Prem Thirunavukarasu v William Angliss Institute

[2019] FWC 7478

[2019] FWC 7478

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739—Dispute resolution

Prem Thirunavukarasu
v
William Angliss Institute
(C2019/6402)

Educational services
DEPUTY PRESIDENT MASSON	MELBOURNE, 31 OCTOBER 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES s186(6) – interim order sought - application dismissed

[1] On 17 October 2019, Mr Prem Thirunavukarasu (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 at clause 12 of the William Angliss Institute of TAFE PACCT Staff Enterprise Agreement 2017 (the Agreement). 1

[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 his employer, the William Angliss Institute of TAFE (the Institute), that the Applicant’s current 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 he would 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 Hamilton DP 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 the Institute 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 hearing before me at 4.30pm on Monday 28 October 2019. Permission to appear pursuant to s. 596 of the Act was granted to Mr M Addision to appear on behalf of the Applicant and to Ms L Houlihan to appear on behalf of the Institute.

[7] At the conclusion of the hearing I advised the parties of my decision to decline to issue the interim orders sought by the Applicant. The reasons for my decision follow.

Agreement Provisions

[8] Relevant to consideration of the application for interim orders is that of the jurisdiction of the Commission to deal with the notified dispute. The dispute settlement term of the Agreement 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.’

[9] The present dispute arises from the application of Clause 15 of the Agreement which relevantly provides as follows;

‘15. REDEPLOYMENT & REDUNDANCY

15.1. When the employer decision results in a position becoming surplus to requirements, the employer will consider all redeployment options.

……………..

15.10. Any alternative positions will be of similar remuneration and time fraction, and where possible classification, and be commensurate with the skill, qualifications and experience of the employee. Where the new position salary differs, the employee will be retained on salary maintenance for 6 months. In all cases of redeployment, the continuing employment of ongoing employees will not be adversely affected nor will their classification and salary level unless they have accepted a lower classified position with salary maintenance. Salary maintenance means that the employee’s salary shall be frozen at the amount they were receiving prior to being redeployed.

15.11. The employee will have the skills and competence required to perform the new position to the required standard either immediately or with a reasonable period of retraining.

15.12. Where redeployment is a viable option the employee will be offered this in writing.

15.13. The redeployment process will be finalised within 8 weeks following written notification to the employee that their position is surplus to requirements.

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.

…………………..

15.18. Where at the conclusion of the redeployment process no suitable alternative positions are found, the employee’s contract of employment will be terminated and they will receive severance payments.

…………………’

Background and Evidence

[10] Before turning to the relevant facts, it must be said that neither party adduced witness evidence and there was limited documentary evidence available to the Commission. There was however agreement by the parties as to several uncontested facts which may be shortly stated as follows.

[11] The Applicant commenced employment with the Institute in January 2006 and since 18 May 2009 his substantive role was that of Compliance Coordinator. He was classified at level PACCT 5.2 under the Agreement which currently provides for a salary of $69,946 per annum. On 1 January 2014, the Applicant began performing higher duties and since that time has continued to receive a higher duties allowance under the Agreement which has resulted in annual earnings of approximately $94,000.

[12] Throughout the period in which the Applicant received a higher duties allowance the Institute has periodically written to the Applicant confirming the temporary status of the higher duties arrangements, and most recently wrote to the Applicant on 3 July 2019 in which the Applicant was advised that his higher duties would cease at the end of August 2019.

[13] The Institute notified staff in late 2018 of an intended restructure and in recent months has been working through the amalgamation of the Short Courses and Industry Training Departments into the Centre for Tourism. On 2 September 2019, the Applicant was formally notified that as a result of the restructure his position of Compliance Coordinator would be made redundant. In accordance with clause 15 of the Agreement the Applicant was offered an alternate role.

[14] The alternate position that the Applicant was offered redeployment to was that of a Short Course Coordinator which is classified at level PACCT 6.3 under the Agreement and currently attracts 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). The Applicant would, because of the restructure and redundancy of his former position, lose the higher duties allowance as the role that he had been acting up in was no longer required. The net effect for the Applicant would have been reduced earnings of approximately $12,00 per annum.

[15] Under the terms of sub-clause 15.14 an employee that has not accepted the offer of redeployment within the 8-week period following the offer, will be deemed to have resigned. There was some dispute between the parties as to the date on which the 8-week period expired. The Institute contended that the 8-week period expired on Sunday 27 October 2019 whereas the Applicant contended that it expired on Monday 28 October 2019. Attempts by the parties to resolve the Applicant’s concerns, specifically the drop in the Applicant’s remuneration, were unsuccessful in the 8-week period following 2 September 2019.

[16] The Applicant attended work and was allowed by the Institute to perform work on Monday 28 October 2019 pending the conduct of the hearing before the Commission.

Interim orders

[17] Section 589 of the Act provides that the Commission may make procedural and interim decisions, as follows:

“589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC’s power to make decisions.”

[18] The well-established principles applicable to interim relief applications, regularly applied by the Commission in this context, were explained by the High Court in Australian Broadcasting Corporation v O’Neill 2; 

1. There must be a serious question to be tried as to the applicant’s entitlement to relief; and

2. The applicant is likely to suffer injury for which damages will not be an adequate remedy; and

3. The balance of convenience favours the granting of an interlocutory order.

[19] Distilled by Bromberg J in Quinn v Overland 3 into two main inquiries, incorporating the test of whether damages would be an adequate remedy into the wider test of balance of convenience, as follows:

In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].

The requirement of a “prima facie case” does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase “serious question” to convey the strength of the probability: Australian Broadcasting Corp v O’Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].

[20] The Full Court in Samsung Electronics Co Limited v Apple Inc 4 relevantly cautioned against considering the two main inquiries in isolation:

When considering whether to grant an interlocutory injunction, the issue of whether the plaintiff has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance.

[21] These considerations must be assessed having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered and the circumstances of the parties. 5

Consideration

Jurisdiction under dispute settlement term

[22] Before turning to consider whether the applicant has made a prima facie case and if the balance convenience favours the granting of orders sought, it is relevant to consider whether the Commission has the jurisdiction to ultimately determine the dispute before it. While the present application before me is for an interim order only, directed only to preserving the ‘status quo’ and does not require the final determination of the dispute, it is still necessary for me to have regard to the ultimate jurisdiction of the Commission in considering the application for interim orders.

[23] Absent the jurisdiction to deal with or determine the dispute as sought by the Applicant it is difficult to see what the utility of granting the interim orders would be in circumstances where conciliation has been unsuccessful, and arbitration is now sought.

[24] There are some constraints on the jurisdiction of the Commission when settling a dispute pursuant to a term of a modern award or an enterprise agreement. It must not exercise any powers limited by the terms of the relevant dispute settlement procedure (s.739(3)), it may only arbitrate the dispute if the dispute settlement terms allow it (s. 739(4)) and it must not make a decision inconsistent with the Act or instrument (s. 739(5)).

[25] The Institute submits that the Commission does not have jurisdiction to deal with the dispute and variously contends that;

•  The dispute raised by the Applicant relates to the termination of his employment and is therefore outside the scope of the Agreement as is clear by the ‘carve out’ in clause 12.1.1 of disputes over termination of employment.

•  The Applicant has failed to follow the required steps under clause 12.4 Internal Process and is therefore barred from making an application to the Commission until such steps are taken (clause 12.4.10). The Institute specifically refers to the failure of the parties to establish a Disputes Committee to deal with the dispute (clause 12.4.6) or for the dispute to be escalated to the Institute’s CEO (clause 12.4.9).

•  The dispute settlement procedure does not confer a right for the Commission to arbitrate a dispute. Clause 12.4.11 simply refers to the referral of an unresolved matter to the Commission for ‘resolution’. Absent conferral of an arbitral jurisdiction the Commission is limited to its powers under the Act, which does not provide for arbitration other than where the parties agree.

•  Acceding to the application for interim orders would be contrary to a term of the Agreement, that being the Redundancy and Redeployment provisions, in that it would deprive the Institute of its right to implement redundancies and redeploy staff in accordance with the terms of the Agreement.

[26] The Applicant in reply rejects the Institutes submissions that the Commission lacks jurisdiction and variously submits that;

•  The dispute is properly characterised as a dispute over redeployment, not about termination of employment, the latter phrase clearly referring to termination of employment for reasons of performance or misconduct.

•  Clause 12.4.10 is not a mandatory step in the process of escalation of the dispute as it clearly states in the sub-clause that establishment of a Disputes Committee is ‘at the request of either party’.

•  As regards the required escalation to the CEO, the dispute has been clearly ventilated with the representatives of the Institute including legal representatives in various discussions with the Applicant and his representative.

•  The term ‘resolution’ in clause 12.4.11 should be given its broadest meaning. To read it down to limit the Commission’s powers to conciliation and/or the making of recommendations would deprive the Applicant of a right to have his dispute ‘resolved’.

[27] In considering the construction of the relevant dispute settlement terms it must be said that the interlocutory nature of the proceedings and the necessary time constraints limited the ability of the parties to advance detailed submissions or lead evidence in relation to the proper construction of those clauses. However, having determined not to issue the interim orders sought by the Applicant for other reasons that are detailed below it is unnecessary for me to determine the jurisdictional point as to whether the Commission has the power to ultimately arbitrate the dispute.

[28] While I have found it unnecessary to determine the jurisdictional point at this stage there is some doubt in my view as to whether the Commission has the jurisdiction to deal with and/or arbitrate the dispute. That is because the terms of the dispute settlement procedure do not confer an explicit right to arbitrate at clause 12.4.11, and it is unclear as to whether all of the required steps in the internal process for escalation of the dispute were completed prior to the Applicant filing his the dispute in the Commission. Were the matter to proceed and given that the Institute presses its jurisdictional objection, further evidence would need to be adduced and a more detailed analysis of the Agreement terms would be required having regard to the normal rules of enterprise agreement term interpretation 6.

[29] While I believe there is some doubt as to the jurisdiction of the Commission to arbitrate the dispute under the dispute settlement term, that doubt is not sufficient on the material currently before me to be a factor that weighs in my consideration of whether an interim order should or should not be issued. I turn now to consider whether the Applicant has made out a prima facie case or as may be otherwise described, an arguable case, and whether the balance of convenience weighs in favour of granting the order sought.

Arguable case

[30] The Applicant’s case can be simply summarised. The role that he was offered redeployment to would have involved a reduction in his ‘remuneration’ even though his classification and base salary would have increased from PACCT 5.2 to PACCT 6.3. The net reduction in remuneration arises from the loss of the higher duties allowance that he was in receipt of since January 2014.

[31] The Applicant further submits that the nature of the duties he was performing while acting in a higher position involved supervisory duties which he would no longer have been required to perform had he accepted the PACCT 6.3 role. This combined with the reduced remuneration that he would have suffered should lead to a conclusion that the role he was offered could not be regarded as a ‘suitable alternate role’ for the purpose of clause 15 of the Agreement.

[32] The Applicant also submits that following the announcement of the restructure he had been assured by his immediate manager that his role was secure. He further submits that in the wake of the 2 September 2019 notification of the redundancy of his position he had made efforts to negotiate with the Institute for the maintenance of a role and remuneration at the level he has been working at while receiving higher duties. These efforts were unsuccessful despite his preparation of a draft position description which the Institute did not accept.

[33] The Institute submits that the Applicant was offered a higher classification through redeployment and that the higher duties allowance he had been receiving ought not be considered in assessing whether the Applicant’s remuneration has been reduced thereby affecting whether the role could be considered a suitable alternate role. It further submits that there was no prospect of the Applicant retaining a role at the level he was acting up in, that of a supervisory role, as the very objective of the restructure that the Institute was pursuing was the reduction of the number of supervisory positions.

[34] As I have stated above there is limited evidence before me, and the various submissions advanced by the parties are largely unsupported by evidence. Nevertheless, there are enough matters that are not in contest to allow me to form a view on whether there is a serious issue to be tried.

[35] Clause 15.10 states that ‘alternative positions’ offered as part of redeployment will be of ‘similar remuneration and time fraction, and where possible classification’. It is also clear from clause 15.10 that the redeployment process envisages that employees subject to redeployment may be moved into a role with lower remuneration as the clause specifically provides for salary maintenance. This suggests a construction that while the remuneration for the alternate role must be similar it can be less otherwise salary maintenance arrangements would be unnecessary.

[36] Clause 15.10 also provides for the redeployment of employees into lower classifications but only where the employee has accepted such lower classification. The present case is unusual in that the Applicant was offered a higher classification than his former classification but would have suffered a drop in his actual remuneration due to the loss of the higher duties allowance.

[37] The Applicant’s ‘salary’, inclusive of the higher duties allowance, would have reduced because of the combined effect of the redundancy of his former position, his proposed redeployment and the loss of the higher duties allowance he was in receipt of. Importantly, the loss of the higher duties allowance was foreshadowed to happen at the end of August 2019 in any case. This weighs against a finding that the higher duties allowance should be included for the purpose of assessing whether the remuneration of the alternate role was ‘similar’.

[38] Unhelpfully, ‘remuneration’ for the purpose of clause 15.10 is not defined. It is therefore unclear as to whether the higher duties allowance should be included or excluded for the purpose of determining whether the alternate role provides for similar remuneration to the redundant role. If the higher duties allowance is not included in the comparison of remuneration, there can be little doubt that the alternate role offered to the Applicant was both at a higher salary and classification level. In these circumstances the alternate role was clearly at least of ‘similar remuneration and time fraction, and where possible classification,’ and was ‘commensurate with the skill, qualifications and experience of the employee’.

[39] If on the other hand the higher duties allowance which formed part of the Applicant’s salary is to be included in his ‘remuneration’ for the purposes of comparing whether the alternate role provides for ‘similar remuneration’ to the former role then it cannot be said in my view that the alternate role offered ‘similar remuneration’. That is because a reduction in salary of approximately $12,000 is arguably significant and would consequently not have afforded the Applicant ‘similar remuneration’.

[40] 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. There is some tension in the terms of the Agreement in that there is an absence of a definition of the term ‘remuneration’ for the purpose of clause 15.10 and ambiguity as to whether ‘remuneration’ includes or excludes the higher duties allowance.

[41] The term ‘salary’ is also used in the Agreement and salary rates are found at Schedule 1 of the Agreement. Importantly, the ‘higher duties allowance’ is regarded as ‘salary’ per clause 22.1. It is unclear whether the term ‘remuneration’ and ‘salary’ are intended to be interchangeable or whether they have different meanings. There is enough doubt in my view as to the respective meanings of those terms and whether the higher duties allowances is included in ‘remuneration’ for the purpose of clause 15.10 to establish an arguable case for the Applicant.

[42] While neither party has led substantial evidence in the case, I am satisfied on the limited material before me that there is an arguable case with some prospect of success that the redeployment role that the Applicant was offered on 2 September 2019, and did not accept within the 8-week period, was not a ‘suitable alternate role’ as it did not afford the Applicant ‘similar remuneration’.

Balance of convenience

[43] The Applicant contends that if the interim orders sought are not granted than the Applicant will be deemed to have resigned, will lose his job and be denied an entitlement under the terms of the Agreement, that of either redeployment to a role of ‘similar remuneration’ or if no such role were available he would be entitled to a redundancy payment. This in the Applicant’s submissions supports a finding that the balance of convenience weighs strongly in favour of the Applicant.

[44] For its part the Respondent submits that if the interim orders sought were granted it would be deprived of its ability to achieve the very objective of the restructure, that being the rationalisation of manager roles and would consequently need to maintain the Applicant in a role that is not required for a period of time. For these reasons the Institute says the balance of convenience favours the Institute.

[45] In considering where the balance of convenience lies it is necessary to understand what relief is being sought. The Applicant conveyed the interim orders sought in imprecise terms. The Applicant sought the maintenance of in his words, the ‘status quo’ and in doing so pointed to the words of clause 12.2.2 which requires that ‘where a dispute is being dealt with in accordance with this clause, work must continue according to usual practice’.

[46] I infer from the Applicants submissions that the ‘status quo’ position sought was that of his preservation in his former classification and in continued receipt of the higher duties allowance until the dispute was resolved. That would require the Respondent to suspend its restructure in so far as it affected the Applicant. No submissions were made by either party as to why work continuing according to usual practice should or should not be read as the position that existed immediately prior to the Applicant being notified of the redundancy.

[47] On one view, work continuing ‘according to usual practice’ would not preclude the Institute from implementing a restructure in accordance with the terms of the Agreement and in accordance with its ‘usual practice’ of doing so. The consequence of the Applicant’s submission being accepted would be that the raising of a dispute over implementation of a redundancy program can be used to halt or thwart a restructure for an indeterminate period. Unhelpfully, neither party adequately addressed the proper construction of the terms of clause 12.2.2 and what ‘according to usual practice’ means in the context of the present dispute before me.

[48] Were it the case that the Applicant was unable to pursue a remedy of any sort, absent the granting of the interim orders sought, that would weigh strongly in favour of a conclusion that the balance of convenience lies with the Applicant. That however is not the case. The Act provides other avenues for the Applicant to seek redress in relation to his grievance including court proceedings dealing with enterprise agreement contraventions and applications for unfair dismissal remedies. In dealing with contraventions of the Act, the courts have power to order reinstatement 7. In the unfair dismissal jurisdiction, reinstatement is the primary remedy and if that is not appropriate, orders can be made for compensation.

[49] I further observe that the dispute was raised by the Applicant and filed with the Commission prior to the date of his deemed resignation. He was an employee at the time the dispute was raised in accordance with the dispute settlement term and based on relevant authority 8 would not appear to be precluded from proceeding with that dispute application, noting however my earlier comments regarding the Institute’s jurisdictional objections.

[50] Finally, the circumstances of the restructure are relevant. The Institute has determined to restructure with the stated objective of rationalising manager roles. The Applicant seeks to preserve the manager role in which he has been acting up in since 2014 or be placed in a similar role at the same level of ‘remuneration’. Those two objectives of the parties were unable to be reconciled.

[51] Were I to issue the interim orders it begs the question as to what work the Applicant would actually do in circumstances where the Institute has made clear that the manager role the Applicant was acting up in as well as his substantive role of Compliance Coordinator were no longer required. Were the ultimate determination of the matter in the Institute’s favour in circumstances of the interim order having been issued, the Institute would not appear to have a means of recovering or mitigating costs borne by it in the interim period. This weighs against a finding that the balance of convenience weighs in the Applicant’s favour.

[52] Having regard to the avenues available to the Applicant to pursue his grievance under the Act and the inability of the Institute to mitigate any costs it may incur, I am satisfied that the balance of convenience weighs against the grant of the interim orders sought by the Applicant.

Conclusion

[53] The Applicant has established an arguable case that the role he was offered redeployment to by the Institute was not an ‘alternative position’ of ‘similar remuneration’ in the terms required by clause 15.10 of the Agreement. However, the balance of convenience weighs against the granting of the interim orders sought by the Applicant.

[54] The application for interim orders is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Addison representing the Applicant.

L. Houlihan representing the Institute.

Hearing details:

2019
Melbourne
28 October

Printed by authority of the Commonwealth Government Printer

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 1   AE429293.

 2 [2006] HCA 46; (2006) 227 CLR 57 (ABC).

 3 (2010) 199 IR 40; [2010] FCA 799 at [45]-[46].

 4 (2011) 217 FCR 238; (2011) 286 ALR 257; [2011] FCAFC 156 at [67].

 5   Kim Hodgkins [2019] FWC 3344 at [34]-[35].

 6   “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd, [2017] FWCFB 3005 at [114]

 7 Fair Work Act 2009 (Cth), s.545(2)(c)

 8 Fairhall v St George & Sutherland Community College Inc. [2012] 226 IR 402, Re ING Australia Pty Ltd [2006] 158 IR 239