work situation that existed prior to the grievance or dispute arising shall be maintained and no party shall be prejudiced.

This procedure will not prevent Essential Energy or the Union from making direct representations to one another on any matter giving rise to or likely to give rise to a grievance or dispute.’

[4] On 21 November 2012 Mr G Kelly, USU/ASU Branch Secretary, wrote to Mr G Humphreys, the Chief Operating Officer of Essential Energy raising concerns with regard to what he described as the absence of meaningful consultation in relation to a restructure of administrative positions. He also referred to a specific concern that personal assistants would be able “to apply for newly titled executive assistants even though they are not affected by the level 3 restructure (with the exception of a few.)” He alleged that Essential Energy was in breach of its consultation obligations under the enterprise agreement regarding the restructure. The letter included the following:

‘The USU/ASU formally notifies Essential Energy that we are in dispute with regard to all components of this matter and expect status quo is maintained with all areas of the proposed changes whilst we work through the many and various concerns we have with your proposal.’

[5] Mr Humphreys replied to Mr Kelly the same day, inter alia, rejecting the assertion that the parties were “in dispute” in accordance with the enterprise agreement “or any notion that the status quo must be maintained.” Mr Humphreys referred to an earlier letter of 11 October 2012. In that letter, Mr P Smith, Group General Manager Workplace Relations, had written to Mr Kelly assuring him that Essential Energy had not sought to change the interpretation and application of the DSP set out in the enterprise agreement. He pointed out that clause 1.15 required a dispute or grievance concerning a matter pertaining to the employment relationship be raised by an employee completing a Grievance Form. He stated that the DSP did not, in their view, prevent the union assisting an employee to complete a Grievance Form and then notifying the employer of the dispute or grievance on behalf of the employee.

[6] On 11 December 2012, Ms Chrissy Brown filed a Grievance Report Form. Under the heading “Person/s Involved:” Ms Brown wrote “Various”. She described the “grievance/issue” in the following terms:

‘The grievance relates to the restructure of the level 3 executive assistants and the inadequate consultation with our representatives the ASU/USU. A variety of issues then exist as a consequence of that which I understand the ASU/USU has written to you and has identified some of those concerns.

I believe that Essential Energy has breached the consultation clause of the Enterprise Agreement.’

[7] Under the heading “Actions that you have taken to resolve the grievance/issue:” Ms Brown wrote:

“I have requested the ASU/USU to pursue the grievance with the organisation.

I understand those representations have commenced as per the letter identified above.”

[8] Under the heading “What outcome are you seeking?” Ms Brown wrote:

“Status quo whilst consultation occur (sic) with regard to the issues outlined in the ASU/USU correspondence to Essential Energy until the matter is resolved.”

[9] On 13 December 2012, Mr Smith responded to Ms Brown:

‘I refer to your Grievance Form dated 11 December 2012. The Dispute & Grievance Resolution Procedure (Grievance Procedure) is set out in clause 1.15 of the Essential Energy Enterprise Agreement 2011. A copy of which is enclosed for your information. The Grievance Procedure applies to grievances or disputes concerning matters pertaining to the employment relationship between Essential Energy and an employee.

Based on the information contained in your Grievance Form the grievance you have described does not pertain to your employment relationship with Essential Energy. The proposed restructure that you have described does not affect you in your role nor does it affect the terms and conditions of your employment with Essential Energy.

As your grievance does not fall within the scope of the Grievance Procedure, Essential Energy does not intend to take any further steps in relation to the matters described in your Grievance Form. However, before making a final determination on this matter I would like to provide you with the opportunity to put forward any additional matters that you would like us to consider before close of business on Thursday, 20 December 2012. If I do not receive any further response from you within that period Essential Energy will consider this matter to be finalised.”

[10] As previously noted, the ASU filed an application to the Commission on 2 January 2013. Under the heading of “relief sought” the ASU indicated that it was seeking the assistance of the Commission to ensure compliance with the enterprise agreement, to ensure effective consultation occurred, to ensure the status quo was maintained whilst the dispute was worked through, and the establishment of a consultative committee pursuant to clause 1.14.

The Hearing

[11] The ASU/USU was represented at the hearing on 24 January 2013 by Mr S McNamara and Ms N Falvey. Essential Energy was represented by Mr M Tooma. Prior to the hearing Essential Energy indicated that it intended to raise a jurisdictional objection to the application. The hearing was solely concerned with the jurisdictional issue.

[12] Essential Energy submitted during the hearing that the DSP is expressly limited to circumstances where an employee has a “grievance or dispute concerning a matter pertaining to the employment relationship.” In its view, the subject matter of the alleged dispute, as outlined in the application did not concern a grievance or dispute concerning a matter pertaining to the employment relationship between the employee who lodged the Grievance Form (or on whose behalf the form was lodged) and the respondent.

[13] Mr Tooma indicated that Ms Brown (who is a union delegate) is employed as a credit officer. He submitted that she was neither directly affected by the proposed restructure nor representing someone who was directly affected. Essential Energy would have no difficulty if the union lodged a grievance that identified the particular employee who was affected, named them and indicated the basis of the grievance. In such a situation it would simply be a case of the union providing representation in relation to that particular person.

[14] Mr Tooma submitted that under the DSP ‘the relevant employee or the person who is making the application on their behalf has to have a grievance or dispute pertaining to the employment relationship. In other words, the dispute has to be something that impacts on the actual employee or the person who is making that application is agitating something on behalf of the person they’re representing.’ Where an employee has a concern about a policy decision that does not affect them it would not be ‘pertaining to their employment relationship. It’s not a matter that is affecting them in any way and therefore it cannot be a grievance or a dispute in the proper sense of that word in the context of what is a dispute and grievance procedure.’

[15] Mr Tooma argued the structure of the enterprise agreement created a distinction between matters that should be dealt with through the DSP and policy issues, which are dealt with through consultation mechanisms. He pointed, for example, to clause 1.14.1(b) of the enterprise agreement, which provides:

‘The Consultative Committee shall not be utilised in respect of matters which are being or should be processed in accordance with Clause 1.15 (Dispute and Grievance Resolution Procedure) and will focus on policy and procedure, rather than individual grievances....’

[16] Mr Tooma rejected the proposition that the DSP could be used in relation to a dispute about policy matters such as whether a consultative committee (as provided for in the enterprise agreement) should be established. If there was a dispute about whether the enterprise agreement had been breached in relation to such an issue, this would need to be dealt with in another forum. The DSP was only designed to deal with individual grievances.

[17] Mr Tooma pointed to the various steps in the DSP and submitted that it was clear that those provisions were designed to deal with individual grievances.

Consideration and Conclusion

[18] The key question for consideration is whether the Grievance Form completed by Ms Brown is sufficient to trigger the process set out in the DSP contained in the enterprise agreement. I am satisfied that it is.

[19] To trigger the DSP the person completing the form has to be an employee of Essential Energy (or a bona fide representativeof such an employee). Ms Brown is an employee of Essential Energy (and as a delegate also plays a role in representing other Essential Energy employees).

[20] For a matter of concern to come within the scope of the DSP it must “pertain to the employment relationship”. This is quite a common formulation in DSPs and is clearly designed to distinguish the scope of the DSP from one that only concerns disputes or grievances that arise under the terms of the agreement itself (or the NES).

[21] The term “matters pertaining to the employment relationship” has a long pedigree in Australian workplace relations. There is substantial jurisprudence about what the term means. Examples of matters that would not pertain to the employment relationship would be a concern that the employer contribute to a particular charity or political cause or that it only buy Australian products. A grievance with Essential Energy about an employee’s power bill would also fall outside the scope of the DSP as it would not pertain to the employment relationship.

[22] On the other hand policy issues such as consultation with employees, or how employees are dealt with in the context of an organisational restructure, clearly pertain to the employment relationship.

[23] The thrust of Essential Energy’s position is in effect to read the reference in the DSP to “the employment relationship” as being “to their employment relationship”. In other words, the only kinds of disputes or grievances that could be dealt with under the DSP would be those that directly concerned the relationship between that employee and the employer, rather than broader issues of concern that pertain to the employment relationship. However this is not what the enterprise agreement actually says. Indeed if it had been restricted in this way it is arguable that it would fall foul of the Act.

[24] Under s.186(6) of the Fair Work Act 2009 (the Act) an enterprise agreement cannot be approved unless it contains a term:

‘a) that provides a procedure that requires or allows FWA, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.’ (emphasis added.)

[25] The effect of Essential Energy’s interpretation of the DSP - according to Mr Tooma’s submission - is that some kinds of disputes about ‘matters arising under the agreement’ (for example ‘policy issues’ about the proper application of the provisions in the agreement concerning consultation) could not be dealt with through the DSP. If that interpretation were correct the enterprise agreement would not meet the requirements of s.186 (6) of the Act.

[26] Finally, I note that while I have found that the form competed by Ms Brown triggered the DSP, the Commission is only empowered to deal with the dispute once all the provisions in steps one to three (and where applicable, step four) have been completed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr S McNamara and Ms N Falvey for the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union.

Mr M Tooma for Essential Energy.

Mr A McKinnon for the Communications, Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Hearing details:

Sydney

2013

24 January

Printed by authority of the Commonwealth Government Printer

<Price code C, AE889157  PR533636>