Tasmanian Networks Pty Ltd T/A TasNetworks

[2017] FWC 1285

[2017] FWC 1285

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tasmanian Networks Pty Ltd T/A TasNetworks
(AG2016/5007)

COMMISSIONER CIRKOVIC MELBOURNE, 6 MARCH 2017

Application for approval of a single-enterprise agreement - interim decision.

[1] On 10 August 2016, Tasmanian Networks Pty Ltd T/A TasNetworks (TasNetworks) (Applicant) filed an application with the Fair Work Commission (Commission) pursuant to section 185 of the Fair Work Act 2009 (Cth) (the Act) for the approval of the TasNetworks Agreement 2016-2019 (Proposed Agreement).

[2] On 22 August 2016, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Association of Professional Engineers, Scientists and Managers Australia (APESMA) filed statutory declarations objecting to the approval of the Proposed Agreement by the Commission.

[3] The matter was listed for telephone mention on 3 November 2016 and 31 January 2017 and for conference on 12 December 2016 and 21 February 2017. The outcome of the telephone mentions and conference’s was a request from the Applicant and the CEPU for the Commission to determine the CEPU’s objection relating to the following clause (the Exclusion Clause) in Schedule 5: Performance Principles of the Proposed Agreement:

“For the avoidance of doubt the:

(a) Performance process (other than the fact of completion of a performance plan and review in 2016/2017 under clause 11.4);

(b) Position descriptions; and

(c) Job evaluation system,

Do not form part of this Agreement.”

[4] The parties filed written submissions on Tuesday, 28 February 2017. The matter was listed for heard on Wednesday, 1 March 2017.

Submissions of the CEPU

[5] The CEPU submit that the operation of the Exclusion Clause appears entirely uncertain such as to taint any notion of ‘genuine agreement’. 1 The primary position of the CEPU is that, absent relevant undertakings, the application for approval of the Proposed Agreement must fail.2 The alternative position of the CEPU is that should the Commission form the view that the Exclusion Clause is intended to only apply to documents outside the Proposed Agreement, the objection of the CEPU could become resolved.3

Primary position

(a) Performance process

[6] The CEPU submit that in stating the ‘performance process’ does ‘not form part ‘ of the Proposed Agreement, the Exclusion Clause is purporting to render clause 11.5, clause 11.6 and the balance of Schedule Five: Performance Principles (the Performance Terms)either inoperative or unenforceable. 4 The CEPU submit that the operation of the Exclusion Clause engenders the Proposed Agreement with considerable uncertainty such as to render it impossible for employees to have ‘genuinely agreed’ to it within the meaning of the Act.5

(b) Position descriptions

[7] The CEPU submit that position descriptions are of a fundamentally different subject matter to that considered in the balance of Schedule Five: Performance Principles and that it is entirely unclear why an exclusion concerning position descriptions would be located in a schedule to an agreement, entitled ‘Performance Principles’. 6 The CEPU submit that it is open to the Commission to infer that this is a deliberate attempt to misdirect employees as to the operation of the Proposed Agreement and as such that the employees have not ‘genuinely agreed’ to the Proposed Agreement within the meaning of the Act.7

[8] Further, the CEPU submits that position descriptions are subject to a separate undertaking the Applicant has proffered to the Commission and that prima facie, this undertaking would be rendered inoperative. 8 The CEPU submits that in such circumstances there is considerable uncertainty such as to render it impossible for employees to have given their genuine agreement.9

(c) Job evaluation system

[9] The CEPU submit that the term ‘job evaluation system’ is undefined and does not otherwise appear in the Proposed Agreement. 10 The CEPU submit that it is entirely unclear what this aspect of the Exclusion Clause relates to and that conceivably, it could intrude on the operation of clause 32, clause 33, and the Performance Terms.11 The CEPU submit that this aspect of the Exclusion clause again engenders the Proposed Agreement with considerable uncertainty such as to render employees unable to have given their genuine agreement.12

Alternative Position

[10] The CEPU submit in alternative, that if the operation of the Exclusion Clause only applied to documents outside the Proposed Agreement, then their objection must fail. 13 The CEPU notes that it is not unusual in employment law for instruments to have clauses expressly excluding the incorporation of company policies, for instance.14

[11] The CEPU submit that should the Commission determine that the Exclusion Clause:

a. does not impact upon the operation of the Performance Terms;

b. is inoperative, as a matter of construction, in respect of position description and the undertaking proffered by the Applicant with respect to the classification structure; and

c. is inoperative, as a matter of construction, in respect of any job evaluation system as it relates to the Proposed Agreement,

there would be no basis for sustaining the objection. 15

Submissions of the Applicant

[12] The Applicant submits that the Commission can and should accept the alternative position put forward by the CEPU in its submissions at paragraphs 24-26 (but not subparagraphs 26(b) or 26(c)). 16 The Applicant submits that this is consistent with its position and would resolve the dispute between the parties.17

[13] The Applicant submits that Schedule 5: Performance Principles provides the high level principles/guidance by which employees become eligible for performance payments and by which performance is managed. 18 The Applicant submits that the performance process, position descriptions and job evaluation system are the mechanisms that sit behind the Performance Principles’ but do not form part of the ‘Performance Principles’ and that as such it made a deliberate decision to exclude the performance process, position descriptions and job evaluation system from the Proposed Agreement.19

(a) Performance process

[14] The Applicant submits that the Performance Terms are contained within the text of the Proposed Agreement and are not referred to in the Exclusion Clause. 20 The Applicant submits that the suggestion the Performance Terms might be excluded from the Proposed Agreement by operation of the Exclusion Clause should be ignored. 21

[15] The Applicant submits that the performance process referred to in the Exclusion Clause is the current ‘Achievement and Development Process’ (A&D process) widely known throughout the Applicant. 22 The Applicant submits that in the draft of the Proposed Agreement provided to parties on 28 June 2016, the performance process was referred to as the A&D process, however to avoid further confusion the Applicant substituted the more generic ‘performance process’ as it thought the ‘A&D process’ name and process might change in the future.23

[16] The Applicant submits that the effect of excluding the performance process from the operation of the Proposed Agreement is to exclude only the day-to-day processes of applying the Performance Principles and that the Performance Principles themselves are not excluded or rendered unenforceable. 24

(b) Position descriptions

[17] The Applicant submits that the exclusion of position descriptions from the Proposed Agreement does not have the effect of inhibiting the CEPU using a position description as evidence in a dispute about an aspect of the Proposed Agreement. 25

[18] The Applicant submits that the exclusion of position descriptions from the Proposed Agreement does mean that the existence, content or alteration of a position description could not, of itself, form the basis for engaging the dispute settlement process under clause 33 of the Proposed Agreement. 26 The Applicant similarly submits that the exclusion of position descriptions from the proposed Agreement does mean that the CEPU may not argue their preferred version of a position description should apply or be amended.27

[19] The Applicant submits that a position description is clearly different to a job title and that the separate undertaking referred to in paragraph 19 of the CEPU’s submissions is an undertaking to provide indicative position titles. 28

(c) Job evaluation system

[20] The Applicant submits that job evaluation system is well known throughout the Applicant in its ordinary usage and therefore there is no need to define in the Proposed Agreement what is not included in the Proposed Agreement. 29

[21] The Applicant submits that consultation under clause 32 of the Proposed Agreement is not limited to matters which arise directly out of the Proposed Agreement. 30 The Applicant submits that consultation has specific requirements that relate to the introduction of major changes to production, program, organisation, structure or technology that is likely to have a significant effect on the employees.31

[22] The Applicant submits that the dispute settlement process under clause 33 of the Proposed Agreement would expressly prevent the performance process, position descriptions and job evaluation system from being the subject matter of the dispute. 32 The Applicant submits that this was clearly communicated to the employees.33

[23] The Applicant submits that this is not to say in a dispute about consultation, dispute settlement process or performance principles the CEPU cannot bring the performance process, position descriptions and job evaluation system forward as part of its evidence in the dispute. 34 Instead, the Applicant submits that the performance process, position descriptions and job evaluation system could not of themselves form the basis for application under the dispute settlement procedure in clause 33 of the Proposed Agreement.35 The Applicant similarly submits that the CEPU could not argue that its preferred version of the Applicant’s performance process, position descriptions and job evaluation system should apply or be amended.36

Conclusion

[24] I accept the Applicant’s submission that Schedule 5: Performance Principles provides the high level principles/guidance and that the performance process, position descriptions and job evaluation system are the mechanisms that sit behind the Performance Principles’ but do not form part of the ‘Performance Principles’.

[25] I do not accept the position advanced by the CEPU, that the operation of the Exclusion Clause is entirely uncertain such as to taint any notion of ‘genuine agreement’. The Applicant submits that the Commission can and should accept the alternative position put forward by the CEPU in its submissions at paragraphs 24-26 (but not subparagraphs 26(b) or 26(c)). I accept this and the position advanced by the Applicant that the intended operation of the Exclusion Clause is that it only applies to documents outside the Proposed Agreement and that as such the CEPU’s objection must fail.

[26] The balance of the application for approval of the Proposed Agreement remains before me for consideration.

COMMISSIONER

Appearances:

D Dilger, of Page Seager Lawyers for Applicant;

T Gauld, of CEPU.

Hearing details:

2017

1 March.

 1   Submissions of CEPU, lodged 28 February 2017, par.6.

 2   Ibid, par.6.

 3   Ibid, par.6 & 24.

 4   Ibid, par.12.

 5   Ibid, par.13.

 6   Ibid, par.17.

 7   Ibid, par.17-18.

 8   Ibid, par.19.

 9   Ibid, par.20.

 10   Ibid, par.21.

 11   Ibid, par.22.

 12   Ibid, par.23.

 13   Ibid, par.24-25.

 14   Ibid, par.24.

 15   Ibid, par.26.

 16   Submissions of Applicant, lodged 28 February 2017, par.7(a).

 17   Ibid, par.7(a).

 18   Ibid, par.7(c).

 19   Ibid, par.7(c).

 20   Ibid, par.7(e)i.

 21   Ibid, par.7(e)i.

 22   Ibid, par.7(e)ii.

 23   Ibid, par.7(e)ii.

 24   Ibid, par.7(e)iii.

 25   Ibid, par.7(g).

 26   Ibid, par.7(g).

 27   Ibid, par.7(g).

 28   Ibid, par.7(k).

 29   Ibid, par.7(l).

 30   Ibid, par.7(n)ii.

 31   Ibid, par.7(n)ii.

 32   Ibid, par.7(n)iii.

 33   Ibid, par.7(n)iii.

 34   Ibid, par.7(n)v.

 35   Ibid, par.7(n)v.

 36   Ibid, par.7(n)v.

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