Sarah Howlett v Serco Australia Pty Ltd
[2022] FWCFB 59
•13 APRIL 2022
| [2022] FWCFB 59 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Sarah Howlett
v
Serco Australia Pty Ltd & others
(C2022/1184)
| VICE PRESIDENT HATCHER | SYDNEY, 13 APRIL 2022 |
Appeal against decision [2021] FWCA 5445 of Commissioner Wilson at Melbourne on 2 September 2021 in matter number AG2021/6637
Introduction
Ms Sarah Howlett has appealed against the decision of Commissioner Wilson of 2 September 2021[1] to approve the Serco Immigration Services Agreement 2021[2] (2021 Agreement) with undertakings. Permission for the appeal is required under s 604 of the Fair Work Act 2009 (FW Act).
Rule 56(2) of the Fair Work Commission Rules 2013 (FWC Rules) provides that a notice of appeal under s 604 of the FW Act must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time as may be allowed by the Commission on application by the appellant. Ms Howlett filed her notice of appeal on 16 February 2022, almost 21 weeks outside the time prescribed by rule 56(2). Accordingly, Ms Howlett requires an extension of time pursuant to rule 56(2)(c) to file her appeal in order for her application for permission to appeal and the appeal itself to be considered.
The appeal was listed for hearing on 24 March 2022. Directions for the filing of submissions in advance of the hearing were issued to the parties on 17 February 2022. In addition to the submissions filed by Ms Howlett and by Serco Australia Pty Ltd (Serco), the employer under the 2021 Agreement, a document was filed by Mr Craig McComb, an employee covered by the 2021 Agreement who was an employee bargaining representative for the negotiations for the 2021 Agreement. The document filed by Mr McComb set out his recollections of what was agreed during the negotiations in relation to the issue raised by Ms Howlett. At the hearing of the appeal, we admitted this document as a submission in the appeal.
Background
Clause 3 of the 2021 Agreement provides that the “parties to this Agreement” are Serco, employees of Serco engaged in the classifications set out in clauses 15 and 17 of the Agreement (relevantly including Detention Service Officers, Detention Support Workers and Detention Service Managers) at Immigration Detention Centres and other immigration services operated by Serco under contract with the Department of Home Affairs, and the United Workers’ Union (UWU) and the Union of Christmas Island Workers. Ms Howlett is employed by Serco as a Detention Service Officer (DSO) and is covered by the Agreement. At the time she commenced her employment with Serco as a DSO, the preceding Serco Immigration Services Agreement 2018 (2018 Agreement) applied to her employment. Ms Howlett was not an employee bargaining representative for the 2021 Agreement and consequently did not participate in the negotiations for that agreement.
The issue raised by Ms Howlett in her appeal concerns the salary progression for DSOs. Clause 15 of the 2021 Agreement provides for three grades of DSO, namely DSO 1, DSO 2 and DSO 3. Each progression to a higher grade results in an increase in wages. The first grade, DSO 1, has two sub-levels. The entry-level position is a Trainee DSO (DSO 1A). Following completion of a minimum of three months’ service and the satisfaction of several other requirements, a DSO 1A progresses to a Certified DSO (DSO 1B). The next classification up is that of Accredited Detention Service Officer or DSO 2. Clause 15(a)(iv) of the 2021 Agreement provides that a DSO 1 will remain at that level for a minimum of 24 months before progressing to DSO 2.
Under the terms of the 2018 Agreement, which contained an equivalent classification structure to the 2021 Agreement and which was, as earlier stated, in operation at the time when Ms Howlett commenced employment with Serco, progression from DSO 1 to DSO 2 required a minimum of only 12 months’ service. The relevant effect of the approval of the 2021 Agreement upon Ms Howlett is therefore that the period she has to spend in the DSO 1 classification before she can progress to the higher-paid DSO 2 classification has been extended from 12 months to 24 months.
The modern award which covers Serco and the employees to whom the 2021 Agreement applies is the Corrections and Detention (Private Sector) Award 2020[3] (Award). It is not in dispute that the classifications in the Award equivalent to DSO 1A and DSO 1B in the 2021 and 2018 Agreements are Induction and Detention Services Officer Level 1 respectively, and the equivalent to DSO 2 is Accredited Detention Services Officer Level 2. Clauses B.2.4 and B.3.1 of Schedule B to the Award provide:
B.2.4A Detention Services Officer will remain at [Detention Services Officer Level 1] for a minimum of 12 months before progressing to Level 2.
…
B.3.1Progression to [Accredited Detention Services Officer Level 2] is subject to the following requirements being met:
· Completed a minimum of 12 months at Level 1; and
· Training requirements i.e. satisfactory completion of appropriate Certificate II qualification or will hold equivalent qualification.
Grounds of appeal and appeal submissions
The grounds for the appeal set out in the Ms Howlett’s notice of appeal are as follows:
“1) Section 15, sub-section (vi) states:
‘A Detention Service Officer will remain at this Level for a minimum of 24 months before progressing to DSO 2’
The extension of the Detention Service Officer training period from 12 months to 24 months for Detention Service Officers who were, at the time of the EA change, under a 12-month traineeship contract has caused financial detriment. We are not eligible for the Accredited DSO 2 increased pay rate which for an FTE this represents approx. $5500 pa + super entitlements.
2) Commissioner WILSON noted in bold below:
‘The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.” (emphasis in original)
In her written appeal submissions, Ms Howlett identified the basis of her appeal as follows:
“… I believe there is an arguable case that an error has occurred, that being the decision to approve the Serco Immigration Services Agreement 2021 (AG2021/6637) involved a significant error of fact, and was unreasonable and unjust through permitting a change in employment conditions that has caused a financial detriment to the DSO1B employees who had signed a contract of employment covered by the previous Agreement, and that when applied against the relevant Industry Award at the Test Time the new Agreement does not pass the BOOT test.”
Ms Howlett contends in her submissions that the Commissioner did not take into account the impact of the requirement to serve a longer period as a DSO 1 when assessing whether the better off overall test (BOOT) was satisfied. She says that this occurred because Serco misled the Commissioner by not including this matter at Question 12 of its Form F17 declaration lodged in support of its application for approval of the 2021 Agreement. Question 12 of Form F17 requires the declarant to list the terms and conditions of the agreement for which approval is sought that are less beneficial than the equivalent terms and conditions in the relevant modern award. Ms Howlett submitted that the 2021 Agreement must fail the BOOT in relation to her classification of employment because the Award only requires 12 months’ service to progress from Detention Services Officer Level 1 to Detention Services Officer Level 2, whereas the 2021 Agreement requires 24 months to progress from DSO 1 to DSO 2. Ms Howlett submitted that the cost of remaining at DSO 1 for an extra 12 months is approximately $5500 per annum, and this detriment is not offset by other benefits of the Agreement.
Ms Howlett also submitted that it was not the intention of the employee bargaining representatives that the increase in the minimum period of service to be eligible for promotion from DSO 1 to DSO 2 would apply to DSO 1s employed by Serco prior to the Agreement commencing operation.
Extension of time to file the appeal
It is necessary at the outset to consider whether Ms Howlett should be granted an extension of time to file her appeal. As noted in the Full Bench decision in Snyder v Helena College Council, Inc.[4] time limits of the kind in rule 56(2) of the FWC Rules should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so.
The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised in the Full Bench decision in Jobs Australia v Eland[5] as follows:
“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
· whether there is a satisfactory reason for the delay;
· the length of the delay;
· the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
· any prejudice to the respondent if time were extended.” (footnote omitted)
Taking these matters into account, the exercise of discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour Ms Howlett being granted an extension of time within which to lodge her appeal.[6]
Reason for delay
Ms Howlett says that her appeal was filed late because she and her fellow DSO 1s had not yet completed their initial 12 months’ employment when the 2021 Agreement commenced operation on 9 September 2021. She says that they decided to wait until they completed their 12 months’ employment on 15 October 2021 to see if Serco would automatically promote them to DSO 2. When Serco did not promote her and her colleagues, she contacted Serco’s human resources department on 24 November 2021 and was informed by them that she would need to complete a further 12 months’ service. Ms Howlett says that on 22 December 2021 she contacted the Fair Work Ombudsman (FWO) about the matter and was advised that she “had a case to pursue through an Appeal”. She then contacted the UWU on 23 December 2021 and, the same day, contacted the general manager of the immigration detention centre at which she worked, who confirmed later that day Serco did not intend to reconsider its position.
Ms Howlett explained, having from her perspective explored all other available avenues to resolve the matter, that she and her colleagues agreed that she would file the appeal on behalf of herself and her colleagues. Ms Howlett explained that, because the DSOs are all shift workers, this process took some time. She ultimately filed her notice of appeal on 16 February 2022.
At the hearing before us, Ms Howlett conceded that she was aware that the period of service required to progress from DSO 1 to DSO 2 under the 2021 Agreement was going to increase from 12 months to 24 months when she voted on the agreement.[7] There was no basis in the terms of the 2021 Agreement, or the information provided by Serco to employees to explain the agreement, for Ms Howlett or any employee to form the view that the new progression requirement would not apply to existing employees classified as DSO 1, and Ms Howlett did not contend otherwise.
Taking fully into account that Ms Howlett is self-represented, we do not consider that she has satisfactorily explained her delay in filing the appeal. She knew, at the time the decision to approve the 2021 Agreement was made, that the period of service required to progress to DSO 2 would be extended to 24 months. Ms Howlett did not identify any logical reason why she should wait until she reached 12 months’ service on 15 October 2021 before taking any further steps to pursue her grievance. Even then, she waited more than a month before raising the issue with Serco. Having been informed by Serco on or about 24 November 2021 that the new requirement applied to her, she again waited until 22/23 December 2021 to pursue the issue further with the FWO, the UWU and her manager. Having been (allegedly) advised by the FWO that she could appeal the Commissioner’s decision, and advised by her manager that Serco’s position would not change, she then waited another eight weeks before filing her appeal.
The absence of a satisfactory reason for the delay weighs against the grant of an extension of time.
Length of the delay
The delay of in filing the appeal of almost 21 weeks is significant, particularly having regard to the fact the 2021 Agreement commenced operation on 9 September 2021. This weighs against the grant of an extension of time.
Nature of appeal grounds and likelihood that one or more would be upheld if time were extended
We are not satisfied that Ms Howlett has advanced an arguable case that there was any error in the Commissioner’s decision to approve the 2021 Agreement. Ms Howlett’s grievance in respect of the decision was founded upon the detriment visited upon her as a DSO 1 under the 2021 Agreement compared to the position which applied under the 2018 Agreement at the time she commenced her employment. However, this is not a matter relevant to the BOOT approval requirement contained in s 186(2)(d) of the FW Act and explicated in s 193. The comparison required by the BOOT is between the enterprise agreement for which approval is sought and the relevant modern award. In this case, the required comparison in respect of an employee in Ms Howlett’s position (that is, a DSO 1 in their second year of employment) would primarily be between the remuneration for a DSO 1B under the 2021 Agreement and a DSO 2 under the Award (assuming in the appellant’s favour that the additional Award requirement to obtain a Certificate III in Correctional Practice in order to progress to Detention Services Officer Level 2 could be satisfied in 12 months).
As at the “test time” mandated by s 193(6) (the date the application for approval of the agreement was lodged – in this case, 10 August 2021) the hourly rate for a non-casual DSO 1B under the 2021 Agreement was $30.93, compared to a minimum hourly rate of $23.67 for a Detention Services Officer Level 2 under the Award. However, the rates in the 2021 Agreement “roll up” a number of benefits separately provided for in the Award including payment for four hours per week of overtime penalty rates, shift allowances, weekend penalties and annual leave loading, so a straight comparison of the base hourly rates is not by itself a valid approach. In the proceedings below, Serco provided the Commission with modelling based on its standard 4-week regular rotating roster. Inclusive of the “Wellbeing Allowance” for which the 2021 Agreement provides, the modelling shows that a DSO 1B would earn an average of $2,619.24 per fortnight under the Agreement compared to $2,520.90 for a Detention Services Officer Level 2 under the Award for the same roster. That meant that there was a proper basis for satisfaction that, in respect of an employee such as Ms Howlett, the 2021 Agreement passed the BOOT. In addition, there was material before the Commission which indicated that the 2021 Agreement contains a range of other benefits for which the Award does not provide.
Ms Howlett has provided us with no modelling or analysis to demonstrate that the Agreement does not pass the BOOT. As made clear in the Full Bench decisions in SDAEA v Prouds Jewellers Pty Ltd[8] and in AMIEU v Swicker’s Kingaroy Bacon Factory Pty Ltd,[9] the adoption of such an approach in an appeal against the approval of an agreement brought on BOOT grounds is not likely to attract the grant of permission to appeal. Further, Ms Howlett conceded at the hearing of the appeal that, on the basis of a comparison between the 2021 Agreement and the Award, she could not show that an employee would not be better off overall as a result of the new requirement for a DSO 1 to serve for 24 months before progressing to DSO 2. It follows that Ms Howlett’s contention that Serco misled the Commissioner by not including a reference to this new requirement in Question 12 of the Form F17 declaration is unsustainable since the BOOT modelling shows that it does not constitute or cause any detriment compared to the Award.
Although it is strictly unnecessary to do so, we note that the material before us demonstrates that the change in the qualifying period to progress to DSO 2 was clearly explained to employees before they voted to approve the 2021 Agreement. Attached to Ms Howlett’s submission was a one-page document provided to employees by Serco entitled “Your 2021 EA at a glance”. Under the heading “Other key changes” in the document, the first itemised point reads: “Progression from DSO1A/B to DSO2 will occur at the completion of 24 months’ service”. Mr McComb’s document, which as earlier stated we received as a submission, does not take the matter any further. Despite participating in the negotiations, he does not, and concedes he cannot, identify any objective basis for a belief he apparently held that the change would only apply to new employees. Further, he said: “When I emailed Dan Robson from the United Workers Union regarding this topic, he said Serco didn't agree to it only effecting new staff.”
Finally, as to the two matters raised in the appeal grounds:
·The financial detriment referred to in the first appeal ground is one resulting from a comparison of the 2021 Agreement with the 2018 Agreement. Provided that an agreement passes the BOOT, and a proposed agreement is properly explained to employees in accordance with the requirements of s 180(5) of the FW Act and is otherwise genuinely agreed to within the meaning of s 188, there is no requirement that an enterprise agreement not be financially detrimental to any employee compared to a preceding agreement.
·The finding made by the Commissioner referred to in the second appeal ground is one made under s 190(3)(a) in connection with the acceptance of undertakings and does not relate to the issue raised by Ms Howlett’s appeal.
For the above reasons, we consider that the grounds of Ms Howlett’s appeal do not have reasonable prospects of success. This weighs against the grant of an extension.
Prejudice to the respondent
We do not consider that the grant of an extension of time would prejudice Serco’s capacity to respond to the appeal. However, there is a potential for practical prejudice in re-opening the question of an approval of an agreement which has now been in operation for almost seven months. On balance, we consider this to be a matter of neutral weight.
Conclusion
We cannot identify any other consideration relevant to the application for an extension of time. Having regard to the matters discussed above, we are firmly satisfied that the interests of justice would not be served by granting an extension. The delay in filing the appeal was lengthy, no satisfactory explanation for the delay has been afforded, and the appeal does not have reasonable prospects of success.
Accordingly, we decline to extend time for the filing of the appeal pursuant to rule 56(2)(c). The appeal is incompetent and is dismissed.
VICE PRESIDENT
Appearances:
S Howlett, the appellant, in person.
P Brown, solicitor, for the respondent.
Hearing details:
2022.
Sydney and Perth (via video-link):
24 March.
[1] [2021] FWCA 5445
[2] AE512944
[3] MA000110
[4] [2019] FWCFB 815
[5] [2014] FWCFB 4822; see also Panayiotou v University of Adelaide [2020] FWCFB 1692 at [8]
[6] Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 541
[7] The ballot to approve the 2021 Agreement took place on 23-27 July 2021, and the agreement was “made” on 27 July 2021.
[8] [2020] FWCFB 4864 at [20]
[9] [2021] FWCFB 6042 at [15]-[16]
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