REASONS FOR DECISION

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

Belinda Lee
v
Mission Australia
(C2017/3524)

Alleged dispute about matters arising under the enterprise agreement - failure to consult – proposed redundancy - interim order sought.

[1] Belinda Lee (applicant) has made an application for the Fair Work Commission (Commission) to deal with a dispute in relation to consultation under the Mission Australia Services Delivery Enterprise Agreement 2016-2017 (Agreement). 1 The respondent is Mission Australia (respondent).

[2] The application was made at 5.02 pm on Wednesday, 28 June 2017 pursuant to s.739 of the Fair Work Act 2009 (FW Act). In her application Ms Lee was represented by the Australian Municipal, Administrative, Clerical and Services Union (NSW and ACT Services Branch) (ASU), namely one of its Industrial Officers, Robert Coluccio. Mission Australia was represented by one of its Employee Relations Advisors, Allison Moore.

[3] The dispute relates to whether or not Mission Australia has complied with its obligations under the Agreement, namely clause 87.  In particular, clause 87.1(c) which states:

“… Consultations will include … measures to avoid or minimise the terminations.”

[4] Ms Lee says Mission Australia has failed to comply with its obligations. Mission Australia says that it has complied with its obligations under the Agreement with the consequence that it proposed to terminate Ms Lee’s employment by reason of redundancy at 5.00 pm on Friday, 30 June 2017.

[5] The matter was allocated to chambers at 1.45 pm on Thursday, 29 June 2017, however, the file was not received until the morning of Friday, 30 June 2017. At that time the urgent nature of the application became apparent and the matter was listed for conciliation at 3.30 pm that day.

[6] At 2.21 pm, on 30 June 2017 the Commission invited Mission Australia to delay the termination until the matter could be listed for a further conciliation.  At 3.19 pm, on 30 June 2017 Mission Australia rejected that invitation.  When conciliation commenced at 3.30 pm on 30 June 2017 Mission Australia was again invited to delay its decision to terminate Ms Lee’s employment.  Again, Mission Australia rejected the invitation.

[7] The matter was then further listed for an urgent hearing for the making of an interim order at 3.45 pm on Friday, 30 June 2017.

[8] At the completion of that urgent hearing I advised the parties that the application for an interim order was granted and that I intended to issue the interim order sought. The interim order was issued at 4.25 pm on Friday, 30 June 2017.  2 In granting the application for an interim order I provided brief reasons as to why I had reached that decision and advised that detailed reasons would be provided in due course. These are the full reasons for my decision.

Background

[9] The respondent is a provider of family, community, employment and housing services.

[10] The applicant is employed by the respondent as a Program Manager.

[11] The applicant is currently on a period of parental leave which commenced on 1 April 2017. She is due to return to work on or about 1 April 2018.

[12] On 1 June 2017 the respondent emailed a letter to the applicant advising that her position had been made redundant and that her employment would end on 30 June 2017. The respondent wrote,

“Further to our meeting today this letter confirms the details of the discussions with you regarding your ongoing employment with Mission Australia.

As you are aware, following Mission Australia’s tender for the Skills for Education and Employment (SEE) and the Adult Migrant English Program (AMEP), the Department of Education and Training made an offer to us that significantly decreased our number of sites, staff and students to the extent that it was not viable for us to deliver. As a result, we have decided to not accept the offer, meaning Mission Australia will no longer be delivering the SEE and AMEP programs.

As a result of the above and as previously advised your full-time permanent role of Program Manager-AMEP Parramatta is no longer required by the organisation will therefore be made redundant, effective 30 June 2017.

Given our search for internal redeployment has to date been unsuccessful, your employment with Mission Australia will cease on 30 June 2017. Mission Australia confirms you are required to work your 4 week notice period.

.… the redeployment process remains open to you and we encourage you to explore suitable alternative employment opportunities up until your last day of employment with Mission Australia.”

[13] On 13 June 2017 the applicant emailed the respondent requesting the redeployment period be delayed until her return to work from parental leave. The applicant wrote,

“I am still unclear on the reasons why Mission Australia has decided to proceed with my retrenchment on 30 June 2017 rather than wait to see if redeployment opportunities arise before my return to work from parental leave in May 2018. If I am able to be redeployed after 30 June, that would seem to be a mutually beneficial outcome for both myself and Mission Australia as they would avoid paying my severance payment.”

[14] On 22 June 2017 respondent wrote to the applicant denying her request. The respondent wrote,

“I refer to your email 13 June 2017. I understand you are seeking to remain employed by Mission Australia to your return to the workforce from parental leave, at which time the redeployment process would be undertaken.

….

As you were advised on 6 June 2017, impacted permanent employees on parental leave are required to participate in the redeployment process now and not when they had initially indicated they would return from parental leave. I understand you have filled out the redeployment form, submit this to Recruitment and have been contacted by Recruitment during May 2017 to discuss any potentially suitable opportunities. This approach is consistent with legislation the [Agreement]’s and Mission Australia procedures.

It is Mission Australia’s position that clause 63.1 of the [Agreement] reflects s.84 of the Fair Work Act 2009 (Cth), and this is indeed how Mission Australia interprets and applies this clause.

As per White J’s judgement in Stanley v Service to You Council Inc [2014] FCA 643, an employer who terminates an employee’s employment by reason of genuine redundancy without there being available alternate positions is not in breach of s.84, which would otherwise have been enlivened on the return to work from parental leave date, was instead enlivened on earlier date when the employee was retrenched.

Therefore, in accordance with legislation and the [Agreement] the return to work guarantee following parental leave is enlivened as at 30 June 2017 and not the date the employee indicated they would return from parental leave. Consequently, impacted permanent employees on parental leave are required to participate in the redeployment process now and not when they had initially indicated they would return from parental leave. …”

[15] On 23 June 2017 the ASU wrote to the respondent on behalf of the applicant requesting the postponement of the redeployment period. The ASU wrote,

“…. The ASU finds it difficult to comprehend the reluctance of your organisation to afford Ms Lee the opportunity to defer her redeployment period until her return to work from parental leave. This will not incur any financial detriment as your organisation has committed the payment of all paid parental leave notwithstanding the retrenchment of an employee.
Both parties would benefit from the deferral of Ms Lee’s redeployment period. Ms Lee would be afforded the opportunity to seek alternative employment within the business after having returned to work, whilst your organisation could potentially avoid the necessity of Ms Lee’s retrenchment pay out and retain a valued and experienced employee.
….
Similarly, the ASU is concerned that by forcing Ms Lee to participate in the redeployment process whilst on parental leave, your organisation may be in breach of the protections guaranteed by section 351 of the [FW Act].
Ms Lee will undoubtedly find it more difficult to locate comparable alternative employment whilst on parental leave as she is outside of the workplace and would not be able to take on any role until her return to work. Consequently, the reluctance to delay redeployment will injure Ms Lee’s employment as a result of her parental leave and as such contravene the [FW Act].
Accordingly, the ASU vigorously urges your organisation reconsider its position and allow Ms Lee’s redeployment period to commence upon her return to work from parental leave. …”

[16] On 27 June 2017 Mission Australia sent a letter to the ASU denying its request made on behalf of the applicant. Mission Australia wrote,

“Mission Australia disputes clause 139.6(a) of the [Agreement] precludes Mission Australia from terminating Ms Lee’s employment on the basis of redundancy on 30 June 2017. Ms Lee was provided notice of termination on 1 June 2017, prior to Ms Lee advising it was her intention to raise a dispute pursuant to clause 139 of the [Agreement]. Clause 139.6(a) requires work to continue as normal, provided Ms Lee does not have a reasonable concern about an imminent risk to health and/or safety. Mission/contends clause 139.6 (a) does not require Mission Australia to rescind Ms Lee’s termination, rather, in the circumstances, working as normal while the parties try to resolve the dispute using the procedures may include retrenchment.

….

The current redundancy process undertaken with Ms Lee, including the redeployment process, is identical to that of all other impacted Skills for Education and Employment (SEE) and Adult Migrant English Program (AMEP) employees currently on parental leave. …

… Mission Australia dispute [that] Ms Lee was “forced” to participate in the redeployment process, that she is at a disadvantage or her employment has been damaged as a result taking part in this process of being out of the workplace.

Employees on parental leave, including Ms Lee, have been provided with the same support employees who are not on a period of parental leave. This support includes the assistance of a Recruitment Consultant to assist in the identification of suitable redeployment options. Employees have also been encouraged to independently review the available roles on the Mission Australia Careers Website. Mission Australia notes Ms Lee completed a redeployment form and has been contacted by Recruitment to discuss any suitable redeployment opportunities.

Mission Australia confirms if a suitable redeployment option had been, or is identified prior to 30 June 2017, Mission Australia will redeployed Ms Lee to this position and engage another employee temporarily for the remainder of Ms Lee’s parental leave.”

Matters to be decided

[17] In deciding whether or not to issue interim orders I was required to be satisfied that first, there is power to make the order sought, second, there is a serious question to be answered and third, the balance of convenience supports making the order as sought. I considered each of these issues in turn.

Jurisdiction

[18] Section 589 of the FW Act gives power to the Commission to ‘make an interim decision in relation to a matter before it’. Such a decision can be made on the Commission’s own initiative or on application. Section 598(4) of the FW Act provides that a decision of the Commission may be made by order.

[19] The matter before me arises pursuant to the dispute settling procedure of the Agreement. That is contained in Part 10 and, in particular, paragraph 139 of the Agreement. The Agreement makes it clear that, in settling disputes pursuant to the Agreement, the Commission may arbitrate the matter in dispute.

[20] I was therefore satisfied that this dispute is over a matter arising under the Agreement, and that the requirements of the dispute settlement procedure of the Agreement are such that there is jurisdiction for the Commission to arbitrate the matter in dispute.

[21] Ms Moore made the appropriate concession that the Commission had the power to make the order sought. 3

 The Agreement

[22] Clauses 87 and 88 of the Agreement provide,

“87. Consultation
87.1 Where an Employee is, or group of Employees are, likely to be affected by a redundancy situation, Mission Australia will consult with those Employees. These consultations will include the following:

(a) information about the circumstances giving rise to the redundancy;
(b) measures to avoid or minimise the terminations;
(c) measures to mitigate any adverse effects of any terminations of Employees;
(d) anticipated timeframes;
(e) where relevant, the process to be used to determine which Employees may be retrenched as a result of the redundancy;
(f) steps being taken to identify possible redeployment opportunities; and
(g) an opportunity for Employees to put forward questions, views and suggestions.

87.2 To facilitate the consultations, Mission Australia will provide Employees with information on all relevant information about the proposed terminations including:

(a) the reasons for the proposed terminations;
(b) the number and categories of Employees likely to be affected;
(c) the time when the terminations are likely to be carried out, subject to Mission Australia not being required to disclose confidential information that may adversely impact on Mission Australia's interests.

87.3 An Employee may be represented by a person or organisation of his or her choice in any processes associated with a proposed redundancy situation.
88. Redeployment
88.1 Mission Australia will make reasonable efforts to redeploy Employees who would otherwise be retrenched where there is a redundancy.
88.2 Redeployment options will be restricted to positions:

(a) at, or equivalent to the Employee's permanent classification; and
(b) that the Employee is able to perform at a satisfactory level after the provision of reasonable training.

88.3 Mission Australia may redeploy an Employee to a position at a lower level where this is agreed by the Employee. Where this occurs, the Employee will be paid at his or her previous salary level for a period that is equivalent to the number of weeks of severance pay that he or she would have been entitled to if retrenched.”

Serious question to be tried

[23] In short, it was put on behalf of Ms Lee that the postponement of her redeployment until her return from parental leave would provide a measure to avoid or minimise the risk of termination by allowing her to participate in the redeployment process in the workplace at or about the time that she was returning from parental leave (i.e. in April 2018).

[24] Ms Lee submitted that there is a serious question to be tried. Mr Coluccio made the following submissions on her behalf,

“What the applicant would say is that this process would be a breach of the respondent's duty to mitigate potential terminations and the duty to make reasonable efforts to redeploy.  Those are located in the clauses that I have annexed to the application, being clauses 87 and 88 of the enterprise agreement.  The applicant would contend that largely what this case is based on is what is considered are reasonable efforts to redeploy.  We would focus on that word "reasonable".

Now, in the circumstances that we're faced with, the respondent has committed to making payments to all employees affected by this redundancy situation who are on parental leave, of any outstanding paid parental leave.  In that circumstance, there is no financial detriment to the postponement of this redeployment period, so in those circumstances we would say that it is quite clearly reasonable for this redeployment to be delayed.

Now, that would not only assist the applicant in letting her participate fully in the redeployment period next year in April and hopefully finds her an alternative job within the respondent, but it would also assist the respondent because it would mean that with the applicant having a better chance at staying within the organisation, they would avoid the severance package that she would be entitled to otherwise.  They would be able to hopefully retain the knowledge and skills that she has developed through her tenure with the respondent, and keep those skills in-house without having to re-train somebody.

I guess the other thing I would like to touch on is that the applicant is specifically disadvantaged due to her pregnancy and her parental leave in relation to this process, as opposed to those others participating in the process.  There are two main reasons that we would say that would be the case.  The first is quite simply that obviously the applicant is on leave, so she is out of the workplace, and I don't think that should be understated.  It is very difficult to participate in the process fully whilst not being in the workplace and it's difficult to have those meetings.

She is dealing with her child.  The applicant is on the line at the moment and is with her child as she has no-one else to care for the child at the moment.  That is perfectly reasonable and is largely the basis behind parental leave.  Now, that obviously does make it more difficult for the applicant to participate in that process and what we would say is that is a difficulty that could be overcome through the very reasonable effort of delaying that process.

Secondly, what we would also say is that any position that the applicant could apply for now through a redeployment process could not be taken up by her until next year, so that's a very practical concern because it makes her an inherently unattractive candidate to be able to hire into a new position when she can't take that position up until April 2018.

I would also note that this is an industry, Commissioner, in which funding often comes from government programs and this is what has happened in this case leading to the redundancy.  What this means is that the continued existence of a lot of programs will be dependent on that government funding and, as a result, a lot of positions within an organisation will be fixed term contracts or secondments.

Now, that being the case, it would be farcical for the applicant to be hired into a fixed term role, for example, which would conclude in June 2018 if she weren't able to start that role until April 2018.  There is a whole pool of opportunities that she won't be able to attempt to take at the moment by virtue of her parental leave.  Once again, she is an inherently unattractive candidate due to that parental leave and delaying the redeployment period would be a very reasonable effort that would once again negate that issue.

Now, there are a number of other employees who have been made redundant as part of this process, which means that through this redeployment process the applicant would have needed to compete with these other employees.  These are other employees who would be able to be in the workplace and would be able to have those meetings whilst not on leave, and these are employees that would be able to take up these new positions, if they do exist, as of Monday next week.

So, given the fact that the options as they were would be that the applicant participate in this process now whilst on leave and is not able to participate fully in the process, as such, or delay the process until all those hindrances are negated, we would say that the latter is quite a reasonable effort.  That is certainly the case given the lack of detriment that it would cause to the respondent.” 4

[25] Ms Lee says therefore, the respondent has not met its obligations under the Agreement.

[26] The respondent submitted that there was no serious question to be tried in respect of the Agreement.

[27] On its behalf Ms Moore submitted that,

“Ms Moore:  From Mission Australia's perspective, it's quite clear that we have met our legal obligations under the Fair Work Act and the Service Delivery Enterprise Agreement.  I note in your email there is a reference to Mission Australia making a decision today.  The decision to terminate was made a month ago.  The termination would merely take effect today.

There are a number of matters that the applicant and the representatives have mentioned today that are just incorrect.  First of all, being that Mission Australia has breached section 87 of the Service Delivery Enterprise Agreement.  We did issue letters of consultation and we did consider measures to mitigate against impact, one of those being to continue to pay paid parental leave past the date of the termination.  There is no requirement for Mission Australia to agree to proposals by an employee during consultation.  We also note that this proposal was not raised by Ms Lee during consultation either.

Mission Australia has undertaken the redeployment process in accordance with the enterprise agreement.  No roles have become available in accordance with the criteria that Ms Lee provided on a redeployment form for there even to have needed to be a meeting during her parental leave, so that's just completely incorrect to say that she has been advantaged in any way.  When the - - -

The Commissioner:  Sorry to interrupt, Ms Moore.  I guess one of the things I don't understand is what is the pressing need to terminate the employment at 5 pm today in circumstances where if you have got an employee on parental leave, they're not working for you currently.  If it's your intention to continue to, if you like, pay out the paid parental leave, there is no financial advantage to you.

Ms Moore:  Yes.

The Commissioner:  But for all the reasons that have just been explained by Mr Coluccio, there seems to be no disadvantage for Mission Australia to leave Ms Lee on the books until the end of her parental leave experience?

Ms Moore:  There are a couple of reasons.  One would be consistency.  There are other employees that are impacted in the exact same manner as Ms Lee during this process and other redundancy processes.  Secondly, their point about there being no financial detriment is incorrect.  For redeployment to take place with Ms Lee in the workplace, that would be Mission Australia incurring additional costs if there is no work for her to return to.

The program ceases today.  For us to undertake redeployment in April, not only would we be required to undertake a redeployment process for her between now and April given she technically has been made redundant so is a redeployee, that comes with financial costs, as well.  That's in recruitment consistently looking for a role for her.  As we don't expect her to not take roles between now and then, we would - those roles.  To say there is no financial detriment is utterly incorrect. 5

…

Ms Moore:  The redeployment process was also underway for a month, so between 1 June and now that has been open to Ms Lee.  Like I said, there was a form completed by Ms Lee outlining what jobs she would and wouldn't accept, so there is actually no requirement for her to be in the workplace and actively looking herself.  That is something that we do for all employees; not just Ms Lee, not just employees on parental leave, but all employees.  There has been a month - - -

The Commissioner:  But do you accept that if she was allowed just to continue with her parental leave and she wasn't required to go through a redeployment program until before the end of her parental leave, that that might minimise whether or not there is even a need to terminate her employment?  If her maternity leave isn't due to expire until sometime next year, who knows, you might have some new program funding, you might have some new programs.

Ms Moore:  Yes.

The Commissioner:  If you're consulting with her prior to the end of her parental leave, it might minimise the need to make her position redundant at all.  Do you accept that?

Ms Moore:  I absolutely accept that is a possible option and that has been considered by the business.

The Commissioner:  Well, how could the business consider whether or not there might be a position available when she returns from parental leave in circumstances where you don't know what extra program funding or whatever might be available at that time?  When is she due back from parental leave?

Ms Moore:  April next year.

The Commissioner:  Right.  So you have no idea what funding might be available in April 2018.

Ms Moore:  Sorry, just to correct a point there, I wasn't saying that Mission Australia would consider what roles would be available, but have considered that approach; so that approach to mitigating the impact on her has been carefully considered.  Not just Ms Lee, but to anybody else that is going through a redundancy process.  Mission Australia is not equipped to be making ad hoc decisions based on individuals and believes in a consistent approach.

A part of that is treating employees on parental leave as if the return-to-work guarantee is enlivened as at the time of the redundancy.  From what we have seen, that is consistent with case law, as well, to say that the return-to-work guarantee is enlivened at that time and not at the date of the return from parental leave.” 6

[28] In essence the respondent submits that Ms Lee has not identified any flaws in the consultation process. It submits that it has consulted and that, ultimately, it is now entitled to terminate Ms Lee’s employment by reason of redundancy. Further the respondent says there is no obligation to delay a consideration of redeployment until when Ms Lee returns from parental leave.

[29] The respondent says that there is no question to be answered, it has met its obligations and the consultation requirements have been properly undertaken.

Consideration

[30] The matters raised by Ms Lee go to the:

a) meaning of consultation,
b) duty to mitigate any adverse effects of any terminations, and
c) the meaning of reasonable efforts to redeploy.

[31] Consultation has a purpose and it cannot be conducted for mere show. If the consultation does not provide Ms Lee with an opportunity to influence the decision it is of no value and the requirement to consult and the consultation is hollow.

[32] By the same token at some point management must be able to make a final decision to terminate employment by reason of redundancy having taken into account the views of Ms Lee through consultation.

[33] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited 7 (QR), Logan J, after considering a number of decisions from the AIRC on the requirement to ‘consult’, observed at [44], that those decisions:

“…serve to confirm an impression as to the content of an obligation to “consult” evident from the dictionary meaning of the word. A key element of that content is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.”

[34] I was therefore satisfied that there were questions to be answered, that is, has Mission Australia,

a) engaged in meaningful consultation?
b) done all it could to mitigate any adverse effects of termination for Ms Lee?
c) in refusing to delay a consideration of redeployment (to when Ms Lee returns from parental leave) made reasonable efforts to redeploy?

Status quo

[35] Ms Lee puts an alternative to the Commission, should the above matters go against her. She says that the dispute settling provisions of the Agreement, on its own, requires that the status quo should be maintained to allow further consultation and/or arbitration of the matter in dispute. The interim order should therefore be granted to allow that to occur.

[36] Clause 139.6(a) of the Agreement provides that,

“139.6 While the parties are trying to resolve the dispute using the procedures in this Section;

(a) an Employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
(b) an Employee must comply with a direction given by Mission Australia to perform other available work at the same workplace, or at another workplace, unless;

(i) the work is not safe;
(ii) applicable occupational health and safety legislation would not permit the work to be performed;
(iii) the work is not appropriate for the Employee to perform; or
(iv) there are other reasonable grounds for the Employee to refuse to comply with the direction.”

[37] The respondent submits that at the time Ms Lee made her application for the Commission to deal with the dispute the respondent had already notified her of the decision to terminate her employment.

[38] The respondent therefore says that the continuation of work as normal, as contemplated by the dispute settlement procedure, does not preclude the effecting of that termination of employment as this is the ‘normal work’ that was being undertaken at the time the application was made.

[39] In the circumstances, having found that there are questions to be answered in respect of compliance with the Agreement, I do not consider it necessary to consider the alternative matter.

Balance of convenience

[40] The third matter to determine is where the balance of convenience lies.

[41] During the urgent hearing I expressed the following preliminary view,

“… It seems to me on the material before me that the balance of convenience lies in favour of Ms Lee - I'm happy to hear what you have to say about it - because if I do not make the order, her employment will be terminated.  If I do make the order, then the only thing that Mission Australia loses is the opportunity to terminate her employment now in circumstances where I could list this matter for a further conciliation on Wednesday and the matter might be resolved altogether.

It seems to me that in those circumstances, Mission Australia doesn't lose much if the termination is delayed at least until next Wednesday.  It seems to me though that if I don't make the order, there is a very significant loss to Ms Lee because she loses her employment.  It seems to me on that factual analysis - and you can correct me if I'm wrong in that factual analysis - that the balance of convenience lies in favour of Ms Lee.”

[42] Ms Moore then made the appropriate concession that the balance of convenience favoured Ms Lee. 8

Consideration

[43] I gave careful consideration to the question of where the balance of convenience lies. I was satisfied, in this case, that, I should grant the application for an interim order. In this case the termination of Ms Lee’s employment could only be undone after significant litigation. There would be some complexity attached to unscrambling the egg.

[44] The ‘urgency’ of the application made by Ms Lee was made out. The termination of her employment was to occur a little over an hour after the hearing commenced.

[45] These circumstances weighed the balance of convenience in favour of the applicant.

[46] I carefully considered all of the material before me including the submissions of Ms Lee and Mission Australia. In this case and in these particular circumstances I found the balance of convenience favoured granting the application.

Conclusion

[47] The application for interim orders was granted in the following terms,

“… until the final hearing and determination of the dispute in C2017/3524 the respondent must not take any action to terminate the employment of Belinda Lee.”

[48] The matter was then listed for further conciliation at 9.30 am on Wednesday, 5 July 2017.

COMMISSIONER

Appearances:

Mr R Coluccio, for the applicant.

Ms A Moore, for the respondent.

Hearing details:

2017

Melbourne

June, 30

 1   AE423267 PR590034.

 2   AE423267 PR594202.

 3   Transcript reference PN20.

 4   Transcript reference PN7-16.

 5   Transcript reference PN33-40.

 6   Transcript reference PN44-53.

 7   [2010] FCR 591.

 8   Transcript reference PN29.

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<Price code C, AE423267, PR594293>