Shannon Mountford v Ergon Energy Corporation Limited

[2009] FWA 426

[2009] FWA 426

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Shannon Mountford
v
Ergon Energy Corporation Limited
(C2009/10244)

COMMISSIONER LARKIN SYDNEY, 29 SEPTEMBER 2009

Application to deal with a dispute under s.739.

[1] On 14 August 2009 Ms Mountford made application under s.739 to Fair Work Australia (FWA) to deal with a dispute in accordance with a dispute settlement procedure. Ms Mountford is employed by Ergon Energy Corporation Limited (Ergon) as Customer Service Representative in the Ergon call centre.

[2] In her application Ms Mountford stated that the dispute was referred to FWA pursuant to a dispute settlement procedure in the “‘Ergon Energy Union Collective Agreement 2008’ & the ‘Queensland Government Code of Practice for Call Centres’”. The clauses to which the dispute related were identified as clause 3.3 of the Queensland Government Code of Practice for Call Centres, which were set out in the application. The dispute between Ms Mountford and Ergon was stated as:

“This dispute is regarding Ergon Energy employees and/or Ergon Energy contractors gaining access to telephone calls between myself and Ergon Energy customers during working hours in such a way it breaches rules that govern the National Call Centre (NCC).”

[3] The application outlined the steps already taken under the dispute settlement procedure, as follows:

“1. The Australian Services Union wrote to Ergon Energy on 5 June 2009 seeking resolution

2. Ergon Energy responded on 12 June 2009

3. A meeting was held on the 23 June 2009 between the employer, the employers’ senior HR representative, the employers’ rehabilitation officer, the union representative and I

4. The Australian Services Union issued Ergon Energy with a dispute notification on the 8 July 2009

5. Ergon Energy responded to the dispute notification on the 16 July 2009

6. A teleconference was held on 20 July 2009 between the Australian Services Union and Ergon Energy. The matter remains unresolved.”

[4] A video conference was convened on 25 August 2009. The appearances at the conference were:

Brisbane	Ms Mountford
Mr Stubbs, Senior Human Resources Advisor, Ergon
Townsville	Mr Montgomery, Senior Industrial Relations Advisor, Ergon
Rockhampton	Mr Smart, National Contact Centre Manager, Ergon.

[5] The matter was not resolved at conference. Without going to the details of that conference, there are three points that require comment. The first was Ergon’s position that the issue in dispute was not over a provision of the Ergon Energy Union Collective Agreement 2008 (the agreement). The second point was that I explained to Ms Mountford the requirements of the legislation relevant to her application. Thirdly, I made a verbal recommendation that Ms Mountford speak to her treating doctor and obtain a clearance to return to work on light duties and Ergon investigate alternative light duties, which did not involve telephone duties. Ms Mountford had not performed duties since April 2009. The conference was adjourned awaiting the parties’ response to the points outlined.

[6] Correspondence was received from Ms Mountford on 1 and 3 September 2009. In that correspondence Ms Mountford advised that she sought an arbitration of her matter before FWA and her treating doctor would not issue a clearance for her to return to work.

[7] On 7 September 2009 the following correspondence was forwarded to Ms Mountford from Fair Work Australia:

“Dear Ms Mountford,

On 14 August 2009 you notified a dispute to Fair Work Australia under section 739 of the Fair Work Australia Act 2009 in relation to clause 3.3 of the Queensland Government Code of Practice for Call Centres.

In the conference convened by Fair Work Australia on 25 August 2009 I referred you to section 738 and section 739 of the Fair Work Australia Act 2009. Copies of those sections of the Fair Work Australia Act 2009 are attached. Also attached is subsection 186(6) as that section is referred to in paragraph (b) of section 738.

In your correspondence of 1 September 2009 you indicated that you sought an arbitration of your dispute as lodged with Fair Work Australia on 14 August 2009.

You are, therefore, directed to file with Fair Work Australia and serve a copy on Ergon Energy Corporation Limited, written submissions addressing Fair Work Australia’s jurisdiction to deal with your dispute, in particular, what is the instrument that “provides a procedure for dealing with disputes”  as required by subsection 739(1) with reference to section 738.

Your submissions on the above is required to be filed in Fair Work Australia and served on Ergon Energy Corporation Limited by Monday 21 September 2009.”

[8] No response was received from Ms Mountford on the directed date.

[9] On 21 September 2009 my chambers received advice from the FWA Brisbane office of an application lodged by Ms Mountford under s.739 of the Fair Work Act 2009 in the same/similar terms to that contained in matter C2009/10244.

[10] On 24 September 2009 the following correspondence was forwarded to Ms Mountford:

“Dear Ms Mountford,

Re: Mountford, Shannon v Ergon Energy Corporation Limited C2009/10244

On 7 September 2009 Fair Work Australia issued a direction in relation to the above matter. That direction concluded:

“Your submissions on the above is required to be filed in Fair Work Australia and served on Ergon Energy Corporation Limited by Monday 21 September 2009.”

Fair Work Australia has not received your material as directed above. Please advise Fair Work Australia on [email protected] by close of business Friday 25 September 2009 your position in relation to matter number C2009/10244.

Fair Work Australia has also received a lodgement in its Brisbane Office under s.739 of the Fair Work Act, which appears to be the same matter content as C2009/10244. Your advice on this lodgement is also required by close of business Friday 25 September 2009.”

[11] On 25 September 2009 Ms Mountford replied as follows:

“Dear Commissioner Larkin,

I am writing in response to letter dated 24 September 09 Re: Mountford, Shannon v Ergon Energy Corporation Limited C2009/10244. The Queensland Working Rights Ombudsman and also a Local Member of Parliament suggested I arrange a second mediation to be held before Fair Work Australia to attempt some reconciliation.

In the Form F10 – Application to Deal with a Dispute in accordance with a Dispute Settlement Procedure submitted to your Brisbane Office under s. 739 of the Fair Work Act on 21 September 09, my response under ‘relevant instrument’ had been condensed to lodge the application only under clause 2.1.9 of the Ergon Energy Union Collective Agreement 2008.

Under the 11 Divisions outlined in The National Employment Standards and also under the Ergon Energy Union Collective Agreement 2008 (apart from Part 2: Grievances and Disputes), I am unable to determine what Fair Work Australia’s jurisdiction may be around matter no C2009/10244.

The Queensland Public Interest Law Clearing House (QPILCH) have interests in referring the matter to a law firm for assistance. QPILCH currently have my case open and are awaiting my response from FWA to determine if this matter falls within the FWA jurisdiction in order to accept the application.

On 17 September 09, a Right to Information access application was lodged with the Department of Justice and Attorney General, Workplace Health & Safety Queensland around their investigations into the matter. I will endeavor to have QPILCH refer the matter onto a law firm under the relevant jurisdiction.

If you are aware of an angle that FWA may have jurisdiction around any part of the matter, could you please advise of this.

Yours sincerely,

Shannon Mountford

Customer Service Representative”

[12] Under Part 2 of the agreement FWA (previously the Commission) has powers of conciliation and arbitration. The agreement, on my understanding, was approved by the Workplace Authority in 2008 under the provisions of the Workplace Relations Act 1996 (the WR Act). Subsection 353 (1) of the WR Act states:

“(1) A Workplace agreement must include procedures for settling disputes (dispute settlement procedures) about matters arising under the agreement between:

(a) the employer; and

(b) the employees whose employment will be subject to the agreement.”

[13] Under the provisions of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, at Part 2 of Schedule 3, the agreement continues in force as a transitional instrument.

[14] Ms Mountford’s application to FWA was made pursuant to s.739 of the Act. Subsection 739(1) requires that “[t]his section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute”.

[15] In her application Ms Mountford identified, as the relevant instrument, the agreement and the Queensland Government Code of Practice for Call Centres. Under s.738 the term that requires or allows FWA to deal with a dispute must be found in one of the following instruments:

“(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”

[16] The agreement, as previously stated, does include a term that provides a procedure to deal with disputes and, therefore, would fall within paragraph (b) of s.738. Paragraph (b) of the section refers to ss.186(6) of the Act. For present purposes, that subsection states:

“Requirement for a term about settling disputes

(6) FWA must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows FWA, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.”

[17] The National Employment Standards at Part 2-2 of the Act do not commence operation under 1 January 2010.

[18] Ms Mountford, in her application, identifies the dispute as Ergon’s conduct being in breach of the rules that govern call centres. Ms Mountford seeks that Ergon comply with the Queensland Government’s code of practice for call centres. Ms Mountford has not identified a provision arising under the agreement that FWA can settle a dispute about. While FWA is empowered under the dispute settlement provisions of the agreement to settle a dispute that dispute must arise under the agreement, in other words, there must be a provision in the agreement that is at least relevant to the dispute. The Queensland Government Code of Practice for Call Centres is not a provision of the agreement. On my perusal of the agreement, there does not seem to be an agreement provision remotely connected to the code of practice, which FWA could deal with.

[19] In conclusion, I am not satisfied that FWA has jurisdiction under the Act to deal with Ms Mountford’s dispute notification under s.739. Ms. Mountford’s application is dismissed.

[20] In closing, this decision does not resolve the issues that Ms Mountford states she has with Ergon, be they valid issues or not. Ms Mountford, on my understanding, has not worked since April 2009 and, again on my understanding, is not receiving any monies. This is not an ideal situation. I can only reiterate what I recommended to the parties in conference in the hope that Ms Mountford may be able to return to work, possibly with the help of the Ergon Rehabilitation Officer in concert with Ms Mountford’s treating doctor’s advice and approval.

COMMISSIONER

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