Tara Toohey v QBE Management Services Pty Ltd T/A QBE Insurance

[2017] FWC 510

[2017] FWC 510

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Tara Toohey
v
QBE Management Services Pty Ltd T/A QBE Insurance
(C2016/5985)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 JANUARY 2017

Application to deal with a dispute - jurisdiction.

[1] On 6 October 2016, Ms Tara Toohey filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute. The application, received via post, was not dated or signed.

[2] Ms Toohey’s employment was covered by the QBE Enterprise Agreement 2016 (the Agreement) and she purports to bring the application under clause 38 – Resolving disputes.

[3] QBE Management Services Pty Ltd T/A QBE Insurance (QBE) has raised a jurisdictional objection to the application, submitting that at the time the application was made, Ms Toohey was not an employee of QBE, and therefore not covered by the Agreement.

[4] On 24 October 2016, I caused directions to be sent to the parties for the filing of material in relation to the jurisdictional objection. In accordance with the directions, both parties filed submissions.

[5] This Decision deals only with the jurisdictional objection raised by QBE.

The Agreement

[6] Clause 3 of the Agreement identifies who is covered by it as follows:

“3. Agreement coverage

This Agreement covers:

(a) QBE;

(b) Employees of QBE who work in the classifications in Schedule A; and

(c) the FSU…”

[7] Clause 38 of the Agreement provides:

“38. Resolving disputes

38.1 In the event of a dispute:

(a) about a matter arising under this Agreement: or

(b) in relation to the NES;

the procedure to be followed to resolve the matter will be as follows:

38.2 You may appoint a representative, including the FSU, at any stage of the below process.

38.3 Step 1: in the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between you and your manager.

38.4 Step 2: if discussions at the workplace level do not resolve the dispute, you should raise the matter with your manager’s manager.

38.5 Step 3: where a dispute cannot be resolved with your manager’s manager, you should raise the issue with your Human Resources representative.

38.6 If discussions under steps 1 to 3 above do not resolve the dispute, a party to the dispute may refer the matter to the FWC for conciliation.

38.7 If the matter is not resolved by conciliation, the parties may separately or jointly refer the matter to the FWC for arbitration.

38.8 Any decision of the FWC under clause 38.7 will bind the parties, subject to either party exercising a right of appeal about the decision to a Full Bench of the FWC. The FWC will have all the substantive and procedural powers provided for under the Act.

38.9 While the parties are trying to resolve the dispute using the procedures in this term:

(a) you must continue to perform your work as normal unless you have a reasonable concern about an imminent risk to your health or safety; and

(b) you must comply with a direction given by QBE to perform other available work at the same workplace, or at another workplace, unless:

(i) the work is not safe;

(ii) applicable occupational health and safety legislation would not permit the work to be performed;

(iii) the work is not appropriate for you to perform; or

(iv) there are other reasonable grounds for you to refuse to comply with the direction.”

[8] Clause 40 of the Agreement relevantly provides:

“40. Definitions in this Agreement

…

You/your means an Employee engaged in the classifications listed in Schedule A – Classifications of this Agreement employed by QBE.”

Submissions and evidence of QBE

[9] QBE said Ms Toohey was employed as a Case Manager in its workers compensation department. On 30 June 2016, QBE’s contract with WorkSafe Victoria to manage workers compensation premiums and claims terminated, leading to the redundancy of approximately 340 roles, including the role held by Ms Toohey. On 10 May 2016, QBE said Ms Toohey was advised of WorkSafe Victoria’s decision and that her role had been impacted.

[10] On 11 August 2016, QBE sent a letter to Ms Toohey notifying her that her role had been made redundant and she would commence a four week period of redeployment. A further letter was sent on 31 August 2016, notifying Ms Toohey that her employment would terminate on 7 September 2016 due to redundancy.

[11] At the time of her termination, Ms Toohey was on a period of parental leave and was due to return to work on 30 September 2016.

[12] QBE submitted that at the time of referring the matter to the Commission on 6 October 2016, Ms Toohey was not a party to the Agreement as she was no longer an employee covered by the Agreement. It submitted in light of clauses 3(b), 38 and 40 of the Agreement, the Agreement does not cover persons no longer employed.

[13] It further submitted that there is nothing in clause 38 of the Agreement that extends the application of the dispute resolution clause to former employees and that clause 38.9 could only be complied with by persons in current employment, therefore for the Commission to find that the clause applies to former employees would be inconsistent with the terms of the clause.

[14] QBE cited the following paragraph from the Full Bench of the Commission in King and Ors v Patrick Projects Pty Ltd (Patrick Projects): 1

“An application for the Commission to deal with a dispute in accordance with a dispute settlement procedure of an Enterprise Agreement pursuant to s.739 of the Act can only be heard when the applicants are employed. This is an uncontroversial jurisdictional point supported by manifold authorities and the express provisions of the Act.” 2

[15] The basis for the jurisdictional objection of QBE is that because Ms Toohey’s employment had terminated prior to the making of the application to the Commission, she has no standing to bring such application.

Submissions and evidence of Ms Toohey

[16] Ms Toohey submitted the decision to run the redeployment period concurrently with a period of approved unpaid maternity leave was a dispute which remained unresolved as at 7 September 2016 when her employment was terminated.

[17] Ms Toohey said there was a telephone discussion with Ms Justine Duigan of QBE on 11 August 2016 where “it was suggested to the respondent by the Applicant that the status of her employment should not be altered from approved maternity leave to ‘redeployment’ until the agreed return to work date of 3^rd October.” 3

[18] Ms Toohey filed a series of emails with her application. In response to being advised that the redeployment period will be run and not paid out, Ms Toohey sent an email to QBE on 11 August 2016 saying “does that mean if you are running it then I am paid for the period? Or am I expected to participate in unpaid redeployment?” It was confirmed by QBE on 13 August 2016 that no payment would be made during her redeployment period “as this is concurrent with your unpaid parental leave.” Ms Toohey responded on 13 August 2016 saying it was unclear to her how the redeployment period could run concurrently with her maternity leave, given the need to apply for positions and participate in other activities to assist with seeking work, with her family commitments. She asked for a copy of the Agreement or Fair Work Act 2009 which states that can occur. On 16 August 2016, Ms Toohey again wrote to QBE asking to discuss the issues contained in her 13 August 2016 email.

[19] On 17 August 2016, Ms Erin Dann, Senior Human Resources Business Partner, advised Ms Toohey that “your redeployment period is concurrent with your unpaid parental leave…”

[20] Ms Toohey said she requested information from QBE regarding what steps she should take to have the matter of payment reviewed and in an email from Ms Dann of 22 August 2016, she was referred to clause 38 of the Agreement. 4 This email correspondence was not filed, however was uncontested by QBE who had a right of reply to Ms Toohey’s submissions.

[21] In a further email attached to Ms Toohey’s application, from Ms Toohey to Ms Dann on 2 September 2016, she stated it was suggested she take her matter to the Fair Work Commission and she had “completed the appropriate paper work for this to occur…” Ms Toohey also said in her email “…there has been no agreement reached regarding either payment or work between QBE and myself regarding this as suggested in the EA in section 35…”

[22] On 5 September 2016, Ms Dann responded to Ms Toohey and said “thank you for your email and for advising me of the dispute that you have made regarding the treatment of your redeployment period. We will wait to hear from the Fair Work Commission on this dispute.”

[23] In her application, Ms Toohey said that she had only been able to contact HR as her immediate manager is no longer with the company and they were the contacts provided.

[24] Ms Toohey also submitted that “[t]he matter was referred to the commission on 5^th September 2016 and unfortunately not received via Australia Post.” 5 There was no further explanation by Ms Toohey as to how the application was received by the Commission on 6 October 2016.

Law to be applied

[25] This is an application made pursuant to s.739 of the Act, which 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) effectas 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.”

[26] A majority in the Full Bench decision of ING Administration Pty Ltd v Jajoo 6(Jajoo)found the Commission had jurisdiction to hear an application to deal with a disputein circumstances where Mr Jajoo had filed his application in the Commission after his employment had terminated. The majority in Jajoo said:

“In the circumstances of this matter, Mr Jajoo sought to progress a dispute under the relevant dispute settlement procedure while still employed. It was unresolved when his employment was terminated. We do not believe that there is a sound basis for construing the terms of s 170LW in a way which would deprive him of the right to progress his dispute to other levels of the procedure, including to the Commission, after the termination of his employment.” 7

[27] The majority in Jajoo further stated:

“In our view, the dispute settlement process should be viewed as a single process agreed by the parties to resolve disputes, rather than a series of separate rights and obligations which should be viewed conjunctively. That being so, an employee who had commenced to deal with a grievance or dispute while employed is not precluded, in our view, from continuing to progress that matter if it remains unresolved, notwithstanding that in the interim period they may have ceased to be employed by the employer.” 8

[28] Importantly, the majority in Jajoo noted:

“In reaching this conclusion, we acknowledge that parties to agreements are entirely free to draft disputes procedures in any number of different ways. Agreements may limit rights to resolve matters under disputes procedures to persons who are current employees and many agreements may properly be construed as doing so. In the circumstances of this case, we believe that the Agreement empowers the Commission to determine the dispute notwithstanding that prior to the matter being resolved (and prior to Mr Jajoo referring the dispute to the Commission) his employment was terminated by ING.” 9

[29] In referring to and relying on Jajoo, the Commission in Shields & Spriggs v Alfred Health, 10(Shields & Spriggs) noted that Jajoo was decided under the Workplace Relations Act 1996 and that “care should be exercised in considering earlier decisions given changes to the legislative provisions, the constitutional head of power underpinning the relevant legislative provisions and the differences in the wording of dispute settling clauses in relevant instruments.”11 I have adopted this reasoning.

[30] In similar circumstances to the application before me, the Applicant in Draeger v Ventura Bus 12(Draeger)filed his application to deal with a dispute under s.739 of the Act in the Commission after his employment had been terminated. Commissioner Lee, who considered Jajoo and Shields & Spriggs in his Interim Decision, said:

“…It is clear that there is a capacity for jurisdiction to be enlivened where an employee is no longer employed at the time of making an application. In this matter, the key consideration is whether or not the Applicant has complied with the requirements of the relevant dispute settling procedure whilst still an employee of the Respondent.” 13

[31] The recent Full Bench decision of Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd 14 (Broadspectrum)confirmed Jajoo “is authority for the finding that if an employee agitates a claim arising under an enterprise agreement while employed, the Commission has the jurisdiction to deal with the dispute, even after that employee’s relationship with the employer is terminated.”15 The Full Bench in Broadspectrum indicated it was not prepared to depart from Jajoo, stating:

“We are not persuaded that the Commissioner erred with his construction of the Act in finding that there was jurisdiction for the dispute to be arbitrated by the commission in circumstances where Mr Crawford was no longer an employee of Broadspectrum.” 16

Consideration

[32] I find that the application for the Commission to deal with a dispute was filed by Ms Toohey after her employment had ceased, despite her submission that it was referred to the Commission on 5 September 2016. I accept Ms Toohey began preparing her material and application prior to her employment being terminated, as indicated by her email of 2 September 2016, however it was not received by the Commission until some weeks after her employment had been terminated.

[33] I also consider Ms Toohey engaged in the dispute resolution procedure in the manner required before her employment was terminated so as to entitle her to bring the dispute pursuant to clause 38.6 of the Agreement, despite her no longer being an employee at the time of filing her application in the Commission.

[34] The steps, internal to QBE, forming the dispute resolution procedure are contained in clauses 38.3 to 38.5 of the Agreement, outlined above. Ms Toohey said in her application that she had only been able to contact HR as her immediate manager is no longer with the company and HR contacts were the contacts provided. QBE did not contest this assertion in its material. Consequently, I am satisfied that Ms Toohey did not breach clauses 38.3 and 38.4 in not raising her issue with her manager or her manager’s manager. I find it was a matter of practicality and appropriate for Ms Toohey to correspond with Human Resources staff in accordance with clause 38.5 of the Agreement. For instance, the letter to Ms Toohey from QBE dated 31 August 2016 invited her to do so. I have also noted that in this case, while Ms Toohey was still an employee, QBE anticipated the dispute would progress to the Commission.

Did Ms Toohey comply with clause 38.5 of the Agreement?

[35] Clause 38.5 provides; “Step 3: where a dispute cannot be resolved with your manager’s manager, you should raise the issue with your Human Resources representative.”

[36] I am satisfied that Ms Toohey raised a dispute about a matter arising under the Agreement, namely, QBE’s decision to run her redeployment period concurrently with unpaid maternity leave, and raised this issue through discussions with QBE’s Human Resources staff before her employment ended. From 13 August 2016, Ms Toohey questioned QBE’s basis for its decision to run the redeployment period concurrently with the unpaid leave she was then taking and she asked for a copy of the Agreement or the Act which stated that could occur. In what appears to be in response to no reply being received, she says on 16 August 2016 that she “would really like to discuss” the issues in her email of 13 August 2016.

[37] In her dissatisfaction with QBE’s response that her redeployment period would be concurrent with her unpaid parental leave, Ms Toohey says she asked how to have the matter of payment reviewed and Ms Dann referred Ms Toohey to clause 38 of the Agreement. I am satisfied, however, that Ms Toohey had already raised the subject of her dispute. Her asking how to have the payment reviewed was a request forming part of the discussions she was already engaged in.

[38] Further, prior to her employment being terminated, Ms Toohey advised QBE in her email of 2 September 2016 that she did not consider an agreement to have been reached between herself and QBE regarding payment or work. I am satisfied that the dispute had not been resolved at that stage.

[39] On 2 September 2016, Ms Toohey advised QBE that she had completed the paperwork to take her matter to the Commission and no agreement had been reached regarding clause 35 of the Agreement. As outlined above, Ms Dann said in reply on 5 September 2016 “thank you for your email and for advising me of the dispute that you have made regarding the treatment of your redeployment period. We will wait to hear from the Fair Work Commission on this dispute.” There was no direction at that time that Ms Toohey raise the dispute with her manager or her manager’s manager first.

[40] I am satisfied the correspondence that passed between Ms Toohey and Ms Dann indicates Ms Toohey raised her issue with Human Resources so as to have adequately complied with clause 38.5.

Can Ms Toohey invoke clause 38.6?

[41] Clause 38.6 of the Agreement states “if discussions under steps 1 to 3 above do not resolve the dispute, a party to the dispute may refer the matter to the FWC for conciliation.” A similar clause was in the agreement the subject of the Jajoo decision (clause 3.15(d), “if the matter still remains unresolved, either Party may refer the dispute to the AIRC for conciliation and/or arbitration”), and the majority in Jajoo found;

“the reference to “either Party” is a reference to the parties to the dispute. Mr Jajoo was a party to the dispute when he invoked the procedure and in our view, remained so when the dispute was unresolved and he sought to refer the dispute to the AIRC.

We do not believe that the words of the Agreement suggest that an employee is disqualified from activating sub-clause (d) if the employment is terminated” 17

[42] I am inclined to follow this reasoning. In this case, the dispute arose when the employment relationship between Ms Toohey and QBE existed and Ms Toohey sought to progress a dispute under Clause 38 while still employed. I am satisfied Ms Toohey was a party to the dispute when she invoked the procedure and remained so when the dispute was unresolved and she filed her application in the Commission, even though it was received after her employment terminated.

[43] I am not persuaded to alter my view by QBE’s submission that clause 38.9 could only be complied with by persons in current employment, therefore for the Commission to find that the clause applies to former employees would be inconsistent with the terms of the clause. Again, a similar clause was in the agreement the subject of the Jajoo decision, (clause 31.15(e), “during the dispute resolution process, normal work practices and procedures will continue in accordance with INGA’s reasonable directions.”).

[44] I have noted QBE’s submissions regarding Patrick Projects but consider it remains open to me to follow Jajoo. Having carefully considered Broadspectrum, I do not consider it disturbs the fundamental finding of Jajoo:

“In our view, the dispute settlement process should be viewed as a single process agreed by the parties to resolve disputes, rather than a series of separate rights and obligations which should be viewed conjunctively. That being so, an employee who had commenced to deal with a grievance or dispute while employed is not precluded, in our view, from continuing to progress that matter if it remains unresolved, notwithstanding that in the interim period they may have ceased to be employed by the employer.” 18

[45] As has been found in both Jajoo and Broadspectrum, many disputes will arise while the employment relationship exists and continue after the termination of the employment, but this is not a bar to the Commission dealing with them. In Jajoo, this was found to be so even though the employee’s employment terminated prior to him referring the dispute to the Commission, as is the case in this application.

Conclusion

[46] I am satisfied Ms Toohey raised her dispute with QBE and her discussions with QBE Human Resources did not resolve it. I find that Ms Toohey was engaged in the dispute resolution procedure in the manner required before her employment was terminated and this entitles her to bring the dispute pursuant to clause 38.6 of the Agreement, despite her not being an employee at the time of filing her application in the Commission.

[47] The parties will be advised of future programming for this matter shortly.

DEPUTY PRESIDENT

 1   [2015] FWCFB 6323.

 2 Ibid at [43].

 3 Applicant’s Outline of Submissions at [7].

 4 Applicant’s Outline of Submissions at [11].

 5 Applicant’s Outline of Submissions at [13].

 6   PR974301.

 7 Ibid at [41].

 8 Ibid at [58].

 9 Ibid at [59].

 10   [2012] FWA 162.

 11 Ibid at [14].

 12   [2014] FWC 107.

 13 Ibid at [18].

 14   [2017] FWCFB 269.

 15 Ibid at [42].

 16 Ibid at [50].

 17   PR974301 at [54] – [55].

 18   PR974301 at [58].

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