Prem Thirunavukarasu v William Angliss Institute

[2020] FWC 1144

[2020] FWC 1144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Prem Thirunavukarasu
v
William Angliss Institute
(C2019/6402)

DEPUTY PRESIDENT MASSON MELBOURNE, 17 MARCH 2020

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]- jurisdictional objection to Commission dealing with dispute – objection upheld – application dismissed.

Introduction

[1] On 17 October 2019, Mr Prem Thirunavukarasu (the Applicant) applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s. 739 of the Fair Work Act 2009 (the Act) under the dispute resolution procedure (the DRP) at clause 12 of the William Angliss Institute of TAFE PACCT Staff Enterprise Agreement 2017 1 (the Agreement). The Respondent in the matter is the William Angliss Institute (William Angliss).

[2] The dispute was filed in respect of the proposed redeployment of the Applicant to a new role following notification on 2 September 2019 by William Angliss, that the Applicant’s former position had been made redundant. The Applicant did not accept that the proposed new role constituted ‘suitable alternate employment’ in accordance with clause 15 Redundancy & Redeployment of the Agreement, such that he was compelled to accept the alternate role or be deemed to have resigned and not be eligible to redundancy payments. The period within which the Applicant was required to accept the alternate role was 8 weeks from notification on 2 September 2019.

[3] In the application filed the Applicant sought the following relief;

1. That the proposed restructure (in so far as it affects the employee) be disallowed because of its harsh, unjust and unfair effect on the employee concerned.

2. In the alternative that the proposed offer of a redeployment position does not constitute acceptable alternative employment.

3. In the alternative that the restructure (in so far as it effects the employee) be disallowed as it is subject to an estoppel.

[4] The matter was listed for conciliation before Deputy President Hamilton on 23 & 25 October 2019 but was not resolved through conciliation. The Applicant’s representative subsequently wrote to the Commission on 25 October 2019 requesting an urgent hearing to deal with an application for interim orders.

[5] The Applicant sought that pending resolution of the dispute, work should continue normally in accordance with sub-clause 12.2.2 of the dispute resolution clause of the Agreement, and that William Angliss be prevented from proceeding with the notified action that would lead to the ‘deemed’ resignation of the Applicant if he failed to accept the alternate role. The Applicant sought that the ‘status quo’ be maintained.

[6] The matter was listed for an urgent hearing before me on Monday 28 October 2019 at the conclusion of which I advised the parties of my decision not to issue the interim orders sought by the Applicant. Reasons for the decision were subsequently issued on 31 October 2019 2 (the October Decision). The Applicant’s employment ceased on 28 October 2019 by reason of his deemed resignation under clause 15 of the Agreement.

[7] On 6 November 2019 the Applicant’s representative wrote to my chambers and advised that the Applicant sought arbitration of the matters in dispute in accordance with clause 12 of the Agreement. In a telephone mention subsequently conducted on 13 November 2019, William Angliss’ representative advised that William Angliss objected to arbitration of the matters in dispute on the grounds that the jurisdiction of the Commission was not enlivened. William Angliss’ jurisdictional objection to arbitration of the matter was then set down for hearing on 29 January 2020 in advance of which the parties were required to file submissions and other material on which they sought to rely.

[8] At the hearing on 29 January 2020 Mr M Addision sought and was granted permission to appear on behalf of the Applicant and Mr R Millar sought and was granted permission to appear on behalf of William Angliss pursuant to s. 596 of the Act.

Background and relevant factual circumstances

[9] The Applicant commenced employment with William Angliss in January 2006 as a Student Management/LMS Administrator and from 18 May 2009 his substantive role was that of Compliance Coordinator 3. He was classified at level PACCT 5.2 under the Agreement which provided for a salary of $69,946 per annum at the time of the termination of his employment. On 1 January 2014, the Applicant began performing higher duties to cover his immediate manager’s absence4 and from that date until his termination of employment received a higher duties allowance under the Agreement which resulted in annual earnings of approximately $94,000.

[10] Throughout the period in which the Applicant received the higher duties allowance William Angliss periodically wrote to him confirming the temporary status of the higher duties arrangements, and most recently wrote to the Applicant on 20 August 2019 in which the Applicant was advised that his higher duties would cease in September 2019 5.

[11] William Angliss notified staff in late 2018 of an intended restructure following which it worked through the amalgamation of the Short Courses and Industry Training Departments into the Centre for Tourism.

[12] On 2 September 2019, the Applicant was formally notified in a meeting and by letter 6 that as a result of the restructure his position of Compliance Coordinator would be made redundant. Pursuant to clause 15 of the Agreement the Applicant was offered an alternate role of Short Course Coordinator7.

[13] The alternate position offered to the Applicant was classified at level PACCT 6.3 under the Agreement and attracted a salary of $80,542. There was no dispute that the Applicant possessed the skills to perform that role. The role that the Applicant was offered redeployment to was at a higher classification level (that of PACCT 6.3) than he was previously classified at (PACCT 5.2).

[14] As a consequence of the announced restructure the Applicant would have lost the higher duties allowance as the role that he had been acting up in was also no longer required. The net effect on the Applicant had he accepted the alternate role would have been a reduction in annual earnings of approximately $12,000. That reduced earnings reflected the difference between the higher duties allowance he had been receiving and the remuneration for the proposed alternate role of Short Course Coordinator.

[15] As a consequence of William Angliss’ advice to the Applicant on 2 September 2019 of the redundancy of his substantive role and the offer of the alternate role, the Applicant was concerned at the classification level of the alternate role and the drop in remuneration arising from the loss of the higher duties allowance 8. He variously sought advice from the National Tertiary Education Union (NTEU) and then from Mr Addision in relation to his concerns9. The Applicant also sought an ‘informal’ meeting with William Angliss’ CEO Mr Nick Hunt which was held on 9 September 2019 to which William Angliss’ HR Manager Ms Michele Clark also attended10.

[16] On 11 September 2019 a further meeting was held between the Applicant and Mr Hunt but the Applicant’s concerns were not resolved 11. Correspondence was subsequently sent by the Applicant’s representative Mr Addison to Ms Clark that afternoon. The email stated as follows;

“Dear Ms Clark

I am instructed that my client met with the CEO on an informal basis today to progress the matter I raised with you the other day. I am also informed that no agreement has been reached and as a consequence we are now in dispute. I therefore seek an urgent meeting with you either tomorrow or Friday so that the matter can be progressed in accordance with the disputes procedure. Could you please advise me of a time that is suitable.

…….” 12

[17] Following no immediate response from William Angliss a further email was sent by Mr Addision to Ms Clark on 12 September 2019 requesting an urgent meeting 13. Shortly after Mr Addison sent this email, Ms Louise Houlihan of HMB Law sent an email to Mr Addison confirming that she was acting for William Angliss in the matter. From this point communication between the Applicant and William Angliss was between their respective representatives, Mr Addision and Ms Houlihan.

[18] On 4 October 2019 a meeting with William Angliss was held involving the Applicant who attended with Mr Addison. Ms Houlihan, Ms Clark and Mr Cary Warren – Manager Centre for Hospitality and Tourism attended the meeting on behalf of William Angliss. A resolution of the dispute was not reached in the meeting 14.

[19] On 11 October 2019, a proposal by William Angliss to settle the dispute was put to the Applicant via Mr Addison but was not accepted by the Applicant 15.

[20] On 17 October 2019, the Applicant filed a Form F10 application to the Commission.

[21] On 21 October 2019, William Angliss wrote to the Applicant via its lawyers in relation to the dispute and put the Applicant on notice regarding his alleged failure to comply with the dispute resolution procedure set out at clause 12 of the Agreement. While agreeing to participate in the conference convened by the Commission for 23 October 2019, William Angliss advised the Applicant that it reserved its rights regarding the Applicant’s non-compliance with the dispute resolution procedure 16.

Jurisdictional objection

[22] William Angliss submits that the Commission does not have jurisdiction to deal with the Application on the following grounds;

(i) the preconditions for the Commission’s involvement in the dispute have not been (and cannot be) met;

(ii) there is no express authorisation within clause 12 of the Agreement for the Commission to deal with the dispute by arbitration;

(iii) the Commission has already fully exercised the limited powers granted to it under clause 12 of the Agreement;

(iv) the dispute the Applicant seeks to agitate is a matter concerning the termination of his employment, which is a matter expressly excluded by clause 12 of the Agreement; and

(v) even if the Commission otherwise has jurisdiction to deal with the application, the Commission cannot make orders sought by the Applicant as those orders would be contrary to the express terms of the Agreement.

Statutory and agreement provisions

[23] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms and relevantly states as follows;

“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.

……………….

(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.

………………….”

[24] The Agreement contains a dispute settlement term, as provided for at s. 738 and referred to at s. 739(1) of the Act, at clause 12 ‘Dispute resolution procedure’ which relevantly provides as follows:

‘12.1. Resolution of disputes on matters arising out of this Agreement

12.1.1. Unless otherwise provided for in this Agreement, a dispute about a matter arising under this Agreement or the NES, other than termination of employment, must be dealt with in accordance with this clause. This includes a dispute about whether the employer had reasonable grounds to refuse a request for flexible working conditions or an application to extend unpaid parental leave.

…………….

12.2 Obligations

………..

12.2.2. While a dispute is being dealt with in accordance with this clause, work must continue according to usual practice. Provided that this does not apply to an employee who has a reasonable concern about a risk to his or her health or safety and has advised the employer of this concern and has not unreasonably failed to comply with a direction by the employer to perform other available work that is safe and appropriate for the employee to perform.

12.2.3. No person covered by the Agreement will be prejudiced as to the final settlement of the dispute by the continuance of work in accordance with this clause.

12.3. Agreement and dispute resolution facilitation

12.3.1. For the purposes of compliance with this Agreement (including compliance with this dispute resolution procedure) where the chosen employee representative is another employee of the employer, he/she must be released by his/her employer from normal duties, after consultation with their manager, for such periods of time as may be reasonably necessary to enable him/her to represent employees concerning matters pertaining to the employment relationship including but not limited to:

(a) investigating the circumstances of a dispute or an alleged breach of this Agreement or the NES;

(b) endeavouring to resolve a dispute arising out of the operation of this Agreement or the NES; or,

(c) participating in conciliation, arbitration or any other agreed alternative dispute resolution process.

12.4. Internal Process

12.4.1. The party with the dispute must notify the other party at the earliest opportunity.

12.4.2. The employee/s concerned will first meet and confer with their immediate supervisor.

12.4.3. If the matter is not resolved at such a meeting the parties will arrange further discussions which should include the Manager Human Resources (or nominee), the relevant Executive member (or nominee) from the employer and a nominated employee/s representative.

12.4.4. Throughout all stages of the procedure all relevant facts must be clearly identified and recorded.

12.4.5. Reasonable time limits must be allowed for completion of the various stages of discussion. However, the parties must co-operate to ensure that the dispute resolution procedures are carried out as quickly as possible.

12.4.6. Where a dispute cannot be resolved, at the request of either party, a Disputes Committee will be convened within one working week unless agreed otherwise. The Disputes Committee will consist of two nominees of the employer and two staff nominees of the local branch of the Union.

12.4.7. Where a dispute relates to a classification matter, members of the Disputes Committee who have a vested interest in a position being reviewed must declare this and, if appropriate, remove themselves from the Committee whilst the position is being considered.

12.4.8. The Disputes Committee will attempt to resolve the matter within one working week of its first meeting. Any resolution will be in the form of a written agreement subject, if necessary, to ratification by either party. By agreement, the Disputes Committee may nominate an independent chairperson/facilitator.

12.4.9. In the event the dispute remains, discussion will occur with the CEO (or nominee) and the Secretary of the State branch of the Union (or nominee) and/or the parties may by agreement nominate an independent chairperson/facilitator.

12.4.10. Until the procedures prescribed above have been exhausted:

(a) work will continue in the normal manner;

(b) neither party will take any action likely to exacerbate the dispute;

(c) subject matter of the dispute will not be taken to FWC by the Union or the employer;

(d) it is agreed that industrial action will not be taken by either party at any stage of the above process.

12.4.11. Should the dispute not be resolved by the process referred to in this sub-clause, the matter may be referred to FWC for resolution.’

Consideration

[25] The approach to construing enterprise agreements was most recently set out in a Decision of a Full Bench of the Commission in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd 17 as follows:

“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

[26] I now turn to consider William Angliss’ grounds of objection to the dispute being determined by the Commission.

Ground 1 – Pre-conditions for Commission involvement not met

[27] William Angliss contend that the DRP contains a series of mandatory steps with which the Applicant has only partially complied. It further contends that the Applicant has failed to comply with the specific steps set out at clauses 12.4.6 and 12.4.9 of the Agreement. That is, the referral of the dispute to a Disputes Committee which it says is required under clause 12.4.6 and further, the dispute was not escalated to the CEO (or his/her nominee) as required by clause 12.4.9 prior to referral of the dispute to the Commission.

[28] According to William Angliss clause 12.4.10 makes clear that the steps referred to above are mandatory and must be ‘exhausted’ prior to referral of the matter to the Commission. Further, the Commission is only able to exercise its powers under the terms of the DRP once the mandatory pre-conditions under the DRP have been met.

[29] The Applicant says in reply that the convening of a Disputes Committee as set out at 12.4.6 is, on a plain reading of the terms, optional given that the convening of the Disputes Committee may be at the request of either party. As to escalation of the dispute to the CEO or his/her nominee at clause 12.4.9, the Applicant submits that William Angliss’ engagement of legal representation is to be taken as the CEO’s nominee, hence the step required at clause 12.4.9 was complied with.

[30] Turning to the terms of the DRP, its terms provide for the progressive escalation of a dispute following initial notification by a party pursuant to clause 12.4.1. The escalation steps provided for under the DRP following initial notification of the dispute firstly requires discussion with the immediate supervisor 18 and if not resolved at this step it is then to be referred for discussions with the Manager Human Resources (or their nominee), the relevant Executive member (or nominee) and the employee’s nominated representative19. If not resolved at this stage the next step provides for the convening of a Disputes Committee20 and failing resolution at this step it is then to be referred to the CEO (or his/her nominee) and the State Secretary of the NTEU (or his/her nominee) and/or the parties may also agree on the use of an independent chairperson/facilitator.21

[31] I disagree with the Applicant’s contended construction that the step of referral of the dispute to a Disputes Committee is not mandatory. While clause 12.4.6 allows for either party to request a Disputes Committee be formed, the step is mandatory as evident by the clear command that “a Disputes Committee will be convened within one working week unless agreed otherwise” in circumstances where the dispute has not been resolved at the earlier steps and a party has requested that the dispute be escalated to the next stage.

[32] Use of the term “at the request of either party” at clause 12.4.6 does not in my view render the step of the convening of the Disputes Committee as voluntary but merely allows the triggering of the next step in the DRP at either parties’ election. Failing such a request, the dispute is unable to be escalated further. Such a request would ordinarily be at the ‘moving’ parties’ initiative. The plain meaning of the words supports the construction advanced by William Angliss in my view, that being the referral of the dispute to a Disputes Committee at clause 12.4. 6 is a mandatory step in the procedure.

[33] Similarly, escalation of the dispute to the CEO (or his/her nominee) at clause 12.4.9 is also a mandatory step under the DRP. While that step need not necessarily involve the CEO given the capacity for a nominee, it is a step that must nonetheless be taken in my view.

[34] Further support for William Angliss’ construction of clauses 12.4.6 and 12.4.9 can be found in the prefacing words of clause 12.4.9 where the words “in the event the dispute remains” are used. This supports a construction of the DRP that mandates completion of the prior steps prior to escalation. Confirmation of the mandatory nature of clause 12.4.6 and 12.4.9 can also be found in clause 12.4.10 where it states “Until the procedures described above are exhausted…..”. That wording makes clear that the preceding steps in the DRP must be completed and ‘exhausted’ before the dispute may be referred to the Commission. Furthermore, clause 12.4.10(c) explicitly precludes referral of a matter to the Commission before the required steps are exhausted. Finally, clause 12.4.11 only allows for the referral of the matter to the Commission once the process referred to in the sub-clause 12.4 has been followed.

[35] There is nothing in the wording of the DRP in my view that allows for the required steps to be overlooked or bypassed by the parties, by agreement or otherwise. A failure to observe or exhaust each of the required steps in the DRP acts to prevent the referral of a dispute to the Commission.

[36] Turning now to the particular circumstances of the matter before me, it is uncontested that the Applicant’s representative formally notified William Angliss of the dispute in an email to Ms Clark on 11 September 2019 thus meeting the formal notification requirement of clause 12.4.1. It is also uncontested that a meeting took place on 4 October 2019 involving the relevant parties such as would satisfy the required step at clause 12.4.3. The dispute was not resolved at that step. The required step at clause 12.4.6, that of the convening of a Disputes Committee to deal with the dispute, did not occur. Absent that step being taken, the matter was incapable of escalation to the CEO (or his/her nominee) in accordance with clause 12.4.9. Consequently, it cannot be said that all of the DRP ‘procedures’ had been ‘exhausted’, that being a necessary precondition for referral of the matter to the Commission.

[37] Notwithstanding the failure of the Applicant to initiate the step required at clause 12.4.6 it is also necessary to consider whether the further dispute escalation step set out at clause 12.4.9 was taken. There was a contest between the parties as to whether the step at clause 12.4.9 had been met, that step requiring a meeting involving the CEO (or his/her nominee) and the State secretary of the union (or his/her nominee) and/or the parties may by agreement nominate an independent chairperson/facilitator.

[38] William Angliss’ primary argument on the construction of clause 12.4.9 is that a dispute could not progress to the Commission where a meeting involving the CEO (or his/her nominee) and the State Secretary of the union (or his/her nominee) did not take place, even in circumstances where the union may have declined to attend such meeting because the dispute involved a staff member who was not a member of the NTEU.

[39] The Applicant contends in reply that clause 12.4.9 was complied with as Ms Houlihan was representing the CEO as his nominee and was involved in all discussions and correspondence on and from 12 September 2019.

[40] I am troubled by William Angliss’ contended construction of clause 12.4.9 as it would appear to deny a non-union member an ability to progress a dispute to the Commission for ‘resolution’. An alternate available construction of clause 12.4.9 is that use of the word “or” where it appears in the phrase “and/or the parties may by agreement nominate an independent chairperson/facilitator” operates so as to provide an alternate path for escalation of the dispute that does not mandate involvement of the CEO (or his/her nominee) and the State Secretary of the union (or his/her nominee). I note that if it does operate as an alternative to referral of the dispute to the CEO and State Secretary of the union, agreement of the parties is still required for use of an independent chairperson/facilitator.

[41] While conceding the potential alternate construction described above, William Angliss’ argued that the alternate step of agreeing on the use of an independent chairperson/facilitator was in any event not sought by the Applicant, therefore the mandatory step of clause 12.4.9 was not taken. There is some force to the Applicant’s argument that Ms Houlihan was acting as William Angliss’ CEO’s nominee for the purpose of clause 12.4.9. Even if that is the case, regardless of the construction of clause 12.4.9, the step of referral of the dispute to the CEO and state secretary of the union (or their nominees) or in the alternative to an agreed independent chairperson/facilitator was not taken. In any case, given my earlier findings that the mandatory step required at clause 12.4.6 was not taken, escalation of the dispute both at clause 12.4.9 and ultimately to the Commission per clause 12.4.11 was precluded.

[42] Section 739(3) of the Act and the relevant authorities 22 make clear that the Commission cannot exercise any powers limited by the term of an agreement. In the present case the terms of the Agreement preclude the Commission from dealing with the dispute unless and until all of the procedures provided for in clause 12.4 have been ‘exhausted’. Those required mandatory steps were not all taken therefore it cannot be said that the required procedures were ‘exhausted’. It follows in the circumstances that the Commission is precluded from dealing with the notified dispute. The application must therefore be dismissed.

[43] If I am wrong in my conclusion as to the Commission’s lack of jurisdiction to deal with the dispute it is necessary for me to deal with the other grounds of objection raised by William Angliss. I turn firstly to consider whether the Commission has the power to arbitrate the dispute as sought by the Applicant.

Ground 2 – DRP does not expressly authorise arbitration

[44] William Angliss contend that the Commission may only arbitrate a dispute pursuant to a dispute settlement term of an agreement if it is “expressly authorised to do so under or in accordance with another provision of the (the Act)” 23 and that section 739(4) confines the Commission’s power to arbitrate to where the parties to an agreement have expressly agreed to arbitration, however so described. William Angliss contend that no such express power has been conferred to the Commission and that the term ‘resolution’, where it appears in clause 12.4.11, provides an insufficient basis to conclude that the parties have agreed to allow a third party to decide the outcome of a dispute.

[45] The Applicant contends that the term resolution, according to the Oxford Dictionary, means “solving of doubt, problem, question etc” and that giving the term its plain meaning would lead to a conclusion that referral of the dispute to the Commission is a last resort to solve the problem or dispute.

[46] The Applicant further contends that the context in which the word appears also lends weight to their argued construction. The Applicant specifically refers to clause 12.3.1 which in dealing with the release of employee representatives to assist in dealing with matters arising under the Agreement relevantly refers to their release for the purpose of “participating in conciliation, arbitration or any other agreed alternative dispute resolution process”. Reference to arbitration in clause 12.3.1 indicates that such a process was in the contemplation of the parties when negotiating the Agreement.

[47] The Applicant contends that the term ‘resolution’ where it appears in clause 12.4.11 represents express authority or permission for the Commission to exercise power to solve the dispute by whatever mechanism it determines.

[48] Subject to exhaustion of the required DRP procedural steps under clause 12.4 of the Agreement, a party may refer an unresolved dispute to the Commission for ‘resolution’. The permitted means by which ‘resolution’ of the dispute may be pursued before the Commission are not made clear by the words of clause 12.4. The Applicant strives for a construction that would provide the broadest possible power to the Commission including by arbitration whereas William Angliss argue there is no express arbitral power conferred on the Commission.

[49] Reliance by the Applicant on the Oxford dictionary meaning of the term ‘resolution’ provides a fragile basis for construing the meaning of the term ‘resolution’ in the context of the dispute settlement term in the Agreement. That is so as the term ‘resolution’ can have a particular meaning in the industrial relations context. By way of illustration, the underpinning modern award for the Agreement, that of the Educational Services (Post- Secondary Education) Award 2010 24 (the Award), contains a Dispute resolution term at clause 9 of the Award. It (Clause 9) permits the Commission to use any method of dispute resolution permitted by the Act. Section 595(2) of the Act permits the Commission to deal with a dispute (other than by arbitration) by mediation, conciliation or by making a recommendation or expressing an opinion.

[50] It is tolerably clear that use of the term ‘resolution’ in the dispute settlement term of the Award provides for a range of methods of resolution of a dispute but does not confer the power to arbitrate unless agreed by the parties 25. While I accept that the term ‘resolution’ may have a different meaning under the Agreement, the example of the Award use of the term ‘resolution’ is raised to highlight the difficulty of applying a dictionary meaning of the term ‘resolution’ in the industrial relations context. Unhelpfully, neither party sought to adduce evidence going to the surrounding circumstances that led to the making of the Agreement.

[51] Also telling in the construction of the Agreement’s resolution of disputes clause is the lack of specificity of the role of the Commission once a dispute is referred to it. It does not provide for a two-step process of conciliation and failing resolution of the dispute, arbitration. Such a process is a common feature of dispute resolution terms that confer an arbitral power to the Commission. The absence of such specificity further supports a construction that the dispute resolution powers of the Commission under clause 12.4.11 are limited to the powers generally available under the Act and found at s. 595(2).

[52] The Applicant also points to the reference within clause 12.3.1(c) to the release and participation of an employee representative in ‘conciliation, arbitration or any other agreed alternative dispute resolution process’ as supporting its contended construction, that being the parties intended the Commission to have an arbitral power in dispute resolution under the Agreement.

[53] I accept that clause 12.3.1(c) indicates the parties contemplated arbitration as a process to be undertaken in the resolution of a dispute. It is also evident that they contemplated other forms of dispute resolution as well which are not specified in clause 12.4.11. The reference to ‘arbitration’ is however in the context of release from duties of an employee representative and not in the context of an express power of the Commission to arbitrate a dispute. The conferral of an arbitral power to the Commission may occur either by express provision under the Agreement or by agreement of the parties. If an express power to arbitrate were intended by the parties, it would more sensibly be found in clause 12.4.11. The reference to arbitration in clause 12.3.1 falls short of expressly conferring an arbitral power to the Commission in resolving a dispute.

[54] It is well established that the Commission may only deal with a dispute by arbitration in accordance with s 595(3) of the Act where it is “expressly authorised to do so under or in accordance with another provision of this Act”. Section 739(4) of the Act provides such power to arbitrate but only in circumstances where “the parties have agreed that the FWC may arbitrate (however described), the dispute…”.

[55] It is not apparent from the plain meaning of the words in clause 12.4 that the parties have agreed that the Commission may arbitrate unresolved disputes. Nor does the broader context of the clause or the Agreement in which the DRP sits persuade me that the parties have agreed to conferral of such arbitral power (however described) to the Commission. Furthermore, the parties to the dispute failed to adduce evidence going to the surrounding circumstances of the making of the Agreement that might have assisted clarify the objective intent of the parties. It follows from the foregoing that the Commission lacks the jurisdiction to formally determine the dispute as sought by the Applicant.

Ground 3 - Commission has already fully exercise powers under DRP

[56] William Angliss submit that regardless of the construction given to the Commission’s resolution power under clause 12.4.11, that power has already been exercised by the Commission and there is no further role for the Commission. William Angliss contend that Deputy President Hamilton fully exercised the Commission’s dispute ‘resolution’ powers under the Agreement DRP through conciliation, the expression of an opinion and the making of a recommendation. The Commission’s role was performed upon referral of the dispute and the fact that the Applicant was dissatisfied with the outcome does not mean the Commission’s dispute ‘resolution’ role had not been exhausted. Further reinforcing the point according to William Angliss is the fact that the Applicant’s employment which underpinned the dispute has ended.

[57] The Applicant disagrees that the Commission’s functions have been exhausted based on their contention that the power of the Commission to arbitrate is conferred by the terms of the Agreement. The Applicant pressed its argument that the Commission was required under the terms of the Agreement to resolve or finalise the dispute through whatever means necessary, including by arbitration if required. The fact the dispute remains live indicates the Commission has not fully exercised its dispute ‘resolution’ function.

[58] I have found above that clause 12.4.11 does not expressly confer the Commission with power to arbitrate a dispute that is referred to it under the DRP of the Agreement. If I am correct in my conclusion on that point then it appears clear that the Commission has fully exercise its powers under the DRP given the Commission has conciliated the matter, expressed an opinion and made a recommendation. Evidence of the exhaustion of those steps can be seen in the Applicant seeking formal determination of the dispute. If I am correct that the non-arbitral powers of dispute resolution available to the Commission under the Agreement have been exhausted, then the application must be dismissed.

[59] If, however I am wrong in my conclusion as to the absence of an express arbitral power under clause 12.4.11, then it follows that the power to arbitrate the outstanding dispute has not been exercised. In those circumstances I do not accept William Angliss’ argument that the Commission’s exercise of non-arbitral powers would prevent an aggrieved party from seeking determination of the matter/s in dispute. While there is a lack of specificity as to the steps to be taken when a dispute is referred to the Commission, once a dispute is referred, a party is then entitled to press for the matter to be resolved by the Commission through the means available, including by arbitration if such power is conferred.

[60] It follows from the above that if the power to arbitrate is conferred by the terms of the dispute resolution clause under the Agreement then those powers have not been exercised and the Applicant would be entitled to seek such arbitration of the outstanding dispute.

Ground 4 - Dispute is in relation to a matter expressly excluded under DRP

[61] William Angliss also contend in the alternative that while the dispute may not have had the character of a ‘termination of employment’ dispute at the time it was lodged, it now does, and that the remedy sought by the Applicant either seeks to undo the termination of employment or seeks enhanced redundancy benefits. It submits that the dispute when filed was so inextricably linked with the then prospective termination of the Applicant’s employment that it bears no other character than that of a termination of employment dispute which is precluded by clause 12.1.1 of the DRP.

[62] I do not accept William Angliss characterisation of the dispute as being over the Applicant’s termination of employment. If William Angliss’ argument is correct, then it would appear to preclude any dispute in relation to redundancy entitlements under the Agreement being referred to the Commission given the linkage between redundancy entitlements and termination of employment. By way of example, the Agreement provides for severance payments ‘consistent with Victorian Government policy for redundancy/retrenchment’. An employee would, on William Angliss’ construction of clause 12.1.1, be precluded from disputing whether a proposed severance entitlement was calculated correctly in accordance with the cited Victorian Government policy. This would leave the employee with no path to resolve their concern other than by way of an underpayment claim in the courts.

[63] A more sensible construction of clause 12.1.1 is that a matter that could otherwise be dealt with by way of an application to the Commission for an unfair dismissal remedy (s. 394 of the Act) or general protections dismissal dispute (s. 365 of the Act) could not be the subject of a dispute under the terms of the Agreement.

[64] The dispute as filed was primarily concerned with whether the alternate role offered to the Applicant following the notified redundancy of his former position constituted suitable alternative employment. Given the Applicant has ceased employment since filing the dispute, resolution of the dispute, if capable under the terms of the Agreement, may indeed have implications for the Applicant’s separation entitlements. Such a dispute can be distinguished from a dispute over the termination of the Applicant’s employment which I note is subject to a separate unfair dismissal application before the Commission.

[65] I am not persuaded in the circumstances that the dispute before me which now appears confined to separation entitlements can be characterised as a dispute over the Applicant’s ‘termination of employment’. The dispute, to the extent that it is concerned with separation entitlements, is therefore not excluded from the operation of the dispute resolution clause.

Ground 5 - Orders sought contrary to terms of Agreement

[66] William Angliss contend that if the application is otherwise within jurisdiction then the Commission cannot make the orders sought by the Applicant as s739(5) of the Act provides that the Commission must not make a decision that is inconsistent with the Act or fair work instrument that applies. The determination sought by the Applicant in his Form F10 is as follows;

1. That the proposed restructure (in so far as it affects the employee) be disallowed because of its harsh, unjust and unfair effect on the employee concerned.

2. In the alternative that the proposed offer of a redeployment position does not constitute acceptable alternate employment.

3. In the alternative that the restructure (in so far as it effects the employee) be disallowed as it is subject to an estoppel.

[67] It is argued by William Angliss that the Commission is unable to make orders contrary to clause 15.14 of the Agreement which provides as follows;

“……

15.14. Where, during the 8 week redeployment period, the employee does not accept the offer of redeployment to a suitable alternative position of the same or equivalent remuneration and appropriate to their skills, experience and qualifications, that employee will be deemed to have resigned and will not be eligible for any severance payments applicable in accordance with the employer or State Government Policy applying at time of approval of the Agreement.

……..”

[68] William Angliss contend that the effect of the orders sought by the Applicant would be to negate the operation of clause 15.14 in circumstances where there was no dispute that the Applicant had the qualification and experience to do the alternate role and where the proposed alternate role was at a higher classification level than the Applicant’s substantive role at the time of his deemed resignation. William Angliss further argue that clause 15.14 is clear and unambiguous in its operation to the Applicant’s circumstances when he declined the alternate role proposed.

[69] William Angliss’ argument appears premised on there being no dispute over the skills/experience/qualifications requirements and relative remuneration of the alternate role, those being the key considerations in assessing whether the alternate role is a ‘suitable alternate role’ for the purpose of the operation of clause 15.14. The Applicant did not contend he lacked the qualifications and experience to do the alternate role. Nor was it in contest that the alternate role was at a higher classification level than the Applicant’s substantive role.

[70] What was and remains at issue is whether the reduction in the Applicant’s remuneration that would have arisen from the loss of the higher duties allowance that he had been in receipt of since January 2014 was a relevant factor to be considered in assessing whether the remuneration for the alternate role was the ‘same or equivalent’. As I observed in the October Decision “determination of the key issue in contest turns on whether the higher duties allowance is or isn’t included in remuneration for the purpose of comparing the remuneration of the redeployment role with the former classification of the Applicant” 26.

[71] Given the Applicant ceased employment on 31 October 2019 there is now no capacity for the Commission to issue orders that would prevent the restructure occurring. In any case, the Applicant has made a separate application under s. 394 of the Act for an unfair dismissal remedy. However, I do not accept that resolution of the dispute over whether the higher duties allowance is to be considered in assessing whether the remuneration for the alternate role was the ‘same or equivalent’ would be contrary to clause 15.14. Resolution of that question is in fact central to determining whether there is an entitlement to severance pay, which would not be inconsistent with clause 15.14 in my view, if so determined.

Conclusion

[72] I have considered each of the grounds of William Angliss’ objection to the Commission determining the dispute and find that;

(i) the Applicant has failed to follow and ‘exhaust’ all of the required steps in the dispute resolution procedure and as such the Commission is precluded from dealing with the dispute;

(ii) in the alternative, if the Commission is able to deal with the dispute the Commission lacks the power to arbitrate the dispute under the terms of the dispute resolution clause; and

(iii) in the further alternative, if the Commission does have jurisdiction to arbitrate the dispute;

a. the powers of the Commission to resolve the dispute have not been exhausted;

b. the matter in dispute is not a ‘termination of employment’ matter excluded under clause 12.1.1; and

c. the remedy sought by the Applicant in relation to whether the alternate role was a ‘suitable alternative position’ would not be contrary to clause 15.14 of the Agreement.

[73] For the reasons detailed above the application is dismissed for want of jurisdiction.

DEPUTY PRESIDENT

Appearances:

M Addison for the Applicant

R Millar for the Respondent

Hearing details:

2020
Melbourne
29 January

Printed by authority of the Commonwealth Government Printer

<PR717182>

 1   PR609258

 2   [2019] FWC 7478

 3   Exhibit R1, Witness Statement of Ms Michelle Clark at paragraph [6]

 4   Ibid at paragraph [10]

 5   Ibid at paragraph [11]

 6   Ibid, Attachment MC4

 7   Ibid at paragraph [14]

 8   Exhibit A1, Witness Statement of Mr Prem Thirunavukarasu at paragraph [54]

 9   Ibid at paragraphs [56]-]57

 10   Ibid at paragraph [60]

 11   Ibid at paragraph [61]-[62]

 12   Ibid, Attachment 32

 13   Ibid, Attachment 33

 14   Ibid at paragraph [72]

 15   Ibid at paragraph [73]

 16   Exhibit R1, Attachment MC7

 17   [2017] FWCFB 3005 at [114]

 18   Agreement Clause 12.4.2

 19   Ibid Clause 12.4.3

 20   Ibid Clause 12.4.6

 21   Ibid Clause 12.4.9

 22   See Australian Workers’ Union v MC Labour Services Pty Ltd [2017] FWCFB5032 at [40]-[41] and Dr Candice Shields and others v Alfred Health [2012] FWA 162 at [33]-[34]

 23 Fair Work Act 2009, section 595(3)

 24   MA000075

 25   Award, clause 9.5

 26   October Decision at [40]