Peter McAndrew v Department of Human Services
[2018] FWC 1504
•14 MARCH 2018
| [2018] FWC 1504 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Peter McAndrew
v
Department of Human Services
(C2017/6001)
| Deputy President Kovacic | CANBERRA, 14 MARCH 2018 |
Application to deal with dispute under the Department of Human Services Enterprise Agreement 2011-2014 – jurisdictional objection: dispute does not relate to a matter under either the Agreement or the National Employment Standards – jurisdictional objection upheld – application dismissed.
On 1 November 2017 Mr Peter McAndrew (the Applicant) lodged an application under s.739 of the Fair Work Act 2009 (the Act) and in accordance with the Dispute Resolution Procedure of the Department of Human Services Enterprise Agreement 2011-2014[1] (the 2011 Agreement). In his application Mr McAndrew raised a number of concerns regarding the approach adopted by the Commonwealth of Australia as represented by the Department of Human Services (DHS – the Respondent) in developing a number of side documents which support the operation of the Department of Human Services Enterprise Agreement 2017-2020[2] (the 2017 Agreement). The documents include policies on rostering and broadbanding and an agreed protocol document.
By way of background, the 2017 Agreement was approved by the Fair Work Commission (the Commission) on 26 October 2017 and commenced operation on 2 November 2017, i.e. the day after Mr McAndrew lodged his application with the Commission.
The Commission convened a conference on 13 November 2017 to deal with Mr McAndrew’s application. In advance of that conference DHS forwarded to the Commission a summary of its position and a copy of the documents which it understood Mr McAndrew was referring to in his application. In short, DHS contended that Mr McAndrew had incorrectly raised his dispute under the 2011 Agreement as the documents were given effect by terms of the 2017 Agreement and that as such the Commission did not have jurisdiction to deal with the dispute. DHS further contended that it had no obligation to negotiate or agree on the terms of the documents with its employees and that it had not breached the clauses relating to freedom of association under either the 2011 or 2017 Agreements.
That conference did not resolve the matter and concluded with the Commission requesting that DHS provide to both it and Mr McAndrew any material evidencing that the rostering and broadbanding policies had been posted on the Department’s intranet and that employees were given an opportunity to comment on the material and any record of the discussions held with bargaining representatives on 31 July 2017 concerning those policies. DHS provided the requested material on 16 November 2017.
In subsequent developments, Mr McAndrew advised the Commission on 17 November 2017 that he wished to press his application.
The matter was listed for mention and directions on 14 December 2017 regarding DHS’s jurisdictional objection. At that hearing both parties indicated that they were amenable to the jurisdictional objection being determined on the papers.
For the reasons set out below, I find that the dispute does not relate to a matter under either the 2011 Agreement or the National Employment Standards (NES) and that as a result the Commission is not empowered by clause A8.1 of the 2011 Agreement to deal with the matter. The application will therefore be dismissed.
The Applicant’s case
Mr McAndrew submitted that the dispute related to DHS’s behaviour during the development and agreement of documents relating to what was at that time a proposed agreement. Mr McAndrew in his submissions cited the following documents – National Consultative Committee Terms of Reference, Rostering Policy, Broadband Advancement Policy and Agreed Protocol (together referred to as the Documents) – as being the subject of the dispute.
More specifically, Mr McAndrew submitted that:
· with respect to the Rostering Policy, DHS was obligated to consult employees on the development of and garner their agreement to that Policy under clause F8.2 of the 2011 Agreement;
· the Documents define workplace entitlements and therefore constitute a workplace matter;
· as a result DHS was obligated under the 2011 Agreement to respect employees’ rights to decide whether or not to be represented by the CPSU with respect to the Documents;
· at no point in the process of developing the Documents did DHS ask employees to nominate representatives in respect of the development of or agreement to any of the Documents;
· as such the rights of employees to freely decide whether or not to be represented by the CPSU had not been respected; and
· as the dispute related to DHS’s adherence to the 2011 Agreement it was a matter under that Agreement, adding that the Commission was specifically authorised under clause A8 of that Agreement to deal with the dispute.
The Respondent’s case
DHS submitted that the Commission did not have jurisdiction to deal with the dispute for the following reasons:
· ss. 595, 738 and 739 of the Act limit the power of the Commission to deal with a dispute under a dispute settlement procedure in an enterprise agreement to the manner authorised by the procedure;
· the dispute settlement procedure in clause A8 of the 2011 Agreement set out the procedure to be applied when seeking to resolve disputes relating to a matter under that agreement or a matter under the NES;
· the terms of clause A8 of the 2011 Agreement limited the Commission’s powers to dealing with disputes that may be characterised as relating to a matter under the 2011 Agreement or a matter under the NES;
· the dispute did not relate to a matter under the 2011 Agreement or under the NES;
· each of the Documents referred to by Mr McAndrew were created either as anticipated by clauses of the 2017 Agreement or in support of that Agreement; and
· it did not have any obligations in relation to the Documents under the 2011 Agreement, including but not limited to any obligations under the freedom of association clause of that Agreement, adding that any obligations on its part with respect to the Documents arose under the 2017 Agreement.
As such, DHS submitted that the Commission did not have the power to deal with the dispute and that it should therefore dismiss Mr McAndrew’s application.
The Relevant Provisions of the 2011 Agreement
The relevant provisions of the 2011 Agreement are set out below.
“A8 DISPUTE RESOLUTION PROCEDURE
Application
A8.1If a dispute relates to a matter under this Agreement, or a matter under the National Employment Standards, the parties to the dispute must first attempt to resolve the matter at the workplace level by discussions between the employee or employees concerned and the relevant supervisor or manager.
…
A8.5If discussions at the workplace level do not resolve the dispute in accordance with subclause is A8.1 to A 8.3, a party to the dispute may refer the dispute to Fair Work Australia.
A8.6 Fair Work Australia may deal with the dispute in two stages:
(a) Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) if Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.
Note: If Fair Work Australia arbitrates the dispute, it may also use the powers available to it under the Fair Work Act 2009. A decision that Fair Work Australia makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Fair Work Act 2009. Therefore, an appeal may be made against the decision.
F8 ROSTERS
…
F8.2The Department will, in consultation with employees and their representatives, develop and agree a policy for rostering. This policy will include mechanisms to balance flexibility and certainty for employees including adequate breaks.
SCHEDULE 6 – DELEGATES’ FACILITIES
3.0 FREEDOM OF ASSOCIATION
3.1Human Services Portfolio Agencies respect the principles of freedom of association and recognise that it is every employee’s right to freely decide whether or not to join and be represented by the CPSU on workplace matters.
3.2Where employees elect to be represented by the CPSU on workplace matters, this will be respected by the Human Services Portfolio Agencies.
3.3Employees have the right to seek advice and assistance, and to have fair and reasonable access to their workplace delegate. Human Services Portfolio Agencies and the CPSU recognise that an individual’s choice to be represented must be respected. Employees also have the right to seek advice and assistance from other persons as nominated by the employee.”
Statutory framework
The key provisions of the Act which set out the jurisdiction of the Commission to deal with a dispute pursuant to dispute settlement procedures in enterprise agreements are found in ss. 595 and 739 of the Act. Those sections are set out below.
“595 FWC’s power to deal with disputes
(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).
(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.
739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
Consideration of the issues
As observed by the Full Bench in The Australian Workers’ Union v MC Labour Services Pty Ltd[3]:
“[25] Section 739 makes clear that the Commission’s function (if any) in dealing with a dispute referred to it under an enterprise agreement depends on the terms of that agreement, and that the parties to the agreement may structure or limit the role of the Commission (or other person).”
In this case the Dispute Resolution Procedure at clause A8 of the 2011 Agreement is only enlivened in respect of disputes that relate “to a matter under this Agreement, or a matter under the National Employment Standards”, with clause A8.5 of the Agreement providing for a party to the dispute to refer the dispute to the Commission in circumstances where discussions at the workplace level do not resolve the dispute. Where this occurs, the Commission may deal with the dispute in accordance with clause A8.6 of the Agreement.
Against that background, the threshold issue to be determined in this matter is whether the issues raised by Mr McAndrew relate “to a matter under this Agreement, or a matter under the National Employment Standards” as required by clause A8.1 of the 2011 Agreement.
In considering that issue, a useful starting point is to consider what, if anything the Documents cited by Mr McAndrew say in terms of the basis on which they have been developed. Set out below are the relevant clauses/paragraphs from each of the Documents.
“National Consultative Committee Terms of Reference
1. The Role of the NCC
… These terms of reference are agreed by the NCC in accordance with clause A9.4 of the Enterprise Agreement (the Agreement)…”[4]
“Department of Human Services People Policy – Rostering
…
Who is covered by this policy?This policy applies to non-SES employees covered by section F8 of the Department of Human Services Agreement 2017-2020 (the Agreement).
This policy is an agreed policy under the terms of the agreement made in accordance with clause F8.25 …”[5]
“Department of Human Services People Policy – Broadband Advancement Policy
…
3. Who is covered by this policy?
…
3.2 This policy applies to all employees covered by the Department of Human Services Agreement 2017-2020...”[6]“Agreed Protocol
This protocol sets out certain details supporting the implementation and application of particular terms of the Department of Human Services (the department) Enterprise Agreement 2017-2020 (the Agreement). Whilst this protocol is intended to support the interpretation, implementation and application of the Agreement, it does not form part of the terms of the Agreement. This protocol provides the department’s statement of intent at the time of negotiating the Agreement and it will not be changed during the life of this Agreement
Clarification of terms in Agreement clauses
This section of the protocol sets out the department’s interpretation of specific terms in the Agreement to assist its employees to understand their intended meaning.”[7] (Underlining added)
With regard to the National Consultative Committee Terms of Reference, I note that the 2011 Agreement does not include a clause A9.4 which is referred to in the above extract. However, the 2017 Agreement does include such a clause. That clause in the 2017 Agreement provides that “The NCC will maintain agreed Terms of Reference. Changes to the Terms of Reference can only be agreed at the NCC. For the avoidance of doubt, the Terms of Reference is a policy for the purposes of subclause A4.2 and does not form part of this Agreement.”
What is clear from the above extracts is that the Documents each relate to the 2017 Agreement and that none of the Documents relate to the 2011 Agreement, i.e. the extracts do not point to the Documents relating to a matter arising from the 2011 Agreement. Further, none of the documents relate to a matter under the NES.
While I note Mr McAndrew’s submission that clause F8.2 of the 2011 Agreement committed DHS to developing and agreeing a policy on rostering in consultation with employees and their representatives, the above extract from the Rostering Policy makes it clear that the Policy was developed in accordance with clause F8.25 of the 2017 Agreement as opposed to clause F8.2 of the 2011 Agreement. Clause F8.25 of the 2017 Agreement provides that “The provisions outlined in this clause F8 will be supported by an agreed rostering policy.” Against that background, I would observe that in circumstances where the 2011 Agreement has been replaced there would appear to be little if any practical utility in seeking to enforce a commitment to develop a rostering policy in accordance with the now superseded clause F8.2 of the 2011 Agreement.
Beyond this, I note that:
· Mr McAndrew’s submissions which characterise the dispute as relating to DHS’s behaviour during the development and agreement of documents relating to what was at that time a proposed agreement acknowledge that the Documents relate to the 2017 Agreement;
· based on the material provided by DHS to Mr McAndrew and the Commission on 16 November 2017, both the Rostering and Broadband Advancement policies were referred to in the Enterprise Agreement Bargaining Meeting of 31 July 2017 (Mr McAndrew did not attend that meeting);
· clauses A7.15-A7.17 of the 2011 Agreement which deal with consultative committees do not make any reference to Terms of Reference for those committees; and
· as noted above, the Agreed Protocol document “provides the department’s statement of intent” in respect of the 2017 Agreement and “sets out the Department’s interpretation of specific terms in the Agreement” – in other words, it does not appear to have been a negotiated document.
The above analysis does not support a finding that the dispute before the Commission relates to a matter under the 2011 Agreement or a matter under the NES.
Conclusion
For the reasons outlined above, I find that the dispute does not relate to a matter under either the 2011 Agreement or the NES and that as a result the Commission is not empowered by clause A8.1 of the 2011 Agreement to deal with the dispute. DHS’s jurisdictional objection is therefore upheld and the application will be dismissed. An Order to that effect will be issued in conjunction with this decision.
[1] AE890392
[2] AE425884
[3] [2017] FWCFB 5032
[4] Summary of Respondent’s Position (13 November 2017) at Attachment A
[5] Ibid at Attachment B
[6] Ibid at Attachment C
[7] Ibid at Attachment D
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