Romany Olson and Nykalas Boyd v Court Services Victoria Summary

[2022] FWC 2703

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Renee Steel; Lou Durantini; Natasha O’Donnell; Helen Tsiligiris; Gary Saunders; Daria Atkinson; Majella McGrath; Silvana Sanfilippo; Casey Atkinson; Joanne Atkinson; Rebekah Sinclair; James McCathie; James Stevenage; Mia Kulik; Romany Olson and Nykalas Boyd
v

Court Services Victoria

(C2021/8851; C2021/8913; C2021/8914; C2021/8915; C2021/8916; C2021/8917; C2021/8918; C2021/8919; C2021/8920; C2021/8921; C2021/8922; C2021/8923; C2021/8924; C2021/8925; C2021/8926; C2021/8928)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 OCTOBER 2022

Alleged dispute about a matter arising under an enterprise agreement.

On 24 December 2021, Ms Renee Steel, Mr Lou Durantini, Ms Natasha O’Donnell, Ms Helen Tsiligiris, Mr Gary Saunders, Ms Daria Atkinson, Ms Majella McGrath, Ms Silvana Sanfilippo, Mr Casey Atkinson, Ms Joanne Atkinson, Ms Rebekah Sinclair, Mr James McCathie, Mr James Stevenage, Ms Mia Kulik, Ms Romany Olson and Mr Nykalas Boyd (collectively, the Applicants) filed applications with the Commission pursuant to s.739 of the Fair Work Act 2009. The Applicants made their respective applications raising a dispute with Court Services Victoria (CSV) pursuant to clause 13 of the Victorian Public Service Enterprise Agreement 2020 (the Agreement).[1]

I conducted two conferences and made directions in response to the question of jurisdiction raised by CSV. In response, the Applicants outlined ten questions for arbitration, two of which contained a number of sub-questions and the parties filed their materials. I then proceeded to determine the question of jurisdiction on the papers, with none of the parties having advised they wished to be heard. On 16 September 2022, I issued a Decision[2] in which I made the following findings:

(a)I was not satisfied that the Commission has jurisdiction to deal with Questions 2-10 (inclusive) submitted by the Applicants;

(b)I was satisfied that the Commission has jurisdiction in relation to Question 1 submitted by the Applicants; and

(c)while I noted the Applicants had included a number of sub-questions for determination in Question 1, I considered they all fell for consideration as part of the determination of the broader question posed by the Applicants:

“Did CSV meet their obligations under Clause 11 of the Victorian Public Service Enterprise Bargaining Agreement 2020 (the Agreement)?”[3]

I then proceeded to express provisional views in response to the question of whether CSV had met their obligations under clause 11 of the Agreement based on the material that was then before the Commission[4] and concluded that CSV had met its obligations under clause 11 of the Agreement, having regard to the chronology of events and the contents of the correspondence and accompanying attachments that had passed between the parties.[5] I concluded the Decision dated 16 September 2022 with the following:

“[97] The directions I made in this matter were directed at resolving the jurisdictional objection made by CSV. The directions afforded the Applicants the opportunity to file material in reply to CSV’s submissions and the witness statement of Jewil Fulton and the parties also had the opportunity to request a hearing. Although these opportunities were not taken up, I will afford the Applicants the opportunity to consider their position in relation to this dispute given the provisional views I have expressed. In particular, the Applicants should take note of the scope of clause 13 of the Agreement and, in particular, my finding that it is not broad enough for the Commission to determine the Questions 2-10 (inclusive) they have submitted or whether the COVID-19 vaccination policy of CSV is lawful or reasonable.

[98] The Applicants will therefore have the opportunity to file and serve any material in response to my provisional views regarding CSV’s compliance with obligations imposed on it pursuant to clause 11, should they wish to do so, by no later than 3.00pm on Friday 7 October 2022.”

At 2.36pm on Friday 7 October 2022, I received the following email correspondence from the Applicants:

“Dear Deputy President Clancy,

Given the Commission has determined that it does not have jurisdiction as to nine out of the ten questions raised by the Applicants, the Applicants intend to move the Collective dispute to the Federal Court. As the dispute moves to a different forum, we trust that Court Services Victoria will continue to abide by the protections provided for employees in the exercise of a workplace right.

Kind regards

Mr Lou Durantini, Judicial and Executive Remuneration Coordinator, People and Culture, CSV Mr Nykalas Boyd, Regional Administrative Officer, VCAT, CSV Ms Renee Steel, Principal Consultant, Workplace Relations, CSV Ms Romany Olson, Project and Reporting Officer, Magistrates' Court of Victoria, CSV Ms Mia Kulik, Trainee Courts Registrar, MCV Mr James Stevenage, former Trainee Court Registrar, MCV Ms Rebekah Sinclair, former Court Advice Officer (Legislation and Policy), MCV, CSV Ms Joanne Atkinson, Manager Koori Courts, MCV Ms Casey Atkinson, Koori Courts Program Expansion Practitioner, MCV Ms Silvana Sanfilippo, Senior Business Support Officer, MCV Ms Majella McGrath, Koori Court Team Leader, MCV Ms Daria Atkinson, Elder Respected Persons, MCV Mr Gary Saunders, Koori Court Officer, MCV Ms Helen Tsiligiris, Procurement Partner, CSV Ms Natasha O'Donnell, Koori Court Officer, MCV, CSV Ms Evanthia Giatris, Registrar, MCV, CSV Ms Jessica Poole, Qualified Court Registrar, MCV, CSV Mr Justin Van Rossen, Team Leader Assessment and Referral Court (ARC) Gippsland, MCV, CSV Mr Mark Willis, ARC Advanced Case Manager, MCV, CSV Mr James McCathie, Representative and former employee Court Services Victoria”

From this correspondence, I have taken the Applicants to have discontinued their applications pursuant to Rule 10(2)(b)(iv) of the Fair Work Commission Rules 2013. The Commission’s files in respect of the Applicants will therefore now be closed.

DEPUTY PRESIDENT

[1] AE5019129.

[2] [2022] FWC 2491

[3] Ibid at [44].

[4] Ibid at [86] – [91].

[5] Ibid at [97]

Printed by authority of the Commonwealth Government Printer

The case of Romany Olson and Nykalas Boyd v Court Services Victoria involved a group of employees who raised concerns about a matter arising under an enterprise agreement. The applicants, who were all employees of Court Services Victoria (CSV), filed applications with the Fair Work Commission (FWC) seeking arbitration of their dispute. CSV contested the FWC's jurisdiction over the dispute, leading to a series of conferences and directions by the Deputy President. Ultimately, the Deputy President determined that the FWC did not have jurisdiction over nine out of the ten questions raised by the applicants, but did have jurisdiction over one question regarding CSV's obligations under clause 11 of the Victorian Public Service Enterprise Agreement 2020.

The legal issues before the Deputy President were whether the FWC had jurisdiction to arbitrate the dispute and, if so, whether CSV had met its obligations under clause 11 of the Agreement. The Deputy President found that the FWC did not have jurisdiction over nine of the ten questions raised by the applicants, as they were outside the scope of clause 13 of the Agreement. However, the Deputy President did have jurisdiction over the question of whether CSV had met its obligations under clause 11 of the Agreement. The Deputy President concluded that CSV had met its obligations under clause 11, having regard to the chronology of events and the contents of the correspondence and accompanying attachments that had passed between the parties.

In light of the Deputy President's determination that the FWC did not have jurisdiction over nine of the ten questions raised by the applicants, the applicants decided to discontinue their applications and move the collective dispute to the Federal Court. As a result, the FWC's files in respect of the applicants were closed. This decision highlights the importance of carefully considering the scope of the FWC's jurisdiction and ensuring that any disputes raised fall within that scope. It also underscores the need for parties to a dispute to carefully consider their options and strategies for resolving the dispute, including the potential need to seek alternative forums for resolution.

The Deputy President's decision serves as an important reminder to parties involved in workplace disputes that the scope of the FWC's jurisdiction is limited and that it is essential to carefully consider the relevant provisions of any applicable enterprise agreement when raising a dispute. Parties should also be aware of the potential need to seek alternative forums for resolution if the FWC does not have jurisdiction over the dispute. The decision also highlights the importance of carefully considering the options and strategies available to parties when resolving workplace disputes, and the need to act promptly and decisively in order to achieve the desired outcome.

Romany Olson and Nykalas Boyd v Court Services Victoria

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established