| [2019] FWC 2282 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Kim Davis; David Cantrick-Brooks; Michael Turner
v
The University of Newcastle
(C2019/478)
DEPUTY PRESIDENT SAUNDERS |
NEWCASTLE, 4 APRIL 2019 |
Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement - jurisdiction.
Introduction and background
[1] Ms Kim Davis, Mr Michael Turner and Mr David Cantrick-Brooks (Applicants) are employed by the University of Newcastle (University). Mr Cantrick-Brooks is the Secretary and Chief Governance Officer within the Council and Records Management team in the Office of the Chancellor (Secretariat Team). Ms Davis is the Deputy Secretary within the Secretariat Team. Mr Turner is a Governance Officer within the Secretariat Team.
[2] In late September 2018, Mr Nat McGregor, Chief Operating Officer within the Resources Division of the University, made allegations of misconduct and serious misconduct against the Applicants. The allegations relate to conduct going back some years in connection with the design, development and commercialisation of computer software that improves, and makes more efficient, the University’s internal processes.
[3] In November 2018, the Applicants provided Mr McGregor with their written responses to the allegations. On 10 December 2018, Mr McGregor informed the Applicants, in writing, that a Committee of Inquiry would be established under clause 74 of the University of Newcastle Professional Staff Enterprise Agreement 2014 (Enterprise Agreement) and, unless the University agreed otherwise, the Applicants would not be permitted to have legal representation at the Committee of Inquiry.
[4] On 18 December 2018, the University informed the Applicants of the identity of the persons appointed to the Committee of Inquiry. On 8 January 2019, the Secretary to the Committee of Inquiry informed the Applicants, in writing, that a session of the Committee of Inquiry had been scheduled for 23 and 24 January 2019. On 16 January 2019, the Secretary to the Committee of Inquiry provided the Applicants with the University’s submissions to the Committee of Inquiry.
[5] On 18 January 2019, the Applicants filed an application in the Fair Work Commission (Commission) for it to deal with a dispute in accordance with the dispute resolution procedure in clause 75 of the Enterprise Agreement (Application).
[6] The dispute proceeded to conciliation before the Commission on 4 February 2019. The University participated in that conciliation, but reserved its right to raise jurisdictional issues in relation to the Application. The conciliation was unsuccessful.
[7] On 8 March 2019, the Applicants provided the Commission and the University with a list of the questions they request be arbitrated by the Commission pursuant to clause 75 of the Enterprise Agreement. On the same date, Mr Cantrick-Brooks filed a New Approaches application in the Commission (New Approaches Application).
[8] On 15 March 2019, the University filed submissions in the Commission in which it:
(a) submits that the Commission does not have jurisdiction to deal with the Application insofar as it relates to Ms Davies and Mr Turner for the following three reasons:
(i) the dispute resolution procedure in clause 75 of the Enterprise Agreement does not apply where the matter is being dealt with in accordance with Committee of Inquiry process contained within clause 74 of the Enterprise Agreement. Because the matters relating to Ms Davies and Mr Turner are currently each the subject of a Committee of Inquiry process under clause 74 of the Enterprise Agreement, the University contends that the Application cannot be made at this time;
(ii) Ms Davies and Mr Turner have not complied with the mandatory steps in clauses 75.3 – 75.5 of the Enterprise Agreement, which are pre-conditions to the Commission having jurisdiction to deal with the dispute; and
(iii) to the extent to which Ms Davies and Mr Turner continue to seek the Commission’s assistance to deal with a dispute concerning work, health and safety, the pre-conditions in clause 31.2 of the Enterprise Agreement, which must be completed before clause 75 of the Enterprise Agreement is engaged, have not been met.
(b) submits that the Commission does not have jurisdiction to deal with the Application insofar as it relates to Mr Cantrick-Brooks because he is not covered by the Enterprise Agreement; and
(c) raises a number of objections to the New Approaches Application.
[9] On 26 March 2019, the Applicants filed and served submissions in reply to the jurisdictional objections made by the University.
[10] This decision deals with the jurisdictional objections raised by the University to the Application.
[11] The Application has been made under section 739 of the Fair Work Act 2009 (Cth) (Act). The test under section 739 of the Act is whether the dispute resolution clause “requires or allows” the Commission to deal with the dispute. It is therefore necessary to look at the text of the dispute resolution clause, understood in light of its industrial context and purpose, 1 to determine whether the dispute, properly characterised, falls within it.2
[12] The scope of a dispute resolution clause in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.” 3
[13] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. 4 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.5 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.6
[14] It is also important to note that the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute. 7 However, the relief sought may cast light on the true nature of the dispute in some cases.8
[15] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant in such circumstances will depend on the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the Enterprise Agreement to which the dispute relates. 9
[16] Clause 75 of the Enterprise Agreement provides as follows:
“75.0 DISPUTE RESOLUTION PROCEDURE
75.1 Where a dispute arises, or is considered likely to arise, regarding the interpretation, application or operation of any provision of this Agreement or the National Employment Standards, the procedures contained in this clause will be followed.
75.2 At any stage in the procedure under this clause a staff member may be represented in accordance with Clause 71 of this Agreement, provided that representation by a lawyer in proceedings under Clause 75.6 and Clause 75.7 will be subject to the applicable rules of the Tribunal to which the dispute has been referred.
75.3 A dispute arising under this clause will in the first instance be discussed by the staff member(s) and their supervisor in an effort to resolve the matter promptly. The staff member(s) may seek the assistance of the relevant Union or other support person (being a staff member) in which case the supervisor may also have a support person.
75.4 Where the steps in Clause 75.3 are unsuccessful, or where the Union raises a dispute, a representative of the relevant Union(s) and a representative of the University will discuss the dispute and attempt to reach an agreement. Where the parties agree, the dispute resolution may proceed directly to the Disputes Committee in Clause 75.5.
75.5 Where the dispute is not resolved under Clause 75.4, at the request of either party a Disputes Committee will be convened within five (5) working days, unless agreed otherwise. The Disputes Committee will consist of two (2) nominees of the University and two (2) nominees of the Union.
75.6 If there is no resolution of the dispute the matter may be referred to the Fair Work Commission, or to a person who is a member of the Industrial Relations Commission of New South Wales in accordance with s.146B of the New South Wales Industrial Relations Act. In dealing with the dispute the relevant body may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make such dealing effective.
75.7 Should the Fair Work Commission or the Industrial Relations Commission of New South Wales proceed with the matter, it will then:
(i) seek to facilitate a fair and reasonable conclusion to the dispute as promptly as possible, via mediation and/or conciliation of the matter in dispute. If these options are unsuccessful, the Fair Work Commission or the Industrial Relations Commission may arbitrate the matter. The parties to the dispute may be represented by a person(s) of their choice;
(ii) make a recommendation to the parties to the dispute or, if the matter is arbitrated, make a determination. The parties to the dispute will consider any recommendation made. Any determination made will be binding on the parties, subject to a party to the dispute exercising a right of appeal under the Fair Work Act.
75.8 This dispute resolution procedure does not apply where the matter is being dealt with in accordance with the Inquiry Officer – Clause 73 or Committee of Inquiry – Clause 74 process.
75.9 Until the procedures in this clause have been exhausted, work will continue and no industrial action or any other action likely to exacerbate the dispute will be taken by any party to the dispute.”
[17] The dispute settlement procedure in clause 75 of the Enterprise Agreement is plainly intended to have operation in a wide range of circumstances, but its reach is not unlimited. 10 It prescribes procedures designed to resolve disputes which arise, or are considered likely to arise, “regarding the interpretation, application or operation of any provision of this Agreement or the National Employment Standards”. However, not all disputes and grievances which might conceivably occur at, or in connection with, the workplace will be subject to the dispute resolution procedure in the Enterprise Agreement. The operation of clause 75 will only be attracted if the dispute can be linked in the requisite way to “the interpretation, application or operation” of the Enterprise Agreement or the National Employment Standards.11
[18] The word “regarding” in clause 75.0 is of wide import. 12
[19] A dispute cannot “arise … regarding the interpretation, application or operation of any provision of this Agreement” within the meaning of clause 75.0 of the Enterprise Agreement unless the dispute has a relationship with the provisions of the Enterprise Agreement itself. 13 The nature of the relationship which is necessary to meet the test may be in issue in particular cases.14
[20] As to the requirement that the dispute be linked in the requisite way to the “interpretation, application or operation of any provision of this Agreement”:
(a) interpretation concerns the construction of a provision; 15
(b) application may involve considering whether past actions and conduct of parties to a dispute accords with the provision of the enterprise agreement. 16 In other words, has the provision been applied according to its terms? Application may also mean to make use of, implement or apply a provision of an enterprise agreement, such as a dispute as to whether a particular employee should be classified under one or another category in an enterprise agreement;17 and
(c) operation concerns consideration of the process or manner of operating of a provision. 18
[21] As the Full Bench explained in AWU v MC Labour Services Pty Ltd, 19 it may also be relevant to have regard to section 186(6) of the Act as a relevant contextual matter in construing a dispute resolution procedure in an enterprise agreement:
“[38] The requirements of s.186(6) may be relevant in identifying the proper construction of a dispute resolution clause in an agreement. If the proper meaning of such a clause is disputed, the resolution of the disputed construction will begin with the ordinary meaning of the relevant words, considered in context, in accordance with the principles summarised in AMWU v Berri. The legislative framework, including s.186(6), is part of that context. There may be cases where, properly construed, clause allows the Commission to proceed to deal with a matter, despite certain steps not being satisfied. And of course, there may be clauses which expressly allow certain steps to be bypassed, or for the Commission to have a general discretion to deal with disputes.”
[22] Section 186(6) of the Act provides:
“The FWC must be satisfied that the agreement includes a term:
(a) That provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:
(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and
(b) That allows for the representation of employees covered by the agreement for the purposes of that procedure.”
[23] The proper construction of clauses 75.1 to 75.7 and 75.9 of the Enterprise Agreement is not particularly controversial in this case. The most contentious issue of construction in relation to clause 75 of the Enterprise Agreement centres on the carve-out in clause 75.8 of the Enterprise Agreement. It is of pivotal importance to the first jurisdictional objection raised by the University. The carve-out applies “where the matter is being dealt with in accordance with the Inquiry Officer – Clause 73 or Committee of Inquiry – Clause 74 process”. In order to understand the Inquiry Officer and Committee of Inquiry processes in context, it is relevant to have regard to the following provisions of the Enterprise Agreement:
“12.0 PERFORMANCE CONCERNS
12.1 On identification of concerns about a staff member’s performance, the supervisor and staff member will meet to:
(i) specify and discuss those concerns, taking into account relevant factors;
(ii) attempt to resolve the matters of concern through measures such as guidance, counselling, development and work allocation; and
(iii) discuss and set the timeframe within which concerns are to be addressed.
13.0 UNSATISFACTORY PERFORMANCE
13.1 For the purposes of this clause:
“Unsatisfactory Performance” means a persistent and/or serious failure of the staff member to perform work which would be reasonably required having regard to:
(i) the nature and purpose of the position; and
(ii) the level of classification.
13.2 Where action has been taken under Performance Concerns – Clause 12, and the supervisor is of the opinion that the performance of the staff member is unsatisfactory, the supervisor will meet with the staff member and discuss:
(i) the details of the unsatisfactory performance;
(ii) any mitigating circumstances or alternative views;
(iii) the improvement required;
(iv) activities designed to assist in improving performance (where appropriate);
(v) the time within which reasonable improvement is to be achieved and maintained; and
(vi) the potential consequences of continued unsatisfactory performance, which may include disciplinary action under Disciplinary Action - Clause 15.
13.3 A written record of the discussion and the measures to address the unsatisfactory performance will be made and a copy supplied to the staff member.
13.4 Where the processes referred to above have not produced the required performance improvement(s), the supervisor will make a report in writing addressing the issues identified in Clause 13.2. The report will also include evidence and a record of the measures taken to remedy the unsatisfactory performance.
13.5 A copy of the report is to be provided to the staff member and the relevant Pro Vice- Chancellor/Director. Within 10 working days of receiving the report, unless there are exceptional circumstances to extend such time, the staff member may choose to:
(i) respond in writing to the report; and/or
(ii) meet with the Pro Vice-Chancellor/Director to discuss the response and/or provide any further information.
Where the staff member is of the view that there are exceptional circumstances a staff member may submit a request to the Director, People and Workforce Strategy for an extension of time. The request must be made within the 10 day period and explain the reasons why the extension is required.
13.6 The Pro Vice-Chancellor/Director, after taking into account the supervisor’s report and any response provided by the staff member, will advise the staff member in writing of the decision to:
(i) take no further action;
(ii) refer the matter back to the supervisor for a further review period; or
(iii) recommend to the relevant Deputy Vice-Chancellor or Chief Operating Officer that disciplinary action be taken in accordance with Disciplinary Action - Clause 15.
13.7 Where the Pro Vice-Chancellor/Director refers the matter under Clause 13.6 (iii) the staff member may request that the relevant Deputy Vice-Chancellor or Chief Operating Officer refer the matter to a Committee of Inquiry under Clause 74. Such a request must be made within 5 working days of receiving the Pro Vice-Chancellor/Director’s written advice.
13.8 If the matter is referred to the Deputy Vice-Chancellor or Chief Operating Officer under Clause 13.6 (iii), the appropriate Deputy Vice-Chancellor or Chief Operating Officer will take into account:
(i) the supervisor’s report and supporting materials;
(ii) the staff member’s response to the supervisor’s report;
(iii) the Pro Vice-Chancellors’/Directors’ recommendation under Clause 13.6 (iii); and, if applicable
(iv) any findings and recommendations of the Committee of Inquiry under Clause74.
13.9 The appropriate Deputy Vice-Chancellor or Chief Operating Officer will make a determination in relation to Disciplinary Action - Clause 15, and advise the staff member in writing of the decision.
13.10 Throughout this process, performance issues will be dealt with in a timely manner.
14.0 MISCONDUCT / SERIOUS MISCONDUCT
14.1 For the purpose of this clause:
14.1.1 “Misconduct” means conduct which is not serious misconduct but which is nonetheless conduct which is unsatisfactory;
14.1.2 “Serious Misconduct” means:
(i) serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of a staff member’s duties or to a staff member’s colleagues carrying out their duties;
(ii) serious dereliction of the duties required of the staff member’s office;
(iii) conviction by a court of an offence which constitutes a serious impediment of the kind referred to in (i) above.
14.1.3 Serious misconduct includes:
(i) wilful or deliberate behaviour by a staff member that is inconsistent with the continuation of the contract of employment;
(ii) conduct that causes serious and imminent risk to:
(a) the health or safety of a person; or
(b) the reputation, viability or profitability of the University;
(iii) the staff member, in the course of the staff member’s employment, engaging in:
(a) theft; or
(b) fraud; or
(c) assault;
(iv) the staff member being intoxicated at work such that the staff member’s faculties are, by reason of the staff member being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the staff member is unfit to be entrusted with the staff member’s duties or with any duty that the staff member may be called upon to perform;
(v) the staff member refusing to carry out a lawful and reasonable instruction that is consistent with the staff member’s contract of employment.
(vi) serious and/or repeated bullying or harassment, including sexual harassment.
14.1.4 Serious misconduct may include persistent and repeated instances of proven misconduct which evidence a pattern of behaviour.
14.2 Wherever possible, the matter will be dealt with expeditiously, including where relevant a staff member’s supervisor attempting to resolve instances of possible misconduct through guidance, counselling, appropriate staff development or work allocation and/or formal written notification of the University’s expectations.
14.3 Any allegation of misconduct or serious misconduct will be considered by the appropriate Deputy Vice-Chancellor or Chief Operating Officer. If the appropriate Deputy Vice-Chancellor or Chief Operating Officer believes such allegations warrant further investigation they will:
(i) notify the staff member of the allegation(s) in writing and in sufficient detail to enable the staff member to understand the precise nature of the allegations and to properly consider and respond to them; and require the staff member to submit a written response within 10 working days unless, where required, the matter has been referred to an external body; or
(ii) where required, refer the matter to an external body with the appropriate jurisdiction to deal with the matter and in such cases, inform the staff member in writing of the nature of the issues and of the referral.
14.4 The appropriate Deputy Vice-Chancellor or Chief Operating Officer, may at any time after receiving the allegation of misconduct/serious misconduct suspend the staff member on full pay in situations such as where the continued presence of the staff member in the workplace:
(i) constitutes a risk to the health and safety of a person; and/or
(ii) poses a threat to the reputation, viability or profitability of the institution; and/or
(iii) interferes with evidence relevant to an investigation.
14.5 During a period of suspension a staff member will be provided with reasonable access to the workplace to prepare a case and collect personal property.
14.6 Subsequent to the process set out in Clause 14.3 (ii) for referral to an external body, the staff member will be provided by the University with the detail of the findings and be given an opportunity to provide the Deputy Vice-Chancellor or Chief Operating Officer with a statement in response.
14.7 If at Clause 14.3 (i) the allegations are admitted in full by the staff member, or if the staff member has not responded to the allegations, and the appropriate Deputy Vice-Chancellor or Chief Operating Officer is of the view that the conduct amounts to misconduct or serious misconduct, the appropriate Deputy Vice-Chancellor or Chief Operating Officer may decide to take disciplinary action, and if so, will advise the staff member in writing of the decision and the operative date of the disciplinary action.
14.8 If at Clause 14.3 (i) the allegations are denied in part or in full the appropriate Deputy Vice- Chancellor or Chief Operating Officer will refer the matter to a Committee of Inquiry - Clause 74 unless they decide to take no further action, or counsel or censure the staff member for unsatisfactory behaviour and take no other action.
14.9 Any Committee of Inquiry report, and/or findings of an external body in accordance with Clause 14.3 (ii), together with any response made by the staff member at Clause 14.6, will be considered by the appropriate Deputy Vice-Chancellor, or Chief Operating Officer who will determine:
(i) there is no misconduct/serious misconduct and take appropriate action; or
(ii) to counsel or censure the staff member; or
(iii) that misconduct/serious misconduct has occurred and advise the staff member of the disciplinary action to be taken.
15.0 DISCIPLINARY ACTION
15. Decisions to discipline a staff member may result from:
(i) Unsatisfactory Performance - Clause 13; or
(ii) Misconduct / Serious Misconduct - Clause 14.
15.2 The decision to take disciplinary action is made by the Vice-Chancellor; or appropriate Deputy Vice- Chancellor or Chief Operating Officer. Disciplinary action means any one or combination of the following:
(i) counselling; and/or
(ii) further training and development; and/or
(iii) formal censure; and/or
(iv) loss of increment(s); and/or
(v) demotion; or
(vi) termination alone.
15.3 In cases involving misconduct not amounting to serious misconduct, disciplinary action will be limited to the scope of Clause 15.2 (i) – (v).
…
PART K: CONSULTATION
71.0 REPRESENTATION
71.1 At any stage, a staff member may nominate a representative for the purposes of this Agreement, from whom they may seek advice, assistance or representation.
71.2 A representative must be:
(i) a member of the staff of the University; or
(ii) an official or office holder of the relevant Union;
who is not a member of the legal profession, such as a barrister or solicitor, in private practice. The University, in turn, will not be represented by a member of the legal profession, such as a barrister or solicitor, in private practice.
71.3 In instances where staff request representation which may not conform to Clause 71.2, the University will give reasonable consideration to the request.
71.4 Representation responsibilities will be regarded as duty. The University will allow staff reasonable time away from usual duties or time allocation in their workload to prepare for and attend meetings, attend appropriate training and, represent staff in relation to this Agreement subject to operational requirements.
…
PART L: REVIEW PROCESSES AND DISPUTE RESOLUTION
73.0 INQUIRY OFFICER
73.1 A staff member may make an application in writing to the appropriate Deputy-Vice Chancellor or Chief Operating Officer to review a decision in relation to:
(i) Performance Review and Development – Clause 7; or
(ii) Managing Staff Workload – Clause 8; or
(iii) Classification Structure and Review – Clause 9; or
(iv) Probation – Clause 11; or
(v) Redeployment– Clause 22.2 and 22.3; or
(vi) Intellectual Property Rights – Clause 28; or
(vii) Leave – Clauses 57 – 66 and 70.
73.2 The University will appoint an Inquiry Officer who:
(i) is without conflict of interest;
(ii) has the capacity to undertake the inquiry within the context of the relevant University policies and processes;
(iii) will apply the principles of procedural fairness.
Prior to appointment of an Inquiry Officer, the University will consult with the relevant union about the appointment.
73.3 The Inquiry Officer will determine the procedure for conducting a review in a timely manner and will outline the procedure to the staff member. The objective of any review will be to:
(i) determine whether the relevant procedures were complied with; and
(ii) whether any procedural difficulty is fundamental; and
(iii) consider any other facts that may have had a bearing on the decision.
73.4 The Inquiry Officer will examine the application in accordance with the relevant clause of this Agreement and any other relevant policies and procedures of the University.
73.5 The Inquiry Officer may interview the applicant and make any other enquiries to assist in making a decision in relation to the application, including receiving submissions from the staff member seeking the review, and their representative or any other relevant person.
73.6 The Inquiry Officer will provide a written report to the appropriate Deputy Vice-Chancellor or Chief Operating Officer within 10 working days of the completion of the proceedings. In making a report to the appropriate Deputy Vice-Chancellor or Chief Operating Officer the Inquiry Officer will make:
(i) findings in relation to the matters specified at Clause 73.3 and provide reasons; and
(ii) comments on the process, facts or any mitigating circumstances relevant to the case and may make recommendations.
The staff member will be provided with a copy of the Inquiry Officer’s report at the same time as the report is provided to the appropriate Deputy Vice-Chancellor or Chief Operating Officer, and the staff report is provided to the appropriate Deputy Vice-Chancellor or Chief Operating Officer, and the staff member will have a period of 5 working days in which to provide comment on the report to the appropriate Deputy Vice-Chancellor or Chief Operating Officer.
73.7 After considering the report(s) and the staff member’s response, the appropriate Deputy Vice- Chancellor or Chief Operating Officer will determine that:
(i) the decision is upheld; or
(ii) the decision is overturned; or
(iii) the provisions of this Agreement should be reapplied from the point at which it was found that procedural fairness did not occur; and/or
(iv) some other outcome.
74.0 COMMITTEE OF INQUIRY
74. A Committee of Inquiry may be initiated by a staff member writing to the appropriate Deputy Vice- Chancellor or Chief Operating Officer to request a review of a recommendation in relation to Unsatisfactory Performance – Clause 13.
74.2 A Committee of Inquiry will also be initiated where required in accordance with the provisions of Misconduct/Serious Misconduct - Clause 14.
74.3 The Committee of Inquiry will comprise:
(i) a staff member employed and chosen by the University;
(ii) a staff member nominated by the relevant union;
(iii) An independent Chairperson.
74.4 Each appointee must satisfy the following criteria:
(i) be without conflict of interest;
(ii) have the capacity to undertake the inquiry within the context of the relevant University policies and procedures;
(iii) be able to apply the principles of procedural fairness.
74.5 The staff member and the University may be assisted before the Committee of Inquiry by a representative, should they choose.
74.6 The Committee of Inquiry will:
(i) provide an opportunity for the staff member to be interviewed and ensure that they have adequate opportunity to respond to any decision/review/report/allegation/recommendation;
(ii) take into account such further materials as the Committee believes appropriate to substantiate (or otherwise) any matters in dispute;
(iii) seek information and advice in relation to policy, practice and procedural matters;
(iv) interview any person it thinks fit, including the staff member concerned, to establish the process, facts and any mitigating circumstances relevant to the particular review/report/allegation/recommendation;
(v) conduct all interviews in the presence of the staff member and/or a representative as specified in Clause 74.5;
(vi) conduct proceedings as expeditiously as possible;
(vii) conduct proceedings in camera unless otherwise agreed;
(viii) ensure that the staff member, or where they choose their representative, and the University or its representative, have the right to ask questions of interviewees, to make submissions and present and challenge evidence, provided that where the committee so determines the staff member, but not their representative, may be excluded from the conduct of the proceedings;
(ix) determine whether an audio recording of the proceedings (but not the Committee’s deliberations) will be made. Where an audio recording is made, it will be available to the staff member and their representative on request.
74.7 Hearings of a Committee of Inquiry will be conducted within 4 weeks of applications being made to it unless the University and the staff member agree otherwise.
74.8 The Committee of Inquiry will provide a written report to the appropriate Deputy Vice-Chancellor or Chief Operating Officer and the staff member within 10 working days of the conclusion of proceedings. In its report the Committee may comment on the process, facts or any mitigating circumstances relevant to the case and may make recommendations to the Deputy Vice-Chancellor or Chief Operating Officer.
74.9 Having considered the Committee of Inquiry report, any determination of the appropriate Deputy Vice-Chancellor or Chief Operating Officer will be final.”
Submissions concerning the scope of the carve-out in clause 75.8 of the Enterprise Agreement
[24] The University submits that the effect of the carve–out in clause 75.8 of the Enterprise Agreement is to limit the time at which a dispute can be notified under clause 75. It contends that in circumstances where a Committee of Inquiry for each of Ms Davis and Mr Turner was established in December 2018 in accordance with clause 74 of the Enterprise Agreement, and with the Committees of Inquiry still in existence, the Commission does not currently have jurisdiction to deal with a dispute relating to Ms Davis or Mr Turner.
[25] The University also submits, for the avoidance of doubt, that clause 75.8 of the Enterprise Agreement does not restrict the provisions in the Agreement which can be subject to a dispute under clause 75. The University accepts that clause 74 can be the subject of a dispute under clause 75, but contends that clause 75.8 effects the timing of notifying a dispute about a matter being dealt with under clause 74.
[26] The Applicants submit that clause 75.8 does not provide that the Commission may not deal with a dispute in relation to a matter being dealt with in accordance with the Committee of Inquiry process. A construction of clause 75.8 which gives this effect should not be adopted, so the Applicants contend, because such a construction would be inconsistent with s 186(6)(a)(i) of the Act.
[27] The Applicants submit that having regard to the context of 186(6)(a)(i) of the Act, clause 75.8 should be read as simply removing any internal procedural hurdle on the bringing of a dispute before the Commission that might arise by reason of the balance of clause 75. In other words, the Applicants contend that clause 75.8 substantively provides that the internal dispute resolution procedure does not apply where the matter is being dealt with in accordance with the Inquiry Officer or Committee of Inquiry process in clause 73 and clause 74 of the Enterprise Agreement respectively. The Applicants say that, pragmatically, the internal procedures contemplated by clause 75.3 to 75.6 of the Enterprise Agreement have no utility in the context of a Committee of Inquiry process. By contrast, the Applicants contend that the intervention of the Commission on the Committee of Inquiry process is warranted (for example, to ensure that such a process is fair, reasonable, conducted in accordance with the terms of the Enterprise Agreement and the principles of natural justice).
[28] In the alternative, the Applicants contend that the expression “the matter” in clause 75.8 should be understood as meaning “the matter or dispute that is the subject of the Committee of Inquiry process”. The Applicants readily concede that it would be inconsistent with the purpose of the Enterprise Agreement that all of the substantive matters before the Committee of Inquiry also be the subject of simultaneous arbitration before the Commission. However, the Applicants say that is not the position for which they contend. Rather, the Applicants submit that their dispute concerns the University’s application and interpretation of clause 74 of the Enterprise Agreement (along with those clauses with which clause 74 interacts). The application and interpretation of clause 74 of the Enterprise Agreement (along with those clauses with which clause 74 interacts) is not, so the Applicants contend, a matter that is being dealt with in accordance with clauses 73 and 74 of the Enterprise Agreement. In fact, the Applicants submit they are not matters that are being dealt with in accordance with any internal process of the University.
Conclusion re proper construction of the carve-out in clause 75.8 of the Enterprise Agreement
[29] Based on the competing contentions set out above in relation to the proper construction of clause 75.8 of the Enterprise Agreement, I am satisfied that clause 75.8 is ambiguous or susceptible of more than one meaning. As neither party sought to adduce evidence of any surrounding circumstances to aide the interpretation of the Enterprise Agreement, however, I will analyse the text used in clause 75.8, understood in light of its industrial context and purpose, 20 together with the other principles of interpretation summarised in AMWU v Berri, to construe the scope of the carve-out in clause 75.8.
[30] The carve-out in clause 75.8 of the Enterprise Agreement applies “where the matter is being dealt with in accordance with the Inquiry Officer – Clause 73 or Committee of Inquiry – Clause 74 process”. The Inquiry Officer process under clause 73 of the Enterprise Agreement concerns an application by an employee for a review of a decision relating to a range of matters such as staff workload, classification structure and leave. The Committee of Inquiry process under clause 74 of the Enterprise Agreement concerns disputes in relation to unsatisfactory performance recommendations or allegations of misconduct or serious misconduct. Both processes are internal processes for resolving disputes between an employee covered by the Enterprise Agreement and the University in relation to certain operational decisions or disciplinary matters. The purpose of the carve-out in clause 75.8 is to ensure the parties to a dispute of the requisite character are not subjected to simultaneous dispute resolution processes under (a) clause 73 or 74 of the Enterprise Agreement and (b) clause 75 of the Enterprise Agreement. For example, clause 75.8 of the Enterprise Agreement would prevent the parties to a dispute concerning allegations of serious misconduct from being subjected to simultaneous processes involving the determination of whether the alleged serious misconduct occurred by (a) a Committee of Inquiry under clause 74 and (b) the Commission in an arbitration under clause 75.
[31] However, the carve-out in clause 75.8 is only engaged if the “matter is being dealt with in accordance with the Inquiry Officer – Clause 73 or Committee of Inquiry – Clause 74 process” [emphasis added]. In some cases, there will be no dispute that the matter is being dealt with in accordance with the Inquiry Officer or Committee of Inquiry process, in which case the Commission will not have jurisdiction to arbitrate the dispute while it is being dealt with under the Inquiry Officer or Committee of Inquiry process. On the other hand, in some disputes, there may be a contest as to whether there is, or has been, compliance with the appropriate process. By way of example, there may be a dispute as to whether an appointee to a Committee of Inquiry is “without conflict of interest” within the meaning of clause 74.4(i) of the Enterprise Agreement. Such a dispute “arises … regarding the interpretation, application or operation of any provision of this Agreement” within the meaning of clause 75.1 and, unless and until there is agreement or a determination by arbitration that the appointee to the Committee of Inquiry is “without conflict of interest”, it cannot be said that the “matter is being dealt with in accordance with the … Committee of Inquiry – Clause 74 process”. [emphasis added] It follows that disputes about whether the “matter is being dealt with in accordance with the Inquiry Officer – Clause 73 or Committee of Inquiry – Clause 74 process” are not caught by the carve-out in clause 75.8 and are within the scope of disputes which may be arbitrated by the Commission under clause 75.7(i) of the Enterprise Agreement, assuming other jurisdictional requirements, such as satisfying the preliminary steps in the disputes procedure, are met. This construction of clause 75 is compatible with the legislative context, in particular, s 186(6) of the Act, because it allows the Commission to settle disputes about any matters arising under the Enterprise Agreement.
[32] I do not accept the University’s contention that clause 74 can be the subject of a dispute under clause 75, but not until the clause 74 - Committee of Inquiry process is complete.
[33] First, such a construction would effectively render the expression “in accordance with” in clause 75.8 nugatory.
[34] Secondly, the construction to be given to a clause in an industrial instrument such as the Enterprise Agreement should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Enterprise Agreement. 21 The construction contended for by the University would not contribute to a sensible industrial outcome because it would restrict the ability of a party to a dispute from remedying failures to comply with the Inquiry Officer or Committee of Inquiry process – even deliberate failures – prior to a final decision being made by the “appropriate Deputy Vice-Chancellor or Chief Operating Officer” under clause 73.7 or clause 74.9 of the Enterprise Agreement. By way of example, if an appointee to a Committee of Inquiry was not “without conflict of interest” within the meaning of clause 74.4(i) of the Enterprise Agreement and an employee against whom allegations of serious misconduct had been made could not have the conflict of interest issue dealt with in accordance with the disputes procedure in clause 75 (including by arbitration in the Commission) prior to the conclusion of the Committee of Inquiry process, there would be a final determination by the “appropriate Deputy Vice-Chancellor or Chief Operating Officer” under clause 74.9. That final determination would be made on the basis of the Committee of Inquiry report prepared by an appointee with a conflict of interest, before the dispute could be raised under clause 75. If the final determination was termination of employment and the dispute only arose after termination, the employee would not be able to use the disputes procedure under clause 75 to resolve the dispute. A reasonable person would not interpret the language used in clause 75, having regard to its context and purpose, in such a way.
[35] I do not accept the Applicants’ contention that clause 75.8 substantively provides that the internal procedures contemplated by clause 75.3 to 75.6 of the Enterprise Agreement do not apply where the matter is being dealt with in accordance with the Inquiry Officer (clause 73) or Committee of Inquiry (clause 74) process. Clause 75.8 provides that “This dispute resolution procedure does not apply where …” [emphasis added] The expression “this dispute resolution procedure” is plainly a reference to the disputes resolution procedure in clause 75 as a whole. So much is clear from the reference in clause 75.1 to “the procedures contained in this clause”, the reference in clause 75.2 to “the procedure under this clause”, and the steps of the procedure, some internal and some external, set out in clauses 75.3 to 75.7 of the Enterprise Agreement.
[36] The Application is very detailed in its description of the dispute. At paragraph [55] of the Application, the Applicants describe their “essential complaints” as follows:
“a. the entire disciplinary process has been infected by Mr McGregor’s actual or ostensible bias. By 20 September 2018 he had prejudged the matter (or, at minimum, he wrote and signed a letter that contained statements of pre-judgement). By 18 November 2018, the Applicants articulated their concerns about Mr McGregor’s ongoing involvement. He refused to excuse himself, instead making findings adverse to the interests of the Applicants without disclosing his reasoning. Even after the Committee process has concluded, the matter will be remitted to Mr McGregor for a decision as to disciplinary action;
b. Ms Crawford has made decisions that go beyond her power. For example, she has made a decision to decline a request for legal representation in circumstances where such decision is properly within the control of the Chair of the Committee;
c. correspondence has passed between the committee and the Respondent to which the Applicants have not been a party. No notice was given to the Applicants of such correspondence;
d. the process is ongoing and infected by actual or ostensible bias. This amounts to conduct that is repeated and unreasonable. This conduct has been directed towards the Applicants, and creates a risk to their health and safety. The process fits the definition of bullying provided for by the FW Act 2009. Bullying is prohibited by both the FW Act 2009 and the EA;
e. the Applicants have repeatedly complained about the process to which they have been, and continue to be, subjected. Their complaints have fallen on deaf ears. Worse than this, the Respondent’s conduct towards the applicants has declined as a result. Now, the Applicants are faced with the prospect of attending a Committee of Enquiry, without adequate representation, without having been provided with all of the correspondence between the Respondent and the Committee, with the prospect of Mr McGregor determining the fate of their employment; and
f. as to the substantive matter:
i. there is simply no probative evidence that the Applicants used the Respondent’s time and resources to develop a product for their own benefit;
ii. there is no probative evidence that the Applicants have failed to properly perform the duties of their employment;
iii. there is no probative evidence that the Applicants have in any way, profited from the development of the Software;
iv. there is ample evidence that the Applicants’ conduct in relation to Software was permitted by the Respondent, particularly the Chancellor and the Senior Deputy Vice-Chancellor Innovation and Research of the Respondent;
v. there is ample evidence that the conduct of the Applicants has consistently been to the benefit of the Respondent.
[37] The relief sought by the Applicants in their Application is follows:
“1. The matter be listed for an in-person conciliation before the Commission for the purpose of attempting to resolve the dispute between the parties.
2. If the matter is arbitrated, the Applicants seek a stay against the Respondent taking any disciplinary action against the Applicants in relation to this matter.”
[38] The questions which the Applicants request the Commission to arbitrate are as follows:
“1. Clause 14.2 of the Enterprise Agreement provides that, wherever possible, a matter in respect of which misconduct is raised will be dealt with expeditiously. The clause provides examples such as counselling, appropriate staff development and formal notification of the University's expectations.
a. Is clause 14.2 a precondition to the commencement of a Committee of Inquiry in relation to an instance of possible misconduct?
b. If the answer is yes, was the Respondent, in this case, required to comply with the step set out in clause 14.2 before instituting the Committee of Inquiry?
c. If the answer is yes, did the Respondent comply with the step set out in clause 14.2 before instituting the Committee of Inquiry?
d. If the answer is no, what steps is the Respondent required to take in order to comply with clause 14.2?
2. Clause 14.3 of the Enterprise Agreement requires that any allegation of misconduct or serious misconduct be "considered' by the "appropriate" Deputy Vice-Chancellor or Chief Operating Officer. Clause 14.3 permits the "appropriate" Deputy Vice-Chancellor or Chief Operating Officer to take further steps if the Deputy Vice-Chancellor or Chief Operating Officer "believes such allegations warrant further investigation" . Clause 14.8 requires the "appropriate" Deputy Vice-Chancellor or Chief Operating Officer to decide between no further action being taken, counselling or censuring the staff member, and referring the matter to a Committee of Inquiry.
a. Is compliance with clauses 14.3 and 14.8 a precondition to an allegation of misconduct or serious misconduct being referred to a Committee of Inquiry?
b. If yes:
i. does the Enterprise Agreement, including by clauses 14.3 and 14.8, require that the decisions contemplated by those subclauses be made by a person who is free from:
1. conflicts of interest; and
2. actual or ostensible bias; and
ii. must the belief contemplated by clause 14.3 be based on reasonable grounds; and
iii. must the decision contemplated by clause 14.8 be based on reasonable grounds?
c. If the answer is yes to any one or more of the above questions, did the Respondent comply with clauses 14.3 and 14.8 before instituting the Committee of Inquiry?
d. If the answer is no, what steps is the Respondent required to take in order to comply with clauses 14.3 and 14.8?
3. Clause 74.8 of the Enterprise Agreement requires that the Committee of Inquiry report be delivered to the "appropriate" Deputy Vice-Chancellor or Chief Operating Officer. Clause 14.9 requires the Committee of Inquiry report, and responses by the staff member, be provided to the "appropriate" Deputy Vice-Chancellor or Chief Operating Officer. Clause 14.9 provides that the "appropriate" Deputy Vice-Chancellor or Chief Operating Officer will " determine":
i. there is no misconduct/serious misconduct and take appropriate action; or
ii. to counsel or censure the staff member; or
iii. that misconduct/serious misconduct has occurred and advise the staff member of the disciplinary action to be taken.
Clause 15.2 provides that disciplinary action means:
i. counselling; and/or
ii. further training and development; and/or
iii. formal censure; and/or
iv. loss of increment(s); and/or
v. demotion; or
vi. termination alone.
a. Does the Enterprise Agreement require that the determination contemplated by clause 14.9 be made by a person who is free from:
i. conflicts of interest; and
ii. actual or ostensible bias?
b. If the answer is yes, is Mr Nat McGregor a person who is free from both:
i. conflicts of interest; and
ii. actual or ostensible bias?
4. Clause 74.5 of the Enterprise Agreement confers a right upon a staff member to be assisted before the Committee of Inquiry by a representative, should they choose. Clause 74.6(viii) provides that the Committee of Inquiry will "ensure" that where the staff member chooses their representative, that representative has the right to ask questions of interviewees, to make submissions and present and challenge evidence, provided that where the committee so determines the staff member, but not their representative, may be excluded from the conduct of the proceedings. Clauses 71.1 to 71.3 of the Agreement state (emphasis added):
71.1 At any stage, a staff member may nominate a representative for the purposes of this Agreement, from whom they may seek advice, assistance or representation.
71.2 A representative must be:
(i) a member of the staff of the University; or
(ii) an official or office holder of the relevant Union;
who is not a member of the legal profession, such as a barrister or solicitor, in private practice.
The University, in turn, will not be represented by a member of the legal profession, such as a barrister or solicitor, in private practice.
71.3 In instances where staff request representation which may not conform to Clause 71.2, the University will give reasonable consideration to the request.
a. Is the right to representation before the Committee of Inquiry provided by clause 74.5 limited by a distinct and different right from that which is conferred by clause 71?
b. If the answer to (a) is yes, is there any limitation on the Applicants appointing an admitted legal practitioner of their choice as their representative before the Committee of Inquiry?
c. If the answer to (a) is no, does clause 71 limit the right provided by clause 74.5?
d. If yes:
i. What steps constitute the University giving reasonable consideration to a request to be represented by an admitted legal practitioner?
ii. Has the University given reasonable consideration to the Applicant's request to be represented by an admitted legal practitioner?”
[39] The Applicants submit that their primary concerns are that they have, pursuant to the Enterprise Agreement:
(a) the right to be represented by a person of their own choosing, without limitations being placed on the representative as to his or her advocacy; and
(b) protection against the involvement in the inquiry and disciplinary process of a person who has an interest in the outcome of the matter who suffers from ostensible, if not actual, bias.
[40] Having regard to the entire factual background, the proper characterisation of the dispute which is the subject of the Application is a dispute about whether the University has complied with the Enterprise Agreement in relation to the decision to commence a Committee of Inquiry process, the selection of the “appropriate Deputy Vice-Chancellor or Chief Operating Officer” within the meaning of clauses 14.3, 14.8, 14.9, 15.2, 74.8 and 74.9 of the Enterprise Agreement, and Applicants’ representation before the Committee of Inquiry.
[41] The dispute, as characterised in paragraph [41] above, plainly “arises … regarding the interpretation, application or operation of any provision of this Agreement” within the meaning of clause 75.1 of the Enterprise Agreement. Further, because the dispute, as characterised in paragraph [41] above, concerns whether “the matter is being dealt with in accordance with the … Committee of Inquiry – Clause 74 process”, it does not fall within the scope of the carve-out in clause 75.8 of the Enterprise Agreement. In the event that the dispute is resolved on the basis of an agreement or arbitrated determination that the University has been, and is, complying with its obligations in relation to the Committee of Inquiry process and the steps which led to the establishment of that process, then the carve-out in clause 75.8 would be engaged.
[42] It is clear from the relief sought in the Application and the questions posed by the Applicants for arbitration that the Applicants are not seeking to have the Commission determine by arbitration whether they engaged in the misconduct and serious misconduct alleged against them or what, if any, disciplinary action should be taken against them. Any such dispute(s) would be beyond the jurisdiction of the Commission under clause 75 of the Enterprise Agreement.
[43] For the reasons set out above, I find that the dispute the subject of the Application insofar as it relates to Ms Davis and Mr Turner falls within the scope of disputes which may be dealt with in accordance with clause 75 of the Enterprise Agreement.
[44] It does not automatically follow from my finding in the previous paragraph that the Commission will arbitrate each of the questions posed by Ms Davis and Mr Turner. 22 The University will be given an opportunity to be heard in any subsequent arbitration about the questions to be answered in the arbitration. However, it is appropriate that I address in this decision the University’s contention that, regardless of the University’s other jurisdictional objections, the Commission does not have jurisdiction to arbitrate question 3(b) in paragraph [39] above. The University submits that question 3(b) does not concern the interpretation, application or operation of any provision of the Agreement. It is contended by the University that question 3(b) seeks arbitration of a purely factual matter rather than the application of a provision of the Enterprise Agreement to that factual matter.
[45] Question 3(b) concerns the identity of the person who will, pursuant to clause 14.9 of the Enterprise Agreement, determine:
• there is no misconduct/serious misconduct and take appropriate action; or
• to counsel or censure the staff member; or
• that misconduct/serious misconduct has occurred and advise the staff member of the disciplinary action to be taken.
[46] Clause 14.9 requires that the “appropriate Deputy Vice-Chancellor or Chief Operating Officer” make such a determination. Whether or not Mr McGregor is such a person depends on the proper construction of the expression “appropriate Deputy Vice-Chancellor or Chief Operating Officer”, together with a consideration of relevant facts which may bear upon Mr McGregor’s appropriateness to make the determination. It follows that the dispute about whether Mr McGregor is the “appropriate Deputy Vice-Chancellor or Chief Operating Officer” within the meaning of clause 14.9 is a dispute about which “arises, or is considered likely to arise, regarding the interpretation, application or operation of any provision of this Agreement” (clause 75.1 of the Enterprise Agreement). The considerations contemplated in question 3(b) are capable of being relevant to the determination of this dispute. Accordingly, I do not accept that the Commission does not have jurisdiction to arbitrate question 3(b).
University’s second jurisdictional objection - preliminary steps in disputes procedure
[47] Clauses 75.3 to 75.5 of the Enterprise Agreement set out part of the dispute resolution procedure:
“75.3 A dispute arising under this clause will in the first instance be discussed by the staff member(s) and their supervisor in an effort to resolve the matter promptly. The staff member(s) may seek the assistance of the relevant Union or other support person (being a staff member) in which case the supervisor may also have a support person.
75.4 Where the steps in Clause 75.3 are unsuccessful, or where the Union raises a dispute, a representative of the relevant Union(s) and a representative of the University will discuss the dispute and attempt to reach an agreement. Where the parties agree, the dispute resolution may proceed directly to the Disputes Committee in Clause 75.5.
75.5 Where the dispute is not resolved under Clause 75.4, at the request of either party a Disputes Committee will be convened within five (5) working days, unless agreed otherwise. The Disputes Committee will consist of two (2) nominees of the University and two (2) nominees of the Union.”
[48] As to the step in clause 75.3, the University submits that it “understands” this step has not been fulfilled. The Applicants have not yet had an opportunity to put on evidence in relation to clause 75.3, but they point out that, in this case, the step contemplated by clause 75.3 would involve Ms Davis and Mr Turner discussing the dispute with their supervisor, Mr Cantrick-Brooks, “in an effort to resolve the matter promptly”. Given that the allegations of misconduct and serious misconduct have been made against each of Ms Davis, Mr Turner and Mr Cantrick-Brooks, there is no prospect of a discussion between Ms Davis, Mr Turner and Mr Cantrick-Brooks resolving the dispute. However, clause 75.3 of the Enterprise Agreement is a mandatory step in the dispute resolution procedure and it cannot be said that it is irrelevant, or has no application, to the present dispute. Accordingly, I will give Ms Davis and Mr Turner the opportunity to put on evidence in relation to the step contemplated by clause 75.3 of the Enterprise Agreement.
[49] The Applicants submit that clause 75.4 contemplates a discussion between the “relevant Union” and the University. There is no dispute that neither Ms Davis nor Mr Turner is a member of a union. The Applicants submit that an interpretation of clause 75.4 that would require Ms Davis and Mr Turner to seek the assistance of a union would be inconsistent with Part 3-1 of the Act. It is submitted by the Applicants that clause 75.4 is not relevant to the present case.
[50] As the Full Bench made clear in AWU v MC Labour Services Pty Ltd, 23 mandatory steps in a dispute resolution procedure must be complied with in order for the Commission to have jurisdiction to deal with a dispute [references omitted]:
“It may be that situations will arise where it is genuinely impossible for a party to comply with a mandatory step in a dispute resolution procedure, and that the effect of this is that the Commission or other independent person cannot attempt to settle the dispute. This might be an issue for the Commission to examine when considering whether to approve an agreement under s.185 of the FW Act. However, once an agreement has been approved, and a dispute is referred to the Commission under it, it would not be permissible for the Commission to recast or ignore certain components of the dispute settlement procedure. Section 186(6) is not a source of power to do this. An enterprise agreement comes into operation seven days after it is approved by the Commission. Once in operation, the agreement is presumed to be valid, until such time as the decision of the Commission to approve the agreement is overturned on appeal, or the agreement is otherwise found by a court to be invalid. The various terms of an enterprise agreement are also assumed to be valid, with the exception only of unlawful and certain other terms, which have no effect as a result of s.253 of the FW Act.”
[51] In my view, the discussion contemplated by clause 75.4 is mandatory, subject only to the existence of an agreement between the parties to “proceed directly to the Disputes Committee in Clause 75.5.” The use of the word “will” in the expression “Where the steps in Clause 75.3 are unsuccessful, …representative[s] … will discuss the dispute and attempt to reach agreement” in clause 75.4 is a strong indicator of a mandatory step. Further, the fact that the final sentence in clause 75.4 expressly provides a mechanism whereby the step may be bypassed further supports the conclusion that clause 75.4 is a mandatory term.
[52] The more difficult aspect of the proper construction of clause 75.4 relates to the identity of the persons who “will discuss the dispute”. Clause 75.4 contemplates two alternative prior steps to the discussion required by the clause. The first alternative is an unsuccessful discussion, in accordance with clause 75.3, between the employee(s) involved and, if they wish, a “relevant Union or other support person (being a staff member)”, and the supervisor of the employee(s) (who may have a support person if the employee(s) do). The second alternative is “where the Union raises a dispute”. For the University, the position is clear; a “representative of the University” must participate in the discussions. If a union raises a dispute, the position is also clear, a “representative of the relevant Union(s)” must participate in the discussions. But what if, as in this case, the employees involved in the dispute are not members of a union?
[53] Adopting a construction whereby employee(s) involved in a dispute must become a member of a union or otherwise persuade a union to represent them in such a discussion would not contribute to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Enterprise Agreement. 24 It is most unlikely that the makers of the Enterprise Agreement would have objectively intended for an employee to have to become a member of a union, or enlist the assistance of a union, in order to participate in a discussion about a dispute in accordance with clause 75.4, so that they could move to the next step and ultimately have the dispute arbitrated by the Commission. Therefore, it is necessary to consider with care the language used in the provision to see if another construction is available. It is also important to bear in mind that the task of construing an enterprise agreement “does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties”.25
[54] In my view, construed in the context of clause 75 as a whole, another construction of clause 75.4 is available. Clause 75.2 expressly provides for an employee to be represented “at any stage in the procedure under this clause … in accordance with Clause 71 of this Agreement”. The discussion required by clause 75.4 is such a stage in the procedure under clause 75 where employee(s) are entitled to be represented “in accordance with Clause 71” of the Agreement. In circumstances where:
(a) employee(s) are not members of a union, there is no “relevant Union” as first referenced in clause 75.3 and thus, there is no “representative of the relevant Union(s)” that exists; and
(b) clause 75.4 is a mandatory step in the dispute resolution procedure contained within clause 75.2 (see paragraph [51] above),
I am of the view that clause 75.4 requires, on its proper construction, that a representative of employee(s) attend the discussion to “attempt to reach agreement”. The range of persons who may represent the employee(s) in this discussion is governed by clause 71 of the Enterprise Agreement.
[55] The Applicants submit that clause 75.5 refers to a dispute not being resolved under clause 75.4 and that, since clause 75.4 does not apply, clause 75.5 also does not apply. I do not accept this argument. I have already concluded that clause 75.4 does apply; it establishes a mandatory step in the dispute settlement procedure.
[56] The trigger for taking the step under clause 75.5 is “where the dispute is not resolved under Clause 75.4”. In those circumstances, “at the request of either party a Disputes Committee will be convened …” The composition of the Disputes Committee will be two nominees of the University and two nominees of the Union. “The Union” is defined in clause 3.7 of the Enterprise Agreement as “The Community and Public Sector Union, or The National Tertiary Education Industry Union”. Although it may be considered a little odd for a union of which employees to a dispute may not be members to nominate two persons to sit on the Disputes Committee, it can fairly be said that if either the Community and Public Sector Union or the National Tertiary Education Industry Union were asked to nominate two persons to sit on the Disputes Committee, they would not nominate persons in the University’s “camp”. In any event, the Disputes Committee does not have the power to determine the outcome of the dispute and clause 75.5 clearly requires the “Union” to nominate two of those persons. In my view, clause 75.5 is one of the mandatory steps in the dispute resolution procedure which clause 75.1 requires “will be followed” prior to the dispute being referred to the Commission under clause 75.6.
[57] Clause 75 of the Enterprise Agreement only “requires or allows” 26 the Commission to deal with a dispute if the particular preliminary steps required by clauses 75.3 to 75.5 have been undertaken.27
[58] Ms Davis and Mr Turner have not yet been given an opportunity to put on evidence as to any steps taken by them to comply with clauses 75.3 to 75.5 of the Enterprise Agreement. The matter will be listed for directions shortly to provide Ms Davis and Mr Turner with an opportunity to put on such evidence.
University’s third jurisdictional objection – procedure for work, health and safety disputes
[59] The University submits that, to the extent to which Ms Davis and Mr Turner continue to seek the Commission’s assistance to deal with a dispute concerning work, health and safety, the pre-conditions in clause 31.2 of the Enterprise Agreement, which must be completed before clause 75 is engaged, have not been met.
[60] Clause 31.2 of the Enterprise Agreement provides:
“Concerns regarding work health and safety may be resolved by reference to the University’s Health and Safety Committee. Should this avenue fail to resolve the concerns the matter may then be referred to the Dispute Resolution Procedure – Clause 75.”
[61] The University accepts that the word “may” in the first sentence of clause 31.2 suggests that referral to the University’s Health and Safety Committee is optional and is not required before the notification of a dispute under clause 75. The University submits, however, that the second sentence of clause 31.2 qualifies the first sentence. To give meaning to the commencement of the second sentence “should this avenue fail to resolve the concern” and the words “the matter may then” be addressed under clause 75, the University contends that engagement with the University Health and Safety Committee is required prior to the dispute being dealt with under clause 75.
[62] I do not accept the University’s arguments in relation to clause 31.2 of the Enterprise Agreement. The word “may” in the first sentence of clause 31.2 is a strong textual indicator that an employee with a concern regarding work health and safety has the option of taking their concern to the University’s Health and Safety Committee, but they are not obliged to do so. It is to be contrasted with other provisions in the Enterprise Agreement, such as clauses 75.1 and 75.3, which use the word “will”. For example, clause 75.1 provides that “the procedures contained in this clause will be followed”. I do not accept that the second sentence in clause 31.2 qualifies the first sentence. The second sentence simply informs an employee who has an unresolved concern regarding work health and safety of the process that is available to them if they wish to pursue their concern, namely, follow the dispute resolution procedure in clause 75 of the Enterprise Agreement.
University’s jurisdictional objection re Mr Cantrick-Brooks – is he covered by the Enterprise Agreement?
[63] The Enterprise Agreement covers: 28
“(i) All staff employed as Professional Staff by the University, provided that the Agreement will not apply to:
(a) Directors or equivalent; and
(b) Associate Directors or equivalent
Where the pay rate is more than HEW Level 10 + 25%, subject to the following:
staff members who hold substantive positions of Director, Associate Director or equivalent but who were covered by the University of Newcastle General Staff Enterprise Agreement 2010 immediately prior to the date this Agreement takes effect will be covered by this Agreement, but only while they remain in those positions or equivalent positions or if they revert to a lower level position.”
[64] Clause 3.4 of the Enterprise Agreement defines “Pro Vice-Chancellor/Director” to mean “the Head of the Organisational Unit”.
[65] The University contends, and Mr Cantrick-Brooks does not dispute, that he is not covered by the Enterprise Agreement because:
• his role of University Secretary and Chief Governance Officer meets the definition of Director because it is the Head of an Organisational Unit; and
• his remuneration is more than HEW Level 10 + 25%.
[66] Accordingly, the Commission does not have jurisdiction under clause 75 of the Enterprise Agreement to deal with the dispute insofar as it relates to Mr Cantrick-Brooks. The Application is therefore dismissed insofar as it relates to Mr Cantrick-Brooks.
Mr Cantrick-Brooks’ New Approaches Application
[67] A separate decision will be issued concerning Mr Cantrick-Brooks’ New Approaches Application once he has been given a final opportunity to put any further information he wishes to rely on before the Commission.
The Way Ahead
[68] The Application and the New Approaches Application will be listed for directions shortly in relation to the outstanding matters referred to above. In addition, the parties will be given an opportunity to make submissions about the impact, if any, on the jurisdiction of the Commission to deal with the dispute the subject of the Application, in light of the recent approval by the Commission of the University of Newcastle Professional Staff Enterprise Agreement 2018, 29 as a consequence of which the Enterprise Agreement has ceased to apply to Ms Davis and Mr Turner.30
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR706591>
1 AMWU v Berri Pty Ltd [2017] FWCFB 3005
2 CEPU v Thiess Pty Ltd (2011) 212 IR 327 (CEPU v Thiess) at [42] & [47]; see too CFMEU v AIRC [2001] HCA 16
3 SDA v Big W Discount Department Stores PR924554 at [23]
4 AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 (ASP) at [23]
5 AMWU v Holden Limited PR940366 at [47]; ASP at [23]
6 ASP at [19] & [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884
7 MUA v Australian Plant Services Pty Ltd PR908236; ASP at [21]-[22]
8 United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20]
9 MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32]
10 AMWU v Thiess Degremont Joint Venture (2012) 226 IR 390 (AMWU v Thiess) at [10] & [21]
11 CEPU v Thiess at [47]; AMWU v Thiess at [21]
12 CEPU v Thiess at [49]-[50]
13 Australian Municipal, Administrative, Clerical and Services Union v Automated Meter Reading Services PR922053 at [73]-[74]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [29]-[31]
14 Alcoa of Australia Pty Ltd v Amalgamated Engineering Union (1965) 7 FLR 180 at 183
15 University of Western Sydney v Fletcher [2009] AIRCFB 368 (UWS v Fletcher) at [23]
16 UWS v Fletcher at [24]
17 Australian Municipal, Administrative, Clerical and Services Union v Automated Meter Reading Services PR922053 at [136]
18 UWS v Fletcher at [25]
20 AMWU v Berri Pty Ltd [2017] FWCFB 3005
21 CFMMEU v Hay Point Services Pty Ltd [2018] FCAFC 182 at [9]
22 See paragraph [39] above.
23 [2017] FWCFB 5032 at [37]
24 CFMMEU v Hay Point Services Pty Ltd [2018] FCAFC 182 at [9]
25 AMWU v Berri at [114(2)]
26 Section 739(1) of the Act
27 See, for example, AWU v MC Labour Services Pty Ltd [2017] FWCFB 5032 at [29], clause 15.2.5
28 Clause 1.2 of the Enterprise Agreement
30 Section 58(2)(e) of the Act