United Firefighters' Union of Australia v Country Fire Authority - [2023] FWC 1956

[2023] FWC 1956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

United Firefighters' Union of Australia
v

Country Fire Authority

(C2023/1070)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 7 AUGUST 2023

Application to deal with a dispute arising under an enterprise agreement.

On 1 March 2023, the United Firefighters’ Union of Australia (UFU) made an application under s 739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure at clause 12 of the Country Fire Authority Professional, Technical and Administrative Agreement 2021 (Agreement).

The dispute relates to Ms Jessica Harris, who has been an employee of Country Fire Authority (CFA) for 18 years.

The dispute broadly concerns CFA’s decision to declare Ms Harris’ substantive position, and a temporary position that Ms Harris was performing, redundant, the genuineness of that decision, and CFA’s compliance with the redeployment obligations under clause 20 of the Agreement and relevant Victorian Government policy.

This decision is arranged as follows:

PART A: PRELMINARY MATTERS

Jurisdiction and the issue for determination [5]-[9]

The Agreement [10]-[14]

Uncontested facts [15]-[31]

Statutory framework [32]-[33]

PART B: QUESTIONS FOR DETERMINATION

Question 1 [34]-[38]

Question 2 [39]-[168]

Question 3 [169]-[249]

Question 4 [250]-[252]

Question 5 [253]-[255]

Question 6 [256]-[279]

ANNEXURE A - Agreed questions

PART A: PRELMINARY MATTERS

Jurisdiction and the issue for determination

The dispute was raised at the workplace level pursuant to clause 12 of the Country Fire Authority Professional, Technical and Administrative Agreement 2020 (2020 Agreement), being the instrument that preceded the Agreement, and which covered Ms Harris and CFA at the relevant time.

It is not in dispute that (a) clause 12 of the 2020 Agreement is in substantially similar terms to clause 12 of the Agreement, and (b) the steps taken by the UFU and Ms Harris to resolve the dispute at the workplace level under the 2020 Agreement were steps that satisfied the requirements in the Agreement.

Conciliation in the Commission did not resolve the dispute. The parties agreed that the Commission should determine the questions set out at Annexure A to this decision in resolution of the application.

Noting that there is no dispute that the pre-requisites to the Commission’s involvement have been followed, I am satisfied that the Commission is empowered to resolve the dispute by determination of the agreed questions in accordance with the dispute settling procedures at clause 12 of the Agreement and s 739 of the Act.

It is not in contest that it is unnecessary to consider the application of the antecedent 2020 Agreement for the purposes of answering the agreed questions, and I decline to do so.

The Agreement

The Agreement commenced operation on 25 January 2023.[1] The Agreement operates to the exclusion of “any awards or collective agreements.”[2]

The Agreement covers CFA and its employees who perform work that is covered by the classifications in the Agreement, subject to identified exclusions.[3] The Agreement also covers the UFU, together with Professionals Australia and the Australian, Municipal, Administrative, Clerical and Services Union (ASU) as bargaining representatives pursuant to s 183 of the Act.[4] Ms Harris is represented in this dispute by the UFU. Professionals Australia and the ASU are not party to this application.

Clause 20 of the Agreement is titled Redeployment. It is in identical terms to clause 19 of the 2020 Agreement and it provides as follows:

20 REDEPLOYMENT

20.1 If, as a result of a change to the way duties are performed or because the duties performed by an Employee are no longer required to be performed, an Employee’s position becomes excess to CFA’s requirements CFA will consult with the affected Employee (and his/her representative if requested by the Employee) regarding potential redeployment opportunities in accord with the relevant Victorian Government Policy in place at that time, noting that the Policy does not form part of this Agreement.

20.2CFA will endeavour to redeploy any excess Employee/s in accordance with the relevant Victorian Government Policy in place at the time (noting that the Policy does not form part of this Agreement). CFA will undertake redeployment actions for a period of 3 months.

20.3If the Employee is not redeployed to a new position or no suitable vacancy exists, he or she shall be declared redundant and shall be eligible for a redundancy package available at the time of the redundancy. Any such redundancy package will be in accord with the Victorian Government Policy in place at the time (noting that the Policy does not form part of this Agreement).

20.4 The term ‘suitable vacancy’ means a position within CFA classified as the Employee’s substantive classification level or if no such position exists, then a lower classified position may be offered where the Employee will be able to satisfactorily perform the duties of that position.
20.5If any Employee is redeployed by CFA to a lower classified position their previous wage rate shall continue to be paid for a maximum period of 6 months.

Clause 12.6 of the Agreement provides for the maintenance of status quo. It provides:

12.6.1While this procedure is being followed the status quo will be maintained until the matter is resolved. However, unless Step Three is enacted within fourteen (14) consecutive days from the date of the line manager’s decision at Step Two, and there has been no written agreement to vary the timelines in accordance with clause 12.2, the grievance/dispute will be treated as having been finalised and status quo will cease to operate.
12.6.2No party shall be prejudiced by the continuance of work in accordance with this clause.

The PTA level definitions and descriptors are set out in Schedule 3 to the Agreement. These are unchanged from the 2020 Agreement.

Uncontested facts

Ms Harris has been employed by CFA since November 2005 and is covered by the Agreement. Relevantly, Ms Harris commenced in the role of Business Continuity Advisor (PTA level 5) within the Strategic Services Group on 22 November 2021. Shortly afterwards, on 5 December 2021, Ms Harris applied for the fixed term position of Manager Risk and Assurance within the Risk, Assurance and Insurance Services team. This role was also classified by CFA at PTA level 5 and would conclude on 4 January 2023. After participating in a merit-based recruitment process for this role, Ms Harris was issued a temporary transfer letter on 17 December 2021 and commenced performing the Manager Risk and Assurance role in January 2022.

The consultation process

On 24 October 2022, CFA wrote to Ms Harris by email. The subject of the email was “Proposed changes within Risk, Assurance and Insurance Service.”[5]

On 27 October 2022, Ms Harris met with Ms Rebecca Holding - Chief Risk Officer, the Manager Planning & Performance, and the HR Business Partner. The purpose of the meeting was to discuss CFA’s proposed restructure, including its rationale, potential impacts on Ms Harris, and suggested next steps. At that meeting, among other things, Ms Harris was advised of matters which included the following:
(a)   Following a review of risk and business continuity functions, a new structure was proposed to centralise CFA’s risk activities into one (rather than two) areas of the business, introduce a business partnership model to the risk function, build organisational risk capability and enhance CFA’s risk maturity to enable the provision of specialist, technical risk advice. As part of this change, the business continuity function would move from the Strategic Services team to the Governance, Legal and Risk team.
(b)   The change that would directly impact Ms Harris’ substantive role was the proposed creation of a new role titled Senior Risk and Business Continuity Business Partner which was proposed at PTA level 6.
(c)   The role of Manager Risk and Assurance that Ms Harris was temporarily performing would also be impacted by the new structure and would no longer be required.
(d)   With the creation of the Senior Risk and Business Continuity Business Partner position, it was proposed that the original purpose of Ms Harris’ substantive position as Business Continuity Advisor (PTA level 5) would no longer be required.
(e)   CFA proposed to make Ms Harris’ substantive position redundant.
(f)    At that stage, the restructure was only a proposal and Ms Harris was invited to provide feedback before a final decision was made.
(g)   If Ms Harris' role was declared redundant, the following would apply:
a.   Ms Harris would be placed on a 3-month redeployment program and a case manager would work with her to apply for other roles;

b. Ms Harris would be given first priority on any vacancies that arise at PTA level 5 or below, with the aim of the redeployment process being that Ms Harris would secure another role at level 5 or a level below; and

c. If Ms Harris were to be unsuccessful in securing another role at the completion of the redeployment period, she would be eligible for a targeted separation package.

(h)   Ms Harris was invited to a staff meeting where the proposed changes would be presented and a staff consultation pack would be provided following the meeting.
(i)     Ms Harris was encouraged to provide feedback by 11 November 2022.
(j)     CFA advised that it understood that this may be a difficult situation for Ms Harris and had arranged for a Wellbeing Consultant to be available in the office close by.

On 27 October 2022, Ms Holding emailed Ms Harris. The subject of the email was “Proposed changes within Risk, Assurance and Insurance Services – Consultation pack.” The email attached a staff consultation pack, draft position descriptions and proposed changes to RAIS – FAQ’s.[6] A follow up email was sent to all affected team members including Ms Harris on 7 November 2022.[7]

On 11 November 2022, Ms Harris responded to Ms Holding’s email of 27 October 2022.[8] The response advised CFA that Ms Harris had reviewed the materials. Ms Harris provided feedback that (a) she considered that she should be redeployed, and (b) considered the restructure would benefit from resourcing a risk analyst and risk advisor position.

On 15 November 2022, Ms Holding responded to Ms Harris’ email on 11 November 2022. The subject of the email was “Consultation – Feedback.”[9] The email advised that Ms Harris had sought to be redeployed into a role with a higher classification than she presently held which was not in line with policy. The email invited Ms Harris to apply for the role and engage with the merit-based recruitment process.

On 16 November 2022, Ms Holding emailed Ms Harris. The subject of the email was “RAIS Structure – Outcome Meeting.” The email invited Ms Harris to attend a meeting on 17 November 2022. Ms Harris responded to this email that day at 4:08pm and, amongst other things, requested that the email be postponed to 21 November 2022.[10] Ms Harris’ requested was granted.

At the meeting on 21 November 2022, Ms Harris attended with her support person and was advised by CFA that:

(a)   it had considered the feedback provided and had decided to implement the restructure as proposed;
(b)   as a result, Ms Harris’ substantive role of Business Continuity Advisor was being made redundant effective 21 November 2022;
(c)   the decision was based on organisational business priorities;
(d)   Ms Harris would be placed on a 3-month redeployment program to commence on 21 November 2022 with the aim of finding other employment with CFA;
(e)   a case manager had been allocated to work with Ms Harris to apply for other roles within CFA;
(f)    Ms Harris would be given priority access to consider and be interviewed for any vacancies that arise at PTA level 5 or below before the vacancy was released to market;
(g)   the aim of the redeployment process was for Ms Harris to secure another role with CFA at level 5 or a level below;
(h)   if Ms Harris is unsuccessful in securing other employment with CFA at the completion of the 3-month redeployment period, she would be eligible for a Targeted Separation Package;
(i)     during the redeployment period, Ms Harris would undertake suitable alternative duties as her temporary transfer role would cease. Ms Harris was advised of the nature of those duties and informed that a statement outlining the tasks would be provided to her;
(j)     CFA had a presentation to outline the changes to the overall team structure and offered to go through it with Ms Harris at the meeting; and
(k)   CFA acknowledged that it may be a difficult situation for Ms Harris and had arranged for a Wellbeing Consultant to be available. CFA also asked Ms Harris whether there was any other support it could provide.

Following the meeting, an email was sent to Ms Harris enclosing:[11]
(a)   a letter summarising the outcome of the restructure, notably that the role of Business Continuity Advisor was no longer required and would be declared redundant and that a three-month redeployment period would commence;
(b)   a duty statement, summarising the alternative duties to be undertaken during the redeployment period; and
(c)   a slide-pack setting out the final “RAIS Structure Outcomes,” including timeframes for implementation and information about wellbeing supports available.

The dispute resolution process

On 7 December 2022, the UFU notified a dispute by email to Ms Holding on behalf of Ms Harris. The subject of the email was “Notification of dispute regarding position of Jessica Harris” and was made under clause 12 of the 2020 Agreement. As earlier stated, this was the instrument that covered CFA and Ms Harris at the time. The UFU disputed CFA’s decision not to appoint Ms Harris to the newly created position of Senior Risk and Business Continuity Business Partner.[12]

On 13 December 2020, in accordance with Step One of the dispute resolution procedure in the 2020 Agreement (clause 12.9.1), the UFU and Ms Harris met with Ms Holding and Mr David Johns, Manager Workplace Relations. Ms Harris was also accompanied by a support person.

On 15 December 2022, Ms Harris emailed CFA. The subject of the email was “Redeployment.” The email stated that Ms Harris had raised a dispute on 7 December 2022, and she believed this may result in the redeployment process being paused pending resolution of the matter. Ms Harris sought confirmation that this would occur.[13]

On 16 December 2022, in accordance with Step Two of the dispute resolution procedure in the 2020 Agreement (clause 12.9.2), the dispute was escalated to Mr Paul Ramage - General Manager, Legal and Risk. On 20 December 2022, the UFU and Ms Harris met with Mr Ramage and Mr Johns. Ms Harris was also accompanied by a support person.

On 20 December 2022, the dispute remaining unresolved, the UFU emailed Mr Ramage and Mr Johns. The subject of the email was “Notification of dispute regarding the position of Jess Harris.” The email requested that the matter be escalated in accordance with the dispute resolution procedure in the 2020 Agreement (clause 12.9.3). As Mr Ramage reports directly to the Chief Executive Officer of CFA, the dispute was escalated to a Step 4 meeting with Mr Torbjorn Servin - General Manager People & Culture.[14]

On 21 December 2022, CFA emailed Ms Harris. The subject line was “Update on redeployment.” The email stated that the redeployment period had not been paused and that there was nothing in the 2020 Agreement which prevented the redeployment period running parallel with a staff member pursuing a grievance or dispute under the 2020 Agreement.[15]

On 12 January 2023, the UFU and Ms Harris met with Mr Servin and Mr Johns in accordance with Step Four of the dispute resolution procedure in the 2020 Agreement (clause 12.9.4).

On 25 January 2023, Mr Servin emailed Ms Harris. The subject of the email was “Jess Harris Dispute” and was sent in accordance with clause 12.9.4.3 of the 2020 Agreement. On 31 January 2023, the UFU responded by email, stating amongst other things that given the dispute remained unresolved, it would escalate the dispute to the Commission. On 14 February 2023, Mr Servin responded to the UFU’s email of 31 January 2023 and confirmed that the response may be treated as a response for the purpose of clause 12.4.1 of the Agreement.[16]

Principles of interpretation

The approach to the construction of enterprise agreements was recently summarised by the Full Court of the Federal Court in James Cook University v Ridd:[17]
(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362 at 378 (City of Wanneroo v Holmes); City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [53] (City of Wanneroo v AMACSU); WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197] (WorkPac v Skene)).
(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182 at 184 (Kucks v CSR); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac v Skene at [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [2]).
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v AMACSU at [53]). It may extend to “ … the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511 at 518 (Short v FW Hercus); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175 at 178).
(iv) Context may include “ … ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus at 518).
(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form … ” (Short v FW Hercus at 518).
(vi) A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-504; City of Wanneroo v AMACSU at [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes at 380).
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes at 378-379; WorkPac v Skene at [197]).

I turn now to consider the agreed questions.

PART B: QUESTIONS FOR DETERMINATION

Question 1

Does cl 20 of the Country Fire Authority Professional, Technical and Administrative Agreement 2021 Agreement (2021 Agreement) and/or cl 19 of the Country Fire Authority Professional, Technical and Administrative Agreement 2020 (2020 Agreement) operate as a code such that Country Fire Authority (CFA) may only terminate the employment of Jess Harris by reason of redundancy in accordance with that clause.

The parties are in principal agreement that the answer to Question 1 is “yes.”

Clause 20 is to be read and understood in the context of the objectives of the Agreement as set out in clause 3.1.1. Relevantly, an objective of the Agreement is to “maintain the high level contribution that Professional, Technical and Administrative staff make to CFA’s mission to protect lives and property throughout Victoria and to maintain and strengthen the capacity of CFA’s volunteers.” The “objectives” are supported by five “elements” in clause 3.2, including the element of “[e]nsuring that employment is secure and fulfilling” in clause 3.2.1.

The following additional provisions also provide relevant context:

(a)   clause 6.1, which reflects the recognition by the parties that the Agreement is comprehensive and operates to the exclusion of any other awards or collective agreements;
(b)   the consultation obligations imposed upon CFA with respect to major change, which includes at clause 11.1.9.1, the termination of employment; and
(c)   CFA’s acknowledgement of the positive impact of secure employment in clause 14.1.1.

Clause 20 prescribes a process that is to be followed if, “as a result of a change to the way duties are performed or because the duties performed by an Employee are no longer required to be performed, an Employee’s position becomes excess to CFA’s requirements…” Where the triggering condition in clause 20.1 is satisfied, consultation obligations arise (clause 20.1) and a three-month period where the CFA is obligated to undertake redeployment actions commences (clause 20.2). Where redeployment fails or there are no “suitable vacancies” as defined in clause 20.4, an employee is declared redundant. The declaration makes an employee eligible for redundancy packages (clause 20.3).

Fundamentally, clause 20 is only engaged where the triggering condition in clause 20.1 is satisfied. In such circumstances, it will be the case that an employee’s position is excess to requirements, such that the subsequent conditions become relevant. Significantly, the entitlement to a redundancy package is only enlivened upon the completion of the three-month redeployment period. Accordingly, the answer to Question 1 is “to the extent that clause 20.1 of the Agreement is properly engaged; yes, clause 20 of the Agreement operates as a code such that CFA may only terminate the employment of Ms Harris by reason of redundancy in accordance with that clause.”

Question 2

Are the CFA positions of “Business Continuity Advisor” within the Strategic Services portfolio and “Manager Risk & Assurance” within the Risk, Assurance & Insurance Services Team “excess to the CFA’s requirements” within the meaning of cl 20.1 of the 2021 Agreement and/or cl 19.1 of the 2020 Agreement as a result of:

(a) a change to the way duties are performed; or
(b) because the duties are no longer required to be performed?

The UFU submits that the answer to Question 2 is “no.” CFA contends that the answer to this Question is “yes.” This issue is at the heart of the dispute between the parties and was the focus of the parties’ evidentiary cases during the hearing.

The UFU’s position is that the terms of clause 20 of the Agreement “present a gateway” to CFA’s ability to terminate an employee’s employment by reason of redundancy. The UFU says that the proper construction of clause 20 of the Agreement requires the identification of the reason why CFA determined Ms Harris’ substantive and temporary roles to be excess to CFA’s requirements.

The UFU submits that the provisions of clause 20, including CFA’s ability to declare Ms Harris redundant and terminate her employment, have not been engaged. The UFU contends that Ms Harris’ substantive and temporary roles were not deemed by CFA to be excess to its requirements as a result of a change to the way duties are performed or because the duties performed by the employee are no longer required to be performed, as required by clause 20. Rather, the UFU says that there is a “reasonable basis to infer” that Ms Harris’ substantive and temporary roles were deemed excess to CFA’s requirements for other reasons. It contends that the reason these positions were identified by CFA as excess to its requirements were because of “matters personal” to Ms Harris, being the following:

(a)   in late 2021, Ms Harris made complaints within CFA regarding the conduct of the Acting Group General Manager, Strategic Services Group and other former Strategic Team members;
(b)   in early 2021, Ms Harris raised an issue she identified involving a breach of privacy and health data relating to CFA employees. Subsequently, she actively pursued this issue despite CFA managers discouraging her from doing so;
(c)   in May 2022, Ms Harris was known by CFA managers to have been deeply upset by comments made during a CFA forum;
(d)   from July 2022, Ms Harris actively raised with Ms Holding regarding her concerns about unreasonable workloads;
(e)   in September 2022, on a number of occasions, Ms Holding referred to Ms Harris performance managing her direct report “out” of CFA;
(f)    in September 2022, Ms Holding made a comment about putting Ms Harris on a performance management plan; and
(g)   in October 2022, Ms Harris commenced a period of leave and ultimately brought a Workcover claim that was accepted by CFA’s insurer.

In its closing submissions, the UFU advanced four “key reasons” it suggests compels the inference that the roles were declared redundant because of the matters personal to Ms Harris. Only one of these reasons was raised in the UFU’s written submissions. Accordingly, the four reasons advanced by the UFU in its closing submissions represent the “reasonable basis” for the inference it invites by its written submissions – that is, the inference that the roles were declared redundant because of matters personal to Ms Harris identified above at [41]. The four reasons are, in summary, as follows:

(a)   the restructure was about the incumbents, not the positions;
(b)   Ms Holding did not want Ms Harris in the new PTA level 6 role of Senior Risk and Business Continuity Business Partner, created by the restructure;
(c)   the new PTA level 6 role was designed to prevent Ms Harris from accessing priority redeployment to it; and
(d)   the new PTA level 6 role is not materially distinct from the previous role or functions that Ms Harris was performing in her positions at CFA.[18]

CFA submits that the UFU is asking the Commission to draw an inference that both roles were made redundant because of matters personal to Ms Harris. CFA’s position is that it is not open to the Commission to draw the inference sought. CFA says that the weight of evidence unequivocally points to the positions of Business Continuity Advisor and Manager Risk and Assurance being declared redundant as a result of them being determined to be excess to CFA’s requirements within the meaning clause 20.1 of the Agreement. CFA submits that it is “fanciful” to suggest that it restructured two business units and displaced multiple employees from their roles for reasons that were personal to Ms Harris. Moreover, CFA says that Ms Harris’ evidence fails to draw a causative link between her substantive and temporary positions being made redundant and the matters personal to her which are alleged to be the basis of CFA’s decision.

CFA submits that the Commission should also view the fact that the UFU only raised the allegation that matters personal to Ms Harris was the reason for the redundancy of her relevant positions for the first time in these proceedings as a strong basis to undermine their credibility. The CFA says that it is significant that the restructure of Risk, Assurance & Insurance Services resulted in not only the redundancy of the two positions of Business Continuity Advisor and the position of Manager Risk and Assurance, but a further two positions. There were a further three employees who were directly impacted by the restructure, including the incumbent whose position Ms Harris was backfilling while she was on parental leave.

In addition, CFA contends that it is “illogical” to suggest that Ms Harris’ substantive and temporary positions were made redundant because of CFA possessing an ulterior motive of removing Ms Harris from those roles. This hypothesis, it is said, also fails to contemplate that the objective of the redeployment process is to keep Ms Harris employed within CFA. Ms Harris has not availed herself of any opportunities to be redeployed or in applying (as part of a merits-based selection process) for the new PTA level 6 role.

CFA says that there is no reverse onus on it (such as occurs in the context of a general protections claim), to establish the reason for redundancy of the relevant positions. The Commission is being asked to determine whether the positions in question were “excess to CFA’s requirements” within the meaning of clause 20.1 of the Agreement. In any event, CFA contends that the UFU’s submissions and the evidence of Ms Harris should be entirely rejected on this question.

I turn now to consider the evidence before the Commission in relation to the redundancies of the relevant positions, the matters personal to Ms Harris, and the parties’ respective positions.

The complaint made by Ms Harris and Ms Harris’ appointment to the roles

On 2 September 2021, while on secondment to a role unrelated to these proceedings, Ms Harris attended a Microsoft Teams meeting with the Acting Group General Manager (Interim) for the Strategic Services Group. The purpose of the meeting was to discuss Ms Harris’ return to her substantive role within the Strategic Services Group.[19]

Ms Harris contends that during the meeting, the Acting Group General Manager (Interim) made comments which Ms Harris understood to be a threat to her career progression. Ms Harris has not given evidence explaining the statements made, or any other matters concerning the events of this meeting or any related incidents with other former Strategic Team Managers discussed below. Following the meeting, Ms Harris contacted CFA bullying hotline, and was directed to the wellbeing service for counselling. On 14 October 2021, Ms Harris made a complaint by email to CFA complaints team about the statements made to her during the 2 September 2021 meeting.[20]

In October 2021, the employment of the Acting Group General Manager (Interim) with CFA ceased.[21] On 7 December 2021, Ms Harris made a formal complaint about the behaviour the Acting Group General Manager (Interim) and other former Strategic Team managers who were said to have engaged in “similar conduct” towards Ms Harris. The details of this complaint, or the alleged conduct, are not in evidence. CFA allocated a complaints case manager to Ms Harris’ complaint.[22] On 20 January 2022, the complaints case manager informed Ms Harris that her complaint had been considered but closed on the basis that the complainants were no longer employed by CFA.[23] Ms Harris accepted during cross-examination that this brought an end to the complaints as far as CFA was concerned.[24]

On 15 November 2021, Ms Harris was appointed to her substantive role of Business Continuity Advisor, which she commenced on 22 November 2021.[25] Ms Harris accepted during cross-examination that the complaints she had made did not affect her success in obtaining this position, which had been secured prior to the complaint being made.[26] It is also noted that these events occurred prior to CFA’s General Manager – Governance, Legal and Risk Services, Mr Ramage, being appointed.[27] Mr Ramage gave evidence that he was unaware of the complaint Ms Harris made against the Acting Group General Manager (Interim) until he read Ms Harris’ witness statement in these proceedings.[28]

A short time later, Ms Harris was offered a temporary transfer to the Manager Risk and Assurance role on 16 December 2021, after the date that the formal complaint was made about the Acting Group General Manager (Interim) and other former CFA employees. It was anticipated that Ms Harris’ transfer would commence on 20 or 21 December 2021.[29] On 17 December 2021, Ms Harris received a telephone call from CFA’s Manager of Talent Acquisition in which Ms Harris said she was advised that she “was now not allowed to start the role.”[30] Ms Harris said she felt concerned that this statement had been made to her as a consequence of her formal complaint. Accordingly, the following day, 18 December 2022, Ms Harris emailed her complaints case manager with a request to refrain from escalating her complaint.[31]

While Ms Harris said that she commenced in the temporary role of Manager Risk and Assurance on 20 December 2021,[32] on 24 December 2021 Ms Harris received a telephone call from the Group General Manager regarding a proposed transition plan due to work priorities. The transition plan proposed that Ms Harris would commence in the temporary role three months later than planned, which Ms Harris regarded to be unreasonable in circumstances where she had already commenced in the role and completed a handover of her substantive position.[33]

A meeting took place on 24 December 2021 between Ms Harris, the Group General Manager and Mr Ramage. It was agreed that the secondment would be proceeding, but Ms Harris would undertake an “extended transition” and perform prioritised duties from both roles for a period of up to one month.[34] Ms Harris gave evidence that she “fully supported transition” and had made it known that she would support any transition required between the two roles.[35] The transition period concluded by the end of January 2022.[36]

Privacy and health data concerns

On or about 8 April 2022, Ms Harris undertook a “spot check” of the internal audit project. Ms Harris identified breaches of what she deemed to be “privacy and health data” and reported her concerns to the (then) Chief Risk Officer. Ms Harris says she was advised by email “not to do anything that may impact on the timely delivery of the project” to which Ms Harris responded that the breach needed to be “a priority” and while the project delivery should not be affected, that was a secondary concern.[37]

Ms Harris met with CFA’s privacy manager later that day to report her concerns. On 12 April 2022, Mr Ramage sent an email to Ms Harris. The email is not in evidence, but Ms Harris says that Mr Ramage “suggested we focus on audit project, not privacy breach – but to have privacy compliance referenced in audit” so that the compliance breach would be managed via the compliance framework.[38] Ms Harris said that she did not regard this to amount to a reprimand.[39] Mr Ramage’s view was that “it was certainly something that needed to be investigated,” although he wouldn’t use the term “breach” because it related to permitted use of that information.[40]

Ms Harris met with the (then) Chief Risk Officer on 13 April 2022. Ms Harris contends that she was accused of not acting in a collegiate manner and not understanding the reputational consequences. Ms Harris says that her access to “all systems, stakeholders and duties relating to Assurance” was removed and she was directed not to speak to the privacy manager or anyone else about the matter.[41]

On 20 April 2022, Mr Ramage invited Ms Harris to attend an impromptu meeting, at which Ms Harris was informed that the (then) Chief Risk Officer’s employment with CFA had ceased that morning.[42]

The interim Chief Risk Officer commenced in the role the following day. On 27 April 2022, Ms Harris sent the interim Chief Risk Officer an email about the privacy and health data breach.[43] The outcome of this correspondence is not in evidence although Ms Harris accepted that the interim Chief Risk Officer did not reprimand her for raising this issue.[44]

On 9 June 2022, the interim Chief Risk Officer advised Ms Harris that the assurance function would be returned to her.[45]

CFA forum

Ms Harris attended a CFA forum on 12 May 2022. Ms Harris says that the Chief Executive Officer made a comment at the forum to the effect that CFA did not “want to damage people.”[46] There is no other evidence before the Commission in relation to this statement, the context in which it was made, to whom the statement was addressed, or what Ms Harris perceived the statement to mean.

Ms Harris said that she became upset by the statement and left the meeting. Ms Harris’ evidence is that Mr Ramage and the privacy manager “came and found me at my desk distressed and took me to [the privacy manager’s] office and had a chat with me.” Mr Ramage suggested that he meet with Ms Harris the following week to discuss Ms Harris’ career progression and options.[47]

A meeting took place between Mr Ramage and Ms Harris on 18 May 2022. Ms Harris’ evidence is that Mr Ramage told her a story from his past “where he felt loyal to an organisation, and then had to move on from the organisation because it was not healthy for him there.” Ms Harris said that Mr Ramage suggested that “perhaps this is something I need to do with CFA…”[48] Ms Harris said that she expressed her appreciation and advised that her preferred career path was working in the Governance, Risk and Compliance space and specifically risk function.[49] Ms Harris acknowledged that she had been supported by Mr Ramage during her employment when she interacted with him.[50]

Mr Ramage gave evidence that he could see that Ms Harris was “very, very upset.” Mr Ramage said that he felt concerned for Ms Harris, so he shared the story as a constructive way of dealing with the situation.[51] Mr Ramage rejected the proposition that the story was shared in order to generate Ms Harris’ resignation during this period, and noted that the conversation occurred before Ms Holding commenced employment and embarked upon the risk function review.[52]

Risk function review

In his capacity as the General Manager – Governance, Legal and Risk Services, Mr Ramage holds primary accountability for CFA’s risk management and other functions. The Governance, Legal and Risk portfolio was newly created in mid-2021, shortly before Mr Ramage commenced employment in October 2021.[53]

CFA’s risk function was one of three areas that Mr Ramage determined required review. Mr Ramage described CFA as not being close to where it needed to be in terms of its “risk management maturity.”[54] Mr Ramage identified practice and skill gaps in the risk team. Mr Ramage said that it was of concern that CFA’s risk registers were poorly maintained, there were insufficient links to operational plans and there was no detailed understanding of how risk management activities related to other corporate functions.[55] An example given by Mr Ramage was that the risk team focused only on the administration of lower-level transactional activities, such as emailing reminders that it was time to update information in the risk management information system. However, the team did not explain the methodologies associated with risk identification, assessment and controls.[56]

Mr Ramage said that his focus was on the output of the function and that the team, led by the former Chief Risk Officer, was producing something that did not meet the quality or timeliness of information CFA needed.[57] Mr Ramage attributed the deficiencies in the risk function to there being a lack of experienced risk management capability within the core team. This included a lack of contemporary risk management skills that were not aligned to CFA’s risk framework. Mr Ramage explained that CFA was relying on lower-level roles that had limited technical expertise or specialist qualifications. In addition, Mr Ramage considered that issues arose from segregated risk function teams working in silos, a lack of connection to the Business Continuity team (which impacted the capacity to deliver end to end advice about service delivery risks and management of same), inefficient business processes which resulted in the duplication of work, and limited succession planning opportunities with a “significant gap” between the roles at PTA level 5, and the Chief Risk Officer position.[58]

A significant change Mr Ramage made was to appoint Ms Holding as Chief Risk Officer, replacing the temporary incumbent.[59] Mr Ramage tasked Ms Holding with the role of “lifting the maturity of the risk management function and its staffing.”[60] This included working out the structure of the team that she required to best support her Chief Risk Officer role.[61] Ms Holding was also tasked with assessing whether the Business Continuity structure which was in the Strategic Services portfolio and therefore separate to Governance, Legal and Risk Services, would be better integrated into Ms Holding’s functions.[62]

Ms Holding commenced in her role as Chief Risk Officer on 14 July 2022. Ms Holding’s employment history prior to commencing with CFA involved the review of existing (or building of new) risk management frameworks within various organisations. Ms Holding was employed by CFA to lead and manage its risk, insurance, internal audit and business continuity functions.[63]

Ms Harris said that upon Ms Holding’s commencement, she sent Ms Holding an email detailing assurance function (internal audit) deficiencies and “blockers” Ms Harris had experienced, including the privacy breach.[64]

Following the commencement of her employment, Ms Holding undertook a review of the Risk, Assurance and Insurance team.[65] The issues of concern that Ms Holding identified are similar to those identified by Mr Ramage. Ms Holding said, for example, that there was a relatively immature understanding and ownership of risk management and noted that members of the risk team could not identify CFA’s top five risks. In addition, Ms Holding identified that risk reports would be prepared on the basis of email updates provide by other functions of the business in a “transactional” way, which demonstrated a significant disconnect between the Board, the Executive and the risk function team.[66]

Once Ms Holding had identified the deficiencies in the overall risk framework, she formed a view that many of the areas of concern she had identified could only be addressed by a complete restructure of the Risk, Assurance and Insurance team which also brought the Business Continuity function within its remit.[67] The proposed new structure centralised specialist risk functions into one team and moved the business’ focus from a risk-technology led function to a business partnership model.[68]

On 11 October 2022, Ms Holding produced a briefing note to CFA’s Chief Executive Officer, Natalie McDonald (October briefing note). The subject of the October briefing note was “Proposed restructure of Risk Assurance and Insurance function (RAIS).” The new structure proposed the redundancy of four roles[69] which Ms Holding considered excess to CFA’s requirements, or no longer suited to CFA’s requirements.[70] These roles relevantly included the Manager Risk and Assurance, the position that Ms Harris was temporarily backfilling, and Business Continuity Advisor, which was Ms Harris’ substantive position.[71]

Ms Holding also identified a need for specialist risk knowledge and competence so that incumbents in the new roles could provide specific guidance and advice to the business on the risks that had been identified (rather than processing the information that was received from the business unit in a transactional way).[72] Accordingly, as part of the new restructure, three new roles were to be created. Each of these roles would directly report to Ms Holding. Of relevance to these proceedings is the role of Senior Risk and Business Continuity Business Partner (PTA level 6). However, with respect to these three roles generally, the October briefing note explained as follows:[73]

“A preliminary evaluation of the position description for the two Risk Business partner roles have identified they sit within the PTA6 level descriptors, whilst the one Manager role sits within the PTA 7 level descriptors…”

Each of these positions were to have technical expertise in the area of risk as well as either in insurance, internal audit or business continuity (depending on the role). Ms Holding’s evidence is that each of these newly created roles would require the adoption of leadership responsibilities currently assumed by Ms Holding, with Ms Holding’s Chief Risk Officer role then having capacity to focus on other high level executive matters. These responsibilities involve the conception of new tasks and strategies (instead of them being solely delegated by the Chief Risk Officer).[74]

In addition, the new structure proposed a fixed term PTA level 2 role and the realignment of reporting structures for an existing PTA level 3 position.[75]

The October briefing note was identified as being “supported” by the Chief Executive Officer on 13 October 2022.[76] The proposed restructure was subsequently the subject of an employee consultation process following which approval was sought from the Chief Executive Officer to approve the final structure, create the four identified positions and declare the four identified positions redundant. The Chief Executive Officer endorsed the new structure on 16 November 2022.[77]

Ms Harris’ workload

Part 10 of the October briefing note concerns “Risks.” It identifies five matters and risk mitigating activities in respect of each. The five risks are identified as follows:[78]

(a)   Industrial action raised (at least one employee is an active union member).
(b)   Grievances received (previous grievances raised in response to HR role grading process).
(c)   Complaint (possible complaint relating to performance).
(d)   Reduction in productivity (impacted staff will disengage).
(e)   Redundancy (TSP) payment (possible financial impact).

It is not in contest that the “Complaint” risk involved Ms Harris and another employee.[79] The October briefing note specifies the following in response to this risk:[80]
“There are performance issues with two (2) of the current staff whose roles are proposed to be made redundant. The discussions have been informal at this stage. The risk that this is raised can be mitigated as it can be clearly demonstrated that the performance issues and the current and future organisational design are being treated as independent matters.”

Ms Holding’s evidence is that she had discussed Ms Harris’ workload and the reprioritisation of work with Ms Harris.[81] The discussion arose from Ms Harris’ concerns that her workload was excessive.[82] Ms Holding deemed this to be “a performance conversation or a discussion”[83] and sufficiently serious for it to be recorded in the October briefing note.[84]

Ms Harris gave evidence that during the period between late July and September 2022 she had discussions with Ms Holding (who had very recently commenced employment) about her workload. Ms Harris said that on 27 July 2022, she met with Ms Holding who requested Ms Harris to make changes to the approach to internal audit reporting. Ms Harris said the task involved considerable workload, so she raised her concerns about the timeframe with Ms Holding.[85] On 2 August 2022 Ms Harris advised Ms Holding that she was fatigued and not confident of completing the task.[86]

Ms Harris repeated her concerns to Ms Holding on 3 August 2022. Ms Harris advised Ms Holding that she had completed 39 hours of work between Sunday and Wednesday and felt that the workload was unsustainable.[87] Ms Harris, who was on a purchased leave plan (which had been established in February 2022 and involved Ms Harris taking every Friday off)[88] asked if she could cancel two days of her impending leave, or receive time off in lieu for the hours of work she had completed. Ms Harris said that her request was declined and Ms Holding said words to the effect that she “comes from private industry and we just get the work done.”[89]

Ms Holding rejected making this statement to Ms Harris.[90] Ms Holding’s evidence was as follows:

(a) A lot of the deadlines to which Ms Harris was working had been set prior to the beginning of Ms Holding’s tenure,[91] and Ms Harris said she was struggling with some of those deadlines.[92]
(b) Ms Harris had made it clear when Ms Holding commenced employment that she was looking to improve her work/life balance. Ms Holding understood that Ms Harris had put in place a paid leave arrangement pursuant to which Ms Harris would access annual leave on Fridays. Ms Holding said that he was supporting Ms Harris in that process.[93]
(c) During the discussion in which Ms Harris asked for time off in lieu, Ms Holding said “that I had come from private industry and I wasn’t sure what the time in lieu policy was and that I would need to speak with HR.”[94]

In response to [83](c) above, Ms Harris’ position is that Ms Holding made both statements; that she “comes from private industry and we just get the work done” as well as “I had come from private industry and I wasn’t sure what the time in lieu policy was and that I would need to speak with HR.”[95]

Ms Harris met with Mr Ramage on 14 September 2022. Ms Harris raised her concern that her workload had increased and her hours had decreased with limited consideration of the impacts and limitations this was creating for her.[96] Further, Mrs Harris considered that Ms Holding had been inflexible in adjusting Ms Harris’ purchased leave plan. However, Ms Harris conceded during cross-examination that Ms Holding had mentioned “a need to put up boundaries and build parameters” and was supportive of Ms Harris maintaining her Fridays off work.[97]

On 15 September 2022, Ms Harris advised Ms Holding that she would be unable to complete a work in progress report by close of business. Ms Harris contends that she offered to reduce her purchase leave hours the following day in order to complete the task, but was refused by Ms Holding.[98]

On 21 September 2022, Ms Harris repeated her concerns to Ms Holding that she was having difficulty completing her work requirements in the 30.4 hours available each week. Ms Harris contends that Ms Holding responded, “what am I going to do with you, do I need to place you on a PIP too?”[99] This is understood to be a reference to the direct report concerns, discussed below at [89]. Ms Harris understood the reference to a “PIP” to mean a performance improvement plan. It is not in dispute that Ms Harris was never placed on a performance improvement plan.[100] Nor did Ms Harris receive any formal performance warnings during her employment.[101]

Ms Holding rejected the contention that she had suggested that Ms Harris might need performance managing out of her job.[102] Ms Holding also did not accept that she had made any statement about putting Ms Harris on a performance management plan.[103] Ms Holding’s evidence about this matter was as follows:[104]

“I remember the conversation that you're referring to. I remember Ms Harris making comments about feeling like she was sinking and that she was aware that the area was broken, that [Ms Harris’ direct report] was a drain and was wasting a lot of Ms Harris's time, and I made notes of that occurrence. I remember the next day Ms Harris and I having a conversation and she was very upset, and I checked in with her to see how she was going, but I did not at any point raise whether Ms Harris needed to go on a performance improvement plan.”

The reference to Ms Harris’ direct report concerns an employee engaged as an Enterprise Risk Advisor with CFA, who reported directly to Ms Harris while Ms Harris held the temporary Manager Risk and Assurance role.[105] Ms Harris raised concerns with Ms Holding about the performance of the Enterprise Risk Advisor on 26 July 2022, shortly after Ms Holding commenced employment.[106] On 12 September 2022, Ms Harris says that Ms Holding told her to performance manage the Enterprise Risk Advisor “out.”[107] Ms Holding’s position is that she did have discussions with Ms Harris about performance managing the incumbent.[108] However, Ms Holding denies stating that Ms Harris was to performance manage the Enterprise Risk Advisor “out” and explained that in her view, a performance improvement plan is to “help somebody perform in their role.”[109]

Ms Harris and Ms Holding discussed the additional workload that performance managing the Enterprise Risk Advisor was creating for Ms Harris on 20 September 2022. Ms Harris said that Ms Holding repeated the sentiment about performing managing the incumbent “out” of the Enterprise Risk Advisor role, to which Ms Harris said that she would be setting the employee up for success.[110]

Ms Harris had further discussions with Ms Holding about resourcing and workload on 27 and 28 September 2022 before attending her treating practitioner on 28 September to obtain a mental health plan on account of the stress she was experiencing at work.[111] It appears that Ms Harris returned to work but was periodically absent between 5 October and 21 October 2022 on personal/carer’s leave (unrelated to the mental health plan), pre-planned annual leave and as a consequence of a deployment to the Victorian floods in Ms Harris’ incident management role.[112]

Workcover claim

In October 2022, Ms Harris commenced a period of leave and in December 2022, submitted a WorkCover claim which was accepted on 23 December 2023.[113] Ms Harris accepted during the proceedings that there was never any indication given to her that her substantive role and her temporary role were being made redundant because of her WorkCover claim. However, Ms Harris’ view was that she felt perhaps she was regarded as not the appropriate type of person to work for CFA because she was stressed and struggling.[114]

The PTA level 6 role

Ms Holding gave evidence that she was responsible for creating the position descriptions for the new positions referred to at [74] above. This process involved meeting with People & Culture, reviewing previous CFA position descriptions and those of other organisations, conducting market research and benchmarking exercises and creating the new position descriptions based on the information obtained through this process.[115] Ms Holding said that she designed the roles to be the type of roles she would like to have in the organisation to support her.[116] The position descriptions that she had prepared were provided to People & Culture, without commenting on how the positions should be classified,[117] and without being involved in the grading of those roles.[118]

In relation to the Senior Risk and Business Continuity Business Partner role, Ms Holding disagreed with the proposition that she designed the role to be at level 6 on the understanding that it would prevent Ms Harris from having priority redeployment into the role.[119]

Consideration – Question 2

The UFU submits that the question is about the real reason for the restructure and the redundancies. It considers that restructures are sometimes used to move people on, whether for good or bad reasons, and that it is the task of the Commission in resolving the dispute to determine what the true reason for the restructure was.[120]

I make the initial observation that the UFU’s position does not necessarily address clause 20.1 of the Agreement. The triggering condition in clause 20.1 is engaged when a role is found to be “excess to requirements” as a result of “a change to the way duties are performed” or because “the duties are no longer required to be performed by anyone.” The issue is not whether the common law or statutory definitions of redundancy are satisfied.[121] The focus of Question 2 is, in short, whether the roles are, in fact, “excess to requirements” “as a result of a change in the way duties were to be performed or because the duties are no longer required to be performed by anyone” in accordance with clause 20.1 of the Agreement.

Against this background, I turn now to consider the specific contentions advanced by the UFU in relation to the true reason for the redundancy. As noted above at [41]-[42], the UFU’s position is that there is a “reasonable basis” to infer that the roles were declared redundant because of matters personal to Ms Harris, and that “reasonable basis” is reflected in the four key reasons it advanced in its closing submissions. I observe that the UFU did not explain how these four key reasons generate an inference of this kind, and it is not clear on the face of the reasons themselves. In any event, I turn to address the four key reasons before turning to consider the seven matters personal to Ms Harris.

Reason: the restructure was about the incumbents, not the positions

The UFU submits that both the review and the restructure were not about functions, but primarily about people.[122] It contends that this proposition was accepted by Mr Ramage and Ms Holding in cross-examination. The UFU submits that Mr Ramage identified the key issue to be the risk management output and he accepted that the reason that the output was insufficient was because of the people performing risk management duties. On this basis, the UFU contends that it is not credible for CFA to represent the restructure as separate from the experience and competency of the incumbents in those roles.[123]

I observe that if the restructure was about the incumbents in the positions rather than the position themselves, then on the UFU’s argument clause 20.1 would not be engaged. An allegation that the positions were made redundant because of matters personal to Ms Harris is, in my view, a more specific aspect of the reason that the restructure was about the incumbents, not the positions. Accordingly, my consideration of this reason is confined to the specific arguments raised by the UFU in support.

The series of events which led to the restructure, and the steps taken by Mr Ramage and Ms Holding in undertaking it, demonstrates that there were legitimate reasons for the restructure.

It is not the case that the restructure occurred absent a broader institutional change. The advice of an external consultant concluded that there was a need to clarify the key accountability of the Chief Risk Officer.[124] This led to the appointment of Mr Ramage who in turn appointed Ms Holding with the role of “lifting the maturity of the risk management function and its staffing.”[125]

Ms Holding conducted a review of the existing framework and determined to implement a shift from a transactional technology led process to a business partnership model. The evidence and contentions with respect to this shift are considered in detail below at [135]-[143]. For present purpose, it is sufficient to note that I accept Ms Holding’s evidence that the two approaches are materially different and require personnel with different skills.

While it may be that the restructure considered the output of the team, such consideration is reasonable, and will often be necessary, in this type of review. Further, the UFU’s position with respect to this reason proceeds on the assumption that the only conclusion available on the evidence is that the restructure was about people, but that is not apparent. A review which identifies output as a concern can be addressed to the roles and duties which support the framework rather than the people themselves, against the context of the broader change identified at [100]-[102].

The evidence of Mr Ramage and Ms Holding is that there was an identified practice and skill gap within the risk team which meant that CFA’s risk function lacked sufficient risk management maturity. Mr Ramage, who has an extensive history in governance and reform, attributed the identified deficiencies in the risk function to there being a lack of experienced risk management capability within the core team, led by the former Chief Risk Officer, and a significant gap between the roles at PTA level 5 and the Chief Risk Officer. During cross-examination, Mr Ramage gave evidence that renewal “begins with getting a clear plan of what's required from that function and then understanding the capability to deliver that function.”[126] As Mr Ramage accepted, lifting the maturity of the risk management function involved “having the people with the right capabilities to get the outcomes” CFA needed.[127] However, Mr Ramage said that it also involved ensuring a clear approach and structure to providing information to the Board,[128] with a focus on the capability of the positions and not on individual performance of the incumbents.[129]

Ms Holding’s employment history demonstrates extensive experience in risk management, including the review and redevelopment, or complete overhaul, of existing risk management frameworks. Similar to Mr Ramage, Ms Holding explained that upon identifying the deficiencies in the overall risk framework, she formed the view that the “roles needed to be different,” and while she needed capable and experienced people in those roles, this did not involve making an assessment as to the role incumbents.[130]

Against the context of the events leading up to the restructure, I have no reason to doubt the legitimacy of Mr Ramage’s and Ms Holding’s motivations with respect to the restructure. Both were the designers of the restructure. I am therefore compelled by their evidence with respect to the intentions of the restructure.

I find, having regard to the evidence before the Commission, that a key aspect of raising CFA’s risk maturity involved making changes to its staffing requirements in order to best support CFA’s business needs. CFA’s focus was on the output of the positions in order to meet its risk requirements. I reject the contention that the review was primarily about the incumbents.

Reason: Ms Holding was not neutral about Ms Harris’ appointment to new role

I observe that this contention is not directly relevant to the issue to be determined. Clause 20.1 relates to roles being deemed excess to requirements. This contention is addressed to Ms Holding’s opinion regarding Ms Harris’ suitability for the new role. Regardless, the UFU’s focus on Ms Holding’s purported bias is, at its highest, an indirect fact which is said to demonstrate the alleged underlying motivations of one significant CFA manager involved in the restructure.

It is not in dispute that the terms of the Public Sector Industrial Relations Policies 2015 provides that redeployees have priority access to vacancies both at the employee’s classification level and below their classification level. Ms Holding described her understanding that as an employee in a role classified at PTA level 5, Ms Harris would have priority for redeployment into another level 5 role.[131]

The UFU contends that it is not credible that Ms Holding was “neutral” about whether Ms Harris was appointed to perform the new PTA level 6 role of Senior Risk and Business Continuity Business Partner, in the sense that Ms Holding did not want Ms Harris in the new role.[132] The UFU says that Ms Holding admitted that Ms Harris had repeatedly advised her that she found her workload to be excessive. The UFU submits that there are two main “discussions,” which are more accurately described as statements, which substantiate its contention that Ms Holding did not want Ms Harris in the new role.

The first discussion concerns Ms Holding’s statement regarding the work ethic in the public sector versus the private sector on 3 August 2022. Ms Harris says that when she raised concerns about her excessive workload and made a request for time off in lieu, Ms Holding stated that she “comes from private industry and we just get the work done” (first statement) as well as “I had come from private industry and I wasn’t sure what the time in lieu policy was and that I would need to speak with HR” (second statement). Ms Holding denies making the first statement attributed to her by Ms Harris, but accepts making the second statement.

Only Ms Harris and Ms Holding were present during this discussion. I consider that both witnesses gave an honest account of their respective recollections as to what was said. The discussion occurred on 3 August 2022, and allowance must be made for differences in recollection as a consequence of the passage of time.

Ms Holding’s employment history demonstrates that she has spent a significant proportion of her career working in private enterprise. Ms Holding accepts making the second statement, which indicates that Ms Holding had previously had little experience with time off in lieu arrangements. I accept that in those circumstances, it would be necessary for Ms Holding to speak to People & Culture in order to understand the nature of CFA’s arrangements and be in a position to respond to Ms Harris’ request to take time off in lieu in recognition of working hours that had been performed.

In light of Ms Holding’s limited previous exposure to time off in lieu arrangements, it seems to me to be contradictory that Ms Holding asked Ms Harris for time to speak with People & Culture about the effect of the policy on the one hand, but on the other hand made the first statement which implies an assumed knowledge about how the time off in lieu policy operates and is dismissive of it. On this basis, I prefer Ms Holding’s evidence that she did not make the first statement over that of Ms Harris.

In support of my conclusion that the first statement was not made by Ms Holding, I note the following two matters.

First, Ms Harris gave evidence that she sent a Microsoft Teams message to Mr Ramage on 13 September 2022 with an invitation to catch up. Mr Ramage met with Ms Harris by Microsoft Teams the following day. Ms Harris gave evidence that during this meeting she discussed with Mr Ramage (a) the unplanned changes and her increased workload, (b) Ms Harris’ concern that her hours had been decreased with limited consideration of the impacts and limitations it created, and (c) Ms Holding’s inflexibility around adjustment of Ms Harris’ purchased leave plan.[133] Ms Harris did not give evidence that she raised with Mr Ramage her concerns that Ms Holding had made the first statement.

Second, I find no evidence which demonstrates that Ms Holding engaged with Ms Harris in a manner so as to insult or embarrass Ms Harris for making the request for time off in lieu, or in a way that diminished Ms Harris’ concerns as to her workload. On the contrary, the evidence demonstrates that at the time Ms Holding commenced employment with CFA in July 2022, many of the deadlines to which Ms Harris was working towards had already been set and Ms Holding was assisting Ms Harris to reprioritise her tasks. While Ms Harris complained to Mr Ramage during their 14 September 2022 Microsoft Teams meeting that Ms Holding had been “inflexible” with adjusting Ms Harris’ purchased leave plan, I find that Ms Holding was in fact doing precisely as Ms Harris had asked and respecting the established arrangement involving Ms Harris taking Fridays off work. Ms Harris conceded during cross-examination that Ms Holding had mentioned “a need to put up boundaries and build parameters” and was supportive of this arrangement.[134] To the extent that it is contended that Ms Holding placed unreasonable work demands upon Ms Harris, this is at odds with the evidence, and I reject it.

The second discussion occurred on 21 September 2022 by Microsoft Teams. Ms Harris contends that when she again raised concerns about her workload, Ms Holding responded, “what am I going to do with you, do I need to place you on a PIP too?” Ms Holding denies making this statement or that she had suggested that Ms Harris may need performance managing out of her job.

The UFU submits that Ms Holding also denied that she had raised any performance issues with Ms Harris. It contends that when it was brought to Ms Holding’s attention that she had recorded in the October briefing note that performance issues had been raised with Ms Harris, Ms Holding was forced to “backtrack”[135] or qualify her statements because it is clear that she had raised performance issues with Ms Harris. It says that Ms Holding’s failure to produce notes of this conversation, which Ms Holding said she had taken during cross-examination, to corroborate her version of events provides a sufficient basis for the Commission to infer that such notes would not have assisted Ms Holding’s evidence.[136]

I accept the UFU’s contention that the “notes” of the conversation do not provide support for Ms Holding’s position, though it is observed that Ms Holding does not seriously rely on the existence or content of the notes to support her position. In any event, while it is trite to observe that the Commission is not bound by the rules of evidence, it must still base its factual findings on the evidence before it. In circumstances where the Commission does not have a copy of the notes, does not know whether they were extensive or simply a few words or when they were made, there is no basis to rely on the existence or content of the notes in any capacity. It is observed that the application for orders to produce documents made by the UFU in these proceedings was not addressed to notes concerning conversations in relation to Ms Harris’ performance.[137]

Nevertheless, the UFU’s submissions in relation to Ms Holding backtracking on her evidence are not accurate. Ms Holding consistently asserted, and never denied, having an informal conversation with Ms Harris about her performance. During cross-examination, the UFU asked Ms Holding whether she denied raising performance issues with Ms Harris. Ms Holding replied that she remembered a conversation where she discussed workload issues with Ms Harris.[138] The UFU then put to Ms Holding the October briefing notes, which identify performance issues of two employees as a risk, and asked whether she had in fact raised performance issues with Ms Harris.[139] Ms Harris affirmed that she had a conversation with Ms Harris where Ms Harris discussed her workload issues and noted that she was unclear who had “raised” the matter.[140]

The relevant part of the October briefing note concerns the risk of a “possible complaint relating to performance” in the context of the restructure. The background and mitigating activities of the risk are, in full, as follows:

“There are performance issues with two (2) of the current staff whose roles are proposed to be made redundant. The discussions have been informal at this stage. The risk that this is raised can be mitigated, as it can be clearly demonstrated that the performance issues and the current and future organisational design are being treated as independent matters.”

Significantly, the October briefing note identifies that “discussions have been informal at this stage.” I accept that such discussions, while informal in a performance management sense, were not matters that Ms Holding regarded to be irrelevant for the purposes of identifying possible risks to the Chief Executive Officer. It is necessary to consider that the risk itself concerns employee complaints in relation to performance in the context of the restructure. The “performance issues” are not of themselves the focus of the risk; the focus of the risk is employees considering the restructure related to their performance and making a complaint.

Nor do I accept that Ms Holding was required to “backtrack” from an earlier denial that she proposed to put Ms Harris on a performance review plan. Ms Holding’s position is not in conflict with the content of the October briefing note which identifies that informal performance discussions had taken place.

Further, the evidence does not demonstrate that Ms Holding compelled Ms Harris to say anything about her performance. Rather, Ms Harris raised her workload concerns in various informal discussions with Ms Holding. This is contrary to the UFU’s position that Ms Holding had raised performance concerns with Ms Harris.

Accordingly, the UFU’s submissions in this respect are rejected.

With respect to the question of whether Ms Holding said to Ms Harris words to the effect of “what am I going to do with you, do I need to place you on a PIP too?” there is conflicting evidence. Ms Holding denies making the statement. There is no evidence of Ms Harris responding to such a significant statement, or taking steps to confer with Mr Ramage about it. Significantly, Ms Holding’s recollection of the discussion is that Ms Harris had been very upset about her workload and feeling like she was “sinking.” Consequently, Ms Holding checked in on Ms Harris the following day. In this context, I do not find that Ms Holding said to Ms Harris words to the effect of “what am I going to do with you, do I need to place you on a PIP too?” Such a statement is contrary to other evidence before the Commission, which I accept, that Ms Holding had provided support and guidance to Ms Harris in relation to workload concerns.

In reaching this view, I have not been persuaded by Ms Harris’ contention that Ms Holding was seeking to performance manage “out” another employee, such that it is open to infer that the same outcome was desired for Ms Harris. Ms Holding was taken to an email chain between she and Ms Harris in relation to the performance management of the Enterprise Risk Advisor.[141] This document does little more than demonstrate that Ms Harris was performing her role as a manager and working through performance issues that she had specifically identified with an employee within her line of management, with Ms Holding’s support. The document does not indicate that Ms Holding had a propensity to misuse a performance management process or that she regarded such a process as a mechanism for getting employees “out” of the business. On the contrary, Ms Holding’s evidence is that that in her view, a performance improvement plan is to “help somebody perform in their role.”[142] In these circumstances, I accept Ms Holding’s evidence that she did not suggest that Ms Harris might need performance managing out of her job or that she was seeking this as an outcome in relation to the employee within Ms Harris’ line management.

In my view, the evidence does not support a conclusion that Ms Holding was motivated by any bias with respect to Ms Harris’ performance or otherwise.

Reason: Ms Holding designed the new role at PTA level 6 to prevent priority redeployment

The UFU contends that it is not credible for Ms Holding to deny that the new role was intentionally designed to be a PTA level 6.[143] The UFU points to the restructure proposal which budgeted for the role to be at level 6, and further states that the vacancies will be filled with recruitments, not redeployments.[144]

It is not in dispute that Ms Holding designed the new roles. Relevantly, as it relates to the role of Senior Risk and Business Continuity Business Partner, Ms Holding said that the position was designed to provide support to the Chief Risk Officer. This is consistent with the position description for the new role,[145] and the summary of the difference between the old roles and the new roles provided by Ms Holding in her witness statement, set out in full below at [139].[146]

Ms Holding’s evidence is that the creation of the new roles, and their classification level, were matters contemplated as part of the proposed restructure and therefore addressed in the October briefing note.[147] Given the differences between the roles, a “preliminary evaluation” was undertaken for the purposes of the October briefing note which classified the role of Senior Risk and Business Continuity Business Partner at PTA level 6.[148] Accordingly, the October briefing note simply recognises that priority redeployment would not occur because the new roles had a preliminary classification at a level higher than the existing roles and so were not a “suitable vacancy” for the purposes of clauses 20.3-20.4 of the Agreement. Further, the October briefing note observes that the affected employees would be eligible for a redeployment process. It is not the case that thought was not appropriately given to this issue at the preliminary stage.

Ms Holding denies that she designed the role to be at PTA level 6 on the understanding that it would prevent Ms Harris from having priority redeployment into the role. I reject the UFU’s contention that Ms Holding’s denial in this respect is not credible. There is no direct evidence to support the very serious allegation that Ms Holding manufactured the new role in a manner designed to deny Ms Harris a priority redeployment opportunity. Rather, the evidence overwhelmingly supports a conclusion that the role was designed to meet the outcomes of the review. This necessarily included a requirement for technical expertise in the area of risk, and the assumption of leadership responsibilities currently performed by the Chief Risk Officer. I find that Ms Holding designed the position description for the role of Senior Risk and Business Continuity Business Partner with these outcomes in mind. I accept that Ms Holding had no role in grading the positions, being a task undertaken by CFA’s People and Culture team.

Reason: Lack of material distinction between Ms Harris’ level 5 roles and the new level 6 role

The UFU contends that there is a lack of material distinction between the new Senior Risk and Business Continuity Business Partner PTA level 6 role and Ms Harris’ substantive and temporary level 5 roles.[149] The UFU accepts that this issue is the subject of agreed Question 3, but it relies upon the following matters in support of its contentions in Question 2.[150] I accept that the issue is directly relevant to whether there has been a change in the way duties are to be performed for the purposes of clause 20.1 of the Agreement, and the issue of whether the change in duties exists in fact.

Ms Holding gave evidence that the restructure brought about a significant change in the way duties were performed because there was a shift in focus from a “transactional technology lead process” to a “business partnership model process.”[151] Ms Holding explained the distinction in these approaches, both in her witness statement and in response to questions during cross-examination. In summary, Ms Holding regards a transactional style as the team relying upon other personnel in the business identifying risks for them, and the team producing reports on this basis. The business partnership approach involves the team gathering the relevant information used to identify risks and reporting to the business based on the learnings gathered through a relationship-led approach.[152]

To the extent that the UFU contends that Ms Holding accepted during cross-examination that the distinction between these working styles is “subtle,”[153] such a contention is rejected. Ms Holding gave evidence that she based the new position description on those that already existed for the previous roles and insofar as the question of the position descriptions are concerned, said as follows:[154]

“…I do not believe it is useful to conduct a line-by-line comparison of the position descriptions against one another to identify the similarities. The key changes are in some cases subtle and were about shifting the terminology used to describe the purpose and functions of the new roles.”

It is apparent that Ms Holding was referring to, in some cases, a subtle difference between matters set out in the position description for the new PTA level 6 role against the position descriptions for that already existed for the PTA level 5 roles.[155] This is a different matter than the difference between a “transactional technology lead process” to a “business partnership model process.” I do not consider these types of processes to be subtle in their differences. In my view, the latter is an initiative-led approach, and the former is not.

The UFU further contends that Ms Holding drew a “linguistic distinction”[156] between the new PTA level 6 role and the level 5 PTA roles on the basis that the latter involves a “leadership” approach, and the former involves “co-ordination” work. The UFU contends that the distinction is a “minor one” and shifts focus to the person occupying the role and their style of engagement within the broader business. To this end, the UFU contends that there is no evidence before the Commission detailing how Ms Harris personally performed her functions, whether in a transactional style or in a partnership style and therefore how she would perform in the new PTA level 6 role.

Ms Holding’s evidence was that “coordinating is much more about doing more of the transactional work, whereas leading is leading, facilitating, working with executive.”[157] In my view, this is a key difference between the PTA level 5 roles and the new PTA level 6 role. It is a material distinction. This is consistent with the extensive list of differences between the PTA level 5 roles and the PTA level 6 role set out in Ms Holding’s statement, which are in full as follows:[158]

(a) this position reports to [Chief Risk Officer] (whereas the Business Continuity Advisor reported to the Manager, Planning and Performance, PTA Level 7);

As found above, I consider that 12 of the key duties and accountabilities for the Manager Risk and Assurance role to be aligned to PTA level 5, three to be aligned to PTA level 6, and one duty capable of falling into either PTA level 5 or level 6. Noting these matters, based on an overall assessment of the role, I find that the role was appropriately classified as PTA level 5.

In light of the above matters and the conclusions reached, the answer to Question 3 is as follows:

(a)Is the position of “Senior Risk Business Partner and Business Continuity” within the Risk, Assurance & Insurance Services team properly classified as a PTA 6 role?
“Yes, this being a reference to the role of Senior Risk and Business Continuity Business Partner.”
(b)Was the position of Business Continuity Advisor within the Strategic Services portfolio properly classified as a PTA 5 level role?
“Yes.”
(c)Was the position of Manager Risk and Assurance within the Risk, Assurance & Insurance Services team properly classified as a PTA level 5 role?
“Yes.”

Question 4

Having regard to the answers in question 3, is the proposed CFA position of “Senior Risk Business Partner and Business Continuity” a “suitable vacancy” for Ms Harris within the meaning of cl 20.4 of the 2021 Agreement and/ or 19.4 of the 2020 Agreement.

A “suitable vacancy” within the meaning of clause 20.4 of the Agreement is a position classified at an employee’s substantive classification level, or a lower classified position. Redeployees have priority access to vacancies at the employee’s substantive classification level and below their substantive classification level. [214]

Having regard to the answers to Question 3, the position of “Senior Risk Business Partner and Business Continuity” (being a reference to the Senior Risk and Business Continuity Business Partner role (PTA level 6)) is not a suitable vacancy for Ms Harris. This is because it is not a vacancy at Ms Harris’ classification level of PTA level 5 (based on Ms Harris’ substantive position of Business Continuity Adviser or her temporary position of Manager Risk and Assurance), or below her classification level.

The answer to Question four is “no.”

Question 5

Has the CFA met its obligation under cl 11.1.5.1(c) of the 2021 Agreement and/or cl 11.1.5.1.4 of the 2020 Agreement to discuss with Jess Harris measures it is taking to avert or mitigate the adverse effect of proposed changes to roles within Risk, Assurance & Insurance Services Team?

The UFU does not press this aspect of the dispute and does not seek that the Commission answer Question 5.

CFA submits that the Question 5 was advanced as part of an agreed consent position between the parties and there is value in the question being answered.

In circumstances where the applicant to the dispute does not press this aspect of it, I decline to answer Question 5.

Question 6

Was the CFA obliged to suspend the redeployment period for Jess Harris provided for in cl 20.2 of the 2021 Agreement and/or 19.2 of the 2020 Agreement upon a grievance/dispute being submitted in respect of her role becoming redundant.

Clause 12 of the Agreement is titled Grievance/Dispute Settlement Procedure. Sub-clauses 12.6.1 and 12.6.2 appear under the heading “Maintenance of Status Quo” and are set out in full at [13] of this decision.

The UFU submits that the Question 6 is directed towards resolution of whether CFA should suspend the redeployment period which is the subject of clause 20.2 of the Agreement while the dispute remains on foot. The redeployment period involves “redeployment actions” over a three-month period and may result in the termination of employment under clause 20.3 of the Agreement if no suitable vacancy exists.

The Full Bench in United Voice v Fosters Australia Limited (Fosters)[215] considered a status quo provision which, like the Agreement, does not limit the application of the status quo to the performance of work. The relevant provision was to the effect that, “whilst the parties are attempting to resolve the matter the status quo will prevail.”[216] The issue before the Full Bench involved a dispute in respect of workplace change. There, the question was whether the status quo clause authorised non-participation by employees in a work trial in relation to roster changes. The Full Bench found that applying ordinary meaning to the term “status quo” would, when read in isolation, operate to stay the implementation of any workplace change. Specifically, the Full Bench observed:[217]

“We are inclined to the view that the “status quo” provision in Appendix C, applying the ordinary meaning of the expression, would, read in isolation, operate to stay the implementation of any workplace change that is put into dispute before it is implemented pending the completion of the various steps set out in Process (a) of Appendix C to resolve disputes. We note that clause (vi) of Process (a) provides that the process “should” be completed within five working days, so the result of this approach could not be regarded as so oppressive to the employer as not to have been intended.”

The Full Bench ultimately concluded that the status quo provision in the relevant enterprise agreement was overridden by other terms of the agreement that provided for the work trial to proceed.[218]

Having regard to the decision in Fosters, the parties broadly agree that the implementation of any workplace change that is put into dispute before it is implemented should be stayed pursuant to the status quo provision, pending the completion of the dispute resolution process. However, the relevant difference between the parties is primarily in framing what the issue was that was originally “put into dispute” by Ms Harris and the UFU.

CFA contends that what is “put into dispute” must be determined by reference to the relevant dispute or grievance as it was characterised at the commencement of the dispute resolution process and the normal conditions/arrangements in existence immediately prior to the cause of that dispute arising. CFA submits that the relevant dispute was in relation to CFA redeploying Ms Harris into the new PTA level 6 role. Accordingly, it says that the status quo clause only extends to putting on hold the recruitment of the new PTA level 6 position and not to extending the redeployment period.

To this end, the evidence of Ms Holding provides that CFA has complied with this; an initial recruitment process for the role of Senior Risk Business Partner and Business Continuity role commenced on 23 November 2022, but that process has since been placed on hold.[219]

The UFU contends that CFA was obliged to suspend the redeployment period for Ms Harris upon a grievance/dispute being submitted in respect of the retrenchment of her roles. It relies upon the initial 7 December 2022 correspondence sent by the UFU to CFA submitting the dispute in support of its position that the dispute was broader than contended by CFA and includes the overall decision to declare Ms Harris’ roles redundant.

Consideration – Question 6

It is not in dispute that the dispute was commenced under clause 12 of the 2020 Agreement which is in the same terms as clause 12 of the Agreement.

The UFU notified the dispute by email to Ms Holding on 7 December 2022 on Ms Harris’ behalf. The parties agree that the email disputed “CFA’s decision not to appoint [Ms Harris] to the newly created position of Senior Risk and Business Continuity Business Partner.”[220] The 7 December 2022 email relevantly states as follows:[221]

“I’m writing on behalf of Jessica Harris to notify you of a dispute under clause 12 of the CFA PTA 2020 Agreement (PTA Agreement).

Jessica is disputing CFA's decision to not appoint her to the newly created position of Senior Risk and Business Continuity Business Partner for reasons including the following:
·The decision was not in accordance with objectives of the PTA agreement, nor the Public Sector Industrial Relations Policy 2015 to provide secure and fulfilling work, and pursue all possible means to secure continuation of employment of affected employees.

·The decision is in breach of specific requirements in the agreement including the consultation requirement to mitigate adverse effects of change.

·The decision to declare Jessica's position redundant, and her as excess to CFA's requirements, does not meet the requirements of a genuine redundancy. The primary function of the position (Business Continuity Management) is still required by CFA, as has been established through the final structure and advertisement of the new position. The duties and capabilities of the new position do not indicate any greater technical requirements, and overall the delivery of duties and capability requirements are not materially different to her current substantive or seconded position requirements.

Jessica seeks you to resolve this matter by providing her an ongoing appointment to the Senior Risk and Business Continuity Business Partner position.
Please be reminded that whilst the dispute is unresolved the status quo shall continue to apply and the proposed changes may not be implemented.”

CFA’s submissions focus solely on the aspect of the 7 December 2022 email in which it is stated that Ms Harris “is disputing CFA's decision to not appoint her to the newly created position of Senior Risk and Business Continuity Business Partner…” However, the correspondence further proceeds by:

(a) explaining that the basis for the dispute is for reasons including that the decision to declare Ms Harris’ position redundant “does not meet the requirements of a genuine redundancy,” including because the new PTA level 6 role is not materially different to Ms Harris’ substantive and temporary PTA level 5 positions; and

(b) seeks a resolution of “this matter” by providing Ms Harris an ongoing appointment to the PTA level 6 role.

I find, having regard to the 7 December 2022 email, that the UFU disputed CFA’s decision to (a) not appoint Ms Harris to the PTA level 6 role, and (b) declare Ms Harris’ substantive and temporary roles redundant.

I do not accept CFA’s contention that the dispute was triggered solely by the UFU’s request that Ms Harris be appointed to the new PTA level 6 position. This argument fails to take into account the content of the dispute notification as a whole. Nor do I accept CFA’s submission that there has been a fundamental shift in the nature of the dispute that was commenced by reason of the specific challenge made by the UFU that the two PTA level 5 roles were made redundant because of “matters personal” to Ms Harris. I regard the UFU’s contention in this respect to be a component of its 7 December 2022 allegation that the redundancy of Ms Harris’ substantive position was not a “genuine redundancy” (as that term is used in ordinary parlance, noting that this is not an application that gives rise to consideration of the matters in s 389 of the Act). The subsequent framing by the UFU of this aspect of the dispute in this way does not relevantly bear upon the manner in which the 7 December 2022 dispute notification is to be understood.

CFA was on notice in the week following notification of the dispute that Ms Harris sought that the redeployment period be paused. CFA declined Ms Harris’ request by email dated 21 December 2022.[222]

Application of the status quo provision in the Agreement

Clause 12.6.1 of the Agreement provides that “while this procedure is being followed the status quo will be maintained until the matter is resolved…” The reference to “this procedure” is plainly a reference to the grievance/dispute settlement procedure which is the subject of clause 12 of the Agreement, and the parties did not contend otherwise. Nor is it contended that there has been a failure to enact Step Three within 14 days for the purposes of clause 12.6.1 of the Agreement.

The operation of a “status quo” provision depends upon the text of the relevant enterprise agreement and the particular circumstances in question.[223] The Agreement does not define the term “status quo.” The UFU contends that the term “status quo” is akin to the “usual practice.”[224] CFA’s position is that by its ordinary meaning, “status quo” relates to the “the existing or previously existing state or condition.”[225]

I am satisfied, having regard to the correspondence issued to Ms Harris by CFA on 21 November 2022,[226] that the existing or previously existing state or condition when the dispute was raised was that Ms Harris’ substantive and temporary positions had been declared redundant by CFA, a formal redeployment period had commenced on 21 November 2022, and an appointment was to be made for the PTA level 6 role.

In is not in dispute that the initial recruitment process for the role of Senior Risk and Business Continuity Business Partner commenced on 23 November 2022, but that process has since been placed on hold having regard to the operation of the status quo provision.[227] However, with respect to the redeployment period, CFA advised the UFU on 14 February 2023, that as Ms Harris’ redeployment period had commenced prior to the dispute being notified, it would be consistent with the status quo for the redeployment process to run in parallel with the dispute.[228] For the reasons that follow, I disagree with CFA’s construction.

The “redeployment actions” that CFA is to take in relation to “excess Employee/s” in accordance with clause 20.2 of the Agreement are triggered when an employee’s position becomes excess to CFA’s requirements under clause 20.1. I accept the UFU’s contention that by its 7 December 2022 dispute notification, the UFU challenged CFA’s decision to declare Ms Harris’ substantive and temporary roles redundant. This is the workplace change that gave rise to the dispute. The UFU challenged the triggering condition in clause 20.1 which precedes the commencement of the redeployment period under clause 20.2.

The consequence of the invocation of the grievance/dispute settlement procedure is that the “status quo will be maintained until the matter is resolved.” It follows that, consistent with the decision of the Full Bench in Fosters, upon the notification of the dispute on 7 December 2022, the status quo clause operated to stay the implementation of the workplace change that was “put into dispute” before it is implemented, pending the completion of the various steps set out in clause 12 of the Agreement.

There are no other provisions of the Agreement which would override the operation of the status quo provision. Accordingly, until the dispute the subject of the 7 December 2022 notification is resolved, which concerns, inter alia, the triggering condition in clause 20.1 of the Agreement, CFA must not implement the “redeployment actions” in accordance with clause 20.2 of the Agreement. That is, the redeployment actions cannot be engaged absent the resolution of the dispute or grievance regarding the triggering conditions that precede it.

Contrary to the position advanced by CFA, this does not amount to an “extension” of the redeployment period. The issuance by the UFU of the dispute notification on 7 December 2022 had the effect of pausing the redeployment period, which had been active for approximately 2.5 weeks, having commenced on 21 November 2022.

Further, contrary to CFA’s submissions, Ms Harris’ apparent unwillingness to date to avail herself of opportunities for redeployment that have been presented to her by CFA since 21 November 2022[229] does not relevantly bear upon the construction of the status quo provision of the Agreement and I have not taken it into account.

Conclusion – Question 6

The answer to Question 6 is “Yes. CFA was obliged to suspend the redeployment period for Ms Harris provided for in clause 20.2 of the Agreement upon a grievance/dispute being submitted in respect of her role(s) becoming redundant.”

DEPUTY PRESIDENT

Appearances:

Mr P. Lettau, of Counsel, for the applicant
Ms J. Lucas, of Counsel, for the respondent, instructed by Clayton Utz

Hearing details:

2023.
Melbourne:
May 16.

ANNEXURE A

Agreed questions for determination

Does cl 20 of the Country Fire Authority Professional, Technical and Administrative Agreement 2021 (2021 Agreement) and/or cl 19 of the Country Fire Authority Professional, Technical and Administrative Agreement 2020 (2020 Agreement operate as a code such that Country Fire Authority (CFA) may only terminate the employment of Jess Harris by reason of redundancy in accordance with that clause?
Are the CFA positions of “Business Continuity Advisor” within the Strategic Services portfolio and “Manager Risk & Assurance” within the Risk, Assurance & Insurance Services team “excess to the CFA’s requirements” within the meaning of cl 20.1 of the 2021 Agreement and/or cl 19.1 of the 2020 Agreement as a result of:
(a) a change to the way duties are performed; or
(b) because the duties are no longer required to be performed?

According to Schedule 3 of the 2021 Agreement and having regard to the Level 5 Descriptors and the Level 6 Descriptors:
(a)   is the position of Senior Risk Business Partner and Business Continuity within the Risk, Assurance & Insurance Services team properly classified as a PTA 6 role;
(b)   was the position of Business Continuity Advisor within the Strategic Services portfolio properly classified as a PTA level 5 role;
(c)   was the position of Manager Risk & Assurance within the Risk, Assurance & Insurance Services team properly classified as a PTA level 5 role.
Having regard to the answers to question 3, is the proposed CFA position of “Senior Risk Business Partner and Business Continuity” a “suitable vacancy” for Ms Harris within the meaning of cl 20.4 of the 2021 Agreement and/or cl 19.4 of the 2020 Agreement.
Has the CFA met its obligation under cl 11.1.5.1(c) of the 2021 Agreement and/or cl 11.1.5.1.3 of the 2020 Agreement to discuss with Jess Harris measures it is taking to avert or mitigate the adverse effect of proposed changes to roles within the Risk, Assurance & Insurance Services Team?
Was the CFA obliged to suspend the redeployment period for Jess Harris provided for in cl 20.2 of the 2021 Agreement and/ or 19.2 of the 2020 Agreement upon a grievance/dispute being submitted in respect of her role becoming redundant.

[1] AE518875; [2023] FWCA 124 at [222]

[2] Agreement, cl. 6.1

[3] Agreement, cl. 5.2.1

[4] Agreement, cl. 5.2.2

[5] Agreed statement of facts dated 18 April 2023 (ASOF), Annexure A

[6] ASOF, Annexure C

[7] ASOF, Annexure D

[8] ASOF, Annexure E

[9] ASOF, Annexure F

[10] ASOF, Annexure G

[11] ASOF, Annexure H

[12] ASOF, Annexure I

[13] ASOF, Annexure J

[14] ASOF, Annexure K

[15] ASOF, Annexure L

[16] ASOF, Annexure M

[17] [2020] FCAFC 123 at [65]; see further AMWU v Berri (2017) 268 IR 25 at [114]

[18] Noting that this was raised as the only basis upon which to infer that the roles were made redundant because of matters personal to Ms Harris in the UFU’s written materials: see outline of submissions filed by the UFU dated 18 April 2023 (UFU submissions) at [19]

[19] Exhibit 1 at [5]-[6]

[20] Exhibit 1 at [6]-[9]

[21] Exhibit 1 at [10]

[22] Exhibit 1 at [19]-[20]

[23] Exhibit 1 at [31]-[32]

[24] Transcript of proceedings dated 16 May 2023 (Transcript) at [99]

[25] Transcript at [75]-[77]

[26] Transcript at [82]

[27] Transcript at [296]-[297]

[28] Ibid

[29] Exhibit 1 at [21]-[23]; Annexure JSH-4 to Exhibit 1

[30] Exhibit 1 at [25]

[31] Exhibit 1 at [26]

[32] Exhibit 1 at [27]

[33] Exhibit 1 at [28]

[34] Exhibit 1 at [29]

[35] Transcript at [92]

[36] Transcript at [93]

[37] Exhibit 1 at [33]-[38]; Annexure JSH-6 to Exhibit 1

[38] Exhibit 1 at [44]

[39] Transcript at [113]

[40] Transcript at [321]

[41] Exhibit 1 at [45]-[46]

[42] Exhibit 1 at [47]

[43] Exhibit 1 at [48]-[49]

[44] Transcript at [118]

[45] Exhibit 1 at [52]

[46] Exhibit 1 at [50]

[47] Ibid

[48] Exhibit 1 at [51]

[49] Ibid

[50] Transcript at [122]

[51] Transcript at [290]

[52] Transcript at [292]-[293]

[53] Exhibit 4 at [1], [2] and [4]; Transcript at [239] and [255]

[54] Exhibit 4 at [6]

[55] Ibid

[56] Exhibit 4 at [9]

[57] Transcript at [279]

[58] Exhibit 4 at [11]

[59] Transcript at [260]-[261]

[60] Exhibit 4 at [8]

[61] Exhibit 4 at [11]

[62] Ibid; Exhibit 5 at [11]-[12]

[63] Exhibit 5 at [1]-[2]

[64] Exhibit 1 at [54]

[65] Exhibit 5 at [7]-[9]

[66] Exhibit 5 at [10]

[67] Exhibit 5 at [19]

[68] Exhibit 5 at [21] and [33]-[34]

[69] Exhibit 5 at [23]; Annexure RH-1 to Exhibit 5 at p.5

[70] Exhibit 5 at [25]

[71] Exhibit 5 at [23]; Annexure RH-1 to Exhibit 5 at p.5

[72] Exhibit 5 at [29]

[73] Annexure RH-1 to Exhibit 5 at p.5

[74] Exhibit 5 at [30]

[75] Exhibit 5 at [31]

[76] Ibid at p.8

[77] Annexure RH-2 to Exhibit 5 at p.6

[78] Annexure RH-1 to Exhibit 5 at p.7

[79] Transcript at [402]

[80] Annexure RH-1 to Exhibit 5 at p.7

[81] Transcript at [395], [403]

[82] Transcript at [394]-[397]

[83] Transcript at [403]

[84] Transcript at [405]

[85] Exhibit 1 at [56]

[86] Exhibit 1 at [58]

[87] Exhibit 1 at [59]

[88] Transcript at [132]

[89] Exhibit 1 at [60]

[90] Transcript at [386]-[387]

[91] Transcript at [380]-[381]

[92] Transcript at [383]-[385]

[93] Transcript at [376] and [379]

[94] Transcript at [385]

[95] Transcript at [136]-[140]

[96] Exhibit 1 at [67]-[69]

[97] Transcript at [133]-[134]

[98] Exhibit 1 at [70]

[99] Exhibit 1 at [73]

[100] Transcript at [173]

[101] Transcript at [282]-[285]

[102] Transcript at [388]

[103] Transcript at [389]

[104] Transcript at [173], [394]

[105] Exhibit 1 at [27]

[106] Exhibit 1 at [55]

[107] Exhibit 1 at [66] and [72]

[108] Transcript at [390]

[109] Transcript at [391]-[392]

[110] Exhibit 1 at [72]

[111] Exhibit 1 at [74]-[75]

[112] Exhibit 1 at [76]-[78]

[113] Exhibit 2 at [5]

[114] Transcript at [177]; Exhibit 2 at [5]

[115] Exhibit 5 at [35]

[116] Transcript at [421]

[117] Exhibit 5 at [37]

[118] Transcript at [421] and [428]

[119] Transcript at [431]

[120] Transcript at [492]

[121] UFU submissions at [14]-[15]

[122] Transcript at [493]

[123] Transcript at [495]-[497]

[124] SOAF, Annexure C at p.35

[125] Exhibit 4 at [8]

[126] Transcript at [281]

[127] Transcript at [265] and [270]

[128] Transcript at [268]

[129] Transcript at [319]-[320]

[130] Transcript at [369] and [371]

[131] Transcript at [420]

[132] Transcript at [493] and [498]

[133] Exhibit 1 at [69]

[134] Transcript at [133]-[134]

[135] Transcript at [503]

[136] Transcript at [394], [466], [472] and [500]-[505]

[137] United Firefighters’ Union of Australia v Country Fire Authority[2023] FWC 1118

[138] Transcript at [394]

[139] Transcript at [399]-[403]

[140] Transcript at [403]-[404]

[141] Exhibit 3

[142] Transcript at [391]-[392]

[143] Transcript at [506]

[144] Transcript at [507], Annexure RH-1 to Exhibit 5 at p.1, 6 CB 260 and 265

[145] Exhibit 1 at JSH-10 at p.2

[146] Exhibit 5 at [38]

[147] Exhibit 5 at [29]-[30]

[148] Annexure RH-1 to Exhibit 5 at p.5

[149] UFU submissions at [19]; Transcript at [494] and [508]

[150] UFU submissions at [19]

[151] Exhibit 5 at [26]

[152] Transcript at [433]; Exhibit 5 at [27]-[28]

[153] Transcript at [509]-[510]

[154] Exhibit 5 at [38]

[155] Transcript at [476]

[156] Transcript at [509]-[510]

[157] Transcript at [447]

[158] Exhibit 5 at [38]

[159] Transcript at [446]-[453]

[160] Transcript at [449]-[453]

[161] Exhibit 1 at [46]; Transcript at [84]

[162] Transcript at [87]

[163] Exhibit 1 at [29]

[164] Transcript at [92]

[165] Transcript at [93]

[166] Transcript at [99]-[102]

[167] Transcript at [113] and [118]

[168] Transcript at [299]

[169] Transcript at [303]-[305]

[170] Transcript at [121]

[171] Exhibit 1 at [50]

[172] Exhibit 1 at [51]

[173] Exhibit 1 at [51]

[174] Transcript at [290]

[175] Transcript at [292]-[293]

[176] Transcript at [122]

[177] Ibid

[178] Transcript at [177]

[179] [2013] FWC 5149

[180] Ibid at [20]

[181] Annexure A to the UFU submissions

[182] [2020] FWCFB 2993

[183] (2018) FCCA 45 at [12]-[14]

[184] [2020] FWCFB 2993 at [32]-[33]

[185] Cf. Telstra Corporation Ltd v CPSU, the Community and Public Sector Union[2022] FWCFB 64 at [6]

[186] United Firefighters' Union of Australia v Country Fire Authority [2013] FWC 5149 at [20]

[187] Exhibit 5

[188] Annexure JSH-10 to Exhibit 1

[189] Ibid

[190] Ibid

[191] Ibid

[192] Ibid

[193] Annexure A to the UFU submissions

[194] Annexure JSH-2 to Exhibit 1

[195] Ibid

[196] Ibid

[197] Ibid

[198] Annexure A to the UFU submissions

[199] Under the business continuity component of the role

[200] Exhibit 5 at [46]

[201] UFU submissions at [27]

[202] Annexure A, p.17 of the UFU submissions

[203] Annexure JSH-10 to Exhibit 1

[204] Ibid

[205] Ibid

[206] Annexure JSH-5 to Exhibit 1

[207] Ibid

[208] Ibid

[209] Annexure A to the UFU submissions

[210] Annexure JSH-10 to Exhibit 1

[211] UFU submissions at [28]

[212] UFU submissions at [30]

[213] UFU submissions at [27]

[214] Public Sector Industrial Relations Policies 2015

[215] United Voice v Fosters Australia Limited [2014] FWCFB 4104

[216] Ibid at [3]

[217] Ibid at [29]

[218] Ibid at [33]

[219] Exhibit 5 at [42]

[220] ASOF at [19]

[221] Annexure I to the ASOF

[222] ASOF at [21] and [4], Annexures J and L

[223] United Voice v Fosters Australia Limited [2014] FWCFB 4104 at [17]

[224] UFU submissions at [42]

[225] Outline of submissions filed by CFA dated 2 May 2023 at [69]

[226] ASOF at [18], Annexure H

[227] Exhibit 5 at [42]

[228] ASOF at [26], Annexure M

[229] Exhibit 4 at [17]-[18] and [20]

Printed by authority of the Commonwealth Government Printer

PART A: PRELMINARY MATTERS
Jurisdiction and the issue for determination	[5]-[9]
The Agreement	[10]-[14]
Uncontested facts	[15]-[31]
Statutory framework	[32]-[33]
PART B: QUESTIONS FOR DETERMINATION
Question 1	[34]-[38]
Question 2	[39]-[168]
Question 3	[169]-[249]
Question 4	[250]-[252]
Question 5	[253]-[255]
Question 6	[256]-[279]
ANNEXURE A - Agreed questions