DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Commonwealth of Australia (Department of Home Affairs)
v
CPSU, the Community and Public Sector Union
(C2021/2694)

Appeal against decision [2021] FWC 2199 of Commissioner Johns at Sydney on 21st April 2021 in matter number C2020/9044.

Introduction and background

[1] The appellant in this matter (Department) has, pursuant to s 604 of the Fair Work Act 2009 (FW Act), applied for permission to appeal and appealed a decision of Commissioner Johns made on 21 April 2021 1 pursuant to the dispute resolution procedure in the Department of Home Affairs Workplace Determination 2019 (Determination). Under that dispute resolution procedure, the Commission is empowered to arbitrate disputes about matters arising under the Determination with the consent of the parties. In this case the relevant parties, namely the CPSU and the Department, consented to the Commission arbitrating a question concerning the proper construction of clause 1.7 of the Determination. The provisions of the Determination relevant to the contest between the parties are as follows:

Interaction with policies

1.5 The operation of this Determination is supported by policies, procedures and guidelines. If there is any inconsistency between the policies, procedures and guidelines and the terms of this Determination, the express terms of this Determination will prevail.

1.6 Policies, procedures, and guidelines which support this Determination are not incorporated into, and do not form part of, this Determination.

Introduction of new policies and changes to existing policies

1.7 Where the Secretary proposes to introduce a new policy, procedure or guideline or vary an existing policy, procedure or guideline they will provide Employees no less than 2 weeks to comment on the proposed new or varied policy, procedure or guideline. The Secretary must give genuine consideration to the comments made by Employees prior to finalising the policy, procedure or guideline.

[2] The question which the Commissioner was asked by the parties to answer was: “Is clause 1.7 limited to policies, procedures and guidelines which support the operation of the Workplace Determination?” The answer given by the Commissioner in his decision was “No. The consultation obligation under clause 1.7 includes policies, procedures and guidelines that are likely to impact upon employees in their employment.”. 2 The Department contends in its appeal that this was the wrong answer, and that the scope of operation of clause 1.7 is limited to “[p]olicies, procedures, and guidelines which support this Determination” as referred to in clauses 1.5 and 1.6.

[3] Because, as detailed below, the Department’s submissions are founded on the circumstances in which clauses 1.5-1.7 of the Determination were made, it is necessary to describe the historical background to the matter.

[4] Immediately prior to the Determination taking effect, the Department and the bulk of its employees were covered by the Australian Customs and Border Protection Service Enterprise Agreement 2011-14 3 (ACBPS Agreement) or the Department of Immigration and Citizenship Enterprise Agreement 2011-2014.4 Clauses 4.0.4 and 4.0.5 of the ACBPS Agreement provided:

Interaction with Policies

4.0.4 The operation of this Agreement is supported by Customs and Border Protection policies, procedures, guidelines and other administrative instruments. If there is any inconsistency between these instruments and the terms of this Agreement, the terms of this Agreement will prevail.

4.0.5 Those policies, procedures, guidelines and administrative instruments which are referenced in this Agreement are incorporated into, and form part of this Agreement. These instruments may only be made or varied following consultation with employees, and their nominated representative(s). These instruments will be subject to the dispute settlement provisions of this Agreement.

[5] In circumstances which are not necessary to describe, the parties were not able to negotiate any enterprise agreement to replace the agreements referred to above, and it became necessary for a Full Bench of the Commission to make an industrial action-related workplace determination pursuant to s 266 of the FW Act. The parties did not agree upon any of the terms to be included in the workplace determination required to be made, with the result that all terms had to be the subject of arbitration. The draft workplace determinations sought by the Department and CPSU both contained a provision in the same terms as clause 1.5 of the Determination. However, the parties were in contest about the next following provision. The Department’s draft included the statement: “Policies, procedures, and guidelines which support this Determination are not incorporated into, and do not form part of, this Determination”. The CPSU’s draft, by contrast, sought the inclusion of a provision reflective of that in clause 4.0.5 of the ACBPS Agreement:

“Those policies, guidelines and administrative instruments are incorporated into, and form part of this Workplace Determination. These instruments may only be made or varied following consultation with employees, and their nominated representative(s). These instruments will be subject to the dispute settlement provisions of this Workplace Determination.”

[6] In a decision issued on 11 January 2019 5 (Full Bench decision), the Full Bench recorded the respective submissions of the parties, and its conclusions as to the issue, as follows:

“[162] The CPSU submitted that we should include the above in the workplace determination for several reasons including that:

•  the Department was prepared to agree to consultation prior to any changes to policy during bargaining;

•  drawing on Mr Muffatti’s evidence, significant entitlements, with real impact upon the take-home pay of employees, are contained in policy, procedures, guidelines and administrative instruments; and

•  it is consistent with principles of fairness and industrial justice that employees are able to progress disputes about policies through the dispute settlement procedure.

[163] The Department submitted that the Commission should reject the CPSU proposal. More specifically, the Department contended that incorporation of policies, guidelines and administrative instruments in the workplace determination would, among other things, have the effect of leaving anyone who may not have complied with the policy exposed to proceedings against them seeking the imposition of a penalty or perhaps injunctive relief seeking to prevent them from proceeding because there was an arguable case that they propose to do so other than in accordance with the strict terms of the policy. The Department further contended that any such exposure was contrary to the interests of employees, the Department and the public interest. Beyond this, the Department posited that:

•  any such proceedings or any provision which conferred a right of veto upon the ability of the Department to vary its policies and procedures to accommodate the dynamic environment in which it operated was antagonistic to the considerations in s.275 of the Act; and

•  requiring employees and the Department to determine their rights from multiple and potentially dichotomous documents created uncertainty and diminished productivity in the application and understanding of the respective instruments.

[164] It is not common for enterprise agreements to incorporate policies and guidelines, though reference is frequently made to policies providing further guidance on particular issues. For this reason, we do not intend to incorporate such documents into the workplace determination which we will make. Nevertheless, we consider that there is significant value in employees being provided an opportunity to comment on draft policies and proposed variations to existing policies prior to those policies being finalised. The opportunity to comment on our view has the potential to identify operational issues and/or impacts which may have been overlooked or not considered. This, in our view, would be in the interest of both the Department and its employees. Accordingly, we will include in the determination which we will make a requirement that the Department provide employees such an opportunity. We do not consider providing employees with an opportunity to comment on policies to be inconsistent with s.273(5) of the Act.”

[7] The Full Bench decision was accompanied by a draft workplace determination to give effect to the Full Bench’s conclusions in the decision. This draft determination included provisions in the same terms as clauses 1.5, 1.6 and 1.7 of the Determination, albeit with different numbering. A conference was then conducted before a member of the Full Bench to finalise the workplace determination to be made. In the course of this process, the Department sought a modification to what is now clause 1.7 to include the words “to support this determination” after the words “policy, procedure or guideline”. This was not taken up by the Full Bench in the Determination which was subsequently made.

[8] The proceedings before the Commissioner below were initiated by way of an application made by the CPSU pursuant to s 739 of the FW Act. The application did not identify any particular policy as being the subject of the dispute. However, the application followed email correspondence sent by the CPSU to the Department on 7 September 2020 in which it complained that the Department had introduced a new policy, the Best Practice for Interacting with Children Procedural Instruction, and an updated Social Media Procedural Instruction, without engaging in the consultation process required by clause 1.7. Neither of these policies was placed before the Commissioner or before us. There were subsequently discussions between the parties about this correspondence. Whilst the proceedings before the Commissioner were on foot, it appears the Department introduced another updated policy without consultation in accordance with clause 1.7, the Dress and Appearance Standards Procedural Instruction. 6 This was also not placed before the Commission or before us.

The decision

[9] The decision was made on the basis of written submissions filed by the parties. In his decision, the Commissioner set out the relevant principles of construction to be applied in a manner which is uncontroversial in the appeal. 7 In his consideration of the question to be determined, the Commissioner commenced by describing the context of clause 1.7:

“[28] The relevant context is that the Department is likely to promulgate policies, procedures and guidelines that will impact upon employees in the performance of their employment. Employees will be obligated to comply with those policies, procedures and guidelines. Non-compliance may have disciplinary consequences for an employee. These are the industrial realities from which the interpretation of clause 1.7 cannot be divorced.”

[10] The Commissioner then characterised clause 1.7 as using “ordinary and well-understood words”, and said it was necessary to accord them their ordinary and usual meaning. 8 The Commissioner observed that clause 1.7 did not contain the words of limitation referring to “this Determination”, unlike clauses 1.5 and 1.6.9 Nor did it expressly link back to clauses 1.5 and 1.6 by referring to “these policies”, which the Commissioner described as being “more than an inconsistency in expression”.10 The Commissioner said that meaning had to be given to the difference in wording, and noted that, had it been intended to limit the operation of the consultation obligation in clause 1.7, it would have done so by express words as had been done elsewhere in the Determination.11 The Commissioner also noted that the Full Bench, in making the Determination, referred at paragraph [164] of their decision to the “significant value in employees being provided with an opportunity to comment on draft policies….” and said that, reading the Determination as a whole and beneficially, he saw no reason to limit the consultation obligation in clause 1.7.12 He characterised the Department’s interpretation as requiring to insert into clause 1.7 words which were not there, and said that there was no need to do so since the Determination would work effectively without them.13 The Commissioner rejected the Department’s contention about what could reasonably be inferred from the Full Bench’s decision, and said that the implication of a limitation was not reasonable and equitable and would benefit the Department over its employees.14 The Commissioner also pointed to the importance and benefit of consultation with employees about policies which “may impact upon them (i.e. those relevant to the employer and employee relationship) even if those policies do not arise out of the operation of the Workplace Determination”.15

Department’s appeal submissions

[11] The Department submitted that it should be granted permission to appeal because, otherwise, the decision would have material consequences in its capacity to efficiently introduce or vary policies dealing with matters which do not support the determination and have no consequences for the conditions of employment contained in the determination, may have only an indirect or remote effect on the Department’s employees, and may have significant operational consequences for the Department including the Australia Border Force. It also submitted that, unless permission was granted, the decision would perpetuate ambiguity in relation to the scope of the Department’s obligations, necessitate the deployment of sufficient resources to manage the consultation obligations, impose an unnecessary burden on the Department in respect of policies, procedures and guidelines which only marginally impact on employees but are principally directed to third parties who interact with the Department such as migration agents, visa applicants and importers, and have the potential to increase the scope of matters that may be subject to disputation. On that basis, the Department submitted, there was a strong public interest in the correction of error in respect of the decision.

[12] In relation to the merits of the appeal, the Department’s submissions that the answer given to the question for determination was incorrect focused primarily on matters of external context, namely the circumstances surrounding the making of the Determination. The Department pointed to the following matters in this respect:

•  when the Full Bench decided to include clauses 1.5, 1.6 and 1.7 in the Determination, it was in substance deciding which of the competing draft clauses proffered by the parties it should adopt;

•  the inclusion of clause 1.5 was not in dispute, and was based on clause 4.0.4 of the ACBPS Agreement which referred to policies, procedures, guidelines and other administrative instruments which supported the operation of the agreement;

•  the CPSU’s claim in respect of clause 1.7 was that “[t]hose” policies, guidelines and administrative instruments were incorporated into and formed part of the Determination, and was drawn from clause 4.0.5 of the ACBPS Agreement;

•  in substance and effect, the CPSU was advancing a claim for the continuation in the Determination of clauses 4.0.4 and 4.0.5 of the ACBPS Agreement, and not the imposition of different or more onerous obligations on the Department in respect of the scope of the policies, procedures, guidelines and other administrative instruments which were required to be the subject of consultation;

•  it is objectively clear that, like clauses 4.0.5 and 4.0.4 of the ACBPS Agreement, the CPSU’s claim in respect of clause 1.7 referred to the policies, guidelines and administrative instruments of the kind that are referred to in clause 1.5, namely those which support the operation of the Determination;

•  nothing said in paragraph [164] of the Full Bench decision suggests that it was intending to impose different consultation obligations upon the Department than those claimed by the CPSU;

•  the Commissioner implicitly recognised that, having regard to the statutory context in which the Determination was made, clause 1.7 could not apply to any policy, procedure or guideline, whether or not pertaining to the relationship between the employer and employees covered by the Determination, contrary to his reasoning that it was not necessary to limit the clause or imply words into the clause;

•  neither the ordinary meaning of the words in clause 1.7, the claims advanced by the parties in the Full Bench proceedings nor the reasons in the Full Bench decision support a conclusion that clause 1.7 has, as its touchstone, the identification of policies, procedures and guidelines by reference to whether they are “likely to impact upon” employees in their employment, and the Commissioner fell into error by adopting an interpretation that incorporated a limitation that did not accord with the clause’s context and purpose;

•  it is highly likely that in, paragraph [164] of the Full Bench decision, when the Full Bench discussed the value of consultation about policies, it was referring to the same policies which in the same paragraph the Full Bench had declined to incorporate into the Determination;

•  the Department’s contention as to the proper interpretation of clause 1.7 gave consistency of meaning to the references to policies, procedures and guidelines in clauses 1.5, 1.6 and 1.7; and

•  for the above reasons, it is sufficiently clear that the Full Bench was intending to create obligations in clause 1.7 in respect of the same policies, procedures and guidelines as referred to in clauses 1.5 and 1.6, consistent with the way in which the CPSU advanced its claims.

Consideration

[13] We are not persuaded that the grant of permission to appeal would be in the public interest, or that permission is otherwise justified on discretionary grounds, for the following reasons.

[14] First, it is not apparent to us that the question posed for determination before the Commissioner, whose answer to which we are asked to review, would resolve any practical question about the application of the Department’s consultation obligation in clause 1.7. As we have earlier recounted, the dispute was not brought before the Commission in a way which crystallised around whether any particular policy was the subject of the obligation or not. There has been, in the background, disputes about whether policies relating to working with children, social media, and dress and appearance standards were subject to clause 1.7, but neither before the Commissioner or before us has it been clearly identified by the parties whether or not these policies are considered to be amongst those which “support” the Determination. Nor has the Commission been asked to form any view about this; indeed, as earlier stated, the policies themselves were not even placed before the Commission for consideration.

[15] More fundamentally, neither of the parties’ submissions has addressed what it means for a policy, procedure or guideline to “support” the Determination. There appears to be an assumption embedded in the Department’s position that it encompasses matters which are otherwise dealt with in the Determination, but this was never properly articulated in the Department’s submissions. “Support” is a word of wide import, and its relevant meanings may include to sustain, maintain, uphold, assist, back or second. 16 It is not apparent to us that, for a policy, procedure or guideline to “support” the Determination, it needs necessarily to deal with a matter for which express provision is made in the Determination. On one view, it may be sufficient that a policy supplements the Determination by dealing with a matter of significance to employment in the Department for it to “support” the Determination. If this is the case, there may be little difference between a policy which “supports” the Determination and one which, in the words of the Commissioner’s answer to the question, is “likely to impact upon employees in their employment”. Because of the lack of considered submissions on this matter, the import of the question of whether clause 1.7 operates by reference to policies, procedures or guidelines which “support” the Determination is entirely unclear. Further, because the Commission has been asked to answer the question in a vacuum rather than by reference to any particular policy, procedure or guideline, it is also unclear whether answering the question will have any practical significance in terms of the future application of clause 1.7.

[16] Second, we do not consider that the extrinsic context concerning the making of the Determination referred to in the Department’s appeal submissions is demonstrative of error in the Commissioner’s answer to the question posed for determination. Contrary to the Department’s submission, we do not consider that the draft provisions proposed by the CPSU provide any significant assistance in answering this question. The Department referred to the CPSU’s proposed incorporation/consultation clause as operating, through its use of the words “Those policies, guidelines and administrative instruments…” (underlining added), in relation to the policies procedures and guidelines which “supported” the workplace determination as referenced in the CPSU’s preceding proposed clause (which became clause 1.5). However, on analysis, it not clear that this is what the CPSU intended. The CPSU’s clause was clearly derived from clause 4.0.5 of the ACBPS Agreement (as was recognised in paragraph [161] of the Full Bench decision). Clause 4.0.5 did not operate by reference to policies which “supported” the ACBPS Agreement, but rather to policies “which are referenced in this Agreement”. The CPSU removed those words of limitation from its proposed provision, suggesting that it intended its clause to have a wider sphere of operation, but otherwise retained the language of clause 4.0.5, including the words “Those policies, guidelines and administrative instruments…”. It cannot necessarily be inferred from this that the CPSU intended that its proposed clause operate by reference to policies which would “support” the workplace determination to be made.

[17] In any event, clause 1.7 of the Determination, in the terms awarded, was not proposed by either party in their draft determinations. The submissions received by the Full Bench, as recorded in paragraphs [162] and [163] of the Full Bench decision, were concerned with whether policies should be incorporated into the workplace determination to be made and whether there should be a consultation requirement. The Full Bench’s consideration in paragraph [164] addressed these issues. There is no indication that the Full Bench’s attention was drawn to the issue of whether the policies to be the subject of consultation were those which “supported” the workplace determination, let alone there being any explanation as to what this meant in theory or in practice.

[18] The only extrinsic contextual indicator of significance supports the Commissioner’s conclusion that meaning has to be given to the lack of any reference in clause 1.7 to a requirement that the relevant policy, procedure or guideline “support this Determination”, in contrast to clauses 1.5 and 1.6. As earlier recounted, the Department specifically sought the insertion of a requirement to this effect into clause 1.7 of the draft workplace determination published in conjunction with the Full Bench decision. The Full Bench declined to accede to this request. It must be inferred from this, therefore, that the exclusion of that requirement was intentional.

[19] Third, we do not accept that the significantly detrimental consequences to the Department which it contended in its submissions would follow if permission to appeal was not granted are likely to occur. The obligation imposed by clause 1.7 is not onerous: it only requires that the Secretary of the Department give employees two weeks to “comment” upon a proposed new or varied policy, procedure or guideline and to take those comments into genuine consideration. The time delay is small, and it seems to us that no face-to-face consultation is necessary since any comments can be received in writing. Further, the provision must be read as limited by the requirement in s 272(3)(a) of the FW Act that a term of a workplace determination must be about “permitted matters if the determination were an enterprise agreement”. Such “permitted matters” must, for relevant purposes, pertain to the relationship between the employer and the employees covered or between the employer and the employee organisations covered: s 172(1). The answer given by the Commissioner is consistent with this limitation and means that clause 1.7 is not concerned with policies which are about the relationship between the Department and third parties such as migration agents, visa applicants and importers and do not affect the interests of employees.

Conclusion

[20] For the above reasons, permission to appeal is refused.

VICE PRESIDENT

Appearances:

S Meehan of counsel for the appellant.
C Howell of counsel for the respondent.

Hearing details:

2021.

Sydney and Melbourne (by video-link).
21 June.

Printed by authority of the Commonwealth Government Printer

<PR731746>

 1   [2021] FWC 2199

 2   Ibid at [39]

 3   AE890227

 4   AE888602

 5   [2019] FWCFB 143

 6   [2021] FWC 2199 at [25]-[26]

 7   Ibid at [17]-[22]

 8   Ibid at [29]

 9   Ibid at [30]

 10   Ibid at [32]

 11   Ibid at [33]

 12   Ibid at [34]

 13   Ibid at [35]

 14   Ibid at [36]

 15   Ibid at [37]

 16   Macquarie Dictionary