Sharon Fletcher v Ramboll Australia Pty Ltd

[2018] FWC 6419

[2018] FWC 6419

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Sharon Fletcher
v
Ramboll Australia Pty Ltd
(C2018/4416)

COMMISSIONER WILLIAMS PERTH, 16 OCTOBER 2018

Application to deal with a dispute - jurisdiction.

[1] This decision concerns an application made by Ms Sharon Fletcher (the Applicant) under section 739 of the Fair Work Act 2009 (the Act). The respondent is Ramboll Australia Pty Ltd (the Respondent).

The application

[2] The application as filed states that the Clerks Private Sector Award 2010 [MA000002] (Award) covers the Applicant’s employment.

[3] The dispute resolution clause in that Award is Clause 9−Dispute Resolution.

[4] This clause provides expressly at 9.1 and also at 9.2 that it concerns disputes,

“...about a matter under this award, or a dispute in relation to the NES...”

[5] The application states the dispute is about the fact the Respondent issued the Applicant with a written warning stating she had violated the Respondent’s code of conduct. The relief sought by the Applicant was to have the written warning removed from her record and related matters.

Background

[6] At the direction of the Commission the Respondent filed a response to this application on 20 August 2018 which was served on the Applicant by email the same day and included a jurisdictional objection to the Commission dealing with the application.

[7] A conference regarding this matter was held on 22 August 2018.

[8] The same day after the conference had been adjourned, by email, the Applicant was advised by the Commission that if she wished to contest the Respondent’s jurisdictional objection she was required to provide a written submission to that effect. Accordingly the Applicant by email provided a written submission in support of her view on jurisdiction on 4 September 2018. Finally on 17 September 2018 the Respondent provided a submission in reply and full copies of some documents Ms Fletcher had provided partial copies of in her submission.

The Respondent’s submission

[9] The Respondent submits the Commission does not have jurisdiction to hear the application under section 739 of the Act.

[10] The Respondent submits the substance of the application concerns a dispute about a decision made by the Respondent to issue the Applicant with a formal warning in relation to a breach of its policies and procedures.

[11] The Respondent submits there are no provisions within the Award or the National Employment Standards (NES) which concerns how employee performance or employee misconduct is managed by the Respondent.

[12] Secondly it is submitted that the application was filed on the same day that the Applicant was given her written warning and therefore the Applicant has not complied with the requirements in subclause 9.1 of the Award for, in the first instance, the parties to attempt to resolve the matter at the workplace by discussion followed by further escalation through senior levels of management as appropriate before the dispute is then potentially referred to the Commission.

[13] The Respondent submits the Commission has no jurisdiction to either conciliate or hear this matter because the matter is not a dispute that arises under the Award or the NES and separately the Applicant has not followed the steps required of her in subclause 9.1 before referring the dispute to the Commission.

The Applicant’s submission

[14] The Applicant in her submission does not deal with the fact that there is no provision apparently within the Award or the NES which concerns the issuing of written warnings to employees.

[15] She does however refer to the Respondent’s document titled “Employment Policies and Conditions” and specifically clause 2.5.5 which is headed “Appeal to an External Agency” which states that amongst other things “...you may wish to contact an external agency to see if they can help.”

[16] The Applicant submits that this appears to give the Commission jurisdiction to hear her application.

Consideration

[17] This application is made under section 739 which along with section 738 is set out below.

“738 Application of this Division

This Division applies if:

(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.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[18] The parliament provided an expressly limited jurisdiction in section 739 for the Commission to deal with disagreements between employees and their employers.

[19] Section 738 of the Act determines when section 739 applies.

[20] The effect of section 738 of the Act is that section 739 only applies in circumstances where,

1. A modern award includes a term that provides a procedure for dealing with disputes, or

2. An enterprise agreement includes a term that provides a procedure for dealing with disputes, or

3. A contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement, or

4. 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.

[21] In this case there is no enterprise agreement nor does the Public Service Act 1999 apply so the only possibly applicable circumstances are those provided for in 1 or 3 above.

[22] Section 739 of the Act also provides that it is the term dealing with disputes in the particular award or contract of employment that determines the scope of the Commission’s jurisdiction.

[23] As the Respondent has submitted in this case the Award only provides for the Commission’s involvement in resolving disputes about a matter under the Award or in relation to the NES. Neither are applicable to this application. I agree with the Respondent’s submission that the Award does not include any provision that concern how employers manage employees’ performance or conduct or the giving of written warnings and similarly neither does the NES.

[24] As to the contract of employment or other written agreement, there is no dispute between the parties that there is a signed contract of employment that applies to the parties.

[25] The applicable contract of employment in this case includes a clause that concerns the Respondent’s policies as follows,

“3. You are required to comply with the Employment Policies and Conditions for EVIRON as varied from time to time (the Policy Document). However, neither the Policy Document as a whole nor any term of it forms part of this contract of employment.”

[26] Apparently ENVIRON is now Ramboll Australia Pty Ltd, the Respondent.

[27] Firstly the clause in the contract expressly says that whilst there is an obligation on the Applicant to comply with the policies neither the Policy Document nor its terms are part of the contract and so this clause does not create an entitlement under the contract for the Applicant. 1

[28] In any case it is a misreading of 2.5.5−Appeal to an External Agency to understand that this provides an opportunity for an employee to take a complaint to an external agency, in this case the Commission, regarding the issuing of a written warning that the employee contests. I note 2.5.5 is a subsection of section “2. Equal Employment Opportunity Policy” which is a comprehensive policy that addresses prohibited conduct in terms of discrimination, harassment and victimisation as is provided in Australian Federal and State law. This provision concerning Appeals to External Agencies has no application to the dispute the Applicant has in this case with the Respondent.

[29] Ultimately I am satisfied that the Commission does not have jurisdiction to deal with this particular dispute which is one that falls outside the jurisdiction of 739 of the Act.

[30] Consequently the application is hereby dismissed for want of jurisdiction.

Final written submissions:

Applicant, 4 September 2018.

Respondent, 17 September 2018.

Printed by authority of the Commonwealth Government Printer

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 1   See the definition of “safety net contractual entitlement” in section 12 of the Act.