Srikumar Arampamoorthy v Ausgrid Management Pty Ltd T/A Ausgrid
[2019] FWCFB 689
•7 FEBRUARY 2019
| [2019] FWCFB 689 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Srikumar Arampamoorthy
v
Ausgrid Management Pty Ltd T/A Ausgrid
(C2018/6976)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 7 FEBRUARY 2019 |
Appeal against decision [2018] FWC 7137 of Deputy President Bull at Sydney on 21 November 2018 in matter number C2018/4600 – dispute under dispute resolution procedure in enterprise agreement – relief sought inconsistent with enterprise agreement – permission to appeal refused.
Introduction
[1] Mr Arampamoorthy has filed a Notice of Appeal in relation to a decision by Deputy President Bull to dismiss his application to have a dispute with his employer, Ausgrid Management Pty Ltd (Ausgrid), dealt with by the Fair Work Commission (Commission) pursuant to s 739 of the Fair Work Act2009 (Cth) (Act). 1
[2] In his application before the Deputy President, Mr Arampamoorthy contended that Ausgrid had failed to comply with various obligations it owed under the Ausgrid Agreement 2012 2 (2012 Agreement), including to consult with him in relation to a restructure and to provide him with a minimum of three days’ notice prior to an interview. Mr Arampamoorthy sought the following relief from the Commission:
• that Ausgrid approve an $8,000 budget towards training, additional to the standard allocation of $2,000 for redeployees; and
• that Ausgrid defer the additional voluntary redundancy (AVR) payment of $75,000 by 12 months commencing from the time the dispute is finalised. 3
[3] The Deputy President dismissed Mr Arampamoorthy’s application on the basis that he did not have power to grant the relief sought by Mr Arampamoorthy, because to grant such relief would involve making a decision that is inconsistent with the Ausgrid Enterprise Agreement 2018 4 (2018 Agreement), which applied to Mr Arampamoorthy5.6
Is permission to appeal required?
[4] An enterprise agreement can confer on the parties to a dispute an independent right of appeal (for which permission to appeal is not required) against a decision made by the Commission in the exercise of its arbitral powers under a dispute resolution procedure in the enterprise agreement. Whether or not such a right is conferred depends on the proper construction of the dispute resolution clause in the enterprise agreement. The approach to be taken to this issue was stated in the following terms, with which we agree, by a Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd 7:
“[27] Subject to the observations in paragraph [17] above, when a dispute resolution procedure in an enterprise agreement simply makes provision for an “appeal” this should generally be interpreted as an appeal in accordance with the appeal provisions in the FW Act. Such an appeal is an appeal by way of rehearing. Where, as here, the parties have conferred a “right” of appeal, this language suggests an intention that the appeal be as of right (that is, without the need for permission to appeal) but otherwise in accordance with the appeal processes in the FW Act. However, the question remains one of interpreting the agreement to ascertain the intention of the parties, objectively determined, and the use of the word “right” may not be determinative.” 8
[5] Clause 42.2 of the 2018 Agreement sets out the dispute resolution procedure. The role of the Commission in that procedure is governed by “Tier 3”, which provides:
“Tier 3
Tribunal Level
If the issues remain unresolved after Tier 2 the matter may be referred to the Fair Work Commission for conciliation in the first place then arbitration with the rights of the parties to appeal being reserved…”
[6] In our view, clause 42.2 of the 2018 Agreement does not confer on the parties to a dispute an independent right to appeal an arbitrated decision made by the Commission. Clause 42.2 makes clear that whatever rights to appeal may exist are reserved. The purpose of the provision is to ensure there is no doubt that one or both parties to a dispute may exercise whatever rights they have to appeal an arbitrated decision of the Commission.
[7] No other provision of the 2018 Agreement deals with the question of an appeal from an arbitrated decision of the Commission pursuant to the dispute settlement procedure in the 2018 Agreement. Accordingly, the question of what rights parties to a dispute may have to appeal an arbitrated decision of the Commission is to be determined by reference to the Act. Section 604 of the Act provides for an appeal by an aggrieved person to the Full Bench of the Commission, but only with the permission of the Full Bench. The Act does not confer on a party a right to appeal a decision of the Commission. 9 An appeal under the Act is conditional on permission to appeal being granted. It follows that Mr Arampamoorthy requires permission to appeal from the Decision, in accordance with s 604(1) of the Act.
Should permission to appeal be granted?
[8] Subsection 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 10 In GlaxoSmithKline Australia Pty Ltd v Makin11 a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... 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...” 12
[9] Other than granting permission to appeal on a public interest basis, the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if refused. 13
Power to grant the relief sought
[10] Although the 2012 Agreement governed the obligations owed by Ausgrid to Mr Arampamoorthy in relation to consultation and notice for an interview as part of the restructure, the 2012 Agreement ceased to apply to Mr Arampamoorthy when the 2018 Agreement came into operation on 16 May 2018. 14 The 2018 Agreement was in operation at the time Mr Arampamoorthy filed his application in the Commission on 20 August 2018.
[11] The relief sought by Mr Arampamoorthy from the Commission related to the cost of outplacement support he was seeking from Ausgrid and the timing of an AVR payment to be made to him. Both of those matters were governed by the 2018 Agreement, in clause 35 and Appendix 5:
“35. REDUNDANCY, REDEPLOYMENT AND SALARY MAINTENANCE
The terms and conditions attaching to Redundancy, Redeployment and Salary Maintenance are contained in Appendix 5.
…
APPENDIX 5- REDUNDANCY, REDEPLOYMENT AND SALARY MAINTENANCE
…
2.1 “Additional Voluntary Redundancy” (AVR)
An Excess Employee will may receive a one-time AVR offer prior to 1 January 2020 in accordance with clause 4.1 of this Appendix 5 a severance payment of $75,000 gross in addition to the SVR, which is paid at the Excess Employee’s Relevant Weekly Rate of Pay (the total of which is uncapped).
…
2.2 “Excess Employee” is an employee who has received notice from Ausgrid that their position is redundant and that they are an Excess Employee for the purposes of this Appendix 5.
…
2.6 “Notification Date” means the date on which an employee is notified by Ausgrid that they are an Excess Employee after the approval of the Enterprise Agreement.
…
2.8 “Standard Voluntary Redundancy” (SVR)
Where an Excess Employee accepts an SVR in accordance with the terms of subclause 4.2 of Appendix 5, that Excess Employee will be paid the following:
…
2.8.5 for employees who have not completed a career transition program within Ausgrid or a career coaching service external to Ausgrid, a $2,000 gross allowance for outplacement support (if requested by the employee Ausgrid may pay directly to an appropriate service provider).
…
4.1 Additional Voluntary Redundancy (AVR)
4.1.1 The AVR will be offered to an Excess Employee whose Notification Date occurs before 1 January 2020. The Excess Employee will have three (3) weeks from their Notification Date to accept the offer which includes the AVR.
4.1.2 If the Excess Employee accepts the AVR, during the 3 week period, that Excess Employee will:
(a) exit the business within 2 weeks of accepting the offer (unless otherwise agreed or subject to Ausgrid’s business needs at the sole discretion of Ausgrid); and
(b) be paid the AVR.
4.1.3 The AVR will be offered to the Excess Employee once only. If an Excess Employee does not accept an AVR that Excess Employee forgoes the right to any further offer which includes the AVR.”
[12] The effect of clause 35 and Appendix 5 of the 2018 Agreement is to impose express obligations on Ausgrid and confer rights on an employee such as Mr Arampamoorthy who becomes an “Excess Employee” under the 2018 Agreement, in respect of both an outplacement support allowance and an AVR payment. In particular, clause 2.8.5 of Appendix 5 prescribes the amount of the outplacement support allowance ($2,000) and the circumstances in which it must be paid. Clauses 2.1 and 4.1 of Appendix 5 prescribe the amount of the AVR ($75,000), to whom and when it must be offered, the time period within which it must be accepted, and the consequences of the offer not being accepted.
[13] By seeking a determination from the Commission that Ausgrid be required to pay $8,000 for outplacement support and defer the AVR payment of $75,000 by 12 months commencing from the finalisation of the dispute, Mr Arampamoorthy was pursuing entitlements which were different from and in excess of the benefits prescribed in the 2018 Agreement. The Deputy President was therefore correct to conclude that the relief sought by Mr Arampamoorthy was inconsistent with the terms of the 2018 Agreement within the meaning of s 739(5) of the Act. Although the Deputy President stated (at [57]) that Mr Arampamoorthy’s claim was “dismissed for want of jurisdiction”, it is clear from reading the reasons for Decision as a whole that the Deputy President accepted that the dispute notified by Mr Arampamoorthy was within the jurisdiction of the Commission, but the application was dismissed because the Commission did not have the power to grant the relief sought by Mr Arampamoorthy. 15
[14] Mr Arampamoorthy did not attempt, either before the Deputy President 16 or before us, to provide any reasons or argument as to why the Deputy President’s conclusion was wrong. Mr Arampamoorthy submitted before us that, in addition to the relief he was seeking, he wanted the Commission to make a determination as to whether Ausgrid had complied with its obligations under the 2012 Agreement to consult with him and provide him with at least three days’ notice prior to an interview. There are two difficulties with that submission. First, Mr Arampamoorthy did not seek such a determination from the Deputy President.17 Secondly, even if Mr Arampamoorthy had sought such a determination from the Deputy President and findings had been made in his favour, the outcome would have been the same, namely dismissal of the application on the basis that the Commission does not have the power to grant the relief sought by Mr Arampamoorthy.
Conclusion
[15] For the reasons given, we are not satisfied that there are any arguable errors in the Deputy President’s Decision. In addition, this is not a matter which raises issues of importance and general application, nor is there a diversity of decisions at first instance so that guidance from an appellate bench is required, nor does the Decision at first instance manifest an injustice, nor is it counterintuitive, and the legal principles applied do not appear disharmonious when compared with other recent decisions dealing with similar matters.
[16] We are not satisfied that it would be in the public interest to grant permission to appeal. Nor are we satisfied that permission to appeal should be granted for any other reason. Permission to appeal is therefore refused.
DEPUTY PRESIDENT
Appearances:
S Arampamoorthy on his own behalf.
A Morris, solicitor, for Ausgrid Management Pty Ltd.
Hearing details:
2019.
Sydney:
January 23.
Printed by authority of the Commonwealth Government Printer
<PR704587>
1 [2018] FWC 7137 (Decision)
2 AE401999
3 Decision at [13]
4 AE428494
5 See s 739(5) of the Act
6 Decision at [51]-[57]; Application for the Commission to deal with a dispute (Appeal Book (AB) at 422); Transcript from 12 November 2018 at PN79 – PN98
7 [2011] FWAFB 2555
8 Ibid at [27]
9 DP World Brisbane Pty Ltd v Maritime Union of Australia (2013) 237 IR 180; [2013] FWCFB 8557 at [42]
10 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]
11 [2010] FWAFB 5343; 197 IR 266
12 Ibid at [27]
13 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481
14 See s 58 of the Act
15 Decision at [5], [41] & [53]-[56]
16 Ibid at [51]
17 Application for the Commission to deal with a dispute (AB at 422); Transcript from 12 November 2018 at PN79 – PN98
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