[2010] FWAFB 4387 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Workplace Relations Act 1996
s.120 – Appeal of decisions
SENIOR DEPUTY PRESIDENT ACTON |
MELBOURNE, 15 JUNE 2010 |
Appeal against decision [[2010] FWA 193] and order [PR993097] of Commissioner Cribb at Melbourne on 2 February 2010 in matter numbers C2009/2441 and C2009/2289.
Introduction
[1] Deakin University has lodged a notice of appeal against a decision 1 and order2 of Commissioner Cribb of 2 February 2010.
[2] The decision and order arose from applications to the Australian Industrial Relations Commission (the Commission) on 18 February 2009 3 and 5 May 20094 associated with s.170LW of the pre-reform Workplace Relations Act 1996 (Cth) (the pre-reform Act). The s.170LW applications concerned alleged disputes over the application of clauses 18, 19, 68 and 70 of the Deakin University Enterprise Bargaining Agreement 2005-2008 (the Agreement).5 Although it appears the alleged dispute over the application of clause 68 of the Agreement was not pursued.6
[3] The relevant clauses in the Agreement bear the following titles:
Clause 18: Unsatisfactory Performance or Misconduct – All Staff
Clause 19: Redundancy – General Staff
Clause 70: Consultation on Major Workplace Change (All Staff).
[4] Clause 68 of the Agreement contains dispute settling procedures in respect of disputes between the parties to the Agreement. The parties to the Agreement are Deakin University, the National Tertiary Education Union and all staff employed by Deakin University except employees who are parties to an Australian Workplace Agreement made before, on or after the date of the Agreement. The Agreement was certified by the Commission on 16 November 2005. 7
[5] Clause 68 of the Agreement empowers the Commission to conciliate and/or arbitrate a dispute in respect of which it determines it has jurisdiction to arbitrate. It also provides that the parties to the dispute agree to be bound by the Commission’s resolution of the dispute.
Commissioner’s jurisdictional finding
[6] In respect of jurisdiction, the Commissioner said:
“[122] It is also necessary to consider whether the disputes in question are disputes over the application of the Agreement. In this matter, it is alleged, on behalf of the applicant, that the respondent has failed to comply with its obligations pursuant to clause 18, 19 and 70 of the Agreement. The parties held the view that the Tribunal had jurisdiction to deal with the disputes relating to clause 19 and clause 70 of the Agreement but were not in agreement with respect to clause 18.
123] The respondent submitted that the Tribunal did not have jurisdiction to consider the applicant’s claims regarding a breach of clause 18 of the Agreement as clause 75.3 of the Agreement expressly excludes disputes regarding to the bullying and harassment procedures from the reach of the dispute resolution procedures of the Agreement (clause 18). It was argued that all of the actions taken with respect to the applicant were in accordance with the bullying and harassment procedures and that there was nothing in these procedures which prevented the respondent exercising its management prerogative and putting into place transitional arrangements as set out in Ms Cooper's letter of 20 March 2008. In the alternative, the University argued that, if the Tribunal found that it was disciplinary action, it had essentially followed the disciplinary processes set out in clause 18 of the Agreement.
[124] For the applicant's part, it was contended that the actions taken against the applicant were in fact, disciplinary actions and that clause 18 of the Agreement had been breached in this respect.
[125] I have considered carefully all of the material before me. I find that the complaint by Ms Truter was made pursuant to the University’s harassment and discrimination complaints - procedure and that the process which then followed was that as set out in the procedure. This process was concluded by letter of 7 March 2008 from Ms Cooper which stated that the complaint under this procedure is now ‘concluded’.
[126] However, by a further letter on 20 March 2008, Ms Cooper set out a number of ‘transitional arrangements being put in place following the conclusion of the complaint by Janine Truter’. It is my view that, as matters to do with the complaint had been concluded and, taking into account the nature of the transitional arrangements, these further actions constituted disciplinary action as defined by clause 18.2 of the Agreement. The applicant was not allowed to return to the office she occupied prior to the complaints being lodged. Secondly, she was not allowed to perform a large proportion of her duties, namely, the supervision and managing of support staff and the training, correspondence and administration of the Faculty of Health, Medicine, Nursing and Behavioural Sciences. It was this Faculty which generated the majority of work in human research ethics due to the nature of the research conducted by the faculty. It is my view that these actions are tantamount to a transfer to another position both with respect to location, and also with respect to applicant’s duties and responsibilities.
[127] It was argued on behalf of the respondent that the transitional arrangements were put in place for a period of six months to protect the occupational health and safety of staff including the applicant. It should be noted in this regard that, at this point in time, Dr Smith was no longer working for the respondent and that Ms Truter was no longer working in the ORI.
[128] I therefore find that, as there is a dispute between the parties regarding the transitional arrangements and, as these arrangements constituted disciplinary action, the Tribunal has jurisdiction to deal with the dispute regarding the application of clause 18 of the Agreement.
[129] As the dispute contained in the two applications relates to particular provisions of the Agreement (clauses 18, 19 and 70), I find that the dispute is one over the application of the Agreement. The dispute concerns the re-structure of the Office of Research Integrity (clause 70), the transitional arrangements (clause 18) and the applicant’s subsequent redundancy (clause 19 of the Agreement). Accordingly, as the dispute concerns the application of the Agreement, the Tribunal has jurisdiction to deal with the applications.”
Commissioner’s findings on the disputes and order
[7] The Commissioner found Deakin University did not comply with the requirements of clause 18 of the Agreement before imposing on Ms Rametta the transitional employment arrangements set out in their letter to her of 20 March 2008. 8
[8] The letter to Ms Rametta of 20 March 2008 was as follows:
“Dear Silvia
I refer to your meeting on 18 March 2008 with Ms Tes Toop, Director, Ethics and Biosafety. As you are aware, this meeting was held to discuss transitional arrangements being put into place following the conclusion of the complaint brought by Janine Truter. I understand, however, that the meeting was not completed due to your visible distress.
I wish to advise you that your substantive position will remain unchanged. The following transitional arrangements however, will be put into place for a six month period and reviewed at this time:
The purpose of these transitional arrangements is to provide all staff members in Research Services with the opportunity to move forward in light of the recent complaints procedure.
Allison Hadfield will advise you if the effective date for this arrangement once office arrangements have been finalised.
Yours sincerely
Wendy Cooper
Director, Human Resources Services”
[9] The Commissioner also found Deakin University did not follow the requirements of clause 70 of the Agreement in respect of the restructure of its Office of Research Integrity. 9 However, on the material before her, she was unable to reach a conclusion in respect of the application of clause 19 by Deakin University.10
[10] The Commissioner ordered that Deakin University:
(a) apologise in writing to Ms Rametta because of their non-compliance with the requirements of the Agreement and because they had little intention to do so; and
(b) pay compensation of $30,000 to Ms Rametta in recompense for their failure to apply the provisions of the Agreement to Ms Rametta.
Bases of appeal
[11] Deakin University submit the Commissioner erred in finding it had failed to apply the terms of clauses 18 and 70 of the Agreement in respect of Ms Rametta and had no jurisdiction or power to order it to provide a written apology to Ms Rametta or to pay her compensation of $30,000.
Jurisdiction in respect of the appeal
[12] We are satisfied we have jurisdiction to deal with the appeal pursuant to s.120(1)(f) of the Workplace Relations Act 1996 (Cth) (the WR Act).
[13] Section 120(1)(f) of the WR Act provides that:
“120 Appeals to Full Bench relating to matters arising other than under the Registration and Accountability of Organisations Schedule
(1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against: …
(f) a decision of a member of the Commission that the member has jurisdiction, or a refusal or failure of a member of the Commission to exercise jurisdiction, in a matter arising under this Act.”
[14] We are satisfied s.120 of the WR Act is relevant to this matter because item 11 of Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the FW (TPCA) Act) provides that the WR Act continues to apply in relation to conduct that occurred before the WR Act repeal day. The WR Act repeal day is 1 July 2009. Item 12(1)(b) of Schedule 2 to the FW (TPCA) Act provides that on or after the WR Act repeal day, an appeal to the Commission that could have been instituted because of item 11 may be instituted only as an appeal to Fair Work Australia (FWA). Item 12(2) of Schedule 2 of the FW (TPCA) Act provides that for the purposes of item 12(1), a law of the Commonwealth that relates to an application, appeal, process or matter in item 12(1) is to be read as if a reference to a WR Act body or office were a reference to FWA as necessary. Moreover, item 1(a) of Schedule 19 of the FW (TPCA) Act provides that the WR Act continues to apply on and after the WR Act repeal day for the purposes of dealing with disputes in relation to a matter arising under a transitional instrument. Items 2 and 3 of Schedule 3 of the FW (TPCA) Act provide that a pre-reform certified agreement in operation immediately before the WR Act repeal day is a transitional instrument. Item 2(1) of Schedule 19 of the FW (TPCA) Act provides that anything that could, or would, have been done by, or in relation to, the Commission because of item 1 of Schedule 19 may only be done by, or in relation to, FWA and item 2(2) of Schedule 19 provides that for the purposes of item 2(2)(a), the WR Act is to be read as if a reference to the Commission were a reference to FWA, as necessary. Further, item 11(1) of Schedule 18 of the FW (TPCA) Act provides that after the cessation time for a WR Act body or office, the powers, functions and duties of the body or office are to be exercised and performed by FWA. The cessation time for the Commission was 31 December 2009. Item 11(2) of Schedule 18 of the FW (TPCA) Act provides that for the purposes of item 11(1), a law of the Commonwealth that relates to the body or office is, for the purposes of its application after the cessation time to be read as if a reference to the body or office were a reference to FWA, as necessary.
[15] In addition, in Victoria Police Force v Police Federation of Australia, 11 a Full Bench of the Commission was dealing with an appeal against a decision of a member of the Commission concerning a dispute about a matter arising under a workplace agreement made pursuant to the WR Act. The dispute came before the member pursuant to an application to have a dispute resolution process conducted under Division 5 of Part 13 of the WR Act. The application was made pursuant to the dispute resolution clause of the workplace agreement. The dispute resolution clause conferred power on the Commission to determine disputes by arbitration. The dispute resolution clause also provided at clause 19.5.5 that “[a]n appeal lies to a Full Bench of the [Commission], with the leave of the Full Bench, against a determination/decision of a single member of the [Commission] made pursuant to this clause.” The appellant maintained it could appeal the Commission member’s decision either pursuant to the appeal provision of the dispute resolution clause or pursuant to s.120 of the WR Act. The Full Bench said:
“[11] In our view the terms of s.120(1)(f) indicate an intention on the part of the legislature that an appeal should be available from any decision which involves jurisdictional error. In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (Coal and Allied) it was decided that the appellate powers of the Commission under s.45 of the Act are exercisable only if there is error on the part of the primary decision maker. Section 120(1) is concerned with jurisdictional error. Victoria Police sought to characterise the concept of jurisdictional error in wide terms, relying upon passages in Craig v South Australia. The application of the concept of jurisdictional error in relation to a discretionary decision of this Commission was dealt with by a majority of the High Court in Coal and Allied. We adopt with respect, the formulation of the relevant test adopted by the Court:
‘31 There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it “misunder[stood] the nature of [its] jurisdiction ... or ‘misconceive[d] its duty’ or ‘[failed] to apply itself to the question which [s 45 of the Act] prescribes’ ... or ‘[misunderstood] the nature of the opinion which it [was] to form’”. The Full Bench did none of those things.’ (footnotes omitted)
[12] The source of the Commission’s power in this case was the dispute resolution procedure in … the Agreement. Applying the approach in the passage from Coal and Allied, the Deputy President would have fallen into jurisdictional error if he had misconceived his role under the dispute resolution procedure. It would be necessary to consider whether the Deputy President did so in order to reach a conclusion about the availability of a successful appeal under s.120(1)(f). As will become apparent from what follows, we have not found it necessary to decide that question.
[13] We deal now with Victoria Police’s contention that an appeal can be brought pursuant to cl.19.5.5 of the Agreement … In our view the terms of cl.19.5.5 clearly indicate that the parties intended to confer a right of appeal, subject to leave being granted, to a Full Bench in the circumstances of this case. The submission that cl.19.5.5 is intended to reflect the rights conferred by s.120 of the Act is untenable … Section 120(1) does not provide for an appeal against a decision or determination (which is not an order) unless there is jurisdictional error in which case s.120(1)(f) is available. Any decision or determination which does not involve jurisdictional error cannot be appealed under s.120. By including in cl.19.5 an appeal against a ‘decision/determination’ the parties have indicated an intention to provide for an appeal in circumstances where s.120 would not be available, assuming the decision or determination was not affected by jurisdictional error of the kind potentially within s.120(1)(f). Clause 19.5.5 therefore provides a foundation for the appeal. Because that foundation is not confined to jurisdictional error, as s.120(1)(f) is, we shall deal with the appeal under cl.19.5.5.” [Endnotes omitted]
[16] Further, the Commissioner’s decision to order that Deakin University apologise to Ms Rametta and pay her $30,000 in compensation involves a decision that jurisdiction exists to make such an order. And, s.120(3) of the WR Act provides that an appeal under s.120(1)(f) may be instituted by a person aggrieved by the decision or act concerned. Deakin University is a person so aggrieved.
[17] We turn then to whether the Commissioner’s jurisdictional decision involved appealable error.
Clauses 18 of the Agreement
[18] We have already set out the bases on which the Commissioner decided there was before her a dispute between Ms Rametta and Deakin University over the application of clause 18 of the Agreement. We agree with the Commissioner in this regard.
[19] Later in her decision the Commissioner concludes Deakin University was required to but did not apply the provisions of clause 18 of the Agreement before imposing on Ms Rametta the transitional employment arrangements set out in their letter to her of 20 March 2008. In so concluding she said:
“[141] Clause 18.1 – 18.18 deals with unsatisfactory performance or misconduct by staff. It provides that:
‘18 UNSATISFACTORY PERFORMANCE OR MISCONDUCT - ALL STAFF
18.1 These procedures have been developed in accordance with the following principles of fair dealing:
a. All issues are investigated thoroughly and justly;
b. The standards of conduct and performance required are clear to thesupervisor and the staff member;
c. Except in cases where suspension is warranted for serious misconduct, staff members should be counselled and given every reasonable opportunity to improve their performance and conduct;
d. If in spite of all reasonable efforts by the University the staff member has failed to meet the required standards then Disciplinary Action including termination of employment might occur;
e. The staff member may choose to have representation at any stage of these procedures in accordance with clause 5.7 of this Agreement;
f. Disciplinary Action must take place in accordance with these procedures.
18.2 Disciplinary Action is defined as:
a. formal censure or counselling;
b. demotion to a lower classification and/or transfer to another position;
c. withholding of an increment;
d. suspension with or without pay; or
e. termination of employment.
Provided that in cases involving misconduct, disciplinary action shall be limited to the scope of 18.2 a to c.
Preliminary Action
18.3 Where a supervisor is of the view that a staff member's performance or conduct is unsatisfactory, the supervisor shall counsel the staff member in accordance with these procedures.
18.4 The staff member shall be informed that they are being counselled under these procedures, the possible implications of continued unsatisfactory performance or conduct and that they are entitled to bring a representative to any relevant meetings with their supervisor if they so choose.
18.5 The supervisor will provide the staff member with constructive criticism as well as setting appropriate performance standards for the staff member to meet. The supervisor will also establish a timeframe for monitoring the staff member's progress against these performance standards: The staff member will be provided with an opportunity to respond and assistance with specific training and development programs may be provided where the supervisor considers it appropriate.
18.6 If the matter is resolved at this preliminary action stage, no formal written records will be kept.
Formal Action
18.7 If after the specified timeframe the supervisor is of the view that the performance or conduct of the staff member is still not satisfactory, formal action shall be initiated. Formal action may also be initiated where the supervisor considers the unsatisfactory performance or conduct of the staff member to be serious enough that it would be inappropriate to attempt resolution in accordance with clauses 18.3 to 18.6 of this Agreement.
18.8 The supervisor shall advise the staff member in writing that formal action is being initiated. In this written notification the supervisor shall include clarification of the required performance or conduct standards and where these standards are not currently being met. The supervisor shall also include a timeframe for monitoring progress against the standards.
18.9 The written notification shall be discussed at a meeting where the staff member will have the opportunity to respond.
18.10 In the case of an academic staff member, the supervisor shall also undertake appropriate consultation with the staff member's colleagues in relation to the unsatisfactory performance or conduct of the staff member.
18.11 If, after the specified timeframe, the supervisor is of the view that the formal action has not produced the desired improvements in performance or conduct, the matter shall be referred in writing by the supervisor to the Head of Budget Centre.
18.12 The Head of Budget Centre must then determine whether he or she considers that the matter has been resolved, whether Disciplinary Action is warranted or whether there are other actions or strategies which can be implemented which do not constitute Disciplinary Action. The staff member will be advised in writing of the decision of the Head of Budget Centre.
18.13 Upon receipt of any response from the staff member the Head of the Budget Centre shall review the matter and may then decide to:
a. take no further action; or
b. refer the matter back to the supervisor to ensure that the steps referred to in clause 18.7 to 18.10 are complied with; or
c. counsel and/or censure the staff member and take no further Disciplinary Action; or
d. refer the matter to a Discipline Review Committee, established in accordance with clause 77 of this Agreement, unless the staff member elects in writing to have the Vice-Chancellor or nominee determine the matter without reference to a Review Committee.
18.14 The Director, Human Resources Services or nominee shall immediately advise the staff member in writing of any decision made in accordance with clause 18.13.
18.15 The role of the Discipline Review Committee is to investigate whether the processes specified under these procedures have been appropriately followed, and to establish the merits or facts of the particular case. The Discipline Review Committee shall provide advice on these matters to the Vice-Chancellor or nominee at the conclusion of the review, including whether Disciplinary Action is appropriate, and if so, what action should be taken.
18.16 Where a matter is referred to a Discipline Review Committee under these procedures the Director, Human Resources Services shall convene the Committee within 10 working days.
18.17 The Vice-Chancellor or nominee shall review the Discipline Review Committee findings and may confirm or vary the recommendation of the Head of Budget Centre made under clause 18.12. The Vice-Chancellor or nominee shall advise the Head of Budget Centre and the staff member in writing of his/her decision.
18.18 The action of the Vice-Chancellor or nominee under this clause shall be final, except that nothing in the clause shall be construed as excluding the jurisdiction of any external court or tribunal which, but for this clause, would be competent to deal with the matter.’
[142] As set out above, the transitional arrangements that were put in place for a period of six months, by the letter of Ms Cooper dated 20 March 2008, have been found to constitute disciplinary action as defined in Clause 18.2 of the Agreement.
[143] The issue to be determined by the Tribunal is whether the application of the transitional arrangements to the applicant was in accordance with Clause 18 of the Agreement.
[144] It was the respondent’s alternative submissions that the University had essentially followed the process set out in Clause 18 of the Agreement in its actions with respect to the applicant.
[145] On the other hand, it was the applicant’s contention that the disciplinary procedures had not been applied to her even though she had been effectively counselled and then demoted.
[146] Clause 18 of the Agreement sets out a two stage process – preliminary action and formal action. Clause 18.3 requires the supervisor to counsel an employee whose conduct is unsatisfactory, to inform the employee that they are being counselled under the disciplinary procedures and the possible implications of continued unsatisfactory conduct. The supervisor is also to set appropriate standards and also a timeframe for monitoring progress. The employee will be provided with an opportunity to respond and assistance, where appropriate. If the issues are resolved at this stage, no written records will be kept.
[147] If the employee’s conduct is still not satisfactory after the specified timeframe, formal action is to be commenced. The employee is to be advised in writing that formal action is being initiated. Clauses 18.9 to 18.18 contain the steps of the formal process.
[148] Issues regarding the applicant’s behaviour were first raised with her on 10 July 2007. It was common ground that, during the mid probationary review meeting, between Ms Hadfield and the applicant, issues regarding the applicant’s behaviour were discussed. These included concerns regarding Ms Rametta being loud and upset and crying. The applicant recalled Ms Hadfield telling her that she had received reports about her behaviour from other staff. The mid probation review report included the assessment by Ms Hadfield of ‘operating under stress currently and can be emotional’. The applicant noted her response on the report.
[149] The final probationary review meeting took place on 10 August 2007 between Associate Professor Toop and the applicant. The report recorded the applicant’s working relationships as ‘very good within office and Uni generally’. Beside this was the comment: ‘The position is inherently stressful but is now under control’. Concerns regarding the applicant’s behaviour were also discussed at this meeting. It was Associate Professor Toop’s recollection that she told the applicant that she had received reports about the applicant’s emotional outbursts and loss of control and suggested strategies for dealing with the situation. The applicant gave evidence that she was told that she was loud and emotional and that staff were uncomfortable with her crying.
[150] In applying the requirements of Clause 18 of the Agreement to this matter, it would appear that the applicant’s behaviour was raised with her on 10 July 2007 and 10 August 2007 and that she was counselled about it. However, the requirements of Clauses 18.4 and 18.5 (except perhaps for the provision of constructive criticism) have not been met.
[151] The applicant’s appointment was confirmed following the final probation review meeting on 10 August 2007. On 7 March 2008, the applicant received a letter from Ms Cooper setting out the findings of the Panel Inquiry and advising as to the actions that were going to be taken. These included a written caution regarding any further continuation of such behaviour, training requirements and behavioural objectives. The letter ended by notifying the applicant of the conclusion of the complaint by Ms Truter and stating that her ‘co-operation in this matter’ was appreciated.
[152] However, on 20 March 2008, Ms Cooper wrote to the applicant again advising of transitional arrangements that were to be put in place to allow the Office to move forward following finalisation of the complaint process. As set out above, these arrangements amounted to disciplinary action as defined by clause 18.2 of the Agreement.
[153] Clauses 18.7 to 18.18 set out the process that may result in disciplinary action against an employee. There is nothing in the evidence to suggest that any of these steps were carried out prior to the imposition of the transitional arrangements. On the basis of the University’s own documents (and their primary submission), the complaint process which the applicant was subject to was the University’s bullying and discrimination complaints procedure and not the disciplinary procedures under the Agreement.
[154] Therefore, I find that, in instituting disciplinary action, in the form of the transitional arrangements, the University did not apply the requirements of Clause 18 of the Agreement to the applicant.”
[20] We concur with the finding of the Commissioner to the effect that the transitional employment arrangements put in place in respect of Ms Rametta were separate and/or distinct from the inquiry conducted pursuant to Deakin University’s Harassment and Discrimination Complaints Procedure (the Procedure). We agree with the Commissioner, for the reasons given by the Commissioner, that the steps in the Procedure were concluded without the transitional employment arrangements. The transitional employment arrangements were not part of the Procedure, even if they were inspired by the findings of the inquiry conducted under the Procedure.
[21] Further, we consider the transitional employment arrangements constituted disciplinary action as defined in clause 18.2 of the Agreement. As the Commissioner indicated, the arrangements involved a significant change to the supervisory and management duties of Ms Rametta and to her training and administrative duties in the Faculty of Health, Medicine, Nursing and Behavioural Science. While the arrangements did not result in the title of her position or her other terms and conditions of employment changing, the changes to her duties arising from the arrangements were tantamount to a “demotion to a lower classification and/or transfer to another position”.
[22] We concur with the Commissioner’s conclusion, for the reasons given by the Commissioner, that Deakin University was required to, but did not, comply with the provisions of clauses 18.7 to 18.18 of the Agreement before imposing on Ms Rametta the transitional employment arrangements set out in their letter to her of 20 March 2008.
Clause 70 of the Agreement
[23] We agree there was a dispute between Ms Rametta and Deakin University over the application of clause 70 of the Agreement before the Commissioner. We concur with the Commissioner that clause 70 of the Agreement applied in respect of the restructure of the Office of Research Integrity at Deakin University in which Ms Rametta was employed and Deakin University did not comply with the provisions of clause 70, in particular clauses 70.2 and 70.3, of the Agreement in respect of the restructure.
[24] In her decision the Commissioner said:
“[133] Clause 70 of the Agreement states that:
‘70 CONSULTATION ON MAJOR WORKPLACE CHANGE (ALL STAFF)
70.1 Sound management of workplace change requires the involvement of the people who will be directly affected by that change.
70.2 Where after a preliminary consideration of issues which may lead to major workplace change and is likely to have significant effects of staff, the University shall discuss the issues with staff, or where an affected staff member chooses a nominated representative in accordance with clause 5.7 of this Agreement, and the Staff Liaison Committee, and consider their input as part of the process of forming an intention to adopt any such changes.
70.3 Where the University has formed a clear intention to change its current arrangement, but before a decision has been made to introduce major changes in organisation, structure or technology including the use of flexible delivery that are likely to have significant effects on staff members, the University shall consult the staff who may be affected by the proposed changes, or where the affected staff member chooses a nominated representative in accordance with clause 5.7 of this Agreement, and the Staff Liaison Committee. The consultation process will be undertaken within the timeframes outlined by the University.
70.4 Significant effects may include but are not limited to termination of employment; major changes in the composition, operation or size of the University's workforce or the skills required; the elimination or diminution of job opportunities or promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of staff members to other work locations and the restructuring of jobs; proposals by the University to outsource services or contract out services currently provided by University staff.
70.5 The consultations referred to in clause 70.3 shall provide sufficient opportunity to discuss the change proposal. Written information provided to staff members, or where an affected staff member chooses a nominated representative in accordance with clause 5.7 of this Agreement, and the Staff Liaison Committee shall include, where appropriate, the extent and nature of the change proposal; reasons for making the change; timeframe for change; details of the likely staffing impacts, including possible redundancies and relocations.
70.6 Affected staff, or where an affected staff member chooses a nominated representative in accordance with clause 5.7 of this Agreement, and the Staff Liaison Committee, will be involved in the examination of the change proposal. This will include an opportunity to consider the proposals, providing an opportunity for responses or alternatives.
70.7 The University shall allow a reasonable time for consultation and give prompt consideration to matters raised.
70.8 As early as practicable after a decision has been made to make the changes referred to in clause 70.3, the University shall consult with the staff members affected, or where an affected staff member chooses a nominated representative in accordance with clause 5.7 of this Agreement, and the Staff Liaison Committee, regarding the introduction of the changes, the effects the changes are likely to have on staff members and measures to avert or mitigate the adverse effects of the changes in accordance with clauses 19 and 20.
Contracting Out
70.9 The University shall abide by this clause in cases where the contracting out of services is likely to result in major workplace change and is likely to have significant effects on staff as defined in the abovementioned clause. In addition, the University shall facilitate the development of an 'in-house' bid by affected staff, in the event that a decision is made to proceed with the contracting out proposal and that staff wish to make a bid.
Controlled Entities
70.10 Where the University proposes to outsource a significant business function by creating a new corporate entity controlled by the University, the University shall consult with staff, or where an affected staff member chooses a nominated representative in accordance with clause 5.7 of this Agreement. In particular, the University will consult on the employment conditions of staff of the proposed entity.’
[134] It was argued on behalf of the applicant, that the University had engaged in a course of conduct which was designed to push the applicant out of the organisation. As the applicant had ‘not got the message’ and left, the respondent had engaged in a restructuring. The restructuring was described as a sham on the grounds that the preferred employees were already in place at the time the proposed re-structure was announced.
[135] On the other hand, the respondent submitted that with an increase in the demands and their complexity on the ORI, Ms Hadfield and Associate Professor Toop had considered other ways of meeting these demands. To this end, a proposal was formulated and circulated to employees on 10 November 2008. This was in accordance with the requirements of clause 70 of the Agreement. Further, the opportunity to provide input or to ask for further information had been accorded to all employees, including the applicant.
[136] Clause 70.2 of the Agreement provides that, when preliminary consideration of the issues may lead to major workplace change with potential significant effects on staff, the University will discuss the issues with staff. On the material before me, it is apparent that there were discussions between Ms Hadfield and Associate Professor Toop regarding ways of better dealing with the demands on the office. However, there does not appear to have been any discussions with staff, including the applicant at this stage.
[137] Clause 70.3 of the Agreement states that, once the University has formed a clear intention to change current arrangements, but before a decision has been made, the University will consult with affected staff. It is in accordance with this provision that the University says it consulted with staff.
[138] To this end, the evidence shows that a meeting took place between Associate Professor Toop and the applicant, on 10 November 2008 regarding the proposed re-structure. This was followed up by an email dated 13 November 2008, which also went out to other staff. The purpose of the meeting was to give the applicant forewarning of the proposed re-structure. A meeting of all staff of the Office to discuss the proposed re-structure was held later on 10 November 2008. The applicant did not attend but requested that she be forwarded any documentation which was duly done. She sought an indication from Associate Professor Toop as to whether the proposed position in Geelong, which was she was being offered, was negotiable in terms of its location. The applicant, in her evidence, said that the answer was a clear ‘no’.
[139] Having carefully considered all of the material before me, I have formed the view that clause 70.3 of the Agreement has not been complied with. It is apparent from the evidence before me, particularly that of Ms Hadfield, that, at the time of the consultation about the proposed re-structure (11 November 2008), the new structure which was proposed was, in effect, already in place. She said that the new structure involved, in essence, four positions. It was Ms Hadfield’s further evidence that, except for line management responsibilities, Ms Emery was performing all of the duties of the Manager Research Integrity position. In addition, she said that Ms Fornaro was performing all of the duties of the Ethics Officer Health prior to the new structure being formally put in place. She stated that the difference between Ms Fornaro’s current position and the proposed new position was that the latter was a continuing position rather than a contract one. This was confirmed by Associate Professor Toop’s evidence – that, in June 2008, Ms Fornaro had been appointed to a six month contract as Human Research Ethics Officer (Medical). It is noted that Ms Bates became the new Human Research Ethics Officer and that it was only Ms Fornaro’s position in the new structure which was advertised.
[140] The consultation provisions of this Agreement are extensive and provide for consultation on major workplace change with affected staff not only after a definitive decision had been made but also, firstly, after preliminary consideration of issues and then, once a clear intention to change current arrangements has been formed. To have, in effect, the new structure in place prior to any or all of these three consultation steps, is not in accordance with the provisions of the Agreement. Accordingly, it is my view that the University did not follow the requirements of Clause 70 of the Agreement.”
[25] Clause 70 of the Agreement provides for three stages of discussion or consultation.
[26] Clause 70.2 requires that “[w]here after a preliminary consideration of issues which may lead to major workplace change and is likely to have significant effects of [sic] staff, the University shall discuss the issues with staff.”
[27] Clause 70.3 provides that “[w]here the University has formed a clear intention to change its current arrangement, but before a decision has been made to introduce major changes in organisation, structure or technology … that are likely to have significant effects on staff members, the University shall consult the staff who may be affected by the proposed changes.”
[28] Clause 70.5 provides that “[t]he consultations referred to in clause 70.3 shall provide sufficient opportunity to discuss the change proposal. Written information provided to staff members … shall include, where appropriate, the extent and nature of the change proposal; reasons for making the change; timeframe for change; details of the likely staffing impacts, including possible redundancies and relocations.”
[29] Clause 70.8 provides that “[a]s early as practicable after a decision has been made to make the changes referred to in clause 70.3, the University shall consult with the staff members affected … regarding the introduction of the changes, the effects the changes are likely to have on staff members and measures to avert or mitigate the adverse effects of the changes in accordance with clauses 19 and 20.”
[30] There does not appear to be any contest that a restructuring of the Office of Research Integrity was a major workplace change which was likely to have significant effects on staff. Nor does Deakin University seem to take issue with the Commissioner’s conclusion that it did not comply with clause 70.2 of the Agreement in respect of the restructuring.
[31] We think the Commissioner’s conclusion that at the time of the consultation with Ms Rametta about the proposed restructure, the new structure proposed was, in effect, already in place, was reasonably open to her on the evidence before her and was correct. We note that at the time of the consultation Deakin University had already put names of people against the positions in the new structure and only offered Ms Rametta appointment to the positions in the new structure against which her name had been placed.
“Live” disputes
[32] Deakin University submits that, to the extent there were disputes between Ms Rametta and Deakin University over the application of the Agreement, the disputes ceased when Ms Rametta’s employment ceased with Deakin University on 5 June 2009. The majority of a Full Bench in ING Administration Pty Ltd v Jajoo 12 decided that cessation of employment did not bring proceedings before the Commission pursuant to a dispute resolution procedure in a certified agreement to an end. That decision was followed in Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.13
[33] Deakin University suggested that these decisions are distinguishable on the basis that they concerned redundancy provisions in certified agreements. They maintained that some disputes over the application of agreements do not survive termination of employment. In this regard, they referred to disputes over the application of terms of an agreement that cannot practically and logically apply to a former employee. They submitted that, in so far as the disputes before the Commissioner concerned the alleged unsatisfactory performance of Ms Rametta and Deakin University’s non-observance of the process in clause 18 of the Agreement and/or the consultation provisions in clause 70 of the Agreement, the disputes ceased for all practical purposes with the cessation of Ms Rametta’s employment by Deakin University on 5 June 2009.
[34] We are not persuaded the principle contained in the decisions in the ING Administration case or the Telstra case is dependent on the nature of the term of the Agreement in dispute as suggested by Deakin University. Accordingly, in light of these decisions, we are not persuaded the Commissioner erred in failing to conclude there was no dispute capable of being conciliated and/or arbitrated before her from the date of the cessation of Ms Rametta’s employment by Deakin University. We consider, for the reasons earlier given, that there were disputes over the application of clauses 18 and 70 of the Agreement capable of being conciliated and/or arbitrated notwithstanding the fact that Ms Rametta’s employment with Deakin University ceased on 5 June 2009.
Remedy ordered
[35] We are persuaded, however, that the Commissioner wrongly decided she had jurisdiction to make the order for Deakin University to provide a written apology to Ms Rametta and to pay her $30,000 in compensation.
[36] In her decision in this regard, the Commissioner said:
“[165] The applicant seeks an order in the following terms:
[166] With respect to the applicant’s seeking of reinstatement to her previous position, in all of the circumstances of this matter, I am not prepared to order reinstatement. It is my observation after three and a half days of hearing, that it would be inappropriate, as the relationships between the parties have moved beyond being harmonious.
[167] It was said by the respondent, and not challenged by the applicant, that she had received 10 months’ pay when she was made redundant in June 2009. Therefore, in terms of current loss, the applicant will not suffer any loss with respect to remuneration until April 2010. With regard to the claim for compensation for future loss of remuneration, the applicant received 10 months pay in accordance with the terms of the Agreement. I do not considerate it appropriate to order compensation for any future loss of remuneration.
[168] The claims for compensation for humiliation, distress and damage to the applicant’s reputation are matters for another jurisdiction and not this Tribunal.
[169] However, I am prepared to order that the University apologise to the applicant in writing. My reasons are that the University did not comply with the requirements of the Agreement and further that, based on all of the material before me, there appears to have been, at times, little intent to do so.
[170] I am also prepared to order an amount of compensation in recompense for the failure, by the University, to apply the provisions of the Agreement to the Applicant. It is my view that $30,000 would be an appropriate amount.
[171] Provision of the written apology and payment of compensation of $30,000 are to be undertaken within 28 days of this decision.
[172] An order to this effect is contained in PR993097.”
[37] There are a number of reasons why we consider the Commissioner did not have jurisdiction to make the order.
[38] Section 170LW of the pre-reform Act provides as follows:
“170LW Procedures for preventing and settling disputes
Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:
(a) to settle disputes over the application of the agreement;
(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes.”
[39] Consistent with this, clause 68 – Dispute Settling Procedures of the Agreement provides for the Commission to resolve disputes over the application of the Agreement by conciliation and/or arbitration. In this regard, clause 68 of the Agreement states:
“68 DISPUTE SETTLING PROCEDURES
68.1 It is agreed that the University and all of its staff members have an interest in the proper application of this Agreement, and in minimising disputes in a timely manner. For the purpose of preventing and settling disputes between the parties to this Agreement, the following procedures have been agreed.
68.2 Where the dispute involves an individual staff member, or a group of staff members, they may first discuss the matter with their supervisor. In accordance with clause 5.7 of this Agreement, the staff member(s) shall have the right to be represented at any time if they so choose.
68.3 Where a dispute is not resolved under clause 68.2, at the request of either party to the dispute a Disputes Committee shall be convened within five working days unless agreed otherwise. The Disputes Committee shall consist of, unless otherwise mutually agreed:
a. two nominees of management; and
b. two members nominated by the Chair of the Staff Liaison Committee from a pool of elected staff members of the University.
68.4 The Disputes Committee shall attempt to resolve the matter within five working days of its first meeting. Any resolution shall be in the form of a written agreement subject, if necessary, to ratification by either party.
68.5 Any staff member involved in the dispute shall be entitled to put their position to the meeting in person, and shall be advised of the outcome of the meeting’s deliberations.
68.6 Until the procedures described in clause 68.3 have been exhausted:
a. work shall continue in the normal manner;
b. no industrial action shall be taken by either party to the dispute;
c. management shall not change the work, staffing or the organisation of the work if such is the subject of dispute, nor take any action likely to exacerbate the dispute; and
d. the subject matter of the dispute shall not be taken to the Australian Industrial Relations Committee by the parties to the dispute (except in the case of any matter where the time limit of notification would otherwise expire).
68.7 In the event that the dispute remains unresolved by the process specified in clause 68 the matter may be referred to the Australian Industrial Relations Commission.
68.8 Where the Commission determines that it has jurisdiction to arbitrate, the Commission may resolve the dispute by the process of conciliation and/or arbitration. The parties to the dispute agree to be bound by the Commission’s resolution of the dispute.
68.9 Where the Commission determines that it does not have jurisdiction to arbitrate, the parties to the dispute agree to be bound by any recommendation made by the Commission, during conciliation, to resolve the dispute.
68.10 Nothing in this clause prevents the parties to this dispute from agreeing to refer an unresolved dispute to a person or body other than the Australian Industrial Relations Commission for resolution, in which case the parties to the dispute agree to be bound by any recommendation to resolve the dispute, made by the agreed person or body.” [Underlining added]
[40] In Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission and Another, 14 the High Court of Australia said:
“There is … a significant difference between agreed and arbitrated dispute settlement procedures. As already indicated, the Commission cannot, by arbitrated award, require the parties to submit to binding procedures for the determination of legal rights and liabilities under an award because Ch III of the Constitution commits power to make determinations of that kind exclusively to the courts. However, different considerations apply if the parties have agreed to submit disputes as to their legal rights and liabilities for resolution by a particular person or body and to accept the decision of that person as binding on them.
Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.
To the extent that s 170MH of the IR Act operates in conjunction with an agreed dispute resolution procedure to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the Commission to exercise a power of private arbitration. And procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation to prevent that situation from developing into an industrial dispute are clearly procedures for maintaining that agreement. Parliament may legislate to authorise the Commission to participate in procedures of that kind.” 15 [Underlining added]
[41] Consistent with this decision, a Full Bench of the Australian Industrial Relations Commission in University of Western Sydney v Professor Richard Fletcher 16 said:
“[24] A dispute over the application of a provision of an agreement may involve disputed issues of fact and could raise issues of interpretation of the provision. It involves a process of ascertaining the facts and the application of the terms of the agreement to them. The dispute would necessarily relate to past events. In arbitrating such a dispute the Commission would be concerned with the actions and conduct of the parties involved in the dispute and whether the action and conduct accords with the terms of the provision of the agreement. In other words has the provision been applied according to its terms? In giving a decision in the dispute the Commission would express an opinion as to whether the actions or conduct accords with the provision of the Agreement and whether it has been applied in accordance with its terms. The parties to the dispute would be bound by the arbitrated decision.” 17 [Underlining added]
[42] Clause 68 of the Agreement, read with s.170LW of the pre-reform Act, clearly provides that the Commissioner had power to arbitrate an outcome to resolve the disputes over the application of the Agreement. In doing so she was authorised “to make decisions as to the legal rights and liabilities of the parties to the Agreement” and give a decision expressing “an opinion as to whether the actions or conduct (of the parties involved in the disputes) accords with the provision(s) of the Agreement and whether it has been applied in accordance with its terms.” Deakin University submitted that consistent with this the Commissioner could make a determination to resolve the disputes which would have the effect that the provisions of the Agreement would be properly applied. 18
[43] The order of the Commissioner, however, went beyond this.
[44] Nothing in s.170LW of the pre-reform Act, the WR Act or the Agreement makes reference, either explicitly or implicitly, to the proper application of clauses 18 and 70 of the Agreement involving an apology or an award of compensation.
[45] The order made was not reasonably incidental to the application of the Agreement to which the disputes related. 19
[46] As a result the Commissioner, in making the order for Deakin University to provide a written apology to Ms Rametta and to pay her $30,000 in compensation, exceeded her jurisdiction by going beyond her power to settle the disputes over the application of the Agreement.
[47] Accordingly, we grant leave to appeal, uphold the appeal and quash the Commissioner’s decision 20 and order21 of 2 February 2010. An order to this effect is published with this decision.22 We will determine the matter ourselves.
Conclusion
[48] We have concurred with the Commissioner’s decision that there is a dispute between Ms Rametta and Deakin University over the application of clause 18 of the Agreement in relation to the transitional employment arrangements Deakin University imposed on Ms Rametta and that Deakin University was required to, but did not, comply with the provisions of clauses 18.7 to 18.18 of the Agreement before imposing on Ms Rametta the transitional employment arrangements set out in their letter to her of 20 March 2008.
[49] We have also concurred with the Commissioner’s decision that there is a dispute between Ms Rametta and Deakin University over the application of clause 70 of the Agreement in relation to the restructuring of the Office of Research Integrity at Deakin University and that Deakin University was required to, but did not, comply with the provisions of clause 70 of the Agreement in respect of that restructuring. In particular, Deakin University did not comply with the discussion and consultation provisions in clauses 70.2 and 70.3 of the Agreement.
[50] We concur with the Commissioner’s decision in respect of the dispute over the application of clause 19 of the Agreement for the reasons given by the Commissioner.
[51] We decide that clauses 18.7 to 18.18 of the Agreement were not applied in accordance with their terms before Deakin University imposed on Ms Rametta the transitional employment arrangements set out in their letter to her of 20 March 2008, as Deakin University did not, as required, comply with its obligations under clauses 18.7 to 18.18 of the Agreement before imposing those transitional employment arrangements on Ms Rametta. We also decide that clauses 70.2 and 70.3 of the Agreement were not applied in accordance with their terms in 2008 and 2009 in respect of the restructuring of the Office of Research Integrity at Deakin University, as Deakin University did not, as required, comply with its obligation under clause 70.2 of the Agreement to discuss the issues with Ms Rametta and did not, as required, comply with its obligation under clause 70.3 of the Agreement to consult with Ms Rametta.
[52] We are not persuaded we should go beyond this, as proposed by Ms Rametta, having regard to the basis of the termination of Ms Rametta’s employment in June 2009, the redundancy payment she received on the termination, the existence of legislative provisions in respect of costs incurred in matters before the tribunal, including tribunal rules on applications for costs, and the limits of our jurisdiction.
SENIOR DEPUTY PRESIDENT
Appearances:
F. Parry, of senior counsel, with J. D’Abaco, of counsel, for Deakin University.
M. Willoughby-Thomas, solicitor, for Ms Silvia Rametta.
E. White, of counsel, for the National Tertiary Education Industry Union
Hearing details:
2010.
Melbourne:
May 18.
Endnotes:
1 Ms S Rametta v Deakin University, [2010] FWA 193.
2 Ms S Rametta v Deakin University, PR993097.
3 C2009/2289.
4 C2009/2441.
5 AG844396, PR965220.
6 Exhibit A1 in C2009/2289 and C2009/2441.
7 Deakin University Enterprise Bargaining Agreement 2005-2008, AG844396, PR965220 at clause 1.
8 Ms S Rametta v Deakin University, [2010] FWA 193 at paragraphs 152-154 and 164.
9 Ibid at paragraphs 140 and 164.
10 Ibid at paragraph 163.
13 [2007] AIRCFB 374 at paragraphs 12-13.
14 [2000] 203 CLR 645.
15 Ibid at 657-658.
17 Ibid at paragraph 24.
18 Exhibit A1 in C2010/2857 at paragraph 17.
19 Maritime Union of Australia v Australian Plant Services Pty Ltd, PR908236 at paragraph 63.
20 Ms S Rametta v Deakin University, [2010] FWA 193.
22 Deakin University v Ms S. Rametta, PR998239.
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