Scott Parkinson v Thales Australia Holdings Pty Ltd T/A Thales Australia
[2022] FWC 2866
•28 OCTOBER 2022
| [2022] FWC 2866 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Scott Parkinson
v
Thales Australia Holdings Pty Ltd T/A Thales Australia
(C2022/6449)
| COMMISSIONER MCKENNA | SYDNEY, 28 OCTOBER 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
This decision deals with a jurisdictional objection that has been raised by the respondent to the application, Thales Australia Holdings Pty Ltd T/A Thales Australia (“Thales”). For the reasons that follow, I accept that Thales’ objection has been made out and that the application should be dismissed.
Background
The relevant enterprise agreement that was applicable to the employment in this case is the Thales Australia Maritime Enterprise Agreement 2019 (“Agreement”).
On 20 September 2022, Mr Shane Reside, an Organiser with the CFMMEU, wrote to Ms Alex Gardner, Thales’ Human Resources Business Partner, giving notification of a dispute (“Dispute Letter”) concerning Mr Scott Parkinson. It is relevant to reproduce the Dispute Letter in full (formal parts omitted):
“Re: Notification of Dispute – Scott Parkinson Stand Down
I am writing in relation to the stand-down of CFMMEU member Scott Parkinson. I am acting as Scott’s representative in the matter. Scott is accordingly included in this correspondence.
The CFMMEU was today party to a meeting at Garden Island attended by Steve Farrow, yourself, Scott Parkinson and I to discuss a proposed restructure of the Material Handling team at Thales Garden Island. The CFMMEU will be in contact with Thales regarding this proposed restructure shortly separate to this correspondence.
At today’s meeting we were informed that Scott would be stood-down on pay from his role indefinitely (effective immediately), and that contractor [name] would be appointed to perform Scott’s role as supervisor of portal crane operations.
Subject to Section 55 of the Thales Australia Maritime Enterprise Agreement 2019 (the Agreement) I am putting the decision to stand-down Scott into dispute. Given the urgent nature of the dispute, today’s discussion held at Garden Island, and my attempt to contact you by phone for further discussion earlier today, I am escalating the dispute to Stage 4 of the process subject to Section 55.1.6 of the Agreement.
The decision to stand-down Scott is in breach of a number of sections of the Agreement. The decision is not consistent with any of the circumstances described in Section 48 Standing Down of Employees. Further Section 11.1.2 Contractors and Commercial Vessels states that:
“the Company will not erode the job security, earnings or conditions of employees by the use of contract labour. The Company has a strong commitment to employ permanent employee where labour is available and it is economically feasible to do so.”
Scott is an existing permanent employee, available to work as normal from his next rostered shift (Friday September 23rd). Further standing Scott down and appointing a contractor to perform his duties is less economically feasible than simply allowing Scott to perform his duties.
Subject to Section 55.1.7 which states that “where the dispute avoidance procedure is in place […] work shall continue in accordance with the status quo […]” Scott will be at work to perform his duties as normal indefinitely from his next rostered shift on Friday September 23rd 2022.
Given the urgent nature of this dispute, the CFMMEU respectfully requests that Thales acknowledge receipt of this correspondence and Scott’s return to work on Friday no later than 12pm Wednesday September 21st to avoid further unnecessary escalation of this matter.” (Italics and […] in original.)
Thus, the following matters may be seen from the Dispute Letter:
· the subject-line of the Dispute Letter was “Notification of Dispute – Scott Parkinson Stand Down” (bold in original);
· the first sentence of the Dispute Letter identified that the CFMMEU was “writing in relation to the stand-down of CFMMEU member Scott Parkinson”;
· the Dispute Letter noted that there had been a meeting at Garden Island that day (20 September 2022) to discuss a proposed restructure of the Material Handling team at Thales Garden Island, and that the CFMMEU “will be in contact with Thales regarding this proposed restructure shortly separate to this correspondence”;
· citing clauses 55 and 55.1.6 of the Agreement, the decision to stand-down Mr Parkinson was put into dispute and escalated to Stage 4;
· the decision to stand-down Mr Parkinson was said to have been in breach of a number of clauses in the Agreement, namely, clause 48 Standing Down of Employees and clause 11.1.2 Contractors and Commercial Vessels;
· reference was made to clause 55.1.7 of the Agreement as it concerned maintenance of the status quo, together with advice to the effect that Mr Parkinson would be at work from his next rostered shift to perform his duties as normal, and indefinitely;
· a request was made for acknowledgement of receipt of the Dispute Letter and of Mr Parkinson’s return to work on his next rostered shift.
On 21 September 2022, Ms Gardner sent an emailed reply to Mr Reside concerning the Dispute Letter which relevantly read:
“In your letter dated 20 September 2022, you say Scott was stood down and we’re in breach of clause 48 of the Maritime Enterprise Agreement. Scott has not been stood down. As advised yesterday, we opened consultation as he is currently in a role affected by proposed changes to the Material Handling Team structure.
We’ve placed Scott on paid special leave through the consultation period. We have done so due to the high-risk nature of his role and with consideration for his current circumstances, that being that his role is at risk.
We have not replaced Scott with a contractor. We have engaged a contractor to care-take the team during this time. Should a decision be made to go-ahead with the new structure, the role of Material Handling Manager will be advertised and the suitable candidate will be employed by Thales.
We are happy to clarify any further detail from the meeting. [References to copying the email to certain named individuals.]”
Thus, it may be seen from Ms Gardner’s response to the Dispute Letter that the position of Thales was that:
· the stand-down provisions of the Agreement did not arise, because Mr Parkinson had not been stood-down in circumstances where he had been placed on paid special leave;
· the contractor provisions of the Agreement did not arise, because Mr Parkinson had not been replaced by a contractor, in circumstances where the contractor had been engaged to caretake the relevant team during the restructure consultation period and, if a decision was made to proceed with the restructure, the Material Handling Manager position would be advertised and a suitable candidate would be employed;
· Thales was happy to clarify any further details from the meeting.
There was no evidence of any further discussions after the offer in Ms Gardner’s email to clarify matters. Around 5.00pm that same day, 21 September 2022, Mr Parkinson lodged an application made pursuant to s.739 of the Fair Work Act 2009 (“Act”) to deal with a dispute. The Maritime Union of Australia Division of the CFMMEU (“the union”) was identified as Mr Parkinson’s representative in the Form F10 application form.
The Form F10 asks at Question 2.1 “What is the dispute about”. The text of the answer read:
“1. At 0930am on September 27th [sic; 20] the applicant Scott Parkinson was called into a meeting by his manager at Thales Australia. In that meeting he was told that following a review conducted by a consultant, management is tabling a proposal his team (Material handling) will be restructured, and if that proposal is implemented, his role would be abolished.
2. Thales Production Director Steven Farrow and Human Resources Business Partner Alex Gardner were present during the meeting a Thales’ representatives.
3. Scott’s support person in the meeting, Shane Reside, asked if management could provide further information including, but not limited to, the following: why the review was undertaken; what issues were identified in the review; and how the proposed restructure would resolve those issues. Management responded that, while they do have that information, they would not provide it at that time.
4. At the conclusion of the meeting, Scott was informed that he would be stood down indefinitely, effective immediately. Scott and Mr Reside were escorted off-site by senior management.
5. Following the meeting, Mr Reside attempted to contact a Thales representative. Management was not available to conduct further discussion.
6. Pursuant to clause 55 of the Thales Australia Maritime Enterprise Agreement 2019 (the Agreement) at 1648pm Mr Reside put the decision to suspend Scott into dispute, Notification of the dispute was sent to HR Business Partner Alex Gardner. A copy of the dispute notification is attached and marked SP-2. [reproduced above]
7. At 12.50pm on September 21st Thales Australia responded to the notice of dispute, disagreeing that Scott’s suspension contravened the Agreement. A copy of Thales’ response is attached and marked SP-3. [reproduced above]
8. Pursuant to clause 55.1.4 of the Agreement, because the dispute remains unresolved, Scott refers the matter to the Fair Work Commission to have it resolved by means of conciliation or arbitration.”
The Form F10 also asks “What clause of the industrial instrument or other written agreement does the dispute relate to?”. The answer identified: clause 11 - Contractors and Commercial Vessels; clause 48 - Standing Down of Employees; clause 51 - Communication; clause 53 - Introduction of change; and clause 54 - Redundancy.
The Form F10 identified that, failing a resolution of the dispute, arbitration was sought concerning “Enforcement of the EA’s status quo provision preventing the employer from altering or eliminating the Applicant’s role pending resolution of the dispute”.
The matter had its initial listing, a telephone conference, before me on Monday, 26 September 2022. It is unnecessary for the purposes of determining the jurisdictional objection to canvass what unfolded in the conference. The matter was listed for a further telephone conference on Wednesday, 5 October 2022. In the meantime, on the afternoon of Thursday, 29 September 2022, the union filed and served an urgent application seeking to enforce the status quo provisions of the Agreement, together with a supporting statement by Mr Reside. A notice of listing issued that same day advising that the matter had been listed before me for a telephone mention at 4.15pm the next day, Friday, 30 September 2022 (being the first available listing time available in my diary for that Friday).
At 4.19pm on Thursday, 29 September 2022, Mr K Bond of the union sent correspondence to chambers, to Thales’ representative, Mr D Murray of The Australian Industry Group (“AIG”), and to Thales’ Ms Gardner which read:
“Dear Mr Murray and Ms Gardner,
I refer to the Application that I filed earlier today on behalf of Scott Parkinson to restrain Thales from restructuring its Material Handling Team until Mr Parkinson’s dispute is resolved. In light of the fact that Commissioner McKenna listed the matter for a mention tomorrow at 4:15 pm, I urge you to cancel the meeting that you have scheduled for tomorrow morning to discuss with Mr Parkinson “the final decision with regard to the restructure of the Material Handling team”. I have copied the Commissioner into this message to give her a head’s up that, should you refuse to cancel the meeting, we will request that she enter an emergency order temporarily restraining Thales from implementing the restructure until Mr Parkinson’s application can be decided on its merits. I look forward to your prompt response.”
As to the preceding correspondence with its “head’s up” for me that, if Thales refused to cancel a meeting (scheduled for the morning of 30 September 2022), the union would request that I “enter an emergency order temporarily restraining Thales from implementing the restructure until Mr Parkinson’s application can be decided on its merits”, I caused correspondence to be sent to the parties/representatives advising that “any relevant matter either party wishes to raise should be raised in the proceeding on 30 September 2022. No further emailed communications as between the parties should be sent or copied to this office.”
At 12.57pm on Friday, 30 September 2022, Mr Murray sent correspondence to my Associate which read:
“I note the Commissioner’s view, but I wish to apprise her of a fact relevant to jurisdiction, and that is that the Applicant , [sic] Mr Parkinson, has ceased to be employed by the Respondent.
As foreshadowed in the conference earlier in the week, Mr Parkinson was afforded an extension of time to give his input to the consultation process, to COB yesterday. He gave no further input by that deadline, nor did he attend the meeting set down for this morning to discuss the matter, despite having been notified both directly and through the Union on Monday and again yesterday of the requirement that he attend. Accordingly, again as foreshadowed both to him and in the proceedings on Monday, a decision was made, and that decision was to terminate the employment of the Applicant. He was notified of that in writing today, and the termination had immediate effect.
The Respondent says that this being the case the disputes procedure under which this matter was brought no longer applies. Further, the Respondent notes that the Union is not party to nor covered by the Agreement. (Thales Australia Maritime Enterprise Agreement 2019).
Would you kindly let the Commissioner know, and please advise as to whether in those circumstances the matter will go ahead this afternoon.”
The union then sent short correspondence, which is unnecessary to reproduce.
I caused correspondence to be sent confirming that the matter remained listed at 4.15pm that day. In the proceeding at 4.15pm on 30 September 2022, the representatives each made various submissions about what had unfolded since the last listing before me on 26 September 2022, and what the next steps should be. Relevantly, Mr Bond of the union sought to press an application for a maintenance of the status quo ante. Thales, through Mr Murray of AIG, raised jurisdictional objections. Given the matter was listed only for a mention, directions were put in place and a hearing was listed for Tuesday, 25 October 2022.
Consideration
The effect of what is being sought by the union is that Mr Parkinson should be reinstated to his position and discussions should then continue about the restructure. I intend no disservice to the work put into the parties’ written submissions and the two witness statements in not summarising them in the decision. I do not summarise those materials, or the oral submissions, when it seems to me that there is such a clear want of jurisdiction to deal any further with this dispute.
The Dispute Letter concerned only the matter of an alleged stand-down. However, I find that the circumstances involving Mr Parkinson in the period from on and after 20 September 2022 until the termination of the employment relationship was not a stand-down within the meaning of clause 48 of the Agreement and/or ss.524-525 of the Act. Here, Mr Parkinson was placed on fully-paid special leave – and, as a general proposition, there is no requirement for an employer to provide duties for an employee to perform, provided the employee continues to be paid as usual. As the submissions for Thales noted:
“17. The effect [of the dispute resolution clause in the Agreement] is that the parties agreed that the Disputes Procedure only applies to disputes “in respect of” the Agreement and/or the NES. As a result, the Commission’s ability to deal with a dispute pursuant to s.739 will be confined to matters arising under the Agreement and/or the NES.
18. The decision to place the Applicant on Special Leave is not a dispute about a matter arising under the Agreement or the NES. Even if called “stand-down” by the Applicant it is not a matter arising under cl. 48 of the Agreement, because clearly that clause relates to stand-down without pay in circumstances beyond the control of the employer. It is a dispute about the employer’s right to direct the employee not to perform any duties, while on full pay, and that is not a matter arising under the Agreement but rather one which arises under the common law right of the employer to issue a lawful and reasonable direction.”
While the Dispute Letter and the Form F10 referred to the use of the contractor provision, the parties’ submissions in connection with the directions and hearing did not advance any matters, so I will not address those provisions.
The Dispute Letter effectively was confined to the stand-down issues concerning Mr Parkinson. The Dispute Letter did not travel into broader issues concerning the proposed restructure. Indeed, the Dispute Letter contained text disaggregating the stand-down issues from any issue about the restructure itself. I again reproduce the part of the Dispute Letter that makes such disaggregation plain. That is, in a letter that had as its subject-line “Notification of Dispute – Scott Parkinson Stand Down” and Mr Reside advising that he was “writing in relation to the stand-down of CFMMEU member Scott Parkinson”, Mr Reside also advised:
“The CFMMEU was today party to a meeting at Garden Island attended by Steve Farrow, yourself, Scott Parkinson and I to discuss a proposed restructure of the Material Handling team at Thales Garden Island. The CFMMEU will be in contact with Thales regarding this proposed restructure shortly separate to this correspondence.”
(my emphasis)
As to Mr Parkinson’s reliance on the status quo (or status quo ante) provisions of the Agreement, this dispute had as its core the stand-down element of the Dispute Letter. I accept the submissions for Thales which were to the effect that the stand-down aspect of the dispute was a dispute about a matter which had an effect only on Mr Parkinson, and the effect on Mr Parkinson was only that he had no duties to perform, while still being paid, for a short period of time. The restructuring itself, and what went with that, was not put into dispute in the Dispute Letter. The four-phased procedure in the Agreement was not followed before the application was made in the status quo application for an order that concerned the restructure (as opposed to being placed on special paid leave), namely:
“Thales Australia is restrained from restructuring its Material Handling Team by eliminating the position of Crane and Material Handling Supervisor that is currently occupied by the Applicant, Scott Parkinson, until the dispute is resolved.”
Moreover, the employment relationship between Mr Parkinson and Thales ceased with immediate effect on the morning of 30 September 2022 (with redundancy payments). Thales submitted that this factor “renders moot the subject matter of the dispute, that being [Thales’] decision not to require [Mr Parkinson] to perform any duties.” As noted earlier, the practical effect or result of what is now being sought is, through an application under s.739 of the Act, that Mr Parkinson be reinstated. Another practical effect or result of what now is being sought is that the restructure be undone and consultation recommence. Mr Parkinson has lodged an application pursuant to s.394 of the Act for an unfair dismissal remedy, which has an upcoming staff conciliation. I had indicated to the parties that I would endeavour to issue this decision as soon as reasonably practicable, and prior to next week’s staff conciliation.
The union submitted:
“32. As should be obvious to Thales, Scott [Parkinson] has no desire to run an unfair dismissal application in the Commission. Rather, he wants to keep his job. If the Commission rules, as it should, that the status quo provision applies to the dispute and renders Thales’ dismissal of Scott ineffective, then as soon as Thales commits to respecting the Commission’s ruling, and places Scott back on paid suspension pending the resolution of this dispute, Scott will immediately withdraw his unfair dismissal application.
33. For the reasons set forth above, Scott Parkinson respectfully requests that the Commission enter an order enforcing the status quo provision of the EA pending the outcome of this dispute, declaring that Thales’ dismissal of Scott is of no effect, and that the company must preserve the status quo in effect when Scott lodged this dispute by placing him on paid leave pending the outcome of the dispute.”
Conclusion
There is no proper jurisdictional basis for any further progression of this application made under s.739 of the Act to deal with a dispute, including what is sought by Mr Parkinson by way of order/s of the Commission. Moreover, the Commission does not have, for example, declaratory powers. What is being sought by the union on behalf of Mr Parkinson is beyond power and the paid stand-down dispute is otherwise spent.
The application is dismissed.
COMMISSIONER
Appearances:
K Bond of the Maritime Union of Australia Division of the CFMMEU for the applicant.
D Murray of The Australian Industry Group for the respondent.
Hearing details:
2022.
Sydney:
October 25
Printed by authority of the Commonwealth Government Printer
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