Southern Cross Care (SA & NT) Inc T/A Southern Cross Care v Carleine Taylor
[2019] FWCFB 8252
•18 DECEMBER 2019
| [2019] FWCFB 8252 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Southern Cross Care (SA & NT) Inc T/A Southern Cross Care
v
Carleine Taylor; Heather Dutton
(C2019/6069)
VICE PRESIDENT CATANZARITI | 18 DECEMBER 2019 |
Appeal against decision [2019] FWC 6334 of Commissioner Platt at Adelaide on 12 September 2019 in C2019/4589.
Introduction
[1] On 12 September 2019 Commissioner Platt issued a Decision 1 in which he found that the Commission had no jurisdiction to arbitrate a dispute brought before it by Southern Cross Care (SA & NT) Inc T/A Southern Cross Care (appellant) pursuant to the dispute settlement procedure contained within the Southern Cross Care (SA & NT) Inc. Operations Support Services Staff Enterprise Agreement 2012 (the Agreement).
[2] On 3 October 2019 the appellant lodged a notice of appeal under s.604 of the Fair Work Act 2009 (Cth) (FW Act).
[3] Written submissions were filed with the Commission by both parties in accordance with directions and the matter was heard on 29 November 2019. The legal representatives for both parties were granted permission to appear pursuant to s.596(2)(a) of the Act as it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
The Decision at First Instance
[4] At paragraphs [23] to [29] of the Decision, the Commissioner said:
“[23] Section 595 of the Act details the Commission’s power to deal with disputes. Section 595(2) of the Act provides the capacity to deal with dispute other than by arbitration as it deems appropriate. Even if clause 1.8.4 was read as to require the parties plural to consent to any reference to the Commission, a party singular would still have the capacity to refer the dispute under s.739 of the Act and I would have non-arbitral powers by virtue of s.595(2) of the Act.
[24] Section 595(3) of the Act provides that arbitral powers can only be exercised if the Commission is expressly authorised. In this case, the arbitral powers conferred by clause 1.8.4 of the Agreement require a request by the “parties”.
[25] I have reviewed the Agreement which contains a number of references to the term “parties”. The term “parties” has been used generally throughout the Agreement as a reference to the parties plural.
[26] Clause 1.8.4 of the Agreement does not appear to be ambiguous. It appears to require the consent of the parties (plural) to refer any dispute, and further as a condition precedent to the exercise of arbitral powers.
[27] In my view this requirement does not result in absurdity. Section 595(2) of the Act as discussed previously permits the exercise of conciliation and other non-arbitral powers. As has been submitted by the Respondent, the Act does not require Agreements to confer arbitral dispute resolution powers on the Commission. In my experience, there are many Agreements where parties to agreements have determined to take this approach.
[28] I do not accept that this matter is analogous to Energy Australia Yallorurn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union.
[29] It is clear to me that the use of the term “parties” in clause 1.8.4 of the Agreement is a reference to parties plural and not a single party. Accordingly the exercise of the express arbitral powers under clause 1.8.4 cannot be enlivened by a single party to a dispute.” 2
The Appeal
Appellant’s Submissions
[5] The appellant’s Form F7 – Notice of Appeal advances a single ground of appeal and identifies four errors in relation to the Decision summarised as follows:
(1) The Commissioner erred in finding that he did not have jurisdiction to arbitrate the dispute that had been notified by the Appellant by means of a Form F10 dated 25 July 2017. 3
a) The Commissioner erred in interpreting clause 1.8.4 of the Agreement when concluding that the term “parties” in the dispute resolution procedure in the agreement meant parties plural and not a single party. 4
b) The Commissioner erred in treating the issue as one where there was a question on jurisdiction to arbitrate the dispute with the true issue being whether he had jurisdiction to deal with the dispute at all.
c) The Commissioner erred in stating that even if clause 1.8.4 of the Agreement required parties plural to request a dispute to be dealt with by the Commission, a party singular would still have the capacity to refer a dispute under s.739 of the FW Act of which the Commission would have non-arbitral powers.
d) The Commissioner failed to have regard to the context of s.186(6) of the FW Act in that clause 1.8 of the Agreement was a dispute settlement term intended to satisfy s.186(6) of the FW Act.
[6] Further, the appellant submits that the Commissioner incorrectly concluded that s.595 of the FW Act gave him power to deal with the dispute in accordance with s.595(2) independent of the dispute procedure clause in the Agreement, with the exception of the power to arbitrate a dispute. Section 595 of the FW Act is not a stand-alone provision, and is a machinery provision that allows the Commission, when authorised to deal with a dispute by a dispute settling procedure to exercise the powers of mediation or conciliation. Relevantly, the provision that authorises the Commission to deal with a dispute is s.739 of the FW Act which in turn relies on the dispute procedure in the Agreement.
[7] The appellant also submits that the Commissioner’s findings were inconsistent with the approach adopted in Construction, Forestry, Mining and Energy Union v Stegbar Pty Ltd (Stegbar) 5 with respect to whether the term ‘parties’ inferred a requirement for joint reference of a dispute.6 In Stegbar, it was held that the reference to ‘the parties’ means either party may refer a matter to the Commission:
“[20] Whilst it appears the reference to ‘the parties’ may infer a requirement for joint reference of any dispute, if that construction was preferred it would have the result of the Agreement not meeting the requirements of s.186(6) of the Act. It appears to me that the reference to the parties means either party may refer a matter to the Commission. This construction would meet the requirements of s.186(6) of the Act and is consistent with s.739(6) of the Act and the approach taken in CFMEU v Laminex Group Pty Ltd. 7”8
Respondents’ Submissions
[8] It is the position of the respondents that the appeal should be dismissed. In written submissions, the respondents note that they understand the appellant’s appeal to be centred around an alleged inconsistency between the clause as construed at first instance and s.186(6) of the FW Act. Critical to the appellant’s argument is that there is a requirement in s.186(6) of the FW Act to allow unilateral referral of a dispute to the Commission for conciliation, however the respondents submit that this argument is flawed as there is no such requirement in s.186(6) of the FW Act.
[9] The respondents submit that the only requirement of s.186(6) is that an agreement provide a ‘procedure’ for the resolution of disputes, not one which is guaranteed to resolve disputes. The respondents submit that in the current matter, the dispute resolution clause does provide a ‘procedure’ for the Commission to settle disputes, being consent referral, and contends that it does not require the Commission to settle disputes in all circumstances. This satisfies the requirements of s.186(6) of the FW Act and the respondents referred to the authority of The Australian Workers’ Union v MC Labour Services Pty Ltd 9in which it was held that one party could not ‘hold out’ and deny another party the opportunity to have their case dealt with by the Commission as such a construction of the terms of the agreement which permitted this would offend s.186(6) of the FW Act.
[10] Further, the respondents submit that the Commissioner’s conclusion that ‘parties’, read in the context of the Agreement, means parties plural was evident from the context that is not challenged on appeal and it is a proper basis for construction in accordance with Berri. The respondents did not join in any request that the matter be dealt with by a Commission Member for either conciliation or arbitration. It may be therefore, that in listing a conciliation, the Commission ought not have exercised those powers of conciliation.
[11] Lastly, the respondents submit that even on their own construction of the Agreement, the Commission has a discretion to arbitrate. If the respondents appeal were to succeed, it would appear that the Commission has not considered whether arbitration should occur as a matter of discretion and in such circumstances it is the view of the respondents that the appropriate course would be to refer the matter to a single Member of the Commission for consideration of that question.
Permission to Appeal
[12] The Commission will grant permission to appeal where it is in the public interest to do so. 10 The applicable test in assessing whether a matter is in the public interest was summarised by the Full Bench in GlaxoSmithKline Australia Pty Ltd v Colin Makin11 as follows:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.” 12
[13] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.
[14] In respect of permission to appeal, the appellant submits that permission to appeal should be granted because the Decision:
• is attended with sufficient doubt to warrant its reconsideration;
• involves appealable error;
• involves an erroneous approach to the interpretation of the dispute settlement procedure in the Agreement, and to the Commission’s powers to deal with a dispute referred to it pursuant to such a clause, such that it is in the public interest to correct that approach; and
• is inconsistent with another decision of the Commission and it is in the public interest for a Full Bench to resolve these conflicting first instance decisions.
[15] The appellant also submits that the appeal raises the following matters of importance and general application:
• the interpretation of a dispute settlement procedure that provides that ‘the parties may’ refer the dispute to the Commission;
• the Commission’s non-arbitral powers to deal with a dispute referred to it pursuant to a dispute settlement procedure that has not been referred to it in accordance with the terms of the procedure; and
• the extent to which s.186(6) of the FW Act requires a dispute settlement procedure to require or allow the Commission to deal with a dispute at all and other than by arbitration.
[16] We are of the view that permission to appeal should be granted in this matter. The conclusion in the decision of Stegbar has been earlier stated, 13 and it follows that the Decision under appeal appears to be inconsistent with this earlier decision. The result of such is a diversity of decisions in relation to the interpretation of a clause in similar terms to the present clause, warranting appellate intervention. Further, for reasons set out below s.595 of the FW Act is not a stand-alone provision, and is a machinery provision that allows the Commission, when authorised by a dispute settling procedure to deal with a dispute, to exercise powers. It does not independently of a dispute settling procedure confer power or jurisdiction on the Commission. The Decision of the Commission at first instance to the contrary enlivens the public interest.
Consideration
[17] We turn firstly to consider the Commissioner’s conclusions regarding s.595 of the FW Act at paragraph [23] and [24] of the Decision, set out above. 14 The appellant submitted without contradiction that it is not the case that s.595 of the FW Act gives a party the capacity to refer a matter to the Commission in the absence of an express authorisation in the dispute settling clause, and that the statement made in the decision under appeal that it does provide independent authority is in error.15 It is well established that this is not the case. Section 739 of the FW Act enables powers conferred by an agreement dispute settling procedure to be exercised by the Commission. It does not independently confer power or jurisdiction on the Commission.16
[18] Further, although no point was taken in respect of the conciliation at first instance, the Commissioner incorrectly formed the view that s.595(2) of the FW Act alone provided non-arbitral powers. As stated above, the Commission’s power to deal with a dispute in the current matter is set out in s.739 of the FW Act and in turn clause 1.8.4 of the Agreement. It follows therefore that, prior to having determined precisely what the term ‘the parties’ in clause 1.8.4 of the Agreement meant, the Commissioner should not have exercised the powers of conciliation.
[19] We turn now to consider the relevant terms of the Agreement and the interpretation of such terms. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Limited (Berri) 17 a Full Bench of the Commission said that in interpreting single enterprise agreements the following approach should be taken:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
(1) The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
(2) The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
(3) The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
(4) The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
(5) The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
(6) Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
(7) In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
(8) Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
(9) If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
(10) If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
(11) The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
(12) Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
(13) The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
(14) Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
(15) In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
[20] In the Decision, the Commissioner identified Berri as the relevant authority 18 and on appeal there is no dispute between the parties regarding the relevant legal principles. Accordingly, our consideration below determines the current appeal in accordance with the principles summarised in Berri.
[21] The most recent decision of the High Court in relation to interpretation of agreements is Amcor Ltd v CFMEU 19, in which Gummow, Hayne and Heydon JJ said:
“[30] Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.” 20
[22] Also in Amcor Ltd v CFMEU 21Kirby J said:
“[94] … However, certified agreements such as this commonly lack the precise drafting of legislation. As appears from a scrutiny of the provisions of the Agreement, it bears the common hallmarks of colloquial language and a measure of imprecision. Doubtless this is a result of the background of the drafters, the circumstances and possibly the urging of the preparation, the process of negotiation and the omission to hammer out every detail – including possibly because such an endeavour would endanger the accord necessary to consensus and certification by the Commission.
…
[96] The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand."” 22
[23] Callinan J said that there was substance in the observations of Madgwick J in Kucks v CSR Limited Ltd (Kucks’ Case) 23
“[131] An industrial agreement has a number of purposes, to settle dispute, to anticipate and make provision for the resolution of future disputes, to ensure fair and just treatment of both employer and employees, and generally to promote harmony in the workplace, It is with the third of these that cl 55 of the Agreement is particularly concerned. It is important to keep in mind therefore the desirability of a construction, if it is reasonably available, that will operate fairly towards both parties.
…
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning” 24
[24] The Berri summary is consistent with this and other decisions, and has to be applied as the relevant authority providing the principles relating to the interpretation of enterprise agreements. It must also be noted however that each decision has to address the specific terms of the dispute settlement procedure in question, which are often not identical.
[25] It is necessary to set out the disputes procedure clause of the Agreement. Clause 1.8 of the Agreement provides:
“1.8 RESOLVING WORKPLACE CONCERNS OR DISPUTES | ||
Where a dispute relates to: • a matter arising under the Agreement, or • the National Employment Standards, the following steps will be taken: | ||
1.8.1 | As soon as practicable after the issue or claim has arisen, it will be considered jointly by the appropriate supervisor, the Employee or Employees concerned. | |
1.8.2 | If the dispute is not resolved, the issue or claim will be considered jointly by the appropriate senior representative of the Employer in conjunction with the Employee in an attempt to settle the dispute. | |
1.8.3 | If the dispute is not resolved, the issue or claim will be considered jointly by the Employer and the Employee who will attempt to settle the dispute. | |
1.8.4 | If the dispute is not resolved, the dispute may then be notified to the FWA. The parties may request that the matter be dealt with by a member of the FWA who will attempt to resolve the dispute by conciliation or by arbitration. | |
1.8.5 | The parties to the dispute agree to be bound by a decision made by Fair work Australia in accordance with this term, subject to either party exercising a right of appeal against the decision to a Full Bench. | |
1.8.6 | Without prejudice to either party, work will continue as normal during the progress of the dispute, and the status quo will be maintained, subject to application occupational health and safety legislation. | |
1.8.7 | An employer or employee may appoint another person, organisation, or association to accompany and/or represent them for the purposes of this clause.” 25 | |
[26] This is a four step disputes procedure, in which disputes are escalated to a higher step if not resolved. The final step, being clause 1.8.4 of the Agreement, is a voluntary reference to the Commission, which is the subject of this appeal. The Commissioner at first instance accepted the evidence of witnesses that steps 1.8.1-1.8.3 of the Agreement had been complied with and said that the respondents ‘did not dispute the contents of these statements’. 26
[27] Clause 1.8.4 of the Agreement uses the term ‘the parties’ to describe who ‘may request that the matter be dealt with by a member of FWA who will attempt to resolve the dispute by conciliation or by arbitration’. During oral submissions before this Full Bench the respondents agreed that the term was ambiguous, 27 and in their written submissions both at first instance and on appeal the parties discuss the different interpretations adopted by each side, which implicitly supports a view that the term is ambiguous.28 However, the Commissioner at first instance found that the term was not ambiguous.29 The Commissioner said that this does not result ‘in absurdity’, and that the FW Act does not require agreements to confer arbitral dispute resolution powers on the Commission. The Commissioner also looked at the use of the term ‘the parties’ in the Agreement, which provides context.
[28] In applying the principles summarised in Berri, the interpretation of an enterprise agreement begins with the ordinary meaning of the relevant words. In our view ‘the parties’ could refer to a joint application by both the ‘employer’ and ‘employee’ referred to in clause 1.8.3 of the Agreement, that is a requirement that both the employer and employee make a joint request to the Commission for conciliation or arbitration. Alternatively, ‘the parties’ could refer to a request by either the employer or employee alone. The term does not have a plain meaning but is ambiguous or susceptible of more than one meaning. The first interpretation is supported by the respondents, and the second interpretation is supported by the appellant. Both sides give reasons for their approach, and these contrasting submissions again support a view that the term is ambiguous. We respectfully disagree with the Commissioner at first instance. 30
[29] The question then arises as to which interpretation is the correct one. The Decision under appeal adopts the first interpretation, being that ‘the parties’ refers to a joint application by both the ‘employer’ and ‘employee’ referred to in clause 1.8.3 of the Agreement. 31
[30] Firstly, if the term ‘parties’ is looked at in conjunction with the whole of clause 1.8.4 of the Agreement, work must be given to the first sentence. The first sentence provides that ‘the dispute may then be notified to FWA’ if the other steps are completed. This is a voluntary step, unlike the first three steps which ‘will be’ taken. There is no express statement of who refers the dispute. However, given that there is no specific restriction on who may do so, it is implicit that either the employee or employer may notify. In our view adopting a restriction which is not stated would in this case be a ‘pedantic’ approach which is not consistent with the observations in the Kucks’ Case cited earlier. This supports the interpretation that either side may request the conciliation or arbitration referred to in the second sentence.
[31] Secondly, the Commissioner quite properly had regard to use of the term ‘the parties’ throughout the agreement. 32 The term is used in the following clauses for example (emphasis added):
“1.4 COMMENCEMENT AND DURATION OF THE AGREEMENT | ||
1.4.1 | This Agreement will commence seven (7) days after its approval by FWA. | |
1.4.2 | This Agreement will have a nominal expiry date of 30 June 2015 . This Agreement will continue to apply after its expiry date until the Agreement is varied, replaced or terminated in accordance with the Act. | |
1.4.3 | This Agreement can be terminated or varied during the life of the Agreement in accordance with the Act. | |
1.4.4 | The parties to this Agreement agree to commence renegotiation of the Agreement no later than three (3) months prior to the nominal expiry date’. … | |
1.6 NO EXTRA CLAIMS | ||
The parties may not pursue any further claims relating to wages or conditions of employment whether dealt with in this Agreement or not, except where specifically provided by Clauses 6.7 and 6.8 of this Agreement.’ | ||
… | ||
2.2 DECLARATIONS TO US | ||
2.2.1 | SCC recognises that some Employees may choose to work externally to SCC. SCC does not seek to remove that Employees' right to do so, but also recognises that in the interest of Employee and resident/client wellbeing such working patterns need to be balanced. | |
2.2.2 | If an Employee wishes to hold a second job with someone else or work for them They must advise the Employer of this where such employment would result in total working hours across all employment of greater than 76 hours per fortnight, or where the employee is rostered to work consecutive shifts across multiple engagements such that the employee does not have adequate rest from duty. | |
2.2.3 | The parties will meet to discuss the potential effects of the combined jobs on the Employee's ability to safely perform their duties and support resident/client needs. The Employee is entitled to have a representative present in any such discussions. | |
2.2.4 | The Employer will only oppose such a request if the Employer is of the opinion it will negatively affect the Employee's ability to safely perform their duties and support resident/client needs. | |
2.2.5 | The Employee must comply with any decision made by the Employer on the basis of the Employee's ability to safely perform their duties and support resident/client needs. | |
2.2.6 | The disputes resolution provisions of this Agreement may be accessed by either party in the event of a dispute about the Employer's decision. … | |
6.8 AGED CARE REFORM WAGE INCREASES 2013-2017 | ||
6.8.1 | The parties are aware that on 20 April 2012 the Commonwealth announced that as part of an Aged Care Reform Package employers may be eligible to receive additional funds to boost the wages of Aged Care staff (which may include residential and community direct care Nurses) (Compact Payments). The Compact Payments are foreshadowed to operate from 1 July 2013 and for the four subsequent years at the rate of 1 %, 2%, 3% and 3.5% of "basic subsidy" in each of those years, delivered through Conditional Adjustment Payments (CAPs) made to the employer. | |
6.8.2 | The conditions that attach to the Compact Payments or the CAPs have not been determined or finalised and the organisation is not in a position to determine at this time whether or if it will apply for receipt of the Compact Payments. The parties wish to explore what might arise, if the organisation is eligible, applies for and is guaranteed at law receipt of the Compact Payments delivered through CAPs. | |
6.8.3 | The expressed intention of the Compact Payments for eligible staff is additional to the wage increases that the Employer has provided in this Agreement, during its term. | |
6.8.4 | In order to qualify to receive the Compact Payments the Commonwealth requires (among other things, and subject to such further conditions as may be determined) that each employer be a signatory to an industry negotiated Compact. | |
6.8.5 | The parties agree that when the details of the Compact and the conditions that attach to it are finalised, and enforceable at law, they will hold discussions as soon as reasonably practicable to determine the delivery of the Compact Payments through CAPs and such other matters and details as appropriate. | |
6.8.6 | Nothing in this clause commits the organisation to applying for, or executing the Compact, or to administer the Compact Payments at all if the Compact is terminated or the organisation otherwise becomes ineligible to receive the Compact Payments. | |
6.8.7 | The parties agree to apply to vary the terms of this Agreement if this is necessary at law to give effect to any obligation to deliver the Compact Payments through CAPs.” | |
[32] The Commissioner concluded that the term was generally used in the Agreement to refer to the ‘parties plural’. 33 In some of these clauses it is clear that each separate party has separate obligations. For example, ‘the parties’, meaning each side individually, must not make any further claims over wages and conditions (clause 1.6 of the Agreement). Each side must do things pursuant to other clauses. There is no requirement that each side separately agree in clause 6.8.7 of the Agreement, for example, before anything is done pursuant to that clause. Rather each side has a separate binding commitment.
[33] Overall the use of the term ‘the parties’ in the agreement is a reference to both sides of the Agreement, the employer and employees, or possibly the employer and union (see clause 1.1 of the Agreement). It does not support a view that both sides must agree before anything is done.
[34] Thirdly, we respectfully do not agree with the respondents that if the provision intended for one party to have the ability to refer a dispute for arbitration without reference to the other party or parties then it would necessarily require that only a party be referred to. 34 This would again be a pedantic approach to interpretation. The term ‘the parties’ can and has been used to refer to each party separately or both parties together.
[35] Finally, the appellant sought to argue that a dispute settlement procedure in an agreement approved by the Commission must provide for some action to be taken by the Fair Work Commission or others in order that it be ‘a procedure … to settle disputes’ 35 within s.186(6) of the FW Act. The authorities we were referred to included the approval decision of the Southern Cross Care (SA & NT) Inc. Operations Support Services Staff Enterprise Agreement 2012,36 and Full Bench decisions in Construction, Forestry, Mining and Energy Union v Stegbar Pty Ltd,37 and Woolworths Ltd trading as Produce and Recycling Distribution Centre.38 Given our earlier observations it is not necessary that we determine this issue.
Conclusion
[36] For the reasons given, we consider that the interpretation of clause 1.8.4 of the Agreement adopted in the Decision under appeal is in error.
Further proceedings
[37] We have had regard to the submissions put on whether if the Decision is quashed the matter should be remitted for arbitration or for consideration of whether conciliation or arbitration should occur. The respondents requested that the dispute not be remitted for arbitration.
[38] In the Decision the Commissioner implicitly found that conciliation had ended. The Commissioner said that:
“[5] On 31 July 2019 I conducted a Conference in respect of the dispute. The matter did not resolve.
[6] The Applicant sought that I arbitrate the dispute and the Respondents contended that I did not have the power to arbitrate.” 39
[39] No challenge was made to these findings. In fact the appellant submitted that:
“The Commission conducted a conference in respect of the dispute which did not resolve the matter.” 40
[40] In its written submissions the respondents did not challenge this submission of the appellant 41 or the Decision at [5] and [6]. Clearly there were attempts to resolve the matter, and those attempts were not successful. This may mean that conciliation has ended. However, it is possible that attempts at conciliation were influenced by the disagreement between the parties about the powers of the Commission which we have dealt with in this decision.
[41] In those circumstances and in light of our earlier conclusion that the term ‘parties’ in clause 1.8.4 of the Agreement refers to the parties individually, such that either party ‘may request that the matter be dealt with by a member of the FWA…’, we will remit the matter for determination of how to deal with the matter further. It will then be a matter for the Member to conduct a further conciliation or, if the dispute is intractable and incapable of resolution through conciliation, to proceed to arbitration if requested by one of the parties.
[42] The respondents also objected to hearings under the dispute settlement procedure on the basis that there are already court proceedings on foot, which consistent with s.577 of the FW Act should persuade the Commission not to proceed. 42 That is a matter which is relevant to discretionary decisions as to procedure, and can be dealt with by the Commission during conciliation or arbitration. The issue discussed earlier of the subject matter of the dispute and any jurisdictional objections on that basis can also be dealt with then if necessary.
Orders
[43] For the reasons given we:
1. grant permission to appeal;
2. quash the decision contained in [2019] FWC 6334; and
3. remit the matter to Commissioner Hampton to be dealt with in accordance with the dispute settlement procedure in the Agreement.
VICE PRESIDENT
Appearances:
Ms A Perigo (of counsel) on behalf of the appellant.
Mr P Dean (of counsel) on behalf of the respondents.
Hearing details:
2019.
Melbourne with video-link to Adelaide.
November 29.
Printed by authority of the Commonwealth Government Printer
<PR714890>
1 [2019] FWC 6334.
2 Ibid at [24] – [29].
3 Appellant’s Form F7 – Notice of Appeal at [4].
4 Appellant’s Submissions dated 29 October 2019 at [7].
5 [2017] FWC 4975.
6 Appellant’s Submissions dated 29 October 2019 at [47] – [49].
7 [2016] FWC 8259 at [6].
8 [2017] FWC 4975 at [20].
9 [2017] FWCFB 5032.
10 Fair Work Act 2009 (Cth) s.604(2).
11 [2010] FWAFB 5343.
12 Ibid at [26] – [27].
13 See paragraph [7] of this decision.
14 See paragraph [4] of this decision.
15 Southern Cross Care (SA & NT) Inc T/A Southern Cross Care v Carleine Taylor; Heather Dutton at [23].
16 Woolworths Ltd trading as Produce and Recycling Distribution Centre [2010] FWAFB 1464 at [21]-[23].
17 [2017] FWCFB 3005 at [114].
18 Southern Cross Care (SA & NT) Inc T/A Southern Cross Care v Carleine Taylor; Heather Dutton[2019] FWC 6334 at [22].
19 (2005) 222 CLR 241.
20 Ibid at [30].
21 (2005) 222 CLR 241.
22 Ibid at [94] and [96].
23 (1996) 149 CLR 337.
24 Ibid at [131].
25 Southern Cross Care (SA & NT) Inc Operations Support Services Staff Enterprise Agreement 2012 at clause 1.8.
26 Ibid at 19; Southern Cross Care (SA & NT) Inc T/A Southern Cross Care v Carleine Taylor; Heather Dutton[2019] FWC 6334 at [19].
27 Transcript of proceedings dated 29 November 2019 at PN104.
28 Appeal Book at 89, Respondent’s Submissions at [19]; and 98, Appellant’s Submissions in Reply at [25]; Appellant’s submissions dated 29 October 2019; Respondents’ Submissions dated 19 November 2019.
29 Southern Cross Care (SA & NT) Inc T/A Southern Cross Care v Carleine Taylor; Heather Dutton[2019] FWC 6334 at [26].
30 Southern Cross Care (SA & NT) Inc T/A Southern Cross Care v Carleine Taylor; Heather Dutton[2019] FWC 6334 at [26].
31 Ibid at [23]-[29].
32 Ibid at [25].
33 Ibid at [25].
34 Respondent Submissions dated 19 November 2019 at [19].
35 Appellant Submissions dated 29 October 2019 [24].
36 [2013] FWCA 4462 at [2].
37 [2017] FWC 4975.
38 [2010] FWAFB 1464.
39 Ibid at [5]-[6].
40 Appellant’s submissions dated 29 October 2019 at [21].
41 Respondent’s submissions dated 19 November 2019 at [3].
42 Appeal book p.93, Respondent’s submissions paragraph 37-43.
1