The Association of Professional Engineers, Scientists and Managers, Australia v WaterNSW

[2016] FWC 5640

[2016] FWC 5640

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Association of Professional Engineers, Scientists and Managers, Australia
v
WaterNSW
(C2016/681)

COMMISSIONER MCKENNA SYDNEY, 25 AUGUST 2016

Alleged dispute about any matters in a contract of employment or other written agreement in relation to the NES or a safety net contractual entitlement; [s738(c)].

[1] The Association of Professional Engineers, Scientists and Managers, Australia (“APESMA”) has made an application pursuant to s.739 of the Fair Work Act 2009 to deal with a dispute. The respondent to the application is WaterNSW.

[2] The dispute arises from a decision by WaterNSW to directly appoint an employee to the position of Dams Surveillance Engineer (SCA Grade 12) in connection with the processes set out in a document titled “WaterNSW Revised Draft Placement Process September 2015” (“WaterNSW Placement Process”) and/or not to offer him a voluntary redundancy. The position occupied by the employee formerly had been a Senior Engineer, Dam Safety & Systems (SCA Grade 14). The WaterNSW Placement Process document, and the policies and procedures it outlines, was developed in negotiation with relevant unions as part of arrangements associated with the merger of the Sydney Catchment Authority and State Water – which, among other matters, resulted in reviews of individual employees’ positions for the organisationally-restructured body that became WaterNSW.

[3] The remuneration attaching to the employee’s former position of Senior Engineer, Dam Safety & Systems (SCA Grade 14) is protected during the life of the Award (absent, for example, reductions of a type which do not relevantly arise in this dispute). There is, however, uncertainty about what may unfold if and when the Award is replaced by a replacement industrial instrument. In this respect, negotiations are either underway or pending for a new WaterNSW enterprise agreement.

[4] The initiating process set out the relief sought by APESMA on behalf of its member, Kumara Arachchi, in the following terms:

“The Applicant seeks that the Commission make the following Recommendations or Directions:

(1) That in accordance with the principles regarding direct appointment set out in the WaterNSW Placement Process document dated September 2015 Mr Arachchi should not have been direct appointed to the Dams Surveillance Engineer position with WaterNSW as it was more than [a] 20% changed position as compared to his previous substantive position of Senior Engineer Dam Safety, and

(2) That as a result, Mr Arachchi should be offered Voluntary Redundancy by WaterNSW rather than compulsorily redeployed by direct appointment into the Dams Surveillance Engineer position or otherwise forced to accept that position.”

[5] APESMA submitted that in regard to the WaterNSW Placement Process principles concerning direct appointment WaterNSW was not permitted to appoint Mr Arachchi to the Dams Surveillance Engineer position because of the degree of difference (relevantly more – and, it was contended, significantly more – than 20 per cent) as against the position of Senior Engineer, Dam Safety & Systems.

[6] WaterNSW raised a jurisdictional objection concerning the application. Shortly put, WaterNSW contends that the dispute is not about a matter or matters covered by the Award, within the meaning of the relevant dispute settlement clause – and for that reason the application should be dismissed.

[7] With a view to a determination of the threshold jurisdictional issue on the papers (following a lack of resolution in conciliation discussions), the parties filed detailed written submissions which addressed a range of matters going to their competing contentions concerning the proper construction of the dispute settlement provision in the industrial instrument in question, namely the Sydney Catchment Authority Consolidated Award 2015-2016 (“the Award”). Following the merger of the Sydney Catchment Authority and State Water – and the creation of WaterNSW – the Award commenced, it is common ground, as a copied State instrument/award within the meaning of the Fair Work Act – with those covered by its operation subject to federal industrial regulation rather than, as previously was the case, industrial regulation within the jurisdiction of the Industrial Relations Commission of New South Wales and the operation of the Industrial Relations Act 1996 (NSW).

[8] Section 739 of the Fair Work Act conditions the powers of the Fair Work Commission to deal with disputes (and it is common ground that the reference in s.738(a) of the Fair Work Act to a modern award is to be read to include a copied State award for the purposes of the application of Ch 6 Part 6-2 Div 2 Sub-Div B and that the references to the Industrial Relations Commission of New South Wales in the dispute settlement procedure in the Award are to be taken to be to references to the Fair Work Commission). That is, s.739 of the Fair Work Act reads as follows (with legislative notes omitted):

“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.

(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.

(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.”

[9] Here, the dispute settlement procedure in the Award is a product of its own particular New South Wales jurisdiction-based industrial lineage, albeit the Award has more recently become a federal industrial instrument. I accept the submissions advanced by APESMA that the Industrial Relations Commission of New South Wales would have had broad-ranging powers in relation to disputes of the type now before this Commission, and the particular dispute settlement procedure doubtless would have been included within the Award against the background of the legislative position that obtained in the New South Wales jurisdiction as to industrial disputes. I accept also that the authorities to which APESMA referred in its submissions (with a distillation of principles set out by APESMA at paragraph 30 of its submissions filed on 22 July 2016) typically support a reading of dispute settlement provisions in awards in a way which may relevantly differ from principles concerning dispute settlement provisions contained in federal enterprise agreements. I have considered these submissions and the other matters advanced or relied upon by APESMA – but I note also that any such “broad” construction of the type for which it contended would remain subject, of course, to the proviso that the language within the Award indeed properly allows such a construction even when matters are tempered by a consideration of the principles drawn from the authorities to which APESMA referred.

[10] Notwithstanding my consideration of APESMA’s submissions (including the submission that Mr Arachchi may or will be left without any means to challenge or dispute relevant matters regarding the impugned direct appointment and/or the decision not to offer him a voluntary redundancy package – at least under the dispute settlement procedures of the Award), the fact remains that the dispute resolution procedure in the Award provides as it does and uses the language that it does. Relevantly, the scope of the dispute resolution procedure is limited to “disputes over matters covered by this Award”; it does not address anything which could be considered as more expansive than a matter or matters covered by the Award. I do not consider that this phraseology in the dispute resolution procedures of the Award can be read to include a dispute arising from the decision of WaterNSW to appoint Mr Arachchi to the position of Dams Surveillance Engineer, in a way that was allegedly contrary to the criteria and principles set out in the WaterNSW Placement Process.

[11] While APESMA advanced fully-developed arguments in contending that the jurisdiction of the Commission to deal with the this particular dispute is enlivened, I am unable to accept that on a proper reading or proper construction of the dispute resolution procedures in the Award that the Commission has power to deal with the dispute. I am also unable to accept the submissions by APESMA that, for example, because of connections with the Award-referenced consultation that led to the Placement Process document itself that jurisdiction is enlivened – albeit it nonetheless seems to me a somewhat perverse outcome that dispute about the practical operation on individual employees of the WaterNSW Placement Process document would not be encompassed when the development of the document arose through Award-referenced discussion and consultation with unions. As to this, I generally accept WaterNSW’s reply submissions at paragraphs 27-32.

[12] I do not consider that any other matter relied upon by APESMA, separately or collectively, properly allows a construction for which APESMA contended as to the bestowal of jurisdiction concerning this dispute. Rather, I accept the submissions for WaterNSW – more particularly its characterisation of the dispute as set out in paragraphs 16-22 (Jurisdiction) and paragraphs 23-32 (Characterisation of the dispute) of its initial submissions filed on 16 June 2016, and as such matters were reiterated or reinforced in its reply submissions of 11 August 2016. In so concluding, I note and accept the submissions by APESMA that the matters addressed in the initiating process would not constrain the nature of type of relief that might in the end be sought; such matters could of course be the subject of an application for amendment. Nonetheless, the matters addressed in the WaterNSW Placement Process document and disputes arising therefrom, such as disagreement about the percentage difference in change of duties or, concomitantly, the failure by WaterNSW to make an offer of voluntary redundancy to Mr Arachchi, are not, it seems to me, matters covered by the Award; these particular matters stand separate from matters covered by the Award, because the placement process and its references to circumstances concerning offers of voluntary redundancy are not incorporated in the Award and nor are they terms of the Award.

[13] While I have sympathy for Mr Arachchi in as much as it was submitted by APESMA that he is apparently left without recourse to have his substantive argument about the dispute at least heard (and the potential jeopardy for Mr Arachchi as to what may occur in the future when he may no longer have, for example, what is in effect the income maintenance protection presently afforded to him during the life of the Award, more particularly given he is in a defined benefit superannuation scheme) it remains the case, given my acceptance of the respondent’s jurisdictional objection, that the application to deal with this dispute must be dismissed.

[14] The proceedings are now concluded.

COMMISSIONER

On the papers, with final written submissions:

2016;

11 August.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR584121>