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[2017] FWC 4734
General information, not legal advice.
Fair Work Commission
2017-09-12
Commissioner Cribb, Deputy President Hamberger, President Hamberger, Senior DP Hamberger
Original judgment source is linked above.
[45] The applicant says that he then emailed his then manager Brendan O'Brien on 20 July 2016 with his dispute, who he forwarded it onto Michael Bourke, Industrial Relations for Aurizon. He continued:
'Michael advised me that under the EBA, my frozen wages would stay until a review by HR was carried out on my duties. Then came another restructure when Aurizon decided that the both positions of Rollingstock Deployment officers were to be relocated to Brisbane. When Aurizon finally realized that I had not been doing the Rollingstock Duties for the last 3 years, I was approached by Janine Phillips HR and I requested again for a position review. The reply to this request is the letter dated 12.08.2016 from Mark Kirkpatrick VP Operations which states my duties are now aligned to Day Roster, not Rollingstock as for the past 3 years. This letter only shows who I report to but does not address the pay freeze or position review that I requested. At no time did I carry out any Day Rosters duties.'[6]
[46] On 8 December 2016 (that is, just before the applicant's employment with the respondent ceased), an official from the RTBU wrote to an officer of the respondent, Gary Wegert, contesting the freeze applied to the applicant's pay.
[47] It is clear that the dispute concerning whether the applicant was being paid correctly between the applicant and the respondent continued under the 2014 agreement and was not resolved at the time his employment ceased. Given this finding, and given the need to avoid unnecessary technicalities etc. referred to earlier, I consider that the application should be considered as one made under the 2014 agreement.
[48] The respondent notes that the 2014 agreement contains criteria for the classification of positions and that clause 7 provides a mechanism for the settlement of disputes arising under the 2014 agreement or in relation to the NES.
[49] The respondent submitted, however:
'A dispute over the correct classification of a position under the [2014 agreement] is a matter arising under the [2014] agreement which could be the subject of a dispute under clause 7. However, the classification criteria under the [2014 agreement] became effective only at 28 January 2015. It is not open to the Commission under the process in clause 7 of the [2014 agreement] to deal with the classification of a position at a data prior to the commencement of the [2014 agreement]. Neither is it open to the Commission, in considering whether the work of a position is correctly classified under the [2014 agreement] to take account of the classification of the same or similar work, under an earlier, internal employer process which did not form a part of any award or enterprise agreement.
There is no continuing dispute from before the advent of the [2014 agreement] which can be dealt with under the [2014 agreement]. The Commission, in dealing with any classification matter is limited to an assessment of the work being performed at the commencement of the [2014 agreement] against the classification criteria in the [2014 agreement].'
[50] This is an unduly narrow reading both of the dispute and of the 2014 agreement. Clause 7 provides a procedure for dealing with disputes 'about a matter arising under this Agreement....' The agreement includes a classification structure and wage rates corresponding to each classification. The applicant contends that he was paid incorrectly. While the original decision to 'freeze' his wages may have been taken prior to the 2014 agreement coming into operation, the freeze continued under it. He still contended that he was paid wrongly under the 2014 agreement. I see no good reason why such a dispute cannot be said to 'arise under' the 2014 agreement. Of course, any determination made by the Commission would need to be consistent with that agreement.
Has the applicant followed the steps in the 2014 agreement DSP that are required prior to making an application to the Commission?
[51] The respondent concedes that the 2014 agreement DSP does not contain the same formal timetabling and response requirements that were necessary under clause 13 of the 2010 agreement. However, it submits, there is no evidence that the applicant (or the employer) considered that the issue of the applicant's classification from January 2015 was being raised as a dispute pursuant to clause 7 of the 2014 agreement. It says that the fact that the applicant did not make an application after receiving the letter of 12 August 2016 from Mr Fitzpatrick suggests either that he believed the matter was resolved or that he did not consider that he was raising a dispute under the clause 7 procedure.
[52] The DSP in the 2014 agreement is expressed in very general terms. It provides that as a first step, discussions are to be held between the employee concerned and the relevant supervisor. There is no suggestion that this did not happen. If that does not resolve the dispute, discussions are to be held between the employee concerned and more senior levels of management. It is clear that the applicant took the matter up with more senior managers. It is not clear how much this took place by correspondence rather than 'discussions', but again, I do not think much turns on this. Whether the applicant or the respondent thought this was a dispute under the DSP rather than just a 'dispute' between them is irrelevant. As a last step, the employee may refer the matter to the Commission. This is what the applicant has done. No time limits are placed on how long the employee has to complete this step. I find no basis to conclude that the applicant has not followed the steps in the DSP necessary as a precursor to an application to the Commission.
[53] The respondent says there 'may be a question as to whether or not the Commission has power to arbitrate a dispute under clause 7 of the [2014 agreement]' and reserves it right to make further submissions on this point. I merely note that the DSP on its face empowers the Commission to exercise any method of dispute resolution permitted by the FW Act in relation to a dispute referred to it under the procedure.
The timing of the application to the Commission to deal with the dispute
[54] The applicant applied to the Commission to deal with his dispute after he ceased to be employed by the respondent. There are a number of Full Bench decisions dealing with whether the Commission has jurisdiction to deal with disputes in these circumstances.
[55] It is important to bear in mind that there are (at least) three possible scenarios that are relevant. In each scenario the applicant was formerly employed by the respondent employer
in one scenario, the employee's employment ceased after the dispute had been referred to the Commission, but before the Commission had (fully) dealt with it (Scenario A);
in a second scenario, the dispute arose while the applicant was still employed by the respondent but was no longer so employed at the time the dispute was referred to the Commission (Scenario B); and
in the third scenario, the dispute did not arise until after the applicant had ceased to be employed by the respondent (Scenario C).
[56] It will be noted that the facts as I have found them in the matter currently under consideration accord with Scenario B; that is, Mr Pearce was in dispute with Aurizon at the time his employment with the respondent ceased, but was no longer so employed when he referred the dispute to the Commission.
[58] In Jajoo the respondent, ING, argued, inter alia, that the terms of s.170LW of the Workplace Relations Act 1996 (Cth) (which broadly corresponded to s. 739 of the FW Act) did not enable a procedure to be inserted into a certified agreement that allowed ex-employees to process disputes in the Commission, and that the terms of the certified agreement did not empower the Commission to settle disputes of the type in question between an ex-employee and ING.
[59] In relation to whether s.170LW prevented the Commission from dealing with disputes concerning former employees, the Full Bench said the following:
'[38] We accept that a single person dispute which arises for the first time after the termination of employment is not a dispute between an employer and an employee. However, many disputes will arise while employment exists and continue after the termination of employment. In such a case, when the dispute arises, it is a dispute between an employee and an employer. If the dispute is progressed to the point of seeking the assistance of the Commission, the ING interpretation would require the employee to remain in employment. If it was intended to incorporate a limitation in s 170LW of the nature contended for by ING, we would expect there to be a clear express reference to that effect.
[39] The ING interpretation involves construing the provision as disqualifying employees from any process the parties may agree to confer on the Commission once they cease to be employed by their employer. Further, it requires s 170LW to be construed as depriving the parties to agreements of the ability to have a dispute continue to be resolved under an agreed procedure after termination of employment. Such a consequence would arise with respect to any dispute over any aspect of the agreement, even claims such as the non-payment of a meal allowance. It would also operate to deprive the Commission of jurisdiction at any time during the process. If termination arises after a decision is reserved, the jurisdiction to hand down the decision would not exist.
[40] As a matter of interpretation, a court or tribunal should not read a limitation into a source of power unless the words clearly bear such a meaning. Further, we do not believe that concepts of legal and industrial disputes provide any assistance in resolving the matter. Nor do we believe that it matters how the termination of employment occurred. We do not believe that s 170LW should be interpreted as including a limitation on the rights of parties to agreements in this way. If a dispute arises when the employment relationship exists, we are of the view that it is a dispute between the employer and an employee. We believe that a limitation of the nature contended for by ING should not be inferred from the words of s 170LW.
[41] In the circumstances of this matter, Mr Jajoo sought to progress a dispute under the relevant dispute settlement procedure while still employed. It was unresolved when his employment was terminated. We do not believe that there is a sound basis for construing the terms of s 170LW in a way which would deprive him of the right to progress his dispute to other levels of the procedure, including to the Commission, after the termination of his employment.'
[60] The Full Bench then turned to whether the terms of the agreement itself meant that the relevant DSP could not relate to a dispute with an ex-employee. The decision set out the terms of the DSP, as follows:
Any grievance or dispute about a matter arising under the Agreement will be dealt with in accordance with the following procedure.
(a) In the first instance the matter may be raised with the Employee's immediate manager or supervisor who will attempt to resolve it within a reasonable time.
(b) If the matter cannot be resolved with the Employee's immediate manager or supervisor, either party may refer the matter to the supervisor's manager who will seek to resolve the matter within a reasonable time, failing which the assistance of a more senior manager may be sought.
(c) If the matter remains unresolved either Party may refer the matter to the appropriate People and Culture representative or another senior person (up to and including the CEO).
(d) If the matter still remains unresolved, either Party may refer the dispute to the AIRC for conciliation and/or arbitration.
(e) During the dispute resolution process, normal work practices and procedures will continue in accordance with INGA's reasonable directions.
(f) Nothing in these procedures will prevent any party from exercising its rights under the Act.
(g) INGA recognises that an Employee who is a member of the FSU may wish to raise a matter with their Union representative who may become involved in the discussion at any stage of the process.'
[61] The Full Bench said the following:
'[52] In this matter, the Agreement was reached between the employer and the majority of employees whose employment was subject to the Agreement at the time of certification and who voted in a ballot on the matter. The effect of the submission by ING is that as a matter of construction of the terms of the Agreement, the ordinary meaning of the words in the Agreement or the intention of the parties is that grievances or disputes raised under the procedure could only be progressed so long as the employee in question remained employed by ING.
[53] It may be that a former employee cannot initiate a dispute under the clause after his or her employment has ceased. The notion of an employee raising the matter with the immediate manager or supervisor in the first instance tells against the existence of jurisdiction in such a case. Indeed, that was the situation and one of the bases for the decision of Commissioner Cribb in the Pugsley decision referred to above.
[54] However in this case, Mr Jajoo alleges that he first raised the relevant issue and sought to follow the steps contained in clause 3.15(a)-(c) in 2005. After his employment was terminated, he sought to utilise the step in the dispute settlement process in sub-clause (d). That sub-clause states that "If the matter still remains unresolved, either Party may refer the dispute to the AIRC for conciliation and/or arbitration." In our view, the reference to "either Party" is a reference to the parties to the dispute. Mr Jajoo was a party to the dispute when he invoked the procedure and in our view, remained so when the dispute was unresolved and he sought to refer the dispute to the AIRC.
[55] We do not believe that the words of the Agreement suggest that an employee is disqualified from activating sub-clause (d) if the employment is terminated. Further, we believe that it would be highly artificial to suggest that the parties to the Agreement intended, when making the Agreement, that an employee's ability to progress a dispute under the procedure would come to an end when he or she ceased to be an employee. Such an interpretation would mean that even a dispute which progresses to a full hearing and a reserved decision of the Commission, would be incapable of finalisation in the event of termination of employment. We see no basis to find that an employee who commences step 4 while still employed can follow that step through to the end regardless of termination, yet an employee who does not reach step 4 while still employed is precluded from accessing the final step in the process. If such serious consequences were intended, it would reasonably be expected that a clearer limitation would be written into the Agreement by the parties.
[56] We note that the opening words of clause 3.15 are unrestricted. They require "any grievance or dispute about a matter arising under the Agreement" to be dealt with in accordance with the procedure. There is no reference to 'Employee' in the opening words. The only reference to 'Employee' in the four steps of the process is as part of the phrase "Employee's immediate manager".
[57] We are also mindful of the alternative remedies available to Mr Jajoo under the Act, but we do not believe that these indicate that he does not have a remedy under the Agreement. It would be a curious result if Mr Jajoo could now take an action under the Act because he is held to be "an employee who is bound by the Agreement" (s 718) or "an employee whose employment is subject to the Agreement" (s 849) but could not take an action under the Agreement because he is not "an employee of the INGA whose employment is subject to this Agreement" (clause 1.3).
[58] In our view, the dispute settlement process should be viewed as a single process agreed by the parties to resolve disputes, rather than a series of separate rights and obligations which should be viewed conjunctively. That being so, an employee who had commenced to deal with a grievance or dispute while employed is not precluded, in our view, from continuing to progress that matter if it remains unresolved, notwithstanding that in the interim period they may have ceased to be employed by the employer.
[59] In reaching this conclusion, we acknowledge that parties to agreements are entirely free to draft disputes procedures in any number of different ways. Agreements may limit rights to resolve matters under disputes procedures to persons who are current employees and many agreements may properly be construed as doing so. In the circumstances of this case, we believe that the Agreement empowers the Commission to determine the dispute notwithstanding that prior to the matter being resolved (and prior to Mr Jajoo referring the dispute to the Commission) his employment was terminated by ING.'
While Jajoo was decided under the Workplace Relations Act 1996, it has continued to be followed by Full Benches dealing with matters under the FW Act.[10]
The respondent in the current matter made a supplementary submission drawing attention to a recent decision by Booth DP in Markham v Ensign Drilling Australia t/a Ensign Energy Services[13] (Markham). In Markham, it appears that the applicant was in dispute with his employer while he was still employed by them, but did not refer the dispute to the Commission until well after his employment had terminated. This appears to correspond to Scenario B (similar to the situation in the matter currently under consideration and Jajoo).
In Markham, Booth DP referred to the Full Bench decision in CFMEU v North Goonyella Coal Mines Pty Ltd[14] (Goonyella). Booth DP said:
'The guidance from Goonyella suggests that the Commission must closely examine and consider the words of the relevant dispute settlement procedure.'
'[78] Step Five of clause 2.13 of the Agreement is:
"If the matter is not able to be conciliated, the matter may be referred by the employee or by Ensign, to the Fair Work Commission for arbitration. The Fair Work Commission may make a determination that is binding on the parties in accordance with provisions of the Fair Work Act 2009 (Cth)"
[79] As the Full Bench said in Goonyella "the word "employee" on its ordinary meaning and without qualification is entirely inapt to refer to a former employee." The use of the word "employee" cannot be ignored in Step Five of clause 2.13 of the Agreement.'[15]
[68] Booth DP concluded on the basis of the reasoning in Goonyella that the use of the term 'employee' in Step Five of the clause in the DSP that enables a person to refer a matter to the Commission for arbitration must be read as a reference to a current employee, rather than someone who is no longer employed. Accordingly, she found that the Commission did not have the power to arbitrate to resolve the dispute.
[69] The Full Bench decision in Goonyella concerned a matter where there had been 'no attempt to engage the provisions' of the DSP prior to the termination of the relevant employees who were party to the dispute. In other words, it accorded with Scenario C referred to earlier. The Full Bench distinguished the circumstances of the case before it from those in Jajoo.
'The position here is distinguishable from that considered in ING Administration Pty Ltd v Jajoo, Telstra Corporation Limited v CEP__U and Deakin University v Ramett__a, where in each case the dispute resolution procedure had been initiated by or on behalf of the relevant employee before the employee's employment had been terminated even though the procedure had not been completed prior to termination. In each of those matters it was determined that arbitration under the disputes resolution procedure could proceed notwithstanding that the employment of the relevant employee/s had terminated. Here, it is apparent that there was no attempt to engage the procedures in clause 41 [the DSP] in respect of the dispute identified in the October 2013 application at a time when any of the employee parties to the dispute were actually employed by North Goonyella. In that circumstance, clause 41 had no application, and consequently there was no power for the Commission to deal with the dispute under s.739 of the FW Act.'
[70] The circumstances in the case currently under consideration are much closer to those in Jajoo than those in Goonyella. I consider the Full Bench decision in Jajoo remains binding authority for a single Member of the Commission in dealing with applications in similar circumstances, that is, Scenario B, where the dispute arose prior to the termination of the relevant employee's employment. Of course, one must always have regard to the specific terms of the DSP in the relevant agreement. But I consider that both the circumstances and the terms of the DSP in this matter are sufficiently similar to those in Jajoo to require me to follow the approach taken in that case. Accordingly, I find that the timing of the referral of the matter to the Commission after the applicant ceased to be employed by the respondent does not mean that the Commission lacks the power to deal with the matter before me.
[71] I note that the Full Bench in Goonyella distinguished the circumstances of the case before them from those in Jajoo, and its decision is not authority to depart from Jajoo where the circumstances are similar to those dealt with in the latter decision. However, it must be acknowledged that there is some tension in the reasoning in the two decisions. In particular the Full Bench in Goonyella was of the view that:
'... the word "employee" on its ordinary meaning and without qualification is entirely inapt to refer to a former employee'.[16]
[72] By contrast, the Full Bench in Jajoo observed:
'It would be a curious result if Mr Jajoo could now take an action under the Act because he is held to be "an employee who is bound by the Agreement" (s 718) or "an employee whose employment is subject to the Agreement" (s 849) but could not take an action under the Agreement because he is not "an employee of the INGA whose employment is subject to this Agreement" (clause 1.3).'
[73] The FW Act uses the term 'employee' in a way that would include a former employee in a similar way (see, for example, s.539).
[74] Any apparent inconsistency between Jajoo and Goonyella can only be resolved by a further Full Bench. As indicated earlier, in the circumstances of this case, I am bound to follow the reasoning in Jajoo.
[75] On the basis of the material and the submissions presented to me, I am satisfied that the Commission has jurisdiction to deal with the application. The matter will be listed for further directions.
Aurizon Operations Limited: 30 July, 18 August 2017.
Printed by authority of the Commonwealth Government Printer
Michael Pearce
Aurizon Operations Limited [2017] FWC 4734