Romana Tomlinson v St Paul's International College
[2024] FWC 3180
•19 NOVEMBER 2024
| [2024] FWC 3180 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Romana Tomlinson
v
St Paul’s International College
(C2024/5901)
| COMMISSIONER MCKINNON | SYDNEY, 19 NOVEMBER 2024 |
Alleged dispute over employment entitlements – jurisdiction – whether reasonable attempt to resolve the dispute at the workplace – failure to follow disputes procedure
On 27 August 2024, Ms Romana Tomlinson applied under section 739 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute with St Paul’s International College under the NSW Catholic Independent Schools (Support Staff Model C) Multi-Enterprise Agreement 2023 (the Agreement) and its predecessor agreements made in 2020 and 2017 respectively.
The College is a Catholic Independent School in Moss Vale, New South Wales and Ms Tomlinson is employed to work in its boarding house. The dispute is about alleged underpayment of entitlements during the entire period of employment. Ms Tomlinson seeks a determination to the effect that she is entitled to the pay and conditions that form the basis of her claim. She further seeks orders that the College pay her those entitlements (in the amount of $115,727.49) within 14 days and that her alleged entitlements be paid for all future periods of work, with retrospective effect from 1 September 2024.
The College objects to the application on the basis that Ms Tomlinson has not made a reasonable attempt to resolve the dispute at the workplace by discussions with the Principal or her nominee, and accordingly has not complied with her obligations under the Agreement’s dispute settlement procedure.
In conference with the parties on 23 September 2024, I declared a potential conflict of interest in connection with my role on the Board of another Catholic Independent School in the region. No objection was made to my dealing with the application and I proceed accordingly.
So far as the application purports to be a dispute under one of the predecessors to the Agreement, it is misconceived. The earlier enterprise agreements have ceased to operate and no longer cover or apply to Ms Tomlinson in relation to her employment. The remainder of the dispute is a matter arising under the Agreement. The question is whether the Agreement required or allowed the Commission to deal with the dispute at the time Ms Tomlinson made her application. For the reasons that follow, the answer to the question is “No”.
Consideration
Section 595 of the Act empowers the Commission to deal with disputes if it is expressly authorised to do so under or in accordance with the Act. The Commission can deal with disputes including by mediation or conciliation, making a recommendation or expressing an opinion. The Commission can only deal with a dispute by arbitration if expressly authorised to do so under or in accordance with another provision of this Act.
Section 739 of the Act permits the Commission to deal with certain disputes under an enterprise agreement procedure for dealing with disputes. The Agreement contains a procedure for dealing with disputes at clause 24, the terms of relevance for present purposes being clauses 24.1 and 24.2, extracted below. The full terms of clause 24 are set out in the Attachment.
Clauses 24.1 and 24.2 provide as follows:
“24.1The objective of these procedures is the avoidance and resolution of industrial disputation, arising under this Agreement and the NES, by measures based on consultation, cooperation and negotiation.
24.2Subject to the provisions of the Act, disputes in relation to matters under this Agreement and the NES shall be dealt with in the following manner:
Step 1In the first instance the parties must make a reasonable attempt to resolve the dispute at the workplace by discussions between the Employee or Employees concerned and the Principal or nominee of the Principal.
Step 2Should the matter not be resolved at Step 1, then it may be referred by either party to the FWC, or any other person agreed between the parties, for conciliation, provided the party that refers the matter to the FWC has complied with their obligations in Step 1. During conciliation, the FWC may:
(i)arrange conferences of the parties or their representatives at which the FWC is present; and
(ii)require the attendance of the parties or their representatives; and
(iii)arrange for the parties or their representatives to confer among themselves at conferences at which the FWC is not present; and
(iv)if requested by the parties, make non-binding recommendations about particular aspects of a matter about which they are unable to reach agreement.”
The objective of clause 24 is to avoid and resolve industrial disputes arising under the Agreement and the NES by measures based on consultation, cooperation and negotiation. There is no ambiguity in clause 24. It is clear on its terms and provides for an escalating process through which the parties have agreed to work cooperatively to resolve disputes.
Clause 24.2 of the Agreement contains three steps for dealing with disputes. The words “shall be dealt with in the following manner” make clear that the process is mandatory rather than optional.
Compliance with Step 1 of the agreed dispute settlement process is also mandatory. The parties must make a reasonable attempt to resolve the dispute at the workplace by discussions between the employee(s) concerned and the Principal or their nominee. Step 1 has three elements:
1.There must be a reasonable attempt to resolve the dispute.
2.The attempt must be made at the workplace.
3.The attempt must be by discussions between the employee and the Principal or nominee of the Principal. In this regard, discussions can be both oral and in writing, and discussions occurring only by email correspondence are capable of meeting this requirement.
Clause 24.2 (Step 2) permits a matter that is not resolved at Step 1 to be referred by either party for conciliation, either by the Commission or another agreed person. However, the capacity to apply to the Commission is expressly limited to a party who has “complied with their obligations in Step 1”.
The actions of Ms Tomlinson
Ms Tomlinson applied for the Commission to deal with the dispute at 8.59am on 27 August 2024. Before making her application, Ms Tomlinson:
On 26 March 2024, sent an email to Sister Angelina Fong (College Director) and the College’s Accounts Officer querying her pay and entitlements under the Agreement and seeking that they be corrected.
On 27 March 2024, in response to a request made through Sister Angelina to the Accounts Officer, forwarded a copy of the email to the College’s Business Manager, Ms Juliana Murdoch, and sought her clarification/confirmation or explanation of entitlements.
The actions of Mr Budd
Mr Christopher Budd, who is Ms Tomlinson’s partner, has acted as representative of Ms Tomlinson in relation to the dispute. In seeking to advance the claims of Ms Tomlinson, Mr Budd:
On 12 August 2024, sent the College a letter of demand alleging that Ms Tomlinson had been underpaid and described the letter as “a formal attempt to resolve the dispute in accordance with EA cl 24.2 Step 1”. The letter was addressed to the College “Care of Sister Angelina Fong”. The letter claimed sleepover allowance, toilet cleaning allowance, first aid allowance, overtime payments and public holiday payments and demanded payment of a significant settlement sum within 14 days. The letter stated that if the offer of settlement was not accepted by payment of the settlement sum within 14 days, Ms Tomlinson may seek conciliation in the Commission “without further notice” in accordance with Clause 24.2, Step 2.
On 21 August 2024, sent an email to Ms Anne-Maree Scott, the College’s Head of School – Leadership and Administration complaining that she had not met his demand for all correspondence about the dispute to be addressed to him rather than Ms Tomlinson and restated the demand. It is necessary to observe that no such demand was actually made in the letter of 12 August 2024. At its highest, the letter advised of his status as representative and provided his contact information if the College “would like to discuss the matter”.
On 24 August 2024, responded to an email from Ms Scott of 23 August 2024 containing the College’s response to the letter of demand and advising that the College would be in touch in the following week about its proposed course of action. Mr Budd:
a.took issue with the College’s position on Ms Tomlinson’s claim,
b.sought further information from the College,
c.suggested a way forward on one aspect of the claim,
d.advised that Ms Tomlinson maintained her position, and
e.despite acknowledging the potential for further advice and discussion to assist in resolving the dispute, stated that if the settlement offer was not accepted by 26 August 2024, he would apply to the Commission on behalf of Ms Tomlinson. It is important to note that the significance of 26 August 2024 is that it is the end of the 14-day period contained within the letter of demand of 12 August 2024.
At 8.25am on 27 August 2024, responded to a further email from Ms Scott. The email from Ms Scott explained the College’s position on aspects of the claim in more detail, offered to provide further detail and to meet to discuss the claim or to provide a further detailed response in writing. Mr Budd’s response:
a.indicated that a meeting would be of assistance, but
b.stated that Ms Tomlinson intended to submit the application to the Commission as the College had not accepted the settlement offer (that is, by paying the proposed settlement sum by 26 August 2024).
At 8.59am on 27 August 2024, filed this application in the Commission.
Later on 27 August 2024, Ms Scott wrote to Mr Budd expressing her disappointment that the application to the Commission had been made “without first allowing our suggested meeting to discuss the outstanding points raised, or at least including the correspondence that has occurred between us”.
Were there discussions between Ms Tomlinson and the Principal or her nominee for the purposes of clause 24?
A matter in dispute in this regard is who is “the Principal” for the purposes of clause 24 of the Agreement – Sister Angelina or Ms Scott?
Sister Angelina is the College Director and Head of Boarding. Ms Tomlinson reports to Sister Angelina in her capacity as Head of Boarding and describes Sister Angelina as “her manager”. Sister Angelina is also a signatory to the Agreement. The Agreement’s signature page describes her capacity to sign the Agreement as “Principal”. The description appears to be in Sister Angelina’s handwriting.
Ms Scott is the Head of School – Leadership and Administration. For regulatory purposes, including registration with the New South Wales Education Standards Authority (NESA), she is nominated as Principal of the College. According to Ms Scott, the term ‘Head of School’ is used instead of ‘Principal’ at the College. Also, according to Ms Scott, her contract of employment provides that she is responsible as Principal in her dealings with the College and external agencies. The contract of employment is not in evidence.
Although I tend to the view that Ms Scott is the Principal for the purposes of clause 24 of the Agreement, the matter is not necessary to decide. Even if Ms Scott is not relevantly “the Principal” and this role is instead held by Sister Angelina, I accept the evidence of Ms Scott that she is authorised and required by Sister Angelina to deal with enterprise agreement disputes on behalf of the College. In this regard, she is acting either as Principal or as the “nominee” of Sister Angelina. This is made clear at least by the email sent by Ms Scott to Mr Budd on 23 August 2024, expressly stating that it was sent by Ms Scott “on behalf of, and in consultation with, Sister Angelina, College Director”.
Accordingly, whether Ms Scott is the Principal or Sister Angelina’s nominee for the purpose of clause 24 of the Agreement, discussions held with Ms Scott are capable of constituting discussions for the purposes of the third element in clause 24.2 above – that the attempt to resolve the dispute must occur by discussions between the employee and the Principal or nominee.
Clause 24.3 of the Agreement permits Ms Tomlinson to appoint “another person” to accompany and/or represent them for the purpose of the clause and there is no dispute that Ms Tomlinson appointed Mr Budd to represent her for this purpose. The emails sent by Mr Budd on behalf of Ms Tomlinson can also be taken to form part of the discussion between Ms Tomlinson and the College in relation to the dispute.
The third element of clause 24.2 is established. There were discussions between Ms Tomlinson and the Principal or her nominee in relation to the dispute.
Was the attempt made at the workplace?
The steps taken by Ms Tomlinson to resolve the dispute on 26 and 27 March 2024 were attempts made at the workplace, in the sense that they involved direct dialogue between Ms Tomlinson and the College about her pay and entitlements.
I am not satisfied that the remaining steps (taken by Mr Budd) were attempts made “at the workplace”. The letter of demand of 12 August 2024 advised of Mr Budd’s status as Ms Tomlinson’s representative, provided his contact information if the College “would like to discuss the matter”, and stated that he looked forward to resolving the dispute with the College on Ms Tomlinson’s behalf.
The limited subsequent discussion between Mr Budd and the College occurred via email. On 21 August 2024, Mr Budd clarified that the only mechanism through which the College could seek to resolve the dispute was through him. On 24 August 2024, Mr Budd again claimed that the College could not “talk to Ms Tomlinson” on the matter of her underpayment claim”. On 27 August 2024, despite agreeing that the offer made by the College on 26 August 2024 to meet and discuss the claim in more detail would be of assistance, he proceeded to file the application.
Mr Budd is not a member of the workplace. It is clear from the chronology of events that no attempt was made to resolve the dispute at the workplace by Mr Budd. In the result, the second element of clause 24.2 is only partly established by the single email sent to Ms Tomlinson in March 2024 which was then on-forwarded to the College’s Business Manager.
Did Ms Tomlinson make a reasonable attempt to resolve the dispute?
At the time that it received the letter of demand from Mr Budd, the College was unaware that issues raised by Ms Tomlinson in her email of March 2024 remained unresolved. The letter of demand in effect “came out of the blue”.
In the period from 12 August 2024 to 26 August 2024, the College sought advice, reached a position on the claim and responded in writing to Mr Budd. It expressly offered to provide further detail on its position and to meet to discuss the draft application in detail, or to provide a detailed response in writing. In this regard, the College had made a genuine offer to work cooperatively with Mr Budd to try and resolve the dispute without the need for referral to the Commission.
Although Mr Budd indicated a willingness to engage in discussions with the College, he remained unmoved on both the prospect of those discussions occurring before the filing of the application or the demand for payment of the settlement sum within 14 days. When 26 August 2024 came and went without payment to Ms Tomlinson’s account, the application was filed in the Commission on 27 August 2024.
The result was to significantly limit the opportunity for consultation, cooperation or negotiation between the parties before applying to the Commission in a way that was inconsistent with the purpose of clause 24.2. In the circumstances, I do not consider that a reasonable attempt was made by Ms Tomlinson (and Mr Budd on her behalf) to resolve the dispute before it was referred to the Commission.
As explained above, the obligation on parties to make a reasonable attempt to resolve disputes at the workplace is a mandatory rather than optional step. This is so even if the moving party sees little value in the effort this may require or does not wish to delay their application to the Commission.
Compliance with Step 1 of clause 24 is a precondition on the exercise of a person’s right to apply to the Commission to deal with the dispute. The fact that subsequent discussions have now occurred does not overcome the failure to comply with Step 1. The time for considering whether Step 1 has been complied with is the time of application to the Commission. At the time the application was made, Ms Tomlinson was expressly excluded from applying to the Commission under Step 2 of clause 24 of the Agreement, because she had not made a reasonable attempt to resolve the dispute at the workplace and accordingly had not complied with her obligations under Step 1 of clause 24. The first element of clause 24 is not established. This is not a matter that can be overcome by the exercise of discretion. Whether a person has complied with the dispute resolution procedure is a question of jurisdictional fact.
Other matters
Ms Tomlinson has objected to the application by the College to dismiss this application on several grounds. I deal with each in turn below.
The application must fail for want of jurisdiction: This submission is misconceived. If a dispute arises about whether the Commission has jurisdiction to deal with an application, the dispute must be resolved before the Commission can deal with the application itself. It is not necessary to identify an express power in the Act that allows the Commission to decline to act upon an application on the basis that it fails for want of jurisdiction.[1] The Commission can determine the question of a person’s entitlement to make an application to it, although not conclusively (because that is a matter for the courts).
There is no question as to jurisdiction to hear the substantive application: For the reasons given in paragraph [34] above, this submission is also misconceived. A party to a proceeding is entitled to raise a genuine challenge to the limits of the Commission’s powers in the case, and if that occurs, the Commission will ordinarily be required to determine that dispute before dealing with the substantive application.
The application has no reasonable prospects of success: There are two aspects to this submission: firstly, that because Ms Tomlinson’s application has reasonable prospects of success, it must follow that the College’s application to dismiss has none. Secondly, that at the time of the College’s application to dismiss, it had been agreed that Step 1 of clause 24 had been agreed with by the two meetings between Ms Tomlinson and the College on 6 and 18 September respectively. The first of these submissions is rejected on the basis of my conclusion that Ms Tomlinson had not complied with the dispute resolution procedure at the time of her application to the Commission and as such was not entitled to apply to the Commission. The second submission is misconceived because the relevant time for the purposes of compliance with the disputes procedure was the time of Ms Tomlinson’s application to the Commission.
The application is vexatious: This submission is made without foundation. The College raised a genuine challenge to the Commission’s power to deal with the application as it was entitled to do.
The application is based on wrong information: Ms Tomlinson asserts factual errors in the College’s submission in support of its jurisdictional objection. However, it should be apparent from my conclusions above that I do not consider the College’s submission to have been either ‘plainly wrong’ or frivolous or without reasonable prospects of success. Accordingly, this submission is not accepted.
The evidence of Sister Fong is unreliable: Finally, it is submitted that the witness statement of Sister Fong is unreliable and should not be admitted in the absence of an opportunity for her cross-examination. This was dealt with at the hearing of the jurisdictional argument, where Sister Fong was not available for cross-examination and her evidence was not admitted.
Conclusion
At the time of the application, clause 24 did not require or allow the Commission to deal with the dispute for the purposes of s.595 and s.739 of the Act, because the steps contained in clause 24 had not been followed by Ms Tomlinson. Section 739 did not apply to the dispute and s.595 operated to prevent the Commission from dealing with the dispute because it was not expressly authorised to do so.
The application is dismissed.
COMMISSIONER
Appearances:
C Budd on behalf of the Applicant.
A Sumpter for the Respondent.
Hearing details:
2024.
Sydney (by video):
October 24.
Attachment
NSW Catholic Independent Schools (Support Staff-Model C) Multi-Enterprise Agreement 2023
Clause 24 - Dispute Procedures
24.1The objective of these procedures is the avoidance and resolution of industrial disputation, arising under this Agreement and the NES, by measures based on consultation, cooperation and negotiation.
24.2Subject to the provisions of the Act, disputes in relation to matters under this Agreement and the NES shall be dealt with in the following manner:
Step 1In the first instance the parties must make a reasonable attempt to resolve the dispute at the workplace by discussions between the Employee or Employees concerned and the Principal or nominee of the Principal.
Step 2Should the matter not be resolved at Step 1, then it may be referred by either party to the FWC, or any other person agreed between the parties, for conciliation, provided the party that refers the matter to the FWC has complied with their obligations in Step 1. During conciliation, the FWC may:
(i)arrange conferences of the parties or their representatives at which the FWC is present; and
(ii)require the attendance of the parties or their representatives; and
(iii)arrange for the parties or their representatives to confer among themselves at conferences at which the FWC is not present; and
(iv)if requested by the parties, make non-binding recommendations about particular aspects of a matter about which they are unable to reach agreement.
Step 3If the FWC is unable to resolve the dispute by conciliation, the FWC may then, on application by either party:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.
Provided, however, that the party who has initiated the application to the FWC under Step 3 has complied with their own obligations under Step 1 and Step 2.
In arbitrating the dispute the FWC may only:
(i)give directions about the process to be followed within the School to resolve the matter in dispute; and/or
(ii)make a determination about a matter that is provided for under this Agreement or the NES; and/or
(iii)determine the matter in dispute consistent with the relevant provisions of this Agreement or the NES.
Note: If the FWC arbitrates the dispute it may also use the powers that are available to it under the Act. A decision the FWC makes when arbitrating a dispute is a decision for the purposes of Div 3 of Part 5-1 of the Act. Therefore, an appeal may be made against the decision.
24.3The School or the Employee may appoint another person, organisation or association to accompany and/or represent them for the purpose of this clause. Where the Employee appoints the Union, the Union shall be party to the dispute.
24.4A Employee who is party to a dispute must, while the dispute is being resolved:
(a)continue to work in accordance with his or her contract of employment, unless the Employee has a reasonable concern about an imminent risk to his or her health and safety; and
(b)comply with any reasonable direction given by the School to perform available work, either at the same workplace or at another workplace. If the School exercises its right to direct an Employee to perform other available work, the School must have regard to:
(i)the provisions (if any) of the law of the Commonwealth or Territory dealing with work health and safety that apply to that Employee or that other work; and
(ii)whether that work is appropriate for the Employee to perform.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.
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