United Voice v RHR Group t/as Rooty Hill RSL Club Limited

[2015] FWC 4708

[2015] FWC 4708

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

United Voice
v
RHR Group t/as Rooty Hill RSL Club Limited
(C2015/2309)

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 13 JULY 2015

Application to deal with a dispute arising under a dispute resolution procedure in an enterprise agreement – registered and licensed clubs industry – disciplinary action - warning and loss of Leading Hand position – jurisdiction of the Commission – Club’s Performance Management Policy – policies excluded from the Agreement – breach of confidentiality – limited jurisdiction – jurisdictional objection dismissed – further proceedings.

[1] On 31 March 2015, the Liquor and Hospitality Division of United Voice (‘United Voice’ or the ‘Union’) filed an application, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), for the Fair Work Commission (the ‘Commission’) to deal with a dispute in accordance with a dispute settlement procedure. The dispute is with the RHR Group t/as Rooty Hill RSL Club Limited (the ‘Club’) and arises from the dispute resolution procedure in cl 8 under the Rooty Hill RSL Club Enterprise Agreement 2014 [AE407526] (the ‘Agreement’).

[2] It is necessary to set out the terms of the disputes resolution procedure are as follows:

8. DISPUTE RESOLUTION

8.1 In the event of a dispute about a matter under this Agreement, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace level [my emphasis].

8.2 When a grievance or dispute arises in accordance with sub-clause 8.1, the following procedure must be followed:

(a) Step 1: The employee concerned must first raise the matter with their immediate manager or supervisor for resolution.

(b) Step 2: If the matter is not resolved within 7 days, either party may escalate the matter for consideration by the next level of management.

(c) Step 3: If the matter is not resolved within a further 7 days, either party may refer the matter to the Human Resources Department for decision within 14 days.

(d) Step 4: If either party remains dissatisfied with the decision of Human Resource,s the matter may be referred to the FWC for conciliation. Either party may request the FWC to make a recommendation or express an opinion with respect to the matter in dispute in conciliation

(e) Step 5: If the matter is not resolved following conciliation in the FWC, or where the FWC has made a recommendation in conciliation and either party is dissatisfied with the recommendation, either party may refer the matter to the FWC for arbitration.

The parties agree that in arbitration:

(i) the FWC will conduct the arbitration in accordance with Division 3 of Part 5-1 of the FW Act;

(ii) in making a decision with respect to the dispute, the FWC will only have regard to the material, submissions and evidence given with respect to the formal hearing and will disregard any admissions, concessions, offers or claims made in conciliation;

(iii) the decision of the FWC shall be in writing and accompanied by written reasons, unless the parties agree that written reasons are not required; and

(iv) the parties agree to abide by the decision of the FWC, subject to paragraph (f).

(f) Step 6: If either party is aggrieved by the decision of the FWC at first instance, either party may appeal the decision to a Full Bench of the FWC.

The parties agree that in relation to appeal rights:

(i) the appeal must be instituted within 21 days after the date of the decision at first instance; and

(ii) the FWC will conduct the appeal in accordance with Division 3 of Part 5-1 of the FW Act; and

(iii) the parties agree to abide by the decision of the Full Bench of the FWC.

8.3 the FWC must not deal with a dispute if the process to resolve the matter in dispute set out in sub-clause 8.2 (a) – (c) has not been followed:

8.4 While the dispute settlement procedures are being followed:

(a) each party may be represented in the discussions by a representative of their choice;

(b) the parties must not engage in industrial action; and

(c) work shall continue as normal in accordance with the circumstances that existed prior to the dispute, unless employee [sic] has a reasonable concern about an imminent risk to their health or safety.

8.5 Subject to applicable work health and safety legislation, an employee must comply with a direction by the Employer to perform work in accordance with sub-clause 8.4, whether at the same or another workplace, that is within the skills and competence of the employee and is safe and appropriate for the employee to perform.

[3] Shortly stated, the dispute concerns disputed disciplinary action taken against one of the Union’s members, Ms Michelle Turner. The Union expressed the dispute in the following way:

‘1. The claim that Michelle Turner has breached her duty of confidentiality under Clause 7.1 (e) of the Rooty Hill RSL Club Enterprise Agreement 2014.

2. The claim that Michelle Turner, by failing to observe confidentiality, failed to discharge her duties as Relief Team Leader under the Agreement satisfactorily and so was removed from said Relief Team Leader duties.

3. The claim that Michelle Turner failed to act in a dutiful and faithful manner by allegedly about a conversation held between herself and Russell-Wills.

4. That a warning dated 26 February 2015 was issued to Michelle Turner confirming the above alleged breaches by her as an employee.’

[4] The relief sought by the Union was:

‘1. That the warning letter issued to Michelle Turner, dated 26 February 2015, be rescinded.

2. That Michelle Turner be re-instated to her former position of Relief Team Leader.’

[5] The dispute was listed for conciliation in accordance with Step 4 of the procedure. I understand it to be common ground that each of the steps required to be undertaken under the disputes procedure have been followed. Mr M Dusevic appeared with Ms J King for the Union and Ms Turner and Mr R Marshall, Solicitor appeared with permission, pursuant to s 596 of the Act for the Club with Ms A Stephens, Ms P Coates and Mr J Russell-Wills for the Club. The conciliation of the dispute failed to produce a settlement and a subsequent offer put by the Club was not accepted by the Union. I need not elaborate on that offer for the purposes of this decision.

[6] The Union had requested that the matter be listed by the Commission for directions for arbitration (Step 5). On 27 April 2015, Mr Marshall advised that the Club intended to challenge the Commission’s jurisdiction to hear and determine the matter. The parties agreed to file submissions on the jurisdictional issue and for the Commission to determine that matter ‘on the papers’.

[7] In accordance with the Commission’s directions, the parties filed an Agreed Statement of Facts, which I set out below:

‘Ms Turner’s Employment
3. Ms Turner commenced employment with the Club on 1 September 2010 as a Gaming Attendant.

4. At all times relevant to the Dispute, Ms Turner’s employment was (and is) covered by the Rooty Hill RSL Club Enterprise Agreement 2014 (Agreement).

5. As at February 2015, Ms Turner was employed in the position of “Relief Team Leader” on a part-time basis having been appointed to that position on 20 February 2012.

6. The Relief Team Leader role involves a combination of working as a Gaming Attendant (Level 3A in the EA classification structure) and working as a Team Leader (Level 6 in the EA).

7. Whilst working in the role of Gaming Attendant or Relief Team Leader, Ms Turner was paid:

(a) at the Level 3A rate of pay under the Agreement, for any shifts that she performed as a Gaming Attendant

(b) at the Level 6 rate of pay under the Agreement, for any shifts that she performed as Team Leader.

Disciplinary action and demotion
8. On 13 / 14 February 2015 at approximately midnight Ms Turner had a discussion with two other Club employees, Melanie Pollock (Team Leader) and Victor Scerri (Venue Manager) on the gaming floor.

9. The Club alleges that Ms Turner was arguing with Ms Pollock in the course of this discussion. Ms Turner agrees that the discussion took place but denies that she was arguing with Ms Pollock.

10. On 14 February 2015 James Russell-Wills (Executive Manager – Gaming) arranged to interview Ms Turner in relation to the incident in his office at 10:15pm.

11. Ms Turner attended the meeting with Club employee Jenny Knapton as her support person. Mr Russell-Wills invited Club employee Trent Dollar to the meeting as his support person.

12. The meeting did not proceed as planned as Ms Turner stated to Mr Russell-Wills that she wanted to re-convene the meeting at a time when she could obtain representation from United Voice. Mr Russell-Wills agreed to postpone the meeting so Ms Turner could arrange union representation. Mr Dollar had not arrived at Mr Russell-Wills’ office at that time, and Ms Knapton left Mr Russell-Wills’ office as soon as it was agreed the meeting would be postponed.

13. The Club alleges that shortly after Ms Turner and Ms Knapton had left Mr Russell- Wills’ office, Ms Turner returned to Mr Russell-Wills’ office (without Ms Knapton) and said to Mr Russell-Wills inter alia words to the effect that:

“The only reason you have a job here is because I made 18 complaints against Peter Ehlen for bullying.”

(Mr Ehlen is the Club’s General Manager – Gaming and Compliance, and Mr Russell-Wills’ manager.)
Ms Turner denies that she said words to the effect of the above to Mr Russell-Wills.

14. Mr Russell-Wills contacted Paula Coates (Executive Manager, Human Resources) in relation to Ms Turner’s alleged comments.

15. On 18 February 2015, Ms Coates wrote to Ms Turner inviting her to attend a performance management meeting on 24 February 2015.

…

16. At Ms Turner’s request, the meeting was re-scheduled to 10:00am on 25 February 2015. Ms Turner attended the meeting with Joanne King (United Voice Organiser) as her support person. Ms Coates and Mr Russell-Wills attended the meeting as management representatives.

17. On 26 February 2015, Ms Coates wrote to Ms Turner confirming that the Club was issuing Ms Turner with a written warning and that Ms Turner was being removed from the position of Relief Team Leader.

…

18. On 4 March 2015, Ms Turner wrote to Ms Coates disputing the outcome of the performance management meeting.

…

19. On 13 March 2015, Amanda Stephens (General Manager, Legal & Human Resources) wrote to Ms Turner in response to her letter of 4 March 2015.

…

20. On 19 March 2015, Chris Acev (United Voice Industrial Director) wrote to Ms Stephens in response to her letter of 13 March 2015.

…

21. On 27 March 2015, Ms Stephens wrote to Ms Turner (copied to Mr Acev) in response to Mr Acev’s letter of 19 March 2015.

…

Ms Turner’s complaints against Mr Ehlen
22. In April 2014 Ms Turner submitted a formal written complaint making allegations of bullying and harassment against Mr Ehlen.

23. On 9 May 2014 Ms Coates wrote to Ms Turner summarising Ms Turner’s complaints and advising that an investigation meeting in relation to her complaint was scheduled for Wednesday 14 May 2014.

…

24. The findings of the investigation were communicated to Ms Turner by Ms Coates an undated letter that was handed to Ms Turner on 11 June 2014.

…

The Club’s policies and procedures

25. The Club has a “Performance Management Policy” providing guidelines and procedures for addressing inappropriate conduct and behaviour, breach of Club policy and unsatisfactory work performance.’

SUBMISSIONS

For the Club

[8] Mr Marshall set out the relevant provisions of the Act (ss 595, 738 and 739) and put that it is uncontroversial that the combined effect of those provisions is that the Commission has no power to deal with a dispute, under a dispute settlement procedure, other than in a manner authorised by the procedure. The relevant authorisation is found at cl 8.1 as follows:

8.1 In the event of a dispute about a matter under this Agreement, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace level.

As there is no argument that this dispute does not relate to the National Employment Standards (NES), the relevant question is whether the dispute is about ‘a matter under this Agreement’.

[9] Mr Marshall emphasised that as the dispute concerns disciplinary action taken by the Club against Ms Turner and as the Agreement does not contain any provisions in respect to disciplinary action, processes, warnings or related procedures, the dispute is not a matter arising under the Agreement; See: Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd[2012] FWA 6985 (‘CFMEU v Thiess’).

[10] Mr Marshall relied on the Club’s Performance Management Policy and highlighted the following provisions of the Agreement:

4. THE EMPLOYER'S POLICIES AND PROCEDURES

4.1 The Agreement is supported by policies and procedures determined, introduced or amended by the Employer from time to time. Except as otherwise provided for in this Agreement, the Employer's Policies will not reduce employees' substantive entitlements contained in this Agreement but will provide guidelines for the fair and efficient administration of the employment relationship.

4.2 Whilst employees are required to comply with the Employer's Policies, nothing in this Clause renders the Employer's Policies part of this Agreement or part of the contract of employment between the Employer and an employee.

[11] Mr Marshall directly addressed the Union’s submission that because it was alleged Ms Turner had breached her duty of confidentiality under cl 7(1)(e) of the Agreement, this brought the dispute within the Commission’s jurisdiction; See: para 13 in the Agreed Statement of Facts. That clause is as follows:

(e) Employees must not during or after the employment for any reason, disclose, copy or reproduce or use in any way, and must keep confidential, any Confidential Information of which the employee becomes aware of through the performance of their employment and or this Agreement.

[12] Confidential information is defined at cl 2(1)(d) as follows:

(d) Confidential Information means any trade secrets or confidential information relating to or belonging to the Employer or any group company (as defined in the Corporations Act 2001 (Cth)), including but not limited to any such information relating to: customers or clients; customer lists or requirements; suppliers; terms of trade; pricing lists or pricing structures; marketing information and plans; intellectual property; inventions; business plans or dealings; technical data; employees or officers; financial information and plans: designs; product lines; any document identified as being confidential by the Employer; research activities; software and the source code of any such software; but does not include information which is generally available in the public domain and was known by the employee prior to the disclosure by the Employer, its employees, representatives or associates [my emphasis];

[13] Mr Marshall submitted that neither the Club or Ms Turner had raised these provisions in relation to the incidents of 14 and 15 February 2015 or in the warning letter. He added that the Union had only raised this issue after the Club had raised the jurisdictional objection. In any event, confidentiality applied to Ms Turner maintaining confidentiality about her harassment complaints and did not fall under the definition in cl 2.1(d) of the Agreement. Mr Marshall put that a mere tangential link about the facts, does not create jurisdiction where the disciplinary process and action arising therefrom is not covered by the disputes procedure.

[14] Mr Marshall criticised the Union’s unsound logic by likening an example of an employee constantly late for work, to the hours of work or rosters clauses under the Agreement. Moreover, the Club never intended the clauses to operate in the way contended for by the Union. In addition, the Union had never asserted Ms Turner had breached the Agreement which, if it had, may open her up to a civil penalty (if substantiated).

[15] Alternatively, if the Commission was to find that Ms Turner did not breach cl 7(1)(e), then that is as far as the Commission could go. This is so because it does not follow that there were grounds to review the Club’s disciplinary actions or have the power to grant the relief she is seeking as to:

(a) rescinding the warning, which is clearly an issue under the Performance Management Policy; and
(b) any question of reinstatement of her to her former position, which is ultimately a contractual issue and/or a matter for an unfair dismissal proceeding, not a s 739 dispute application.

For the Union

[16] Mr Acev agreed with the Club’s assessment that the jurisdictional question to be answered as a preliminary matter was, whether the subject matter of the dispute was a matter under the terms of the Agreement.

[17] Mr Acev submitted that cl 7(1)(e) is a condition of Ms Turner’s employment. It is a condition that may be (and was) actioned by the Club, if proven that she had breached that duty. Ms Turner denied any recollection of the comments alleged to have been said by her to Mr James Russell-Wills. At this point, it is an assertion and not proof.

[18] Mr Acev noted that the Club had raised the very issue of a breach of confidentiality and while the words of cl (7)(e) were not expressly raised, her duty to confidentiality certainly was raised. Mr Acev said that as there was no material that purported to be the Club’s Confidentiality Policy, it can only be that the Club relies on the Agreement’s provisions to take disciplinary action against Ms Turner. The Club has never articulated what employment provision or condition it relied upon in supporting its breach of confidentiality claims. He submitted that the cause and effect are unable to be separated, as one cannot exist without the other.

[19] Mr Acev said that despite the Club’s attempts to ‘divert the gaze of the Commission’, there was a clear and substantive link between the duty of confidentiality and the dispute circumstances filed. The two are not tenuous or casual in nature so the dispute squarely sits within the Commission’s jurisdiction, allowing the Commission to arbitrate the dispute and make any orders it considers appropriate; See: s 595(3) of the Act.

CONSIDERATION

[20] The determination of this jurisdictional question is relatively straightforward. There is no doubt that the findings of His Honour, SDP Hamberger in CFMEU v Thiess are correct and I respectfully adopt them. I extract the relevant passage below:

‘[12] This confirms that the dispute does not concern an allegation that the respondent has failed to adhere to its obligation under the agreement to maintain policies and procedures that support the agreement and provide guidelines for the fair and efficient administration of the employment relationship. Rather the dispute is about whether the respondent’s policies and procedures have been complied with and/or been applied in a fair manner. I have found that Clause 5.2 does not incorporate the policies and procedures into the agreement. Thus a dispute about a failure to comply with those policies and procedures is not a dispute pertaining to the agreement.

Conclusion

[13] The dispute does not concern matters or issues pertaining to the 2012 agreement. Given the lack of consent by the respondent, FWA has no jurisdiction to arbitrate the dispute. It is accordingly dismissed.’

However, I would distinguish the findings in CFMEU v Thiess for the following reasons.

[21] Mr Marshall contended that because cl 7(1)(e) was never specifically raised by the Club, Ms Turner or the Union (until the jurisdictional issue was raised), it cannot be used to bring the dispute within jurisdiction. I do not agree. It is pellucidly clear that the Club, in its notice of performance management meeting and the written warning to Ms Turner, identified one of the allegations as ‘breach of confidentiality’. The Agreement defines confidential information as ‘any confidential information relating to, or belonging to the employer… including, but not limited to any such information relating to … employees or officers.’

[22] Pointedly, the Club’s Performance Management Policy contains no reference to whether a breach of confidentiality is a disciplinary issue itself. It mentions confidentiality in the preamble, as follows: ‘The policy ensures these issues are dealt with in a fair, consistent and confidential manner.’ In my opinion, the only basis on which the allegation was made must be by reference to cl 2(1)(d) and 7(1)(e) of the Agreement. In my view, it is not a tangential or incidental relationship to the Agreement, but a clear and direct allegation of a breach of the Agreement. Viewed in this context, that aspect of the dispute must, at the very least, be a matter under the Agreement, thereby bringing it within the jurisdiction of the Commission.

[23] In addition, it was not realistic to distinguish confidentiality as relating to her harassment complaint of April 2014 and the investigation of that complaint to confidentiality broadly defined, as involving ‘employees or officers’. This must clearly mean the confidentiality involving both Ms Turner and Mr Russell-Wills as ‘employees or officers’ as defined.

[24] Having so found, I do not accept that the Commission’s jurisdiction can be limited in the manner argued for by the Club. If a dispute matter is a matter arising under the Agreement, the Commission’s powers are not limited or restricted to deal with a dispute by arbitration. Such a proposition would render the Commission’s role in resolving disputes so stymied, as to be largely ineffectual. My view is fortified by the words found in s 595(3) of the Act, which states:

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act [my emphasis].

[25] The words used in s 595(3) above in brackets are wide and unrestricted, save for jurisdiction, which I have found exists in this case. The bracketed phrase cannot be read down such as to limit any order the Commission may make to deal with a dispute by arbitration. Of course, I would wish to stress at this stage, I express no view as to the merits of the Union’s case, on behalf of Ms Turner, and/or whether any relief should be awarded in this case. The matter will be listed for further directions at 9:30am on 23 July 2015.

DEPUTY PRESIDENT

Final written submissions:

RHR Group t/as Rooty Hill RSL Club Limited: 18 May 2015

United Voice – 29 May 2015.

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<Price code C, AE407526  PR569316>