Zannah Pavlic v SAI Global T/A SAI Global Property

[2016] FWC 7553

[2016] FWC 7553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Zannah Pavlic
v
SAI Global T/A SAI Global Property
(C2016/5901)

COMMISSIONER GREGORY MELBOURNE, 20 OCTOBER 2016

Alleged dispute concerning the issuing and revocation of written warnings.

Introduction

[1] This matter concerns an application by Ms Zannah Pavlic (“the Applicant”) to deal with a dispute under s.739 of the Fair Work Act 2009 (Cth). The Employer is SAI Global T/A SAI Global Property (“the Respondent”).

[2] The application concerns a dispute about a written warning issued to the Applicant, and her request to have the written warning withdrawn. The Applicant seeks to have the Commission deal with the dispute in accordance with the Dispute Resolution clause contained in the Clerks – Private Sector Award 2010. 1

[3] The application was set down to be dealt with in conference on 19 October 2016. However, on 11 October 2016, the Commission received correspondence on behalf of the Respondent in the form of an Form F1 application, indicating it raised a jurisdictional objection on the basis that the Commission has no jurisdiction to deal with the application because the dispute is not about a matter arising under the relevant Award and/or the National Employment Standards.

[4] The matter was accordingly relisted for hearing to deal with the jurisdictional objection. The Applicant appeared on her own behalf. Mr Brendan Charles, of Sparke Helmore Lawyers, was granted leave to appear on behalf of the Respondent, under s.596(2)(a) of the Act, on the basis that the issues in dispute involve a degree of complexity, and his involvement might assist the Commission to deal with them more effectively.

[5] This decision accordingly deals with the jurisdictional objection raised by the Respondent.

The Issue to be Determined

[6] Section 595 of the Act deals with the powers the Commission may exercise in dealing with disputes. It states as follows:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

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

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.” 2

[7] Sections 738 and 739 are also relevant in the context of the present matter. Section 738 provides:

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.” 3

[8] Section 739(1) continues to state that it applies if a term referred to in s.738 requires or allows the FWC to deal with a dispute. Section 739 relevantly continues to indicate:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.” 4

[9] The Dispute Resolution clause is set out in clause 9 of the Banking, Finance and Insurance Award 2010 5 in the following terms:

“9. Dispute resolution

9.1 In the event of a dispute about a matter under this award, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.

9.2 If a dispute about a matter arising under this award or a dispute in relation to the NES is unable to be resolved at the workplace, and all appropriate steps under clause 9.1 have been taken, a party to the dispute may refer the dispute to the Fair Work Commission.

9.3 The parties may agree on the process to be utilised by the Fair Work Commission including mediation, conciliation and consent arbitration.

9.4 Where the matter in dispute remains unresolved, the Fair Work Commission may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute

9.5 An employer or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause.

9.6 While the dispute resolution procedure is being conducted, work must continue in accordance with this award and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.” 6

[10] As indicated, the Respondent submits that the dispute notified by the Applicant is not a dispute about a matter arising under the Award, or a dispute in relation to the National Employment Standards, and therefore it should be dismissed.

The Evidence and Submissions

[11] The Respondent submits at the outset that the Applicant is employed under the terms of the Banking, Finance and Insurance Award 2010, rather than the Clerks – Private Sector Award 2010, as stated in the application, and her position is classified at a level 3 classification. However, it continues to submit that the question of which Award has coverage is of no consequence as both contain the same model Dispute Resolution procedure.

[12] The terms of the Dispute Resolution procedure in the Award have been set out already. It states, in particular, that it is confined to disputes “about a matter under this Award or a dispute under the NES,” being the National Employment Standards in the Act. The Respondent continues to submit that the dispute notified by the Applicant concerns a written warning provided to her on 20 September 2016. It notes that her application seeks to have the written warning withdrawn.

[13] In its submission the subject matter of the dispute does not concern a dispute about a matter under the Award, or the NES, as required by the Dispute Resolution procedure in the Award, and therefore the Commission has no jurisdiction to deal with the application. It accordingly submits the application should be dismissed.

[14] The Respondent also made reference to the decision in Mr Grant Brow v National Offshore Petroleum Safety and Environmental Management Authority T/A NOPSEMA, 7 noting that it also dismissed an application made under s.739 because the issues raised by the Applicant were not matters dealt with under the relevant Award, in circumstances where the Dispute Resolution procedure in the Award was confined to “a matter under this Award, or a dispute in relation to the NES …”.

[15] The Respondent also made reference to a decision of Commissioner Williams in the matter of the Australian Workers’ Union v Alcoa World Alumina Australia Limited, 8 which came to a similar conclusion. The decision indicates at [82]:

“What is clear then from the authorities and the provisions of the Act is that it is the terms of the Agreement that provide the procedure for settling disputes which is [sic] determines the breadth of the Tribunal’s jurisdiction.” 9

[16] The Respondent notes that Commissioner Williams continued to indicate in that decision that there were particular reasons why it was not appropriate to be dealing under the terms of a Dispute Resolution procedure with matters involving the provision of warnings and other disciplinary action, when he stated at [110]:

“If I am wrong on this jurisdictional question I agree with the respondent that this sort of dispute is one where the Tribunal should not easily interfere in the decisions of management. The opportunity for every verbal counselling session, file note or warning letter issued by Alcoa’s supervisors and managers to be subject to arbitration would inevitably have a debilitating effect on the management of the respondent and erode their ability to properly discharge their duties. The employees of Alcoa do retain the critical protection that should a supervisor or manager take unwarranted disciplinary action resulting in their dismissal this can be challenged. In such cases their rights enshrined in the Agreement and the Act to pursue a remedy from unfair dismissal can be activated and the company’s actions will then be fully reviewed and where appropriate can be overturned.” 10

[17] The Applicant indicated, in response, that the issues of concern to her were about the particular Team Leader, who had provided her with the warning letter, and her desire to have that warning letter withdrawn.

Consideration

[18] The Act makes clear that the Commission’s ability to exercise powers of arbitration in response to an application under s.739 are not open-ended, but are instead contingent on the relevant provisions in the Act. As indicated, subsections 595(1) and (3) relevantly provide that:

“(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

…

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.”  11

[19] Section 738 continues to provide in part:

“This division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6)” 12

[20] Finally, s.739 provides in part:

“(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

…

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.” 13

[21] In the present matter the powers given to the Commission under the Award are set out in clause 9 “Dispute resolution”. Again, as indicated already the scope and nature of the disputes that are covered by the clause are limited to disputes “about a matter under this award or dispute in relation to the NES”.

[22] I have reviewed the terms and conditions in the Banking, Finance and Insurance Award 2010 and the National Employment Standards. I am satisfied that there is nothing in the Award or the Act that deals with the provision of warnings to an employee about their behaviour or work performance. It follows that the terms of the dispute procedure do not provide the Commission with jurisdiction to deal with the present application. The application is accordingly dismissed.

COMMISSIONER

Appearances:

Z Pavlic on her own behalf.

B Charles for SAI Global T/A SAI Global Property.

Hearing details:

2016.

Melbourne

October 19

 1   MA000002.

 2   Fair Work Act 2009 (Cth) s 595.

 3   Fair Work Act 2009 (Cth) s 738.

 4   Fair Work Act 2009 (Cth) s 739.

 5   MA000019.

 6   MA000019 at cl 9.

 7   [2016] FWC 4416.

 8   [2012] FWA 9222.

 9 Ibid at [82].

 10 Ibid at [110].

 11   Fair Work Act 2009 (Cth) s 595.

 12   Fair Work Act 2009 (Cth) s.738.

 13   Fair Work Act 2009 (Cth) s.739.

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