Sharon Isabelle Scurr v Northern Territory of Australia T/A Office of the Commissioner for Public Employment - [2022] FWCFB 45

[2021] FWC 6638 [Note: This decision has been quashed - refer to Full Bench decision dated 30 March 2022 [2022] FWCFB 45]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Sharon Isabelle Scurr
v

Northern Territory of Australia T/A Office of the Commissioner for Public Employment

(C2020/33)

COMMISSIONER SPENCER

BRISBANE, 20 DECEMBER 2021

Application to deal with a dispute pursuant to s.739 – jurisdictional/merits matters heard together by agreement of the parties – jurisdictional objection upheld – application pursuant to s.739 dismissed.

INTRODUCTION

Ms Sharon Scurr (the Applicant) filed an application pursuant to s.739 of the Fair Work Act 2009 (the Act/the FW Act), to deal with a dispute arising under the Northern Territory Public Sector 2017 - 2021 Enterprise Agreement (the Agreement) with the Northern Territory of Australia T/A Office of the Commissioner for Public Employment (the Respondent). The Agreement has passed its nominal expiry date; which was 21 August 2021.

Further to preliminary conferences conducted in this matter, Directions were issued to the parties, for the filing of materials, in relation to a number of threshold matters to be determined. In summary, the Applicant referred to these threshold issues that relate to the alleged deficiencies of the processes used by the Respondent in declaring the Applicant’s job redundant. Further, the Respondent raised interjurisdictional matters relevant to the interaction between the Fair Work Act 2009 (Cth) (the Act), the Agreement and the Public Sector Employment and Management Act 1993 (the PSEM Act), and their impact on the jurisdiction of the Commission to proceed with the arbitration of the dispute raised by Ms Scurr. The Applicant had initially sought a review of the process, pursuant to the PSEM Act and therefore the Respondent argued that this further application was barred.

Further to preliminary submissions by the parties, and preliminary conferences conducted in this matter, consent Directions were issued to the parties for filing of materials in relation to the jurisdictional and merits matters. The parties agreed that these should be heard together. The matter was heard in Darwin and further by Video link from Brisbane.

In summary, the Applicant argued that there were alleged deficiencies in the Respondent declaring the Applicant as ‘potentially surplus’, ‘surplus’ and ‘redundant’ and that the conduct and process adopted by the Respondent in failing to ‘make every endeavour’ in regards to the redeployment process. The Applicant alleged that (in part) the Respondent had not complied with its obligations under Schedule 10, clauses 10.3.1, 10.3.2 and 10.4.1 of the Agreement.

This decision deals with the jurisdictional and merits matters.

This matter had been the subject of a number of conciliation and directions conferences. An agreed course was set by consent with the parties. The Applicant had been represented by Hall Payne lawyers, who had prepared her material.

The Applicant was self-represented for the Hearing of the matter; however, she had been represented in the conferences prior to the hearing and as stated she indicated during the hearing that she was seeking further advice from her lawyers on particular matters as the hearing progressed. No objection to this course was recorded. The Applicant’s lawyer (from Hall Payne Lawyers) had been given permission to appear pursuant to s.596 of the Act. A form F54 notice of lawyer ceasing to act was received from Hall Payne Lawyers and the Applicant proceeded as self-represented for the Hearing. Further, during the course of the cross examination, the Applicant deferred some questions that she considered should be best dealt with by her Solicitors. She also advised that she intended to contract her Solicitors again. The Respondent was represented by Mr Cameron McInerney, Employee Relations Manager for the Respondent.

All of the evidence and submissions have been considered, however, not all witness evidence has been referred to individually in the summaries of the evidence, but all of the matters raised have been considered in their submissions and further in the overall considerations.

BACKGROUND

In summary terms, the Applicant’s employment was declared (potentially) surplus to the requirements of the Respondent, from this point, the Applicant argued that the Respondent was required to make every endeavour to place the Applicant in other suitable employment, as directed by the redeployment process. The Applicant, in her submissions, set out that the obligations on the Respondent were in accordance with clause 10.3.1, 10.3.2 and 10.4.1 of the Schedule of the Agreement, as set out below.

It was agreed between the parties that the Respondent’s jurisdictional objections and the Applicant’s responses would be dealt with in this decision, (in terms of a jurisdictional decision) as well as a consideration of the merits of the application.

The questions for arbitration proposed by the parties were:

Have the requirements under Schedule 10 of the Agreement been met in relation to the Applicant?

Clause 10.3 of the Agreement is entitled “Finding of Other Suitable Employment” and subclauses 10.3.1 and 10.3.2 provide as follows:

10.3.1 The employer and the CEO must make every endeavour to place a potentially surplus employee in other suitable employment.

10.3.2 In addition to any other action the employer and/or the CEO may have taken in the period before notice is given in accordance with clauses 10.4 or 10.5, the employee and CEO will, during all such periods of notice, make every endeavour to place a surplus employee in other suitable employment.

If the answer to question 1 is no:

a. should the Applicant be reinstated to her position;
b.should the Respondent be ordered to comply with Schedule 10 in relation to the Applicant; and

c. what other relief, if any, should be granted by the Commission?

The Applicant raised her concern, in an earlier conciliation conference, as to the effect of any decision made by the Commission, in circumstances where the Agreement had passed its nominal expiry date. In response to this query, the Respondent confirmed, by way of written undertaking, that it did not pursue a jurisdictional objection to the Commission dealing with this matter beyond the nominal expiry date of the Agreement. Clause 12.2(g) of the Agreement facilitated unresolved disputes under the previous Agreement being carried over to the existing Agreement, and the Respondent confirmed in the undertaking, that it was not anticipated that there will be any change to these arrangements in a new agreement.

The Applicant commenced employment with the Respondent on a permanent full-time basis in or about July 2006. On or about 14 February 2016, the Applicant was declared potentially surplus to requirements. The Applicant argued that the Respondent’s redeployment process was deficient as follows:

‘The applicant maintains that the respondent, whether by its case managers who were assigned to assist her in securing a genuine and ongoing vacancy, or otherwise, failed to identify all possible ongoing vacancies during the redeployment process and take the requisite positive steps to redeploy the applicant in an appropriate position. This was, self-evidently, in contravention of the plain and ordinary meaning of the words “make every endeavour to place a surplus employee in other suitable employment”. That is so because:

(a)the applicant was placed in more than 16 different positions between 14 February 2016 and 17 March 2020 that were never truly vacant;

(b)the respondent did not even keep the applicant up to date regarding suitable vacancies as they arose and she was left to source and apply for them herself;

(c) the applicant was denied opportunities to work in an acting role for positions that would make her competitive when they were advertised as being vacant without any explanation;

(d) the applicant was denied opportunities for ‘on the job training’, including at least:
i.in November 2014 – being allowed the opportunity to act in the position ofAO7 Senior Policy & Project Officer (managing the Universal Access program) in Early Childhood Education and Care. This position was originally offered to the applicant, but the offer was then withdrawn with no explanation provided;

ii. in December 2017 - being allowed the opportunity to act in the newly created position of AO7 Senior Policy and Project Officer in Quality Education and Care NT, the same team that the applicant was working in;

iii. in July 2018 – being allowed to undertake operational roles when placed in the position of AO7 Senior Operations Officer in Quality Schools, Systems and Support (QSSS) North.

(e) On at least three occasions she was encouraged to withdraw an application that she made for a vacant position;

(f) the respondent did not make any effort to redeploy the applicant into positions that were genuinely vacant and which were, on any view, appropriate for her skills and experience; and

(g) when the applicant did apply for vacant positions, her applications were not successful because she was deemed to be unsuitable despite having the appropriate skills and experience to fill the role and applicants who were not identified as being potentially surplus to requirements instead.

5. On or about 15 January 2019 the applicant received a notice of redundancy. That correspondence provided her with 52 weeks of notice of redundancy if she was not placed in alternative ongoing employment.

6. The applicant was not placed in alternative ongoing employment and her employment was terminated by the respondent on or about 17 March 2020.

7. The obligation in the agreement to make every endeavour is a high threshold. It, in the very least, requires some positive action by the respondent to redeploy an employee such as the applicant. It appears the respondent’s view is it doesn’t have to comply with the clause, and even if it does, all the clause requires it to do is consider job applications made by the employee as they arise. Such an interpretation, with respect, effectively makes the clause inutile and cannot sensibly be what the parties intended when the clause was negotiated. It is a well-established principle of construction that such clauses are to be interpreted in a way to ensure a sensible industrial outcome1 and to avoid absurd results. Only the applicant’s interpretation is in compliance with those principles.

8. The applicant submits that had the respondent complied with its obligations under the EA she would have been placed in alternative ongoing employment and she would not have lost her employment. Having so found, the Commission would thereafter be empowered by the Act and the EA to fashion appropriate relief to resolve that dispute. In that regard, the applicant continues to seek the relief specified in her submissions of 5 February 2021 at paragraphs 56 to 60.’0F[1]

RELEVANT PROVISIONS OF THE ACT(S)

Legislative provisions in relation to the jurisdiction of the Commission to deal with a dispute pursuant to dispute settlement procedures in Enterprise Agreements are found in s.595 and s.739 of the Act.

Section 595 of the Act states:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following (a) by mediation or conciliation (b) by making a recommendation or expressing an opinion.

(2) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(3) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section”

Section 739 of the Act provides:

“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.”

Also relevant to this dispute, section 41 of the Public Sector Employment and Management Act 1993 (the PSEM Act) provides:

“Division 2 Redeployment and redundancy

41 Declaration of ongoing employee to be potentially surplus to requirements

(1) If the Chief Executive Officer of an Agency is of the opinion that an ongoing employee is potentially surplus to the requirements of the Agency, the Chief Executive Officer may, by written notice to the employee, declare the employee to be potentially surplus to the requirements of the Agency and state the reasons for the declaration.

(2) The Chief Executive Officer must give a copy of the notice to the Commissioner and any employee organisation prescribed by regulation for the employee.”

Section 59 of the PSEM Act states:

“Part 9 Review of grievances and appeals

Division 1 Grievances

59 Review of grievances

(1) An employee may:

(a) where he or she is aggrieved by the intention of the employee’s Chief Executive Officer to terminate the employee’s employment on probation – within 14 days; or

(aa) if aggrieved by a decision of the employee’s Chief Executive Officer:

(i) under section 44 to take remedial action of a kind mentioned in section 46(1)(b)(i); or
(ii) under section 49A to take disciplinary action of a kind mentioned in section 49C(1)(b)(i) to (iv);

within 14 days after notice of the decision is given to the employee; or

(b) in any other case where the employee is aggrieved by his or her treatment in employment in the Public Sector – within 3 months after the action or decision by which he or she is aggrieved;

request the Commissioner to review the action, intended action or decision complained of.

(2) Subject to subsections (3) and (5A), the Commissioner must:

(a) in a case referred to in subsection (1)(a) or (aa) – within 14 days; and
(b) in any other case – within 3 months;

after a request under subsection (1) is received, or such longer period as, in the Commissioner’s opinion, the circumstances require, review the matter.

(3) Where the Commissioner believes that an employee making a request under subsection (1) has not taken adequate steps to seek redress of the grievance within the relevant Agency, the Commissioner may refer the matter to the Chief Executive Officer of the Agency for consideration within the time specified by the Commissioner and the Commissioner need not review the matter under this section until that time has expired.

(4) Subject to this Act, the Commissioner has the powers necessary and convenient to deal with a request under this section, including the same powers and obligations in relation to a review as an appeal board has under section 59F in relation to an appeal.

(5) After reviewing a matter under this section the Commissioner may:

(a) confirm the action, intended action or decision; or
(b) direct the Chief Executive Officer of the Agency concerned to take or refrain from taking, as the case requires, a specified action.

(5A) The Commissioner may decline to review an action, intended action or decision if satisfied:

(a) the request for review is frivolous, vexatious or not made in good faith; or
(b) alternative proceedings:

(i) have been commenced by, or on behalf of, the employee; and
(ii) have neither:

(A) been withdrawn; nor
(B) failed for want of jurisdiction.

(6) In this section, for the purpose of allowing a review under this section of treatment resulting in the termination of the employment in, or resignation from, the Public Sector of a former employee, employee includes a former employee

(7) In this section:

alternative proceedings means proceedings under another Act or a law of the Commonwealth or of a State or another Territory, for a review of the action, intended action or decision.”

RELEVANT PROVISIONS OF THE AGREEMENT

The dispute settling procedure is provided at clause 12 of the Agreement as follows:

“12.1 The parties are committed to avoiding industrial disputation about the application of this Agreement.

(a) Subject to clause 12.1(b), this clause sets out procedures to be followed for avoiding and resolving disputes in relation to:

(i) a matter arising under this Agreement; or

(ii) the National Employment Standard.

(b) However, this clause does not apply in relation to disputes about:

(i) refusals for requests for flexible working arrangements on reasonable business grounds under clauses 36 and 37.20(e) of the Agreement and section 65(5) of the FW Act;

(ii) refusals for requests for extended parental leave on reasonable business grounds under clause 37.21 of the Agreement and section 76(4) of the FW Act; and

(iii) assessment outcomes for Senior Classification level positions.

(c) An employee who has a grievance about matters referred to in clause 12.1(b) can utilise section 59 of the PSEM Act to have the decision reviewed.

(d) In the event of a dispute about a By-law issued under the PSEM Act clauses 12.3 to 12.4 will apply.

12.2 General

(a) Subject to the requirements of the FW Act a party to a dispute may appoint another person, organisation or association to accompany or represent them at any stage of the dispute.

(b) The parties to a dispute must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.

(c) Whilst a dispute is being dealt with in accordance with this clause, work must continue in accordance with usual practice prior to the dispute arising, provided that this does not apply to an employee who has reasonable concerns about an imminent risk to their health and safety, has advised the CEO of this concern and has not unreasonably failed to comply with a direction by the CEO to perform other available work that is safe and appropriate for the employee to perform.

(d) Subject to any agreement between the parties in relation to a particular dispute, it is agreed that the provisions of the FW Act will be applied by the FWC with respect to the exercising of its functions and powers under this clause.

(e) Any decision or direction the FWC makes in relation to the dispute shall be in writing.

(f) Subject to the right of appeal under clause 12.5(d) any direction or decision of the FWC, be it procedural or final, shall be accepted by all affected persons and complied with by the parties.

(g) A dispute being dealt with in accordance with the Northern Territory Public Sector 2013-2017 Enterprise Agreement or the National Employment Standards that remains unresolved at the commencement of this Agreement will continue to apply as if those terms formed part of this Agreement.

12.3 Internal Resolution

(a) In the event of a dispute, the parties will in the first instance endeavour to resolve the matter internally as follows:

(i) The employee will refer the matter to their immediate supervisor for resolution, who may request that the employee provide written details of the matter, provided that where the dispute concerns alleged actions of the immediate supervisor, the employee may by-pass this step.

(ii) If the matter cannot be resolved under clause 12.3(a)(i) above, it will be referred in writing to the relevant manager for resolution.

(iii) If the matter cannot be resolved under clause 12.3(a)(ii) above, it will be referred in writing to the relevant CEO for resolution.

(iv) If the matter cannot be resolved under clause 12.3(a)(iii) above, it will be referred in writing to the Commissioner for resolution.

(b) Where reasonably practicable, attempts to resolve the matter under each stage of the process referred to in clause 12.3(a) will begin within 48 hours of, and be completed within five working days of the referral relating to that particular stage.

12.4 Conciliation

(a) If the dispute remains unresolved after the parties have genuinely attempted to reach a resolution in accordance with clause 12.3, any party may refer the dispute to the FWC, for resolution by conciliation.

(b) Provided the requirements of clauses 12.2 and 12.3 have been met by the parties to the dispute, it is agreed that jurisdiction will not be raised by any party at conciliation.

(c) Conciliation before the FWC shall be regarded as completed when:

(i) the parties have reached agreement on the settlement of the dispute; or

(ii) the member of the FWC conducting the conciliation has either of the member’s own motion or after application by any party, satisfied themselves that there is no likelihood that further conciliation will result in a settlement within a reasonable period.

12.5 Arbitration

(a) If a dispute remains unresolved at the completion of conciliation, either party may refer the dispute to the FWC for determination by arbitration, subject to any jurisdictional submissions.

(b) Where a member of the FWC has exercised conciliation powers in relation to the dispute, that member will not be the member responsible for conducting the arbitration if any party to the dispute objects to that member doing so.

(c) Subject to clause 12.5(d), the determination of the FWC is final and binding.

(d) A party may appeal an arbitrated decision of a single member of the FWC, with leave of the full bench, provided that such appeal is lodged within 21 days of the decision being made.”

As to redeployment and related matters, Schedule 10 of the Agreement provides:

“Schedule 10 - Northern Territory Public Sector Redeployment and Redundancy Entitlements
10.1 Definitions

10.1.1 For the purposes of these provisions:

(a) potentially surplus employee means an employee who has been declared by the CEO to be potentially surplus to the requirements of the agency under section 41 of the PSEM Act.

(b) service means a period of continuous service as defined in the FW Act, and which includes service as a compulsory transferee as defined in accordance with By-Law 45.1 of the PSEM Act.

(c) suitable employment means employment within the NTPS that the employee is capable of performing and is competent and qualified to perform, having regard to section 5D(2) of the PSEM Act, which must be considered in the context of reasonable training possibilities.

(d) surplus employee means an employee in relation to whom the CEO has requested that the employer exercise their powers under section 43 of the PSEM Act.

(e) union means a trade union as defined in the FW Act and which is covered by this Agreement.

…

10.3 Finding of Other Suitable Employment

10.3.1 The employer and the CEO must make every endeavour to place a potentially surplus employee in other suitable employment.

10.3.2 In addition to any other action the employer and/or the CEO may have taken in the period before notice is given in accordance with clauses 10.4 or 10.5, the employee and CEO will, during all such periods of notice, make every endeavour to place a surplus employee in other suitable employment. (emphasis added)

10.3.3 Where other suitable employment for a potentially surplus employee or a surplus employee is identified the employee will be transferred. Where the transfer is to a lower level designation and salary, the written consent of the employee is required and the income maintenance provisions of clause 10.6.3 apply.

10.4 Voluntary Retrenchment

10.4.1 Where a surplus employee is unable to be placed in other suitable employment, the employer may offer the employee a voluntary retrenchment.

10.4.2 The surplus employee will have up to seven days from the date of a written offer of voluntary retrenchment to consider and accept the offer.

10.4.3 Where the surplus employee accepts a voluntary retrenchment, the employee is entitled to a period of four weeks notice from the date that the offer is accepted, or five weeks notice if the employee is over the age of 45 years.

10.4.4 The surplus employee may be retrenched at any time within the period of notice under clause 10.4.3, at the direction of the CEO or the request of the employee, in which case the employee is entitled to receive payment in lieu of salary for the unexpired portion of the notice period.

10.4.5 A surplus employee retrenched in accordance with this clause is entitled to be paid a sum equal to the following weeks salary including, where applicable, Northern Territory allowance:

(a) For an employee with at least one year but less than two years service: four weeks salary;

(b) For an employee with at least two years but less than three years service: six weeks salary;

(c) For an employee with between three years and three and a half years service: seven weeks salary; and

(d) For an employee with greater than three and a half years service: two weeks salary for each year of service plus a pro rata payment for the months of service completed since the last year of continuous service, provided that the maximum payable is 48 weeks salary…

10.5 Notice of Redundancy

10.5.1 A surplus employee cannot be given notice under this clause unless the employee has:

(a) been offered a voluntary retrenchment and has declined that offer; or

(b) has requested a voluntary retrenchment and the employer has refused the request.

…

10.5.6 In accordance with clause 10.3.2, during the notice periods referred to in this clause the employer and CEO will continue to make all reasonable endeavours to place the surplus employee into other suitable employment.

…

10.8 Right of Review

10.8.1 A surplus employee will have a right of review to the Commissioner against any administrative decision made in relation to the employee’s eligibility for benefits under these provisions or in relation to the amount of those benefits.

10.8.2 This right does not affect the employee’s rights under the FW Act.”

(emphasis added)

In terms of the operation of the Agreement, sections 6.1 and 6.2 set out:

“6.1 This Agreement is a comprehensive agreement and provides the terms and conditions of employment of employees covered by this Agreement, other than terms and conditions applying under applicable legislation, including the PSEM Act and FW Act.

6.2In the event of any inconsistency between them, the terms and conditions of Parts 1 to Part 5 of this Agreement will prevail over terms and conditions of Schedule 2 to Schedule 8 and Schedule 10.”

In addition, sections 7.1 and 7.2 of the Agreement set out:

“7.1 The parties acknowledge the long established and continuing role of the PSEM Act as an instrument regulating NTPS conditions of employment.

7.2 This Agreement will be read in conjunction with the PSEM Act and will prevail over the PSEM Act to the extent of any inconsistency. For the avoidance of doubt, the PSEM Act is not incorporated into the Agreement.”

SUMMARY OF THE APPLICANT’S JURISDICTIONAL SUBMISSIONS

Whether the Commission has power to review decisions made by the Northern Territory Commissioner for Public Employment pursuant to section 59 of the Public Sector Employment and Management Act 1993 (NT)

Clause 12 provides:

“The parties are committed to avoiding industrial disputation about the application of this Agreement.

(a)Subject to clause 12.1(b), this clause sets out procedures to be followed for avoiding and resolving disputes in relation to:

(i) a matter arising under this Agreement; or
(ii) the National Employment Standard.

(b)However, this clause does not apply in relation to disputes about:

(i) refusals for requests for flexible working arrangements on reasonable business grounds under clauses 36 and 37.20(e) of the Agreement and section 65(5) of the FW Act;
(ii) refusals for requests for extended parental leave on reasonable business grounds under clause 37.21 of the Agreement and section 76(4) of the FW Act; and
(iii) assessment outcomes for Senior Classification level positions.

(c)An employee who has a grievance about matters referred to in clause 12.1(b) can utilise section 59 of the PSEM Act to have the decision reviewed.

(d)In the event of a dispute about a By-law issued under the PSEM Act clauses 12.3 to 12.4 will apply.”

The Applicant submitted:

(a) the term ‘can’ is used in clause 12(c), not the term ‘must.’;

(b) clause 12(b) specifically sets out matters which are excluded from the disputes procedure under the Agreement, and does not contain any exclusion to that now being proffered by the Respondent; and

(c) there is no evidence whatsoever from bargaining to support the novel restriction on clause 12 now being advanced by the Respondent.

The Applicant submitted further that clause 12.2 to 12.5 provide:

(a) Subject to the requirements of the FW Act a party to a dispute may appoint another person, organisation or association to accompany or represent them at any stage of the dispute.

(b) The parties to a dispute must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.

(c) Whilst a dispute is being dealt with in accordance with this clause, work must continue in accordance with usual practice prior to the dispute arising, provided that this does not apply to an employee who has reasonable concerns about an imminent risk to their health and safety, has advised the CEO of this concern and has not unreasonably failed to comply with a direction by the CEO to perform other available work that is safe and appropriate for the employee to perform.

(d) Subject to any agreement between the parties in relation to a particular dispute, it is agreed that the provisions of the FW Act will be applied by the FWC with respect to the exercising of its functions and powers under this clause.

(e) Any decision or direction the FWC makes in relation to the dispute shall be in writing.

(f) Subject to the right of appeal under clause 12.5(d) any direction or decision of the FWC, be it procedural or final, shall be accepted by all affected persons and complied with by the parties.

(g) A dispute being dealt with in accordance with the Northern Territory Public Sector 2013- 2017 Enterprise Agreement or the National Employment Standards that remains unresolved at the commencement of this Agreement will continue to apply as if those terms formed part of this Agreement.

12.3 Internal Resolution

(a) In the event of a dispute, the parties will in the first instance endeavour to resolve the matter internally as follows:

(i) The employee will refer the matter to their immediate supervisor for resolution, who may request that the employee provide written details of the matter, provided that where the dispute concerns alleged actions of the immediate supervisor, the employee may by-pass this step.
(ii) If the matter cannot be resolved under clause 12.3(a)(i) above, it will be referred in writing to the relevant manager for resolution.
(iii) If the matter cannot be resolved under clause 12.3(a)(ii) above, it will be referred in writing to the relevant CEO for resolution.
(iv) If the matter cannot be resolved under clause 12.3(a)(iii) above, it will be referred in writing to the Commissioner for resolution.

(b) Where reasonably practicable, attempts to resolve the matter under each stage of the process referred to in clause 12.3(a) will begin within 48 hours of, and be completed within five working days of the referral relating to that particular stage.

12.4 Conciliation

(a)If the dispute remains unresolved after the parties have genuinely attempted to reach a resolution in accordance with clause 12.3, any party may refer the dispute to the FWC, for resolution by conciliation.

(b)Provided the requirements of clauses 12.2 and 12.3 have been met by the parties to the dispute, it is agreed that jurisdiction will not be raised by any party at conciliation.

(c)Conciliation before the FWC shall be regarded as completed when:

(i) the parties have reached agreement on the settlement of the dispute;
or
(ii) the member of the FWC conducting the conciliation has either of the member’s own motion or after application by any party, satisfied themselves that there is no likelihood that further conciliation will result in a settlement within a reasonable period.

12.5 Arbitration

(a) If a dispute remains unresolved at the completion of conciliation, either party may refer the dispute to the FWC for determination by arbitration, subject to any jurisdictional submissions.

(b) Where a member of the FWC has exercised conciliation powers in relation to the dispute, that member will not be the member responsible for conducting the arbitration if any party to the dispute objects to that member doing so.

(c) Subject to clause 12.5(d), the determination of the FWC is final and binding.

(d) A party may appeal an arbitrated decision of a single member of the FWC, with leave of the full bench, provided that such appeal is lodged within 21 days of the decision being made.

The Applicant submitted that on the words in clause 12, there is nothing to limit the Commission from exercising the ‘private arbitral power’, conferred on it by the Agreement and by s.739 of the Act. The Applicant maintained that she complied with the requirements of clause 12.3 before escalating the dispute to the Commission, and having done so, the Commission is “seized with jurisdiction to arbitrate this matter”.

The Applicant referred to the Full Bench appeal decision in DP World Brisbane Pty Ltd,1F[2] where it stated:

“[47] As a matter of general principle when jurisdiction is conferred on an established court or tribunal it may be assumed that the legislature intended to take the court as it finds it, with all its incidents including any liability to appeal. This presumption is clearly stated by the High Court in Electric Light and Power Supply Corp Ltd v Electricity Commission of New South Wales:

“When the legislative finds that a specific question of judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislative does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may be made that it takes it as it finds it with all its incidents...”

The Applicant submitted that, even if it could be said that the Agreement contains an implied exclusion of the kind suggested by the Respondent, which the Applicant denied, this question is “fundamentally based on a false premise”. The Applicant submitted that she does not seek a review of a decision of the Northern Territory Commissioner for Public Employment, rather she seeks to enforce the terms of the Agreement. The Applicant submitted that the current dispute concerns whether the Respondent met those requirements on the facts of the matter, “thereby falling squarely within the contemplation of the relevant disputes’ procedure”.

Whether, to the extent of any inconsistency, the Agreement prevails over Part 6 of the Public Sector Employment and Management Act 1993 (NT), or Employment Instructions made by the Commissioner for Public Employment pursuant to section 16 of the Public Sector Employment and Management Act 1993 (NT)?

The Applicant noted that Part 6 of the PSEM Act provides:

“Secondment and redeployment

Division 1 Secondment

39 Chief Executive Officers may make secondment arrangements

(1)The Chief Executive Officer of an Agency may enter into a secondment arrangement if the Chief Executive Officer considers it is in the public interest to do so.

(2)A secondment arrangement may involve:

(a) the secondment of an employee in the Agency to perform duties for a person outside the Public Sector; or
(b) the secondment of a person employed by a person outside the Public Sector to perform duties in the Agency.

(3) A secondment arrangement may be for any period not exceeding 3 years.
Division 2 Redeployment and redundancy

…

41 Declaration of ongoing employee to be potentially surplus to requirements

(1)If the Chief Executive Officer of an Agency is of the opinion that an ongoing employee is potentially surplus to the requirements of the Agency, the Chief Executive Officer may, by written notice to the employee, declare the employee to be potentially surplus to the requirements of the Agency and state the reasons for the declaration.

(2)The Chief Executive Officer must give a copy of the notice to the Commissioner and any employee organisation prescribed by regulation for the employee.

42 Transfer of surplus employees

(1) A Chief Executive Officer may transfer under this section an ongoing employee declared under section 41(1) to be potentially surplus, including to perform duties in a different locality from the duties previously being performed by the employee.

(2) The merit principle does not apply in relation to the exercise of a power under this section.

43 Redeployment and redundancy

(1) Where a Chief Executive Officer is unable under section 35 or 42 to transfer an ongoing employee declared under section 41(1) to be potentially surplus, the Chief Executive Officer may request the Commissioner to exercise the Commissioner’s powers under this section.

(2) Where the Commissioner receives a request under subsection (1), the Commissioner may:

do either or both of the following:

(i) direct the Chief Executive Officer to take such steps in relation to the training and redeployment of the employee, within such time, as the Commissioner thinks fit;
(ii) give any other Chief Executive Officer directions relating to the transfer of the employee under section 35; or

(b) direct the Chief Executive Officer to terminate the employment of the employee in the Public Sector on such conditions as the Commissioner thinks fit.”

Further, section 16 of the PSEM Act provides:

(1) The Commissioner may, by Gazette notice, make rules, not inconsistent with this Act, to be known as “Employment Instructions”:

(a) relating to the functions and powers of the Commissioner under this Act; or

(b) otherwise relating to the good management of the Public Sector.

(2) Without limiting the generality of subsection (1), the Employment Instructions may do one or more of the following:

(a) require a matter affected by them to be approved by, or be to the satisfaction of, a specified person or body;
(b) confer on a specified person or body, or a person or body of a specified class, a discretionary authority;
(c) include a Code of Conduct to be observed in the Public Sector.

(3) Sections 57 and 63 of the Interpretation Act 1978 do not apply in relation to Employment Instructions.”

The Applicant stated that the Respondent sought to rely on s.40 of the Act, in its submissions that the above provisions of the PSEM Act prevail, over the terms of the Agreement.

Section 40 of the FW Act provides:

Generally, public sector employment laws prevail

(1) A public sector employment law prevails over a fair work instrument that deals with public sector employment, to the extent of any inconsistency.

When fair work instruments or their terms prevail

(2) However, a fair work instrument, or a term of a fair work instrument, that deals with public sector employment prevails over a public sector employment law, to the extent of any inconsistency, if:

(a)the instrument or term is prescribed by the regulations for the purposes of that particular law; or

(b)the instrument or term (other than an FWA order or a term of an FWA order) is included in a class of instruments or terms that are prescribed by the regulations for the purposes of that particular law.

The Applicant stated that under s.40(2) of the Act, fair work instruments, or terms of fair work instruments, that deal with public sector employment prevail over the public sector laws, to the extent of any inconsistency, where the instrument or term is prescribed by the regulations. The Applicant stated there is nothing prescribed in the Regulations in relation to the PSEM Act.

The Applicant submitted that there is no material inconsistency between the relevant terms of Agreement and the PSEM Act. The Applicant stated that the Respondent can “plainly comply with both sets of obligations”.2F[3] The Applicant submitted that there is nothing in the PSEM Act that would indicate it was intended to “cover the field”3F[4] in this area; and neither set of provisions “Alter, impair or detract…”4F[5] from the other. The Applicant’s position is that the Agreement provides a beneficial entitlement to employees during the redundancy period in relation to redeployment, and then provides the Applicant with the right to escalate a dispute about such matters to the Commission. The Applicant said that the relevant provisions of the PSEM Act do not ‘curtail’ that right and they are not inconsistent with it.

The Applicant submitted that the fact that some of the conduct of the Respondent was reviewed by the Commissioner in a section 59 review process pursued by the Applicant is irrelevant. She stated that to the extent there was any doubt about that, it is “comprehensively put to bed by clause 8 of Schedule 10 of the Agreement”, which she says makes clear that the right of review does not affect the employee’s rights under the Fair Work Act.

The Applicant argued that, through the Agreement, the Respondent willingly bargained for and agreed a comprehensive procedure to govern the redundancy process. It then made those provisions subject to the Agreement’s dispute procedure. The Applicant said that the Respondent now claims that there is an implied exclusion of those terms from the disputes procedure and that they are unenforceable in any event because of an apparent inconsistency with the PSEM Act. The Applicant stated that in doing so, the Respondent was attempting to “retrospectively recharacterize the terms of the Agreement and withdraw from legal obligations it willingly bargained”. The Applicant therefore said the Commission would “rightly be reluctant to facilitate such an approach”.

Whether clause 12 of the Agreement permits the Commission to conduct an inquiry to ascertain whether there are circumstances that may identify a breach of the agreement?

Further to her submissions as provided above, the Applicant also noted that the Commission routinely deals with matters pursuant to s.739 which involve a dispute about compliance with a particular term. She said therefore, there is nothing unique about this matter that might render it outside the Commission’s power. The Applicant submitted that, in any event, she does not seek any declaration of contravention or similar, which is a role of the Courts.

Whether the Applicant has genuinely attempted to resolve a dispute in accordance with clause 12.2 of the Agreement?

The Applicant referred to and relied on the F10 Application filed and her submissions as outlined above, and sought for the Commission to deal with this dispute accordingly.

SUMMARY OF THE RESPONDENT’S JURISDICTIONAL SUBMISSIONS

The Respondent submitted that the matter should be dismissed by the Commission on the basis that:

a.there is no genuine dispute about the application of the Northern Territory Public Sector 2017-2021 Enterprise Agreement (the Agreement);

b.the Applicant’s ‘dispute’ is a complaint about unsuccessful recruitment outcomes during the Applicant’s period of redeployment;

c.recruitment outcomes and processes during redeployment periods are regulated by Northern Territory public sector employment laws. The Commission has no jurisdiction in respect to these matters;

d.the Agreement does not provide the Commission with the power to review decisions made by the Commissioner for Public Employment pursuant to section 59 of the Public Sector Employment and Management Act 1993 (NT) (the PSEM Act) in relation to matters regulated by the PSEM Act and its subordinate instruments;

e.the Commission does not have the power to make the orders sought by the Applicant in these proceedings.

The Respondent noted that the Applicant alleged that the Respondent failed to comply with Schedule 10 of the Agreement. The Respondent submitted that the matters raised by the Applicant in support of this allegation, including in her form F10 and other supporting documents, relate to recruitment actions that have been undertaken in accordance with Northern Territory public sector employment laws. The Respondent submitted that the alleged dispute is essentially a complaint about a number of unsuccessful recruitment outcomes during the Applicant’s redeployment period. The Respondent submitted that an allegation of this nature is not a dispute about the application of the Agreement, which is required to enliven this jurisdiction.

In terms of the Respondent’s jurisdictional objection, the Respondent argued that the Fair Work Commission was jurisdictionally barred from proceeding to deal with the matter by way of arbitration, as the matter had been the subject of a review by the Commissioner exercising powers under the PSEM Act. The Commissioner’s outcome stated:

“Dear Ms Scurr

Request to Rescind Notice of Redundancy

I refer to your email to Ms Rachael Dunn, Director Public Sector Appeals & Grievance Reviews on 22 October 2019 requesting that I review your redeployment status as it is your belief that as an ongoing employee of a large organisation you could be easily redeployed due to your broad range of skills and experience, and therefore you should not have been issued a notice of redundancy. On this basis you have requested that I rescind the notice of redundancy.

Having carefully considering your circumstances, I am declining your request as I am satisfied that the obligations of the Public Sector Employment and Management Act 1993, Employment Instruction Number 14 - Redeployment and Redundancy Procedures (El14) and Schedule 10 - Redeployment and Redundancy Entitlements of the Northern Territory Public Sector 2017 - 2021 Enterprise Agreement have been met. Specifically:

· The Chief Executive Officer of the Department of Education (DoE) declared you potentially surplus to agency requirements (a redeployee) on 14 February 2016 having determined that there were no suitable alternative duties within the agency that you could be transferred to and that you had been an unattached officer with the agency since 10 December 2015.

· Since being declared a redeployee, the provisions of E114 have been applied to you, precisely:

· You have been provided with meaningful employment, training and coaching opportunities.

· You have received preferential treatment when applying for vacancies, and while your suitability for a role must be demonstrated in the context of reasonable training possibilities, the merit principle has not been applied to you.

· On each occasion that a selection panel has found you unsuitable, even with a reasonable period of training, the recruitment panel findings have been reviewed and affirmed by this Office.

· Your claims that you have not been afforded natural justice and that the selection panels have erred in finding you unsuitable have been investigated and responded to in writing and face to face by representatives from the Employee Relations Unit and Public Sector Appeals and Grievance Review Unit on several occasions.

· Whilst I appreciate that you hold a particular view about the level of your performance, skills and experience, consistently well placed referees, when reflecting on their observations of your performance in the workplace, do not share the same view.

· The notice of redundancy was issued to you only after you declined an offer of voluntary retrenchment (VR) on 13 July 2018. Had you accepted that offer you would have received an additional six months’ salary. At the time of that offer, you were made aware that if it was declined, no further incentivised offers would be made and that notice of redundancy would be applied, during which time redeployment efforts would continue. You did not accept the offer of VR and were issued 52 weeks’ notice of redundancy on 15 January 2019.

In accordance with the NTPS redeployment and redundancy provisions, which are consistent with the Fair Work Act requirements, redeployment efforts have and will continue to be made until such time as you are successful in gaining on going employment or the notice of redundancy expires. During this time you should continue to engage with your case manager at the DoE to identify suitable alternative vacancies to secure ongoing employment.

Should you have any further queries in relation to this matter please contact Ms Sue Barnes, Senior Consultant Employee Relations on phone (redacted) or email (redacted).

Yours sincerely

Vicki Telfer

Commissioner for Public Employment”

Section 59 Grievance

The Respondent noted that the Form F10 filed by the Applicant referred to and attached documents relating to a grievance made by the Applicant pursuant to section 59 of the PSEM Act. Section 59 provides public sector employees with a right to seek a review of their treatment in employment.

The Respondent noted that on 9 July 2019, the Applicant lodged a grievance under section 59 in relation to her unsuccessful application for a position with the Department of Local Government, Housing and Community Development. The Applicant sought a review of the process and the outcome of her assessment for the position as a redeployee. The Respondent noted these are matters that are regulated by Employment Instruction 14 - Redeployment and Redundancy Procedures.

The Respondent submitted that on 11 July 2019, the Applicant was advised of the outcome of the review of her grievance, and that the Acting Commissioner for Public Employment would not be taking further action. This was a decision made by the Acting Commissioner for Public Employment pursuant to section 59(5) of the PSEM Act. The Respondent confirmed that the Applicant was not satisfied with this outcome, and requested a complete review of her situation by the newly appointed Commissioner for Public Employment.

On 1 November 2019, the Applicant was advised of the outcome of this review and that the Commissioner for Public Employment declined the Applicant’s request to rescind her notice of redundancy. This was a decision made by the Commissioner for Public Employment pursuant to section 59(5) of the PSEM Act.

The Respondent stated that the matters raised by the Applicant through the section 59 review process were dealt with in accordance with the PSEM Act. The Respondent submitted that the complaint made was about a matter arising under the PSEM Act, and was not a dispute about a matter arising under the Agreement.

Jurisdictional matters

The Respondent outlined the redundancy and redeployment framework as follows.

The Applicant alleged that Schedule 10 of the Agreement is “a comprehensive procedure to govern the redundancy process”. The Respondent submitted however that the Applicant has misunderstood the scope of the NTPS redundancy and redeployment framework. The Respondent submitted that the framework is comprised of:

a. Division 2 – Redeployment and Redundancy - of Part 6 of the PSEM Act. This Division establishes certain powers for Chief Executive Officers and the Commissioner for Public Employment in relation to the redeployment and redundancy process;

b. Employment Instruction 14 - Redeployment and Redundancy Procedures, which is a public sector employment law, made by the Commissioner for Public Employment under section 16 of the PSEM Act. The Employment Instruction sets out the procedures to be followed by the employer, Chief Executive Officers, case managers and redeployees;

c. Schedule 10 - Northern Territory Public Sector Redeployment and Redundancy Entitlements - of the Agreement.

The Respondent submitted that that NTPS redeployment and redundancy framework has a long history and is well understood by the industrial parties in the Northern Territory.

The content of Employment Instruction 14 and Schedule 10 of the Agreement previously existed together in NTPS enterprise agreements, up until the commencement of the NTPS 2013-2017 Enterprise Agreement. The Respondent stated that at that time, the redeployment procedures that had existed in the previous enterprise agreement were removed from the agreement and updated into Employment Instruction 14. The redeployment and redundancy entitlements remained in the enterprise agreement and now exist as Schedule 10 of the Agreement.

The Respondent submitted that the purpose of the change was to ensure that provisions dealing with employee entitlements remained in the enterprise agreement, and that provisions dealing with procedural matters relating to redeployment were contained in the Employment Instruction. It submitted that this was communicated to employees at the time, including in explanatory information supporting the ballot for the enterprise agreement.

The Respondent submitted that the Applicant’s complaint in this matter is essentially about procedural matters relating to her redeployment which are regulated by Employment Instruction 14, not the Agreement. The Respondent submitted that in bringing this dispute, the Applicant was seeking to give the expression “make all reasonable endeavours” found in the Agreement a “new and uncertain meaning”, which it says is inconsistent with the statutory obligations and procedures already established and regulated for many years under Employment Instruction 14, and earlier enterprise agreements.

Whether clause 12 of the Agreement provides the Commission with power to review decisions made by the Northern Territory Commissioner for Public Employment pursuant to section 59 of the PSEM Act?

The Respondent submitted that section 59 of the PSEM Act provides public sector employees with a right to seek a review of their treatment in employment. The Commissioner for Public Employment is obliged to review the matter raised by the employee, in accordance with s.59(2).

The Respondent noted that the Commissioner for Public Employment may:

a.Refer the matter to the Chief Executive Officer of the Agency for consideration (s59(3));

b.Confirm the action or decision (s59(5)(a));

c.Direct the Chief Executive Officer of the Agency to take or refrain from taking a specified action (s59(5)(b)).

The Respondent stated that a decision made by the Commissioner for Public Employment pursuant to section 59, is a decision made in accordance with the PSEM Act; and is not a decision made in accordance with the requirements of the Agreement.

Clause 12.1 of the Agreement provides:

12. Dispute Settling Procedures

12.1 The parties are committed to avoiding industrial disputation about the application of this Agreement.

(a) Subject to clause 12.1(b), this clause sets out procedures to be followed for avoiding and resolving disputes in relation to:

(i)a matter arising under this Agreement; or

(ii)the National Employment Standard.

(b) However, this clause does not apply in relation to disputes about:

(i)refusals for requests for flexible working arrangements on reasonable business grounds under clauses 36 and 37.20(e) of the Agreement and section 65(5) of the FW Act;

(ii)refusals for requests for extended parental leave on reasonable business grounds under clause 37.21 of the Agreement and section 76(4) of the FW Act; and

(iii)assessment outcomes for Senior Classification level positions.

(c) An employee who has a grievance about matters referred to in clause 12.1(b) can utilise section 59 of the PSEM Act to have the decision reviewed.

(d) In the event of a dispute about a By-law issued under the PSEM Act clauses 12.3 to 12.4 will apply.

The Respondent submitted that clause 12.1(a) makes clear that the dispute settling procedures only apply in relation to matters arising under the Agreement or the NES, and do not apply to other types of disputes.

The Respondent submitted that clause 12.1(b) excludes particular decisions that may be made under the Agreement or the NES from the dispute settling procedures.

The Respondent submitted that clause 12.1(c) has “no operative effect” in relation to the dispute settling procedures; despite the Applicant’s submission to the contrary. The Respondent submitted that clause 12.1(c) is “merely a signpost to employees”, and advises employees who have a dispute about a matter that is excluded from the dispute settling procedures by clause 12.1(b), that they may instead utilise the section 59 grievance mechanism. The Respondent submitted that the clause has no relevance to matters under Schedule 10 of the Agreement.

Further, the Respondent submitted that clause 12.1(c) does not ‘broaden’ the dispute settling procedures to matters arising under section 59 of the PSEM Act. A dispute must be about a matter arising under the Agreement or the NES to enliven the dispute settling procedures within the Agreement, and not be about an excluded decision.

The Respondent stated that clause 12 of the Agreement does not provide the Commission with jurisdiction to review decisions made by the Commissioner for Public Employment pursuant to section 59 of the PSEM Act, in relation to matters regulated by the PSEM Act and its subordinate instruments.

The Respondent submitted that, as outlined above, Schedule 10 of the Agreement is not “a comprehensive procedure to govern the redundancy process” as suggested by the Applicant. The Respondent submitted that in summary, that the NTPS redundancy and redeployment framework may be described as follows:

a.Redundancy and redeployment procedures are regulated by Employment Instruction 14.

b.Redundancy and redeployment entitlements are regulated by Schedule 10 of the Agreement.

c.certain powers for Chief Executive Officers and the Commissioner for Public Employment in relation to the redeployment and redundancy process are established by Part 6 of the PSEM Act.

Section 40 of the Act relevantly provides:

“40 Interaction between fair work instruments and public sector employment laws

Generally, public sector employment laws prevail

(1) A public sector employment law prevails over a fair work instrument that deals with public sector employment, to the extent of any inconsistency.

When fair work instruments or their terms prevail

(2) However, a fair work instrument, or a term of a fair work instrument, that deals with public sector employment prevails over a public sector employment law, to the extent of any inconsistency, if:

(a) the instrument or term is prescribed by the regulations for the purposes of that particular law; or

(b) the instrument or term (other than an FWC order or a term of an FWC order) is included in a class of instruments or terms that are prescribed by the regulations for the purposes of that particular law.

Meaning of public sector employment law

(3) A public sector employment law is a law of the Commonwealth (other than this Act) or a Territory, or a term of an instrument made under such a law, that deals with public sector employment.

…

Relationship with section 29

(5) This section prevails over section 29, to the extent of any inconsistency.”

The Respondent submitted pursuant to s.29 of the Act, the default position is that an enterprise agreement prevails over a State or Territory law, to the extent of any inconsistency. The Respondent submitted however, s.40(1) of the Act “essentially reverses that position”, so that a public sector employment law prevails over a public sector enterprise agreement “(being a fair work instrument that deals with public sector employment)”, to the extent of any inconsistency.

The Respondent stated that s.40(2) enables the position to be ‘re-reversed’, by providing that a fair work instrument (or term of the instrument) prevails over the public sector employment law to the extent of any inconsistency, if the instrument (or term) is prescribed by the regulations for the purposes of that particular law (or included in a class of prescribed instruments). It says however, there is no such relevant prescription for the purposes of this matter.

The PSEM Act and Employment Instruction 14 (an instrument made under the PSEM Act) are both public sector employment laws, as defined in s.40(3) of the FW Act. The Respondent submitted, therefore, Part 6 of the PSEM Act and Employment Instruction 14, prevail over the Agreement to the extent of any inconsistency. The Respondent submitted that this means the obligations and requirements relating to redundancy and redeployment procedures established in Employment Instruction 14 prevail over any inconsistent expression within Schedule 10 of the Agreement.

Whether clause 12 of the Agreement permits the Commission to conduct an inquiry to ascertain whether there are circumstances that may identify a breach of the agreement?

Clause 12 of the Agreement sets out the procedures to be followed for avoiding and resolving disputes in relation to a matter arising under Agreement or the NES. The clause provides the Commission with the power to conciliate and arbitrate a dispute, subject to the requirements of the term.

The Respondent submitted that a precondition to the exercise of any power by the Commission pursuant to s.739 is to be able to identify what the dispute actually is, in order that it may be determined. In this regard, the Respondent submitted that the Applicant’s complaint “has essentially been that the Respondent has not done enough to support the Applicant during the redeployment period”. It submits that the Applicant has made “generalised comments about a perceived lack of support or a perceived lack of positive steps being taken by the Respondent”.

The Respondent submitted that it cannot be in a dispute with the Applicant about these claims, as it has been unaware of what additional support was sought, or what additional steps it could be taking.

The Respondent stated that it is only from 5 February 2021, that the Applicant has identified a number of specific circumstances of complaint. The Applicant alleged that these circumstances demonstrate a failure of the Respondent to comply with the Agreement.

The Respondent submitted however, the Applicant’s allegation does not demonstrate an ‘actual dispute’ between the parties about a matter arising under the Agreement. Rather, the allegation is that the Respondent has breached the Agreement.

The Respondent submitted that the dispute procedure under clause 12 of the Agreement provides the Commission with a power to determine an ‘actual dispute’ between the parties by arbitration, but does not provide the Commission with power to undertake “nonspecific and generalised inquiries” into the conduct of parties to determine whether they may, or may not, have breached an enterprise agreement.

Whether the Applicant has genuinely attempted to resolve a dispute in accordance with clause 12.2 of the NTPS Enterprise Agreement?

Clause 12.2(b) of the Agreement provides that:

“12.2 General
…
(b) The parties to a dispute must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.”

Clause 12.3 of the Agreement further provides that:

“12.3 Internal Resolution

(a) In the event of a dispute, the parties will in the first instance endeavour to resolve the matter internally as follows:

i.The employee will refer the matter to their immediate supervisor for resolution, who may request that the employee provide written details of the matter, provided that where the dispute concerns alleged actions of the immediate supervisor, the employee may by-pass this step.
ii.If the matter cannot be resolved under clause 12.3(a)(i) above, it will be referred in writing to the relevant manager for resolution.
iii.If the matter cannot be resolved under clause 12.3(a)(ii) above, it will be referred in writing to the relevant CEO for resolution.
iv.If the matter cannot be resolved under clause 12.3(a)(iii) above, it will be referred in writing to the Commissioner for resolution.

(b) Where reasonably practicable, attempts to resolve the matter under each stage of the process referred to in clause 12.3(a) will begin within 48 hours of, and be completed within five working days of the referral relating to that particular stage.”

The Respondent submitted that the objective of the dispute settling procedures is to avoid industrial disputation about the application of the Agreement or the NES. The Respondent submitted that the procedures seek to achieve this objective by requiring the parties to identify their dispute in writing through their management chain, and then to the Commissioner for Public Employment if it has not been resolved. The procedures require that the parties attempt to resolve their dispute in an expeditious manner.

The Respondent submitted that compliance with these provisions is a precondition to the exercise of conciliation and arbitration powers by the Commission, pursuant to clauses 12.4(a) and 12.5(a) of the Agreement. The Respondent submitted that these preconditions are limitations on the exercise of powers by the Commission.

The Respondent submitted, consistent with s.739(3) of the Act, the Commission must not exercise any powers limited by the disputes settling term. As identified by Senior Deputy President Kaufman in Shields v Alfred Health:5F[6]

“Apart from the manifest public interest in parties abiding by the dispute resolution processes upon which they have agreed, Fair Work Australia in dealing with a dispute pursuant to a term in an enterprise agreement may not exercise any powers limited by the term. Here the term precludes Fair Work Australia from dealing with dispute unless there has been a genuine attempt by the parties to resolve the dispute.”

The Respondent submitted that the Applicant has only identified the matters in dispute as at 5 February 2021. The Respondent therefore submitted that the Applicant did not comply with the internal resolution steps at clause 12.3 and has not genuinely tried to resolve the dispute as required by clause 12.2.

The Respondent stated that accordingly, the Agreement limits the exercise of powers by the Commission in relation to this matter.

SUMMARY OF THE APPLICANT’S MERITS SUBMISSIONS

The Applicant submitted that the current dispute arises under Schedule 10 of the Agreement and relates to issues of whether the Respondent made “every endeavour” to actively place the Applicant in a suitable position from 14 February 2019, after the Respondent issued the notice of redundancy on 15 January 2019 and up until and including the date of termination, and whether the Respondent was required to do more to satisfy their obligations under the Agreement.

The Applicant provided the following ‘factual matrix’ of the circumstances:

“The Applicant commenced employment with the Northern Territory Public Service (NTPS) on 13 July 2006.

On 10 December 2015, the Applicant, utilising the Respondent’s language, was ‘unattached’ from her substantive position with the Teacher Registration Board.

On 14 February 2016, the Chief Executive Officer of DoE declared the Applicant ‘potentially surplus to the requirements of the Agency’ (a redeployee), pursuant to section 41 of the Public Sector Employment and Management Act 1993 (PSEM Act).

The Respondent now alleges that since 14 February 2016 the ‘Redeployment and Redundancy Procedures in Employment Instruction 14 applied to the Applicant.’ The Respondent alleges that:

(c) the Applicant was supported by a case manager, who arranged external coaching and job placements within the NTPS;
(d) the Applicant was referred to ongoing NTPS vacancies;
(e) the Applicant received ‘preferential consideration for vacancies over other applicants (the merit selection principle is not applied to redeployees who apply for a vacancy at their level or at a lower level);
(f) the assessment of the Applicant’s suitability for a vacancy was considered in the context of reasonable training possibilities; and
(g) on each occasion the Applicant was found unsuitable for a role by a recruitment panel, even with reasonable training, the panel findings have been reviewed and affirmed by the Commissioner for Public Employment.

On 13 July 2018, following a period of two years and five months as a redeployee, the Applicant was offered a voluntary redundancy. The Applicant did not accept the voluntary redundancy.

On 15 January 2019, the Applicant was given 52 weeks’ notice of redundancy.

The Respondent alleges that the redeployment procedures in Employment Instruction 14 continued to apply to the Applicant in that period.

On 9 July 2019 the Applicant submitted a grievance under section 59 of the PSEM Act, in relation to her unsuccessful application for a position with the Department of Local Government, Housing and Community Development.

On 11 July 2019, the Applicant was advised of the outcome of the review the grievance outlined above, and that the Commission for Public Employment would not be taking further action.

On 5 September 2019, the Applicant requested a complete review of her employment situation and requested that the notice of redundancy be rescinded. The Commissioner for Public Employment declined the Applicant’s request to rescind the notice of redundancy.

The Applicant final date of employment was 17 March 2020.

The Applicant denies that she was adequately supported by a case manager, referred to all potential ongoing placements within the NTPS, or given preferential consideration for vacancies over other applicants.”

Respondent’s deficiencies

The Applicant submitted that the Respondent failed to identify and refer the Applicant to all vacancies available within her home agency during the period of redeployment. The Applicant submitted that the Respondent failed to refer her to the following vacancies, among others:

(a)Project Officer, International Students Administration and Programs [Position Number 17661], in or about June 2016;

(b)Senior Workforce Consultant, Aboriginal Employment and Workforce Development [PN 19354], in or about February 2018.

(c)Community Engagement Consultant, IES [PN CO180040 and CO180051], in or about March 2018; and

(d)Senior Consultant ER [PN 19035], in or about March 2018.

The Applicant submitted that the Respondent had also failed to place her in relevant ‘on-the-job training’ opportunities, including:

(a) Senior Policy and Project Officer, QECNT [PN 39258] and

(b) Senior Operations Officer, QSSS North [PN 40462].

The Applicant submitted that she took it upon herself to identify and apply for positions, without the Respondent’s assistance. She submitted that she raised her concerns about being overlooked for available and suitable positions within her home agency, with her case managers at the time.

The Applicant further submitted that the Respondent briefly placed her in the Senior Operations Officer position, for a period of approximately two (2) days, however the Respondent convened a second Panel and removed her from acting in that position.

The Applicant’s position is that, had the Respondent taken “positive steps and afforded [her] meaningful ‘on-the-job training’ opportunities”, she would have gained the necessary training that would advance her potential of being placed into a permanent position when the vacancy came available. However, apart from the brief period acting in the Senior Operations Officer position, the Respondent refused to consider the Applicant for any ‘on-the-job training opportunities’ that arose in the redeployment period.

The Applicant submitted that she sought assistance from the Respondent to be placed into a permanent position. She also noted however, “[o]n a number of occasions, during the redeployment period, the Respondent instructed the Applicant to withdraw her applications for ongoing positions”. The Applicant submitted by way of example, that around 30 October 2019, she applied for the position of ‘Manager Recruitment and Community Engagement’, and the Respondent “actively [sought] for the Applicant to withdraw her application”; nevertheless, she sought to be considered for that position. The Applicant submitted she was ‘ultimately unsuccessful’ in her application, but that this “evidences the Respondent’s conduct in actively limiting the Applicant’s prospects of obtaining a suitable redeployment”.

The Applicant therefore submitted that the Respondent failed to not only make every endeavour to place her in suitable employment, but it also failed to make all reasonable endeavours to place her into suitable ‘other employment’.

Summary of the Applicant’s evidence

The Applicant advised she commenced employment with the Respondent in July 2006 on a permanent, full-time basis, engaged in multiple roles up until 17 March 2020 where she was made redundant. The Applicant said she started as a Field Officer for NT Build, which she was responsible for identifying building projects and pursuing payments for those projects in accordance with the Construction Industry Long Service Leave and Benefits Act 2005 (NT) (the 2005 Act). She held this position until 16 May 2008. She stated she received consistent positive feedback in relation to her performance.

In early 2018, the Applicant advised she secured a role with the Teacher Registration Board in which she applied for so that she could gain exposure to client interaction and perform complex and intellectually stimulating work. From 19 May 2008 until 30 November 2008, she worked as the Senior Registration Officer in backfilling capacity. In this role, she provided support to the Director, the Board and its committees in administering and assisting with the registration of teachers. In November 2008, her role was upgraded and expanded. From December 2008 to September 2010, she worked as a Senior Policy and Registration Officer where she provided expert policy advice, administering and assisting with the registration of teachers, and assisting with investigations and inquiries into the professional conduct of registered teachers.

The Applicant advised her role was modified and expanded in September 2010 to Senior Policy Officer and Manager of Professional Conduct (the TRB position), where she remained in this role until 23 November 2014. Between 21 April 2011 and 9 September 2013, the Applicant said she accessed a period leave. She returned to work on 10 September 2013, where she also started a second job as a bus driver on the weekends and after hours. The Applicant stated this was approved by the Respondent. The Applicant said she never received any negative feedback in this role with the Respondent.

The Applicant provided evidence that she was paid as an Administration Officer Level 7 in her TRB position up until her employment with the Respondent ended. She claimed to be the only person who performed the duties of a TRB position between September 2010 and 23 November 2014 apart from those who backfilled her position whilst on leave. The Applicant said she worked closely with Dr Julie Wells, who was the Director between September 2010 and April 2011 and had a good working relationship with her. She further mentioned that Dr Wells agreed to providing flexible hours arrangement which came into effect in 2010 and the position of Professional Conduct Officer being created in April 2011.

Whilst the Applicant was on leave in January 2012, Ms Maree Garrigan was appointed as the new director, and the Applicant described her relationship with Ms Garrigan to be strained as time went on. The Applicant described her position to have been busy and demanding which caused a lot of pressure. She said this was even acknowledged by the Chair of the Board, Ms Karen Blanchfield, on more than one occasion, including in the TRB Annual Report 2009 and 2010. The Applicant explained that her responsibilities in this role could be split into five key components, which are senior responsibilities in relation to assessing domestic applications and overseas applications for teaching positions in Norther Territory, as well as policy development and responsibility as the secretariat for the Teacher Registration Board and managing the professional conduct of registered teachers in the Northern Territory.

The Applicant stated that she also undertook being the secretariat for the TRB Professional Standards and Ethics Committee in 2008 to 2011, the Information Officer for the Board in 2008 to 2011, representing the Board on the SAFE-NT Interagency Working Group in 2008 to 2009, making presentations to student teachers in 2008 to 2010, assisting the Director with preparation of Board’s annual report from 2008 to 2010, responding to the Productivity Commission Survey in 2008 and many more.

The Key 5 Components of the TBR Role

Assessing domestic applicants for teaching positions

The final assessment of domestic applicants for teaching position is one of the main duties she performed, and took up most of her time, where she would determine whether the applicants would be permitted to be registered as teachers. The Applicant said her assessment was final as they would already have been assessed by junior staff. In this function, she worked with the registration boards in other Australian states and territories as most applicants had been trained and/or taught interstate. She said she would often liaise with interstate colleagues to ascertain whether the applicant was properly trained and qualified to teach, and also to determine if have previous findings of misconduct against them.

Assessing overseas applicants for teaching positions

“I want to stay in the public service. If I stay my future earnings will be around $1.6M. I want to stay. I enjoy being a public servant. What you are offering me will cover me for a year and then I will suffer financial stress because I will only be able to get a basic and low paid job.”

In response to Ms Barnes’ statement that the Applicant had said that she would seek a settlement amount “in the millions”, the Applicant denied that this ever happened.

In response to Ms Barnes’ statement that the Applicant’s self-assessment was not supported by her referees, based on their observations of her performance, the Applicant provided a referee report from Mr Rob Picton, in relation to an AO7 position of Prosecutions Manager. Within that report, Mr Picton stated that he would have kept the Applicant in the position if the incumbent had not returned. The Applicant also provided positive referee reports from Ms Susan Bowden and Ron Greaves.

The Applicant further noted that Ms Barnes had failed to include the very first assessment report that related to the Applicant after she was declared a redeployee, which was for the position of Senior Consultant, Employee Relations, Officer of the Commissioner for Public Employment, and the first panel report for the position of Senior Operations Officer.

In response to the statement of Ms Kirstie Bryan, the Applicant stated that the meetings referred to, were not established nor conducted in a manner that was focused on the Applicant’s career development or redeployment. The Applicant argued that, if anything, those meetings were a form of performance management without a performance management plan in place.

In relation to Ms Bryan’s assertion in her statement that the Applicant declined an offer to meet with the panel chair, the Applicant denied this. The panel chair was Lee Williams, Executive Director of the Local Government and Community Development Division. The document annexed to Ms Bryan’s statement and marked as “Document 55” demonstrated that the Applicant accepted Ms Williams’ invitation to meet with her. The Applicant agreed that at that time she believed that the process was flawed.

The Applicant stated that she met with Ms Williams at 2.00pm on 15 June 2018 as they needed to wait until after Easter, when they had both returned from annual leave. The Applicant stated that while she met with Ms Williams, she took her on a tour of the office and introduced her to the team members and said words to the effect of “Sharon might be working with us soon in the future.”

The Applicant further stated that she was routinely discouraged after meetings with the panel to withdraw her application. For the position referred to in Ms Bryan’s statement, the Applicant was told by the panel that:

(a)       she would be on her own in the team;
(b)       no support would be available for her; and
(c)       they would not support her if she was in the position.

In response to Ms Stewart’s statement, the Applicant argued that it is not true that Ms Stewart was assigned as the Applicant’s case manager in July 2018. The Applicant stated that she was first assigned as her case manager on 2 May 2017, soon after the Applicant sent the email correspondence to Paula Ridge seeking a new case manager.

The Applicant stated that she met with Ms Stewart on 18 May 2017 and expressed concern with her being the Applicant’s case manager, because she felt that she did not support her when she reported the bullying by Ms Garrigan at the TRB in early 2014. The Applicant stated that Ms Stewart was unapologetic towards her and when the meeting concluded the Applicant did not have a case manager until Ms Bryan was assigned to her on 6 December 2017. Ms Stewart was then allocated as the Applicant’s case manager again from July 2018 until the end of her employment on 17 March 2020.

In response to Ms Stewart’s statement, the Applicant submitted that the Christmas shutdown was in late-2019 and she accessed some annual leave in January 2020 and for a week in March 2020. Further, the Applicant’s employment ended on 17 March 2020 and not 10 March 2020 as Ms Stewart had stated. The Applicant stated that when her employment ended, she still had a personal leave accrual which totalled several weeks.

The Applicant also responded to the statement of Ms Stewart’s and stated that when she contacted her referees, they told the Applicant that the panel did not accurately reflect their reports about her. An example was that the panel report for the role of Senior Operations Officer for Department of Education who stated that the Applicant’s writing skills met the criteria of demonstrated high level interpersonal and communication skills, but were recorded by the panel as only being satisfactory which was then relied on to say that the Applicant was unsuitable for the role. Further, when the Applicant asked Ms Stewart about training opportunities, she told the Applicant that she was not entitled to any training.

The Applicant also disagreed with Ms Stewart’s statement that she had a ‘strained relationship’ with the Chief Executive of Territory Families at the time. The Applicant stated that she had never met the Chief Executive of Territory Families. However, she did have reservations about applying for positions within the Chief Executive of Territory Families’ agency given that he had oversighted several adverse decisions against the Applicant when he had been Chief Executive of the Department of Education.

The Applicant, in response to Ms Stewart’s statement, submitted that the role that she was referring to was with Fisheries. The Applicant was required to have a working knowledge of the Fisheries legislation and a computer system called Oracle, which she did not have which meant that she was not suitable for the role. However, the Respondent had made it clear that training in such could be provided.

The Applicant also stated that Ms McTaggart’s focus was on encouraging her to find a role outside the public service, not within it. This was opposed by the Respondent, and it was argued that this additional process, was another endeavour to assist the Applicant.

CONSIDERATION

The Applicant was seeking as a remedy in relation to the matter, to be reinstated to her the Respondent’s employment and to receive back pay for the interim period. The Respondent raised a jurisdictional objection to the Commission’s capacity pursuant to a s.739 awarding such a remedy. They considered that such an outcome was beyond jurisdiction and not warranted, given the process had been complied, and further, that the outcome was not available to the Commission. The Commission’s powers to deal with a s.739 dispute are derived from the Agreements disputes procedure. The matter is not an unfair dismissal with the accompanying jurisdiction. The Applicant in her application sought that an order be issued quashing or rescinding the notice of redundancy; that the Respondent make every endeavour to actively place the Applicant into a new suitable position and that the Respondent refrain from terminating the Applicant’s employment during that process.6F[7]

The Applicant argued that the application and remedy sought were within jurisdiction and that at the time of filing the application, the status quo position should have been observed. The status quo provision from the Agreement stated that ‘whilst a dispute is being dealt with in accordance with this clause, work must continue in accordance with usual practice prior to the dispute arising.7F[8] The Applicant argued by virtue of this status quo provision, the process should have been halted and corrected to place her in an ongoing role. The Respondent considered this application was beyond the power of the Commission and that no clear evidence of deficiencies in the process, nor the relevant provision to be appointed to.

In summary terms, the Applicant argued that her jurisdictional case that her application was not confined to those matters that formed the subject of the review under the PSEM Act. It was not able to be conclusively considered (at the outset of the matter) whether the review undertaken at that time (under the PSEM Act) had considered the scope of the matters over the breadth of the period later argued by the Applicant. Accordingly, the jurisdictional and merits matters (as set out) were joined. Having received and assessed all the arguments and the related evidence during the course of the hearing, it is clear that the review was predominantly undertaken on the same basis and the same outcome has been reviewed during the current process before the FWC. The Application is jurisdictionally barred. On the basis of affording procedural fairness the confirmation of such, could not easily have been reached at the outset given the volume of material.

Having undertaken the task now, it is clear that the Applicant has had the opportunity to conduct their whole case. It is also clear that this mirrors the matter reviewed initially by the Commissioner for Public Employment. It is also clear (that whilst the Respondent somewhat generously allowed for this process to be conducted whilst maintaining their jurisdictional objection) the outcome has confirmed the outcome of the review. It is also clear that having considered all of the Applicant’s case that it has traversed, on the same grounds. It is an application that was jurisdictionally barred by virtue of the ‘review’ under the PSEM Act, already undertaken that corresponds to the current case. The conclusions however are the same. The Applicant’s case is one of a number of complaints with the process, which do not disturb the outcome of such.

Merits

The Applicant alleged that she had been blacklisted and this is why she was not able to obtain an ongoing position. She submitted that the process was flawed; and she was not being offered some positions in education, that some positions were not being listed on the redeployment list, (which should occur for all ongoing jobs longer than 6 months). Ms Stewart explained that the recruitment process that had been used and developed into a simplified recruitment process,8F[9] which was heavily weighted on the references of an employee, rather than placing greater reliance on the resume and a comparison with the criteria, she explained.

The Applicant stated that she had experienced problems with referee reports in comparison to the required criteria of positions. The Applicant had expressed her continuing disappointment at being placed in supernumerary positions and had sought an ongoing position with a job number and job description in a team of employees. However, Ms Stewart contended that to assist with referee reports, for this reason, she and the other case managers had been organising the new placements to allow the Applicant to secure new networks and referees. However, her evidence is that this had been difficult to achieve with the Applicant. For example, the Applicant put impediments to positions in place, for example, the various job vacancies that the Respondent had referred to, such as the proposed position with the Fisheries Department. The Applicant ruled out the position on the basis that she did not have the knowledge of the data base, although the employer had indicated that the relevant training would be provided. It is noted that the Applicant held significant positions undertaking research and using databases and that this was not a relevant reason to rule out the position.

These examples are important in the context that where the employer was to make every endeavour to find alternative employment, the Applicant was providing limitations to the positions that she would consider.

The case managers all gave their evidence of this in a measured way. They were credible in the approach they had taken and the comprehensive steps to genuinely assist the Applicant to achieve an ongoing position. They did however, individually in their evidence, express frustration at the Applicant limiting the positions she would apply for. For example, the Applicant did not want to apply for the position with the Anti-discrimination Commission, as she stated they didn’t share her values. The following exchange was indicative of the Applicant’s responses in relation to a range of these vacancies that the Respondent has referred the Applicant to:

“THE COMMISSIONER: That you didn’t share the code of values in terms of a - was that the child safety - the discrimination position? I don’t have that.

MS S SCURR: Anti-discrimination (indistinct) the position (indistinct).

THE COMMISSIONER: Those particular arguments in relation to cutting across some of the positions that were offered where the employer’s saying, well, we’re trying to exhaust all reasonable endeavours, that there is some obviation or negation of those opportunities in relation to other particular subjective views.

…

MS S SCURR: So that’s where that personal view of things came in. I can’t remember what the terminology was. Something about my desires, or something like that. But in terms of the other positions it was about the - they were all professional reasons. It was because I didn’t have the experience that they wanted, I didn’t have the knowledge that they wanted. And in terms of the Antidiscrimination Commissioner, that was because I’d attended a forum and I knew the direction that they wanted to head with their legislation. And I’d advised the Antidiscrimination Commissioner that I had a different view and I just knew that it wouldn’t have worked. You know, I wouldn’t be able to, you know, give my 100 per cent commitment to that role. Nothing about the Antidiscrimination Commissioner personally, she’s actually a friend of mine. We know each other. And I don’t think that would have - - -”9F[10]

(emphasis added)

The case managers would have to get the Applicant’s approval to be referred for positions and she often refused to allow to be considered for jobs the case managers had nominated, thus limiting the scope of opportunities for consideration. In circumstances where the Applicant was aware that the time frame for the redeployment process was expiring, this selective approach on her part, was reducing her opportunities. The Respondent was escalating their efforts, the Applicant did not demonstrate any similar urgency.

The Applicant should have optimised her redeployment opportunities, by broadening the positions she would apply for. The frustration experienced by her case managers in this regard was evident. The Applicant was critical of the employer’s approach to the redeployment exercise and was disappointed by the comparison of this process to the process that she had undertaken in the 1990’s with her former employer, a Bank, and how that compared to the current process undertaken with her. No comparative detail of any legislative or Agreement obligations relevant to that process were provided.

The Applicant was encouraged by each of the case managers to broaden her job search to allow them to refer her for a greater range of jobs. The Applicant was critical of the roles that she was offered; being she stated for jobs that were of a temporary or supernumerary basis. Ms Stewart, as one of the Applicant’s case managers, considered that a number of the proposed roles allowed the Applicant to enlarge her network and gain further referees. The Applicant explained that she considered that the referees (on the feedback she had sought from the selection panels) had compromised her being successful, in the selection process. However, there was no direct evidence of this presented.

The evidence of Ms Stewart was that the Applicant would not agree to be referred for the full scope of potential jobs that she sought to refer the Applicant for. The Applicant considered she needed in considering potential jobs, to take into account her own interests and wellbeing, based on the nature of the work, or the department, or whether particular training would be required or provided. This attitude reduced her redeployment opportunities. These assessments by the Applicant on the evidence were based on her considerations of the outcomes.

The Applicant alleged that there were deficiencies in the process. She noted that she had been continually referred to the Commissioner’s guidelines for the redeployment process and that this document was no longer effective, and that Employment Instruction 14 was the relevant document. The Respondent’s representative argued however that they had applied Employment Instruction 14.

In scrutinising the process used, the evidence of each of the case managers in discharging the redeployment was provided in a measured, credible manner, that demonstrated that they had been devoted to the process. They were willing to make concessions, when necessary, in regard to the use of the Commissioner’s guidelines or that, (whilst not all specific jobs were referred to in their proposals) and that not all jobs may have appeared on the redeployee page. In assisting the Applicant with the process, each of the case managers that gave evidence was involved in the search for the Applicant but was also clearly accommodating of the Applicant’s wishes when she preferred not to be referred for certain positions they proposed. However, they were quietly tenacious, encouraging the Applicant to apply for other positions. They clearly wanted to achieve a successful outcome.

In addition, each of the jobs that the Applicant has applied for, has been assessed. No finding can be made that there was an improper process, or that the Employer failed to make any additional endeavour that the Employer was required to make in accordance with the process.

I make no ‘Jones v Dunkel’ inference (as suggested) regarding the failure to call the other case manager Ms Paula Ridges. She was based in Tennant Creek, some distance from Darwin and she was the case manager from 2014, prior to the process relevant to the Enterprise Agreement. The three other case managers were called and there was a genuine agreement between the nature of their process involvement, given they all undertook similar roles and engaged with similar discussions with the Applicant at separate times.

The Applicant stated that the employer ended her employment very abruptly, however she had been on the prescribed notice of the redundancy and was fully aware of the timeframe. She was aware that without an alternative position, the employment would end. Whilst additional steps were initiated by the case manager and from the employer to assist the process as the date drew closer, I detected no such urgency on the part of the Applicant. The Employer had engaged an external consultant Ms McTaggart to discuss employment strategies and possible training plans with the Applicant to secure a way forward with the Applicant. No urgency was seen in the Applicant’s actions as the redundancy date drew closer. At that stage, the broadest possible range of referred jobs should have been acceptable.

Reinstatement

At the final hearing in the matter, the Applicant provided a brief summary of the matter and referred to the remedy she was seeking in relation to the application. The Applicant confirmed that she had commenced in new employment in the week prior to the final hearing. On that basis, and because the Applicant identified that as a result of the redeployment process, she submitted that she had lost trust and confidence in the employer and had considered that if she was reinstated, this would ultimately not be a satisfactory outcome.

The Applicant stated that given this, and her recent employment she was now seeking compensation for the lost wages and future lost wages. a specific quantum was not put forward. However, she suggested an amount of compensation (taking into account the 12 weeks redundancy payment made on termination), and what she set out were the lost wages between the end date of employment and now, based on her annual salary of approximately $114,000. The claim also included a quantum for future lost wages.

The Applicant also submitted at the final hearing that she had instructed a new lawyer to send correspondence that in line with the legal opinion she had received the manner in which the redundancy or termination was effected was unlawful, on an ‘ultra vires’ basis. The Respondent confirmed this correspondence had been received. The parties clarified that they did not intend to put this document before the Commission and further that this argument was not being made for the purposes of a determination before the Commission. It has been agreed the detail of this matter was not being argued before the Commission. No failure on the Employer’s part having been found., no remedy was determined. Further, having heard the whole matter it was, on review, jurisdictionally barred.

New material

The Applicant filed approximately 200 new documents with her final submissions. The Respondent objected to such a significant volume of new material, and particularly in circumstances where the documentation had not been previously addressed in the proceedings. The material has been considered; however, it has not been clear regarding the relevance of a number of the documents. The Applicant submitted that in filing these documents at the end of the proceedings, she considered she was acting in line with a process set up to allow her to do so. She explained that she had interpreted the process afforded her the right to file new material.

It is concluded that in countering some matters provided by other witnesses, the Applicant on her explanation, genuinely concluded the provision of these documents was a course open to her. The Applicant conceded that she had been in communication throughout the proceedings with her lawyers and that they had assisted with the preparation of the final submissions but that she had added to these and provided the final additional documents. There is no criticism of the Applicant for seeking such assistance. She had been initially granted permission pursuant to s.596 of the Act for legal representation and jurisdictional and merits submissions had been prepared by her legal representative. The Applicant had been transparent throughout the proceedings that there were matters she referred to that she wanted to discuss with her lawyers. It is also recognised that she was mindful of the costs of such and that she was endeavouring to represent herself where she could. The Respondent did not raise objection this course when advised by the Applicant throughout the proceedings. However the Respondent did not object to the new material, given that procedural fairness could not have been provided, the new material has not been considered.

CONCLUSION

The evidence of all of the witnesses in relation to the redundancy and redeployment process has been considered as have the submissions. It is recognised that the Applicant makes various complaints about the series of unsuccessful outcomes in terms of the redeployment process. It is recognised that in this matter there has been the intersection of some matters that relate to recruitment actions undertaken in accordance with the Northern Territory Public Sector employment laws and also matters that fall within the provisions of the Enterprise Agreement. The separation between the statutory codes is respected, in particular the Commissioner for Public Employment pursuant to section 59 of the Public Sector Employment and Management Act 1993 has powers of review, in relation to those matters regulated by that Act.

This is an application whereby there is commonality to the matters that are under review pursuant to s.59 PSEM and the matters that formed a consideration pursuant to the provisions of the Agreement. However, the application is comprised of matters of the complaints about the process, some that have formed the basis of the review, pursuant to section 59. The section 59 review under the PSEM Act was narrower than the dispute lodged in relation to the redeployment process under the Enterprise Agreement. Whilst the current application has been considered, the employer’s submissions in terms of the placement of the provisions that deal with procedural matters related to redeployment, (being placed in Employment Instruction 14), are persuasive, and that this division of matters on this basis, would inform any future similar jurisdictional matters and provide a jurisdictional impediment.

Given the inconsistencies pointed to, the redundancy and redeployment procedures set out in the Employment Instruction 14 prevails over Schedule 10 of the Agreement. Further, the Respondent’s submissions that the s.739 dispute lacked precision, as to what additional support or steps were sought. That is, the parameters or remedy for the dispute, were never clearly argued or set out. It is recognised that from the 5^th of February, more particularised elements of the complaint were received, however these still do not substantiate a s.739 dispute.

However, it was arguable that the redeployment process under the Agreement formed a broader consideration of the matters than was reviewed under the PSEM Act and those matters that came within the scope of the provisions of the Enterprise Agreement. Accordingly, it was considered that there was jurisdiction for the Fair work Commission to proceed to consider the matter. Therefore, there has been an assessment of the merits of the Applicant’s complaints regarding the process. However, the complaints do not demonstrate that the employer did not provide an appropriate process in accordance with the required terms. It has not been demonstrated that the employer failed to comply with Schedule 10 to the Agreement, nor Employment Instruction 14. It is recognised on review, that the Applicant has been considerably aggrieved at the outcome of the stages of the redeployment process, however the criticisms do not elevate to non-compliance with the required steps and provisions. On that basis Question 1 is answered in the positive, in that the Respondent has complied with the requirements under Schedule 10 of the Agreement in relation to the Applicant. and due to this, it is not necessary to answer the second question. Therefore, the application as set out, is jurisdictionally barred and further on a merits consideration, is dismissed.

I Order accordingly.

COMMISSIONER

[1] Paragraph [4] to [9] Applicant’s outline of submissions, dated 12 March 2021.

[2] [2013] FWCFB 8557.

[3] See the Full Bench in Auld v Teekay Shipping[2019] FWCFB 6047 at [82].

[4] Ibid at [84].

[5] Victoria v Commonwealth (1937) 58 CLR 618 (the Kakariki case) Dixon J at 630.

[6] [2012] FWA 162 at [34].

[7] 3.1 of the Applicant’s Form F10 application.

[8] Clause 12.2 (c) of the Northern Territory Public Sector 2017 - 2021 Enterprise Agreement.

[9] PN1497 of the transcript.

[10] PN2869 to PN2876 of the transcript.

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