Fair Work Act 2009

s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - Jurisdictional objection: whether applicant entitled to make application - Commission has insufficient jurisdiction to proceed - Application dismissed.

• [1] Ms Pei-Hua Tsai works as a registered nurse for Calvary Health Care Tasmania and asserts contraventions by her employer of several provisions of an applicable enterprise agreement dealing with hours of work and fatigue derived from lengthy work.

• [2] This decision relates to an application made by Ms Tsai to the Fair Work Commission on 7 October 2024 pursuant to s.739 of the Fair Work Act 2009 asserting a dispute arsing under the Calvary Health Care - Tasmania Private Hospitals - Nurses and Midwives Enterprise Agreement 2022.[1] Despite its name, the agreement commenced operation on 14 March 2024 and is referred to in this decision as the 2024 Agreement.

• [3] Calvary Health Care Tasmania (Calvary) objects to the continuation of the dispute on the basis that it does not arise under the 2024 Agreement and, as such, the Commission is not empowered to determine the dispute.

• [4] After conciliation of the application failed to resolve the dispute, the Australian Nursing and Midwifery Association (ANMF) on behalf of Ms Tsai, sought determination of the matter by the Commission. In response, I required each party to file relevant submissions and evidence. The parties then consented to determination of the matter by me on the papers and without a hearing.

• [5] After taking all relevant matters into account, I am not satisfied of the Commission's jurisdiction to determine the dispute and thereby dismiss Ms Tsai's application.

• [6] The predecessor to the 2024 Agreement is the Calvary Health Care Tasmania Nursing Staff Enterprise Agreement 2020[2], which commenced operation on 8 June 2021 after approval by Commissioner Lee. That agreement is referred to as the 2021 Agreement. Within the 2021 Agreement is Clause 11, the Dispute Resolution Procedure, which is in the following terms;

(a) In the event of a dispute in relation to a matter arising under this Agreement or the NES, in the first instance the parties will attempt to resolve the matter at the workplace by discussions between the Employee or Employees concerned and the relevant supervisor and, if such discussions do not resolve the dispute, by discussions between the Employee or Employees concerned and more senior levels of management as appropriate.

(b) A party to the dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute.

(c) If a dispute in relation to a matter arising under the Agreement or the NES is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to the FWC for resolution by conciliation and, where the matter in dispute remains unresolved, arbitration.

(d) It is a term of this Agreement that while the dispute resolution procedure is being conducted work shall continue according to the custom and practice/ status quo before the grievance arose unless an Employee has a reasonable concern about an imminent risk to his or her health or safety.

(e) If arbitration is necessary the FWC may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.

(f) For the avoidance of doubt, Employee grievances are included in the matters to be dealt with in accordance with the dispute resolution procedure of the Agreement."

• [7] The nominal expiry date of the 2021 Agreement was 1 July 2022, however it continued in operation until 14 March 2024, when it was replaced by the 2024 Agreement.

• [8] On 1 and 2 November 2023, Ms Tsai worked very long hours, returning to work on two occasions. At least on the second occasion she asked multiple times to be relieved, reporting that she felt very fatigued. Ms Tsai formed the view the hours she worked on 1 and 2 November were in contravention of parts of Schedule 1 of the 2021 Agreement and in particular Clause 6.6 of the schedule, which provided for a break in certain circumstances;

"6.6 Provided that where an employee is recalled to work prior to 5:30am, and where the employee has not had an 8 hour break prior to being recalled to duty, the employee shall be entitled to an eight hour break without loss of pay for ordinary working time occurring during such absence at the cessation of the recall duty, prior to commencing their rostered shift."

• [9] On 3 November 2023, Ms Tsai first raised her concerns about the hours she had worked the previous days with her employer, writing to, and later meeting with, her theatre manager. Ms Tsai's email to the theatre manager is in these terms;

I would like to have a meeting with you to discuss about my overtime hours yesterday. Please have a review of my working hours on Wednesday and Thursday.

Because department don't have enough skilled staffs on the floor, you ended up over-expending my on-call period yesterday. I did not have sleep over 28 hours because of working in Calvary.

I seriously think department must recruit skilled contract agency nurses now to ensure safe skilled mixed staffing level. It needs to happen now instead of taking risks every day. I need to emphasize to you that junior nurses are not going to catch up with skills/ experience for minimum one year waiting and skilled staffs on leaves are not covered. This is a huge staffing hole in our department.

• [10] Not long after, on 15 November 2023, the ANMF wrote to Calvary asserting that the second recall to work was in contravention of the 2021 Agreement, given Ms Tsai "had not had the required 8 hour break".[3]

• [11] Calvary rejected this in its 7 December 2023 reply to the ANMF, putting forward there were extenuating circumstances for Ms Tsai's lengthy hours on the dates in question; that call backs to work are a last resort; and that in any event, the provisions of Clause 6.6 must be read in conjunction with Clause 6.8 of Schedule 1;

"Whilst any call back to work is done so as a last resort and avoidable if at all possible, Calvary does not agree that this was a breach of the Calvary Health Care Tasmania Nursing Staff Enterprise Agreement 2020 (the Enterprise Agreement) as provision exists within this Enterprise Agreement for circumstances where an employee has not had eight consecutive hours off duty. We draw your attention to the following within Schedule 1: Rostering Arrangements Theatre and Endoscopy at Clause 6.8:

If on the instructions of the employer such an employee resumes or continues work without having had such eight consecutive hours off duty he/she shall be paid at double time until he/she is released from duty for such period and shall then be entitled to be absent until he/she has eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence."[4]

• [12] The 2024 Agreement commenced on 14 March 2024, after approval by Commissioner Yilmaz. By corollary, the 2021 Agreement ceased to operate.

• [13] The 2024 Agreement's dispute resolution procedure is in identical terms to that within the 2021 Agreement (see Clause 10 of the 2024 Agreement).

• [14] Ms Tsai's application form, the Form F10, refers to a survey of ANMF members being undertaken on the subject of hours of work;

"The ANMF surveyed all Calvary Lenah Valley perioperative services members in March 2024 and September 2024. Both surveys reported issues with on-call and call back shifts, including increased numbers of on-call shifts, pressure to perform these shifts even for elective survey cases that can be postponed, and reluctance to address the issue with management. "[5]

• [15] On 28 June 2024, the ANMF lodged a dispute in the Fair Work Commission dealing with the same subject, and the application was the subject of conciliation before me which also did not resolve the dispute.[6] After jurisdictional matters were identified with that application, it was withdrawn by the ANMF at my invitation on 25 September 2024 and a new Application was made to the Commission , on 7 October 2024, being the matter now before me.

• [16] The events about which Ms Tsai's Application relates to took place on 1 and 2 November 2023. She complained about her experience on 3 November 2023. Her union, the ANMF, wrote to Calvary on 15 November 2023, complaining the 2021 Agreement had been contravened by Calvary's conduct. Calvary rejected the complaint on 7 December 2023.

• [17] It could be argued that the above steps by Ms Tsai and the ANMF were steps consistent with Clause 10 of the 2021 Agreement, being "a dispute in relation to a matter arising under" the agreement as well as efforts "to resolve the matter at the workplace by discussions between the Employee or Employees concerned and the relevant supervisor" and later with "more senior levels of management". However, these efforts petered out after Calvary rejected the complaint on 7 December 2023.

• [18] There was then no attempt to progress the dispute until June 2024. In the meantime, the 2021 Agreement had ended when the 2024 Agreement was approved and commenced operation on 14 March 2024. At the time the 2024 Agreement commenced operation there had been no referral to the Commission of a dispute with the character of this matter.

• [19] The Full Bench in Battye v John Holland Pty Ltd (JHPL) t/as Territoria Civil[7] (Battye) dealt with a not dissimilar chronology, ultimately determining there was no jurisdiction for the Commission to arbitrate the dispute then before it. Relevantly in Battye;

• The nominal expiry date of what is referred to as the 2013 Agreement was 10 October 2017;

• An application pursuant to s.739 of the FW Act was made to the Commission seeking assistance with a classification dispute on 27 July 2017, with the dispute arising under the 2013 Agreement;

• A conciliation conference was held in relation to the application on 3 August 2017;

• What is referred to as the 2017 Agreement commenced operation on 16 May 2018, thereby ceasing the application to the parties of the 2013 agreement; and

• A request was made to the Commission on 20 December 2018 seeking the originating application be relisted for the purposes of programming an arbitration, with a further conciliation conference conducted on 18 February 2019.

• [20] The Full Bench in Battye noted an acknowledgement by the appellant that, in order to "enliven the disputes resolution procedure in the 2013 Agreement it had to be enlivened whilst that agreement was in operation.[8] The Full Bench then rejected the proposition that the application on 27 July 2017, while the 2013 Agreement was in operation, was sufficient to enliven the dispute resolution procedure for both conciliation and arbitration. In doing so it considered there was "a clear bifurcation of the conciliation and arbitration functions" of the dispute.[9] Further, the Full Bench noted that the relevant disputes resolution term allowed disputes to be referred to the Commission "for conciliation and/or arbitration for resolution" meaning that a dispute referred to the Commission under that clause may, but will not necessarily, involve both functions.[10]

• [21] The "bifurcation of the conciliation and arbitration functions" referred to in Battye arose because the initial steps in the matter before the Commission were about conciliation and it was not until sometime later, on 27 February 2019, when it become apparent that further conciliation had been unsuccessful, that the Commission was asked to exercise its arbitral power under the dispute resolution settlement terms of the 2013 Agreement.[11]

• [22] The Full Bench in Battye took into account in forming its decision that, at the time the Commission was first requested to arbitrate under the 2013 Agreement, that agreement had ceased to apply;

"[23] It is clear that at the time Mr Battye first sought to enliven the Commission's power to arbitrate under the 2013 Agreement, that agreement had ceased to apply to John Holland and to him. The relevant effect of s.58 of the Act is that, once the 2017 Agreement came into operation on 16 May 2018, the 2013 Agreement ceased to apply to any employee within its coverage, because the coverage of the two agreements was the same. Under s.54(2), the 2013 Agreement then ceased to operate, and that meant that under s.52(1) it could no longer apply to anyone. If an agreement does not apply to anyone, it cannot impose any obligation or confer any entitlement (s.51). Section 739(4) provides that the Commission may arbitrate a dispute only where the parties have agreed that the Commission may do so in accordance with a disputes resolution term in an agreement. Here, the relevant term in the 2013 Agreement no longer applied to Mr Battye and John Holland at the time Mr Battye first sought to invoke the arbitration power in that term."[12]

• [23] In finality, the Full Bench rejected the appeal, upholding the original decision of Commissioner Bissett that the application then before her was beyond jurisdiction.

• [24] The later Full Bench in Simplot Australia Pty Ltd v AMWU[13] (Simplot) clarified that the reference to the bifurcation between conciliation and arbitration was one particular to the facts within Battye and the dispute the Commission was then being asked to resolve. In particular, Simplot held that Battye "was not suggesting that the Commission would necessarily have power to determine the dispute if Mr Battye had sought arbitration at a time when the earlier agreement was still in operation. It was simply responding to the way in which Mr Battye had put his case".[14]

• [25] The ratio of Simplot, that a dispute initiated under an agreement ended when that agreement was replaced,[15] was overturned by the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Falcon Mining Pty Ltd[16] (Falcon Mining). With respect to applications arising under s.739, the Full Bench in Falcon Mining held that "the Commission is empowered to arbitrate a dispute once the requisite agreement to do so exists and, once authorised, it may exercise all of its powers and procedures under the FW Act, subject only to the operation of s 739(3). Nothing in the Explanatory Memorandum states or suggests that, once the Commission is authorised to arbitrate, that authority may be removed by some subsequent event".[17] Falcon Mining though explicitly declined to endorse the commencement of disputes connected with a former enterprise agreement arising for the first time after its replacement: "the Simplot decision was correct in saying that an actionable contravention of an enterprise agreement cannot occur after the agreement ceases operation by virtue of s 51".[18]

• [26] The decision of Deputy President Bell in the matter of an Anfruns v Home@scope Pty Ltd[19] (Anfruns) deals with a set of circumstances closer to those involved in this matter, given that an application was only made to the Commission to deal with a dispute pertaining to entitlements under what is referred to in the decision as the 2018 Agreement, and after that agreement had ceased to operate for reason of the commencement of a 2023 Agreement. So far as is relevant;

• The 2018 Agreement ceased to operate when the 2023 Agreement commenced operation on 22 August 2023;

• The application was made to the commission on 16 November 2023;

• Various workplace events relevant to the dispute before Deputy President Bell took place between April 2023 and May 2023.

"[23] In contrast to the Battye matter - where at least the conciliation stage had been commenced under the old agreement - Mr Anfruns had taken no step at all under the 2018 Agreement before it ceased to apply. It is clear that I have no jurisdiction to arbitrate Mr Anfruns' dispute under the 2018 Agreement."[20]

• [28] Anfruns also dealt with the possibility that an entitlement arising under the 2018 agreement may have been preserved through the text of the 2023 agreement;

"[25] For clause 4.4 of the 2023 Agreement, it is sufficient to note the opening words, which state "Nothing in this Agreement will diminish any entitlement which Employees covered by this Agreement had immediately prior to this Agreement coming into effect". First, I do not consider that this clause operates to allow disputes arising about the operation of an earlier agreement to be raised under the current enterprise agreement. But even if that was not the case, there is no "entitlement" under the 2018 Agreement for Mr Anfruns' application to be arbitrated. There is no entitlement because there was no application made for an arbitration while the 2018 Agreement was in operation. That does not imply that Mr Anfruns is without rights. It remains the case that he is entitled to allege a breach of the 2018 Agreement, but that allegation must be made in a court of competent jurisdiction. What Mr Anfruns cannot pursue in the Commission is a dispute involving the arbitral powers of an expired enterprise agreement."

• [29] No doubt there is a genuine concern on the part of Ms Tsai that the provisions of the 2021 Agreement have been breached through Calvary's decision-making for rostering and recalls to work on 1 and 2 November 2023, and the concern was rapidly identified and taken up with Calvary by her union, the ANMF. It is likely that the email sent by the ANMF , on 15 November 2023 and responded to by Calvary on 7 December 2023 was a dispute for the purposes of clause 11 of the 2021 Agreement. Even so, those steps were insufficient for the purposes of engaging the Commission's jurisdiction, either for conciliation or arbitration, as there was no reference of the dispute to the Commission under that agreement.

• [30] No application was made to the Commission on the subject until 28 June 2024, when an application concerning the same subject as within the matter now before me was lodged in the Commission by the ANMF (and later withdrawn on 25 September 2024 and replaced with the one now before me on 7 October 2024).

• [31] The purported dispute being the subject of these two applications plainly arose under the 2021 Agreement, which had ceased to operate immediately before 14 March 2024 when the 2024 Agreement commenced operation.

• [32] It is not relevant to determination whether the dispute alleged as arising under the 2021 Agreement could also have arisen under the 2024 Agreement, or whether any such dispute could be arbitrated by the Commission.

• [33] Ms Tsai's grievance under the 2021 Agreement only ever went so far as a discussion by her with her supervisor and an exchange of letters between the ANMF and Calvary. There was never any attempt on the part of Ms Tsai or the ANMF, following Calvary's 7 December 2023 rejection of the grievance proximate to that date, to advise that the matter was still in dispute and would be referred to the Commission.

• [34] It is also the case that there is nothing within the 2024 Agreement with that would suggest there has been or is intended to be a preservation of rights to pursue disputes arising under the 2021 Agreement.

• [35] It follows from this reasoning that I find there is no jurisdiction for the Commission to deal with Ms Tsai's application and the dispute is determined accordingly.

[7] [2019] FWCFB 8678.

[12] [2019] FWCFB 8678.

[13] [2020] FWCFB 5054.

[16] [2022] FWCFB 93.

[19] [2024] FWC 2094.

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