Redundancy of senior officer - dispute concerning re-crediting of sick leave and personal leave and a claim for additional notice of termination - jurisdiction of Fair Work Australia - nature of employment contract - no jurisdiction - in the alternative, application dismissed on merits.

[1] On 21 September 2010, Dr Andrew Pik ('the applicant') filed an application under s 739 of the Fair Work Act 2009 ('the Act') seeking that Fair Work Australia (FWA) deal with a dispute in accordance with a dispute settlement procedure. In his F10 Application, the applicant identified the disputes settlement procedure under the Commonwealth Scientific and Industrial Research Organisation (CSIRO) Enterprise Agreement 2005-2008 (AG843819) ('the 2005 Agreement'), as the relevant industrial agreement covering at least some of the terms and conditions of his employment with the Commonwealth Scientific and Industrial Research Organisation (CSIRO) ('the respondent'). The 2005 Agreement was a certified agreement made under the Workplace Relations Act 1996 ('WR Act'). The 2005 Agreement had replaced the Commonwealth Scientific and Industrial Research Organisation (CSIRO) Enterprise Agreement 2002-2005 ('the 2002 Agreement') and the 2005 Agreement was itself replaced by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) Enterprise Agreement 2008-2011 ('the 2008 Agreement'), made under the WR Act. The 2008 Agreement commenced operation on 3 December 2008. The reason for identifying each of these Agreements is that it became a matter of some controversy as to which Agreement the applicant ultimately relied upon in these proceedings. The nominated clause is found at 78 and is as follows:

78 Disputes concerning matters covered by this Agreement

(a) The objective of these procedures is to resolve actual or potential disputes over matters arising from this Agreement through the provision of information, consultation, cooperation and negotiation.

(b) Except where a bona fide safety issue is involved, while these procedures are being followed, work will continue in accordance with established custom and practice. Where a bona fide safety issue exists, officers will not be required to work in an unsafe environment but will accept reassignment to suitable alternative work pending resolution.

(c) At all stages of these procedures, matters will be dealt with expeditiously whilst ensuring that adequate time is allowed for exchange and consideration of relevant information and productive negotiation.

(d) Dispute settlement should progress sequentially through the following stages:

(i) discussions between the officer(s) and the manager with authority to resolve the issue;

(ii) if the matter remains unresolved, the officer(s) may request a review of the decision / action by the next level manager;

(iii) if the matter remains unresolved, the officer(s) may request that the matter be referred to the Chief (or equivalent); and

(iv) unless specifically precluded elsewhere in this Agreement, an officer who is dissatisfied with the Chief's decision, may seek an independent review of the decision.

(e) Nothing contained in these procedures will prevent:

(i) the agreed use of a mediator at any stage of these procedures;

(ii) the officer(s) seeking an independent review at any stage of these procedures if it appears that the intent of these procedures is being frustrated or satisfactory resolution is improbable; and

(iii) the officer(s) involving a colleague officer or a staff representative or delegate or official of a relevant Union.

(f) Independent reviews will be conducted in accordance with CSIRO's grievance procedures (Schedule 4).

(g) If the matter is referred to Australian Industrial Relations Commission, the parties having endeavoured to resolve the dispute in accordance with these procedures, the Commission is empowered, by this Agreement, to settle the matter in dispute except where:

(i) the matter is the subject of an independent review initiated under subclause (d)(iv) of this clause; or

(ii) has been the subject of such review and the recommendations were accepted by the Chief Executive.

[2] At this point, it is convenient to note that the applicant was employed on a fixed term contract as the Executive Director, Science Planning of the respondent on 1 July 2004 until 30 June 2009. However, the applicant had actually been employed by the respondent for 27 years in various capacities. His position was made redundant on 20 March 2009.

[3] It appears that the applicant was appointed to the aforementioned position under the terms of a Determination under s 32(2) of the Science & Industry Research Act 1949. This instrument (hereinafter referred to as the 'Contract') contained comprehensive details of his commencement salary and the terms and conditions of his employment. The salary package is referred to at cl 2 as follows:

You will receive a 'cost-to-company' remuneration package as summarised in the following table:

[4] Despite the Contract being annexed to the applicant's F10 Application, he also maintained that he was entitled to various benefits under the 2005 Agreement, particularly in respect to sick leave of 27 days and personal leave of 19 days, which he asserts was taken during an extended period of other leave and not re-credited to him when he was made redundant on 20 March 2009. He made a further claim of inadequate notice of 11 weeks, said to be payable as a result of cl 11 (Transfer to other duties) of the abovementioned Contract. The applicant argued that his redundancy in March 2009 was in effect a transfer to other duties. The claim in respect to non-credited leave is $32,000.00 and the claim in respect to notice is $38,500.00. I note that the applicant received $208,275.00 in redundancy benefits according to cl 12 of the Contract.

[5] The two clauses in the 2005 Agreement, originally relied upon by the applicant, are cl 58 Personal leave and cl 64 Sick leave. I reproduce these provisions below:

Personal Leave is intended to provide greater flexibility in leave arrangements to meet family and personal circumstances.

(a) Personal leave accrues at the rate of 4 days per year and is subject to a maximum balance of 12 days. The entitlement for all part time officers is calculated on a pro rata basis.

(b) The granting of Personal Leave is subject to the supervisor's discretion.

(c) Supervisors should not unreasonably refuse an application and must provide reasons for the decision where an application is refused. The following examples would in most circumstances be considered to be reasonable:

• Care of partners, dependants, extended family members or close friends who are ill or require assistance/chaperoning with health, legal or other personal matters;

• Attending to cultural or religious obligations including observance of religious holidays which are not formally declared by CSIRO as public holidays;

• Emergency household matters/repairs, remaining at home during flood, bushfire emergencies etc;

• Moving from the officer's usual place of residence;

• Attending court as a witness in a private capacity;

• Attending as a participant in international sporting events.

(d) Documentary evidence need not be provided but the reasons should be noted on the request for leave.

(e) Separate Bereavement Leave entitlements exist which is not subject to the above accruals.

(f) An officer will not be eligible for personal leave while on maternity or parental leave.

(a) A common sick leave accrual date of 1 January operates for all officers eligible for sick leave.

(b) A full-time officer, except as provided in (iv) below, accrues sick leave credits subject to a maximum of 15 days per annum in the following manner:

(i) on appointment, a pro-rata credit of sick leave at the rate of 1.5 days per calendar month multiplied by the number of whole months between commencement and the following 1 January, or the end of an officer's term if prior to the following 1 January;

(ii) thereafter, 15 days full pay sick leave per annum or a pro-rata credit for term officers at the rate of 1.5 days per calendar month where the term ends prior to the following 1 January;

(iv) an officer in receipt of workers compensation for more than 45 weeks will accrue sick leave on the basis of hours actually worked.

(c) Sick leave for part-time officers is credited on a pro-rata basis. Where a full-time officer changes to part-time work the officer's sick leave balance will be adjusted so that it represents an equivalent number of weeks entitlement, expressed as hours. Where a part-time officer changes to full-time work the officer's sick leave balance will be adjusted so that it represents an equivalent number of weeks entitlement, expressed as days.

Absences on leave without pay, which do not count for service, reduce the amount of sick leave credited on 1 January at the following rate:

• For each completed calendar month of leave without pay, the credit is reduced by 1/12th;

• Instances of leave without pay of less than 1 calendar month are ignored, except where the aggregate of these absences is equal to or greater than 30 calendar days in the sick leave year. In such cases the credit is reduced by 1/12th for every 30 calendar days.

(e) When an officer is medically unfit for duty, leave of absence with pay may be granted subject to available credits:

• Without production of a medical certificate, to the extent of 5 days in any year. No more than 3 consecutive days may be taken without a medical certificate.

(f) Where practicable, an officer must give notice prior to the absence of the intention to take sick leave or otherwise notify of such absence at the first opportunity on the day of absence.

(g) Sick leave will not be deducted where an officer is medically unfit for duty on a public holiday which the officer would otherwise have observed.

(h) Sick leave without pay may be granted where paid sick leave credits are exhausted.

(i) The maximum continuous period of sick leave will be 78 weeks, of which no more than 52 weeks may be paid sick leave. Leave of absence due to illness beyond 78 weeks does not count as service for any purpose.

(j) An officer will not be retired on invalidity grounds without their consent before their paid sick leave credit has been exhausted, subject to subclause (i).

(k) An officer who is medically unfit for duty for one day or longer while on recreation leave or long service leave and who produces satisfactory medical evidence, may apply for sick leave. Leave will be re-credited to the extent of the period of sick leave granted.

(l) An officer will not be entitled to paid sick leave while also entitled to paid maternity leave under the Maternity Leave (Commonwealth Employment) Act 1973, as amended.

(m) Officers on a specified term for a period of less than 1 calendar month do not accrue paid sick leave.

(n) Sick leave cannot be taken at half-pay or converted to half-pay.

[6] During the exchange of submissions between the parties, an issue arose as to whether the applicant was covered by any, or all, of the provisions of the 2005 Agreement or its successor by virtue of cl 11(b) Market Related Employment. This provision is expressed to exclude the terms of the Agreement for employees above CSOF 7, who elect to enter into individual contracts, unless a particular term or terms are express terms of the Contract. There is no dispute that the applicant was employed as a CSOF 8 Salary Pt 3. Subclause 11(b) is not materially different to its counterpart provisions in the 2002 and 2008 Agreements. The terms of cl 11 are as follows:

(a) Where CSIRO requires skills that are in high market demand, it may offer market-related remuneration for a specified period within the Specialist functional area. Alternatively, but only where the remuneration package to be offered is at least equivalent to the total remuneration (salary plus superannuation) at CSOF 5.1, by means of an individual contract.

(b) Individual contracts will offer flexible remuneration arrangements and, where appropriate, allow part of the remuneration package to be dependent on the achievement of predetermined and measurable results. These individual contracts:

(i) will not, in terms of total remuneration value, disadvantage officers when compared with this Agreement;

(ii) will not, in respect of positions which would otherwise be classified at CSOF 7 and above, be subject to the requirements of other clauses of this Agreement except as an express term of the contract; and

(iii) may provide for the substitution of benefits by salary sacrifice, subject to the menu of benefits determined by CSIRO. (my emphasis)

(c) Where the remuneration package of an individual contract contains benefits wholly or partly provided by salary sacrifice, the officer's annual rate of salary, for the purposes of the Superannuation Act 1976, the Superannuation Act 1990 or any other superannuation scheme, shall be as determined under the Science and Industry Research Act 1949.

(d) CSIRO will evaluate the suitability of appointment as a CSIRO Specialist before offering an individual contract in accordance with this clause.

(e) Disputes concerning an individual contract, other than those covered by subclause (g), will be resolved in accordance with the procedures described in the contract. For positions covered by subclause (g), disputes may be resolved in accordance with clause 78 of this Agreement. (my emphasis)

(f) CSIRO shall make available to staff and where they choose, their representatives on request, a quarterly report containing data on a number of market related employment arrangements, including reasons why these arrangements were preferred, and the scope of any variation from the remuneration level determined by the relevant competencies. In addition, details of Division, location, functional area and CSOF level will be provided in a form that does not identify the individual. CSIRO and staff and where they choose, their representatives, shall review regularly the incidence and nature of such appointments.

(g) Individual contracts for positions which would be otherwise classified at CSOF 5 or CSOF 6 will only vary from this Agreement by providing, in appropriate cases, for:

(h) Where a market related employment arrangement is not renewed and an indefinite officer is to continue in employment, they will revert to their substantive CSOF level.

[7] There was also an argument about the effect of the disputes procedure provision at subclause (e) above. For completeness, the corresponding provisions in the 2002 and 2008 Agreements are as follows:

cl 11(e) An officer may request that any dispute concerning an individual contract, be dealt with in accordance with Clause 20 of this Agreement.

cl 11(e) Disputes concerning an individual contract, other than those covered by subclause (c), will be resolved in accordance with Clause 80 of this Agreement. For positions covered by subclause (c), disputes will be resolved in accordance with the procedures described in the individual contract.

[8] The applicant relied on a number of the terms of his letter of offer and his Contract. Relevantly, these were:

a) Par 17 of the Letter of Offer 'Conclusion of Placement':

Your remuneration arrangement and Senior Officer placement will end at the end of your term unless a further term is mutually agreed between the CSIRO and yourself. In that event, a further placement would be approved. Paragraph 11 of the Determination provides for early termination of your placement with three months' notice.

b) Clause 8 of the Contract 'Public Holidays and Other Leave':

8.1 The Senior Officer shall be entitled to observe such public holidays as are declared as public holidays to be observed at the office of CSIRO at which the Senior Officer is principally based as specified in Schedule 1.6.

8.2 Where special circumstances arise and the Responsible Manager considers that the circumstances warrant the grant of leave with pay under this sub-paragraph, the responsible Manager may -

(a) grant to the Senior Officer leave with pay under such conditions as the Responsible Manager may determine; and

(b) direct the Senior Officer to be absent from duty for the period of leave with pay.

8.3 The Responsible Manager may grant the Senior Officer leave of absence without pay for such period as the Responsible Manager considers reasonable in the circumstances.

8.4 The Responsible Manager shall determine whether or not the period during which the Senior Officer is absent on leave granted under sub-paragraph 8.3 shall be included as part of the Senior Officer's period of service for any purpose.

c) Clause 11 of the Contract 'Transfer to other duties:

11.1 The Responsible Manager may, at his or her discretion, transfer the Senior Officer from the position specified in Schedule 1.5 to another position within CSIRO at any time.

11.2 A decision by the Responsible Manager under sub-paragraph 11.1 shall take effect from the date specified by the Responsible Manager and may take effect from the date of the decision.

11.3 For the purposes of the Determination, where the Responsible Manager makes a decision under sub-paragraph 11.1, the Transfer Day in relation to the Senior Officer shall be the day which concludes the Transfer Notice Period or such later date as the Responsible Manager approves.

11.4 Except where the Responsible Manager makes a decision under sub-paragraph 11.1, the Transfer Day shall be -

(a) the day described or specified in Schedule 1.7; or

(b) such later date as may be set under sub-paragraph 11.5

11.5 Where the Responsible Manager and the Senior Officer agree in writing that a later date should be substituted for the Transfer Day set by sub-paragraph 11.4(a), that later date approved by the Responsible Manager shall be substituted for the Transfer Day set by sub-paragraph 11.4(a).

d) Clause 12 of the Contract 'Termination of Appointment':

12.1 If, at any time, the positions occupied by the Senior Officer ceases to exist and the Responsible Manager decides that a suitable position cannot be provided for the Senior Officer within a reasonable time, the Responsible Manager may terminate the appointment of the Senior Officer as an officer under the Act with the effect from such a date as the Responsible Manager directs.

12.2 Where the Senior Officer's appointment is terminated under sub-paragraph 12.1, the Senior Officer is entitled to a benefit calculated as follows -

(a) 2 weeks' salary for each completed year of continuous service plus a pro rata payment for completed months of continuous service since the last completed year of continuous service, subject to -

(iii) the case where the Senior Officer is aged 64 years, a maximum payment equal to the salary payments that would otherwise be received by the Senior Officer if service were to continue to age 65 years; and

(b) If the Senior Officer does not receive at least 4 weeks' notice of termination - a payment of up to 4 weeks' salary calculated on a pro rata basis.

12.3 The appointment of the Senior Officer as an officer under sub-section 32(1) of the Act may be terminated by the Responsible Manager -

(a) in the event that a certificate of total and permanent disablement is issued certifying that the Senior Officer is eligible for a benefit from a superannuation scheme because of that disablement; or

(b) for conduct justifying instant dismissal, including inefficiency or neglect of duty.

12.4 When the Senior Officer attains the age of 55 years, the Senior Officer shall be entitled to retire from the service of CSIRO at any time of his or her choice.

[9] The applicant was on approved extended leave in Europe and Africa for around 15 months from 30 April 2007 to 8 August 2008. The leave primarily comprised of long service leave, accrued recreation leave and Special bank leave (additional leave for senior officers). It also included five days 'return to work' for a work related conference in Zurich and bereavement leave for the death of an aunt.

[10] The applicant stated that he was sick for 27 days during this time and qualified for a further 19 days of personal leave attending to his sick spouse. He claimed that he kept records of each of these instances. The applicant said that in June 2008, while still overseas, he attempted to 'log in' his requests for additional leave on the respondent's HR system. When this proved unsuccessful, he decided to sort the matter out on his return to work on 11 August 2008. However, it wasn't until 15 March 2009 (some seven months later) that the applicant provided details of his outstanding claims to Ms Tanya Harris, the respondent's People and Culture Manager. It is noted that this communication only provided calculations and did not provide verification of the reasons for the leave requests. Ms Harris replied on 19 March 2009, and said, inter alia:

• Sick Leave - requires a medical certificate for each day the officer is seeking restoration (which you are not able to provide)

• Personal Leave - to care for your partner - requires satisfactory medical evidence as well as a number of other requirements (EB 2005-2008) (which you have not been able to provide)

• Compassionate Leave - the provision in the period of your leave was Bereavement Leave (EB 2005-2008) and is very specific regarding the definition of an immediate family. These being spouse, parent, parent-in-law, parent of de-facto spouse, grandparent, brother, sister or child of an officer. This does not include an aunt.

Without the appropriate documentation your request is unable to be approved. As I explained to you I am unable to accept your explanation of not obtaining documentary evidence when in fact seven months has now elapsed since your return from recreation leave. CSIRO is not able to do this in retrospect. As a senior officer with many years service you are aware of your responsibilities with regard to requesting and recording leave. You should have disclosed and recorded your unrecorded leave of 40 days immediately upon your return.

I think that it is timely to bring to your attention that CSIRO has been more than reasonable for example, waiving 20 days unrecorded leave without satisfactory documentation, payment of 8 weeks in lieu of notice instead of 4. I have also attached your revised cessation estimate. Please also note that before any final payments are authorised for payment you will need to sign an IP non disclosure letter and return all CSIRO property as detailed in the Acquittance checklist.

[11] The applicant explained the delay in providing the leave verification as follows: Immediately following his return to work (11 August 2008) he was confronted with a series of distracting events which ultimately led to his redundancy in March 2009. He was informed that his position had not been budgeted for and he was advised firstly, to see if there were other positions open to him and secondly, if he was interested in redundancy (despite being formally reappointed to his position in September 2008). On 15 October 2008, he received formal notice of his potential redundancy and he spent several weeks negotiating a financial settlement; but to no avail. Throughout December to February 2009, he was heavily involved in other work negotiations. The applicant believed that the atmosphere at work became 'poisonous' and 'deceptive' and he had experienced a heavy and intense workload.

[12] The respondent required evidence of the applicant's claims when his final payout was being determined, including a bonus assessment. The applicant said that the Executive Director, Business Services, Mr Nigel Poole, had not doubted his integrity as to the genuineness of his claims. Mr Poole confirmed this by fax on 22 June 2009, as follows:

"I can confirm that your recollections of the statements made at your farewell function (20 March) are the same as mine. I did also say that the application of policy would prevail rather than asking you to retrieve evidence from Europe or Africa from your or your spouse's visits to the doctor in 2007 and 2008. There is no dispute about your integrity or the facts of whether either you or your partner was ill or otherwise."

[13] In addition, the applicant provided statutory declarations as evidence of his sick leave and recreation leave requests as required by the WR Act. He later provided corroborating declarations from the owners of properties where he had stayed overseas when he had been ill. The applicant concluded, therefore, that Mr Poole had no real concerns with the medical evidence or the legitimacy of his outstanding claims. On 22 June 2009, Mr Poole declined to exercise his discretion to re-credit the leave under the respondent's policy. Relevantly, Mr Poole's letter said:

CSIRO policy is very clear that (i) access to sick leave during periods of annual or long service leave is at the delegate's discretion; (ii) access to miscellaneous leave (formerly personal leave) during periods of annual leave or long service leave should only be made in extraordinary circumstances; and (iii) there is no access to sick or miscellaneous leave in the cases of informal leave described.

In response to your requests since March 2009 I have had two separate assessments undertaken by experienced senior human resources staff in CSIRO both of whom recommend to me that CSIRO does not restore the leave requested in any of the categories. You have seen those assessments and they are very clear. Accordingly, I have determined that the circumstances presented by you do not justify restoration of leave.

In reaching this decision, I have also taken into account the following:

(i) In the instances where you are requesting leave restoration you were already on some form of fully paid leave.

(ii) You did not claim this sick or miscellaneous leave at the time, or notify anyone in CSIRO about these claims, or provide any documentation until close to the date you were leaving CSIRO. In the majority of claims between one and two years has passed.

(iii) None of the information describing the circumstances that I have reviewed gives rise to a finding that the circumstances are extraordinary and therefore merit restoration in relation to miscellaneous leave. As I have accepted your description of the circumstances, additional certifications would not change this conclusion.

[14] The applicant believed Mr Poole's refusal to exercise his discretion was unreasonable and submitted that:

a) the CSIRO's policies provide that such leave can be claimed while on extended leave;

b) he had provided documentary evidence, as soon as it was requested, even though it didn't appear to be of concern to Mr Poole; and

c) the 'extra ordinary circumstances' to trigger the delegate's discretion did not come into effect until June 2008. This was after the period of time claimed for.

[15] The applicant unsuccessfully appealed to the Executive Director, Human Resources and the Chief Executive Officer (CEO). He then issued a letter of demand to the respondent in December 2009. The demand was rejected on 12 January 2010. The claims were referred to the Fair Work Ombudsman (FWO). The matter was referred back to FWA as to the meaning of what was fair and reasonable. The applicant maintains that the Executive Director's discretion was not exercised reasonably nor fairly, given that:

a) His earlier assurances to me that timeliness nor medical evidence consideration were of concern to him; and

b) My record of integrity and long and dedicated service to CSIRO as testified by the Chief Executive; and

c) The unusual nature of this case in terms of the circumstances at the time of the incidents and those upon my return; and

d) The level of negligence in not submitting claims earlier does not warrant a "fine" of the value of $32K. The "punishment" does not fit the "crime" for someone who has an exemplary service record.

[16] Some time later, the applicant claimed he was entitled to three months notice of termination because he had been placed as General Manager CRC immediately before the termination of his employment. He said that par 17 of his letter of offer was applicable to him because there was a 'conclusion of his placement'. The applicant put that the respondent cannot rely on cl 12 of the Contract - the 'Termination of Employment' clause - because his position did not cease to exist as a Mr Dennis Silvers filled it on a part time basis. Reading par 17 and cl 11 together meant he had an entitlement to three months notice, less 2 weeks - totalling $38,500.00.

[17] During the conciliation conference conducted by me on 14 October 2010, pursuant to s 739 of the Act, the respondent had squarely raised the issue of the Tribunal's jurisdiction to deal with the applicant's claims. The applicant was unrepresented and the respondent was represented by Minter Ellison. Given this situation, I invited Mr B Murray from Minter Ellison to write to the applicant and specifically outline its response to the applicant's claims and its jurisdictional objections. This letter, dated 20 October 2010, was tendered in the formal proceedings. The letter again rejected the applicant's claims and stated that the respondent did not consider statutory declarations and emails as constituting satisfactory medical evidence for it to exercise its discretion to approve the claims for re-crediting of the leave. In any event, such evidence was not provided as soon as reasonably practicable; it was provided some months and years since the leave was actually taken.

[18] The respondent noted that the applicant had received eight weeks pay in lieu of notice which exceeded his statutory and Contract entitlement of four weeks. In any event, the applicant could not rely on cl 11 of the Contract as it relates to transfer to other duties. He was not transferred; he was terminated due to redundancy.

[19] As to jurisdiction, the respondent maintained that FWA had no jurisdiction to determine this dispute and detailed its reasons as follows:

1. Absence of jurisdiction because the 2005-2008 Agreement no longer operates

1.1 Your application is listed as an application for the settlement of a dispute under section 170LW of the pre-reform Workplace Relations Act 1996 (WR Act), which provided that procedures in a certified agreement for preventing and settling disputes between an employer and relevant employees may have empowered the then Australian Industrial Relations Commission (AIRC) to settle disputes over the application of the certified agreement. That power was referred to as a power of private arbitration.

1.2 The alleged dispute which is the subject of your application is said to be a dispute regarding the application of the 2005-2008 Agreement, which was a certified agreement, now referred to as a pre-reform certified agreement.

1.3 At the conference before FWA, we provided you with an extracted copy of Schedule 7, Part 2, clause 3 of the WR Act. We drew your attention to:

(a) sub-clause 3(1), which provided that a pre-reform certified agreement ceased to be in operation in relation to an employee if a collective agreement came into operation in relation to that employee; and

(b) sub-clause 3(5), which provided that if a pre-reform certified agreement had ceased operating in relation to an employee because of sub-clause 3(1), the pre-reform certified agreement could never operate again in relation to that employee.

1.4 The 2005-2008 Agreement had a nominal expiry date of 25 June 2008. The 2005-2008 Agreement was replaced by the CSIRO Enterprise Agreement 2008-2011 (2008-2011 Agreement), which is a collective agreement, as was defined in section 4 of the WR Act.

1.5 Consequently, the 2005-2008 Agreement, a pre-reform certified agreement, ceased to operate in relation to you, and could never operate again in relation to you, once the 2008-2011 Agreement, a collective agreement, came into operation.

1.6 If a pre-reform certified agreement has ceased to operate, then there is no jurisdiction to exercise the power of private arbitration. This is because the power of private arbitration has ceased to exist when the pre-reform certified agreement from which it is derived has ceased to exist.

1.7 This position is consistent with the decision of Full Bench of the AIRC in Stephenson v Senator the Honourable Eric Abetz AIRC 28 October 2004 (Acton SDP, Ives DP, Richards C) [PR952743] (Abetz), a copy of which we provided to you at the conciliation conference.

1.8 The Full Bench in Abetz held that section 170LX of the pre-reform WR Act, which provided that a certified agreement ceased to operate if its normal date had expired and it was replaced by another certified agreement, constrained the AIRC's jurisdiction to exercise the private arbitration power arising from the procedures in a certified agreement for preventing or settling disputes (see Abetz, paragraph 42).

1.9 The reason for this was explained by the Full Bench in paragraph 46 and at 49 and following paragraphs of the Full Bench decision. As the Full Bench explained, an agreement which authorised the AIRC to exercise a power of private arbitration could not operate with that effect unless it was a certified agreement (as per section 170LW of the pre-reform WR Act). Consequently, the Full Bench found, if the certified agreement ceased to operate, then the AIRC no longer had jurisdiction to exercise the power of private arbitration.

1.10 The Abetz decision dealt with a circumstance in which one certified agreement was replaced by another certified agreement and ceased to operate because of section 170LX of the pre-reform WR Act. The circumstance in this matter differs only in that, instead of a certified agreement being replaced by another certified agreement, a pre-reform certified agreement has been replaced by a collective agreement. However, the principle involved is the same and the reasoning applied in Abetz has equal application in relation to a pre-reform certified agreement that has been replaced by a collective agreement and ceased to operate by reason of Schedule 7, Part 2, clause 3 of the WR Act.

1.11 Once the 2005-2008 Agreement ceased to operate, as it did, so too did the jurisdiction to exercise the power of private arbitration to resolve disputes about the application of the 2005-2008 Agreement. Consequently, there is no jurisdiction to deal with this alleged dispute.

2. Individual arrangement - exclusion of clauses of 2005-2008 Agreement

2.1 Even were it not the case that jurisdiction ceased when the 2005-2008 Agreement ceased to operate (although such jurisdiction did cease), clause 58 and 64 of the 2005-2008 Agreement did not apply to you because you were employed on an individual employment arrangement under clause 11(b) of the 2005-2008 Agreement.

2.2 Clause 11(b)(ii) stated that such individual employment arrangements would not, in respect of positions which would otherwise be classified at CSOF 7 and above, be subject to the requirements of other clauses of the 2005-2008 Agreement, except as an express term of the individual employment arrangement. Schedule 1 to the individual arrangement stated that your position was at Level 8, which was above CSOF 7. There was no express term in your individual employment arrangement that provided that clause 58 or 64 applied to your employment.

2.3 Instead, in clause 8.2 of the individual employment arrangement, there is a provision that states that where special circumstances arose and the responsible manager considered that the circumstances warranted the grant of leave with pay, the responsible manager may have granted the senior officer leave with pay under such conditions as the responsible manager may have determined. The decision to grant such leave was a decision that was to be exercised in accordance with the responsible manager's discretion. In this instance, the responsible manager declined to grant the leave with pay applied for by you, as the responsible manager was entitled to do. The responsible manager did so for the reasons that we outlined in the conference, in our discussion above regarding the merits of your application for the reimbursement of leave and in the email and the letter that CSIRO sent to you on 19 March 2009 and 22 June 2009 respectively.

2.4 The responsible manager's decision under clause 8.2 of the individual employment arrangement could not be subject to dispute resolution under the 2005-2008 Agreement, even if the 2005-2008 Agreement still operated (which it does not), because the decision was not taken under a term of the 2005-2008 Agreement.

[20] The applicant replied to the above letter on 1 November 2010 and now submitted that his terms and conditions were entered into under the 2002 Agreement and the 2005 Agreement was not applicable. I note that the clauses relied on by the applicant are the same in both Agreements and consequently, the respondent's arguments in response remained the same. Nevertheless, the applicant queried why the respondent rejected his claims based on cl 58 and 64 of the 2005 Agreement. The applicant asserted that because his dispute had never been the subject of an independent review, as required by subclauses (d)(iv) of cl 20 of the 2002 Agreement, then the Australian Industrial Relations Commission (AIRC), and now FWA, is empowered to settle the matter.

[21] In a further response, the respondent said it was immaterial whether the dispute arose under the 2002 or 2005 Agreements. This is because there is no jurisdiction under s 170LW of the pre-reform WR Act to deal with a dispute arising under a superseded agreement: See Stephenson v Senator the Honourable Eric Abetz AIRC 28 October 2004 (Acton SDP, Ives DP, Richards C) [PR952743] (Abetz). It is no answer that FWA has power to resolve a dispute under the Contract because such power ceased to exist with the cessation of the 2002 and 2005 Agreements. There is no jurisdiction to deal with the dispute under the successor 2005 Agreement or the 2002 Agreement as both have ceased to exist.

[22] It was said that the applicant cannot rely on s 698 of the WR Act which provides a list of matters which have continued application. None of them relate to this application. Alternatively, s 661 is not relevant because it relates to notice of termination. Moreover, the applicant received greater periods of notice and pay in lieu of notice than was required by the WR Act.

[23] In a further submission, the applicant asserted that his contract derived from the 2002 Agreement. He then distinguished Abetz as the issue in that case concerned a salary level issue, and not fundamental entitlements, such as sick leave and parental leave which were Australian Fair Pay and Conditions Standards (AFPCS). The applicant cited the authority of Grainger C in Community and Public Sector Union (CPSU) v Department of Human Services -27 May 2005 [PR958289], which related to a fundamental entitlement to maternity leave which was said to be lost by the lapse of a certified agreement and a successor certified agreement with identical terms. The applicant now contended that his claim was lodged under cl 80 of the 2008 Agreement (the disputes settlement clause). As this was a new matter raised by the applicant, the respondent filed a further submission in reply.

[24] The respondent put that the applicant had not correctly identified the key element in Abetz. At paras [45], [46] and [49], the Full Bench said:

[45] The wording of section 170LW of the Act makes it clear that the Commission's jurisdiction to exercise the private arbitration power given to it by the disputes prevention and settlement procedure in an agreement is dependent on the agreement being a certified agreement.

[46] An agreement which authorises the Commission to exercise such a power of private arbitration cannot operate with that effect unless it is a certified agreement.

[49] ... if a certified agreement empowering the Commission to settle disputes over the application of the agreement ceases to operate because of the provisions of section 170LW of the Act, then the Commission no longer has jurisdiction to exercise that private arbitration power in the agreement.

There is nothing distinguishable in the Applicant's situation. Both CSIRO's 2002-2005 Agreement and its 2005-2008 Agreement, on which he has previously and variously relied (this prompting out submissions on the matter), are agreements that have ceased to operate in accordance with legislation. Consistent with the Full Bench decision in Abetz, the power of private arbitration contained in those certified agreements ceased to operate when the agreements ceased to operate.

[26] The respondent submitted that this was not a dispute about the AFPCS. The dispute is properly characterised as one regarding paid leave by way of reimbursement (cl 8) and notice under the Contract. Neither of these matters are disputes about AFPCS. Even if it did apply, s 175 of the WR Act (model disputes resolution process) does not empower the Tribunal to arbitrate. The respondent put that Community and Public Sector Union (CPSU) v Department of Human Services was distinguished because in that case there was an accrued right protected by a savings provision under the Agreement. This was not the case in Abetz or in this case. It was noted that cl 5 of the 2008 Agreement is exhaustive:

This Agreement operates to the exclusion of all previously applicable Agreements or Awards certified under the Industrial Relations Act 1988, and/or the Workplace Relations Act 1996.

[27] As to the applicant's reliance on the 2008 Agreement, the respondent said:

Clause 11(e) of the 2008-2011 Agreement provides that persons in positions classified at CSOF 7 and above, do not have access to the disputes resolution procedure in the 2008-2011 Agreement. The Applicant was a person in a position classified at CSOF 7 or above. Consequently, the Applicant's dispute is not one that may be resolved under the 2008-2011 Agreement and the application to conduct a dispute resolution process under the 2008-2011 Agreement must be refused.

[28] In a further reply, the applicant maintained that Abetz was not applicable and said:

I challenge that assertion. A principle derived from one case should only be applied to another case if the circumstances are the same. They are not.

a. In my case the issue in dispute relates to fundamental entitlements of sick leave and personal leave under the WR Act 1996 (Part 7 Division 5) and hence makes it distinguishable from the Abetz case.

b. Instead of a certified agreement being replaced by another certified agreement, a pre-reform certified agreement has been replaced by a collective agreement.

[29] As to the Community and Public Sector Union (CPSU) v Department of Human Services, the applicant said that a savings provision was not a necessary precondition for this application to succeed. The applicant said that his Contract did not contain a dispute resolution procedure, as contemplated by cl 11(e) of the Agreement. Therefore, the Agreement's disputes procedure is the logical alternative. To be denied access to the jurisdiction, disadvantages him. Moreover, subclause (c) of cl 11 requires an Officer not to be disadvantaged when his employment is regulated by a Contract.

[30] The respondent acknowledged that there was no disputes procedure under the applicant's Contract. But this reflected his agreement to its terms. The reference to not being disadvantaged was similar to the No Disadvantage Test or the Better Off Overall Test (BOOT). It requires a balancing of the benefits under the Agreement with those offered in the Contract. The applicant perfectly understood what he was entering into when he signed the Contract.

[31] The parties were invited to present further oral submissions, although it must be said that in most respects the oral submissions replicated much of the earlier material filed in the Tribunal.

[32] Mr Murray detailed the respondent solicitor's letter to the applicant following the conciliation of the matter on 14 October 2010. Mr Murray emphasised that once an agreement ceased to exist and is replaced by another agreement, the powers under the former agreement cease to exist: see Abetz. The same principle applied to the 2002 Agreement. Secondly, even if the Agreement continued to apply, it did not apply to the applicant, as he was on an individual employment Contract arising from the 2008 Agreement. As the applicant was above CSFO 7 the clauses of the Agreement, specifically cl 58 and cl 64 did not apply to him, as they were not expressly stated in his individual Contract.

[33] Mr Murray submitted that the applicant's 27 October 2010 submission dealt with the merits of his application and not the challenge to jurisdiction. His second submission argued that it was the 2002 Agreement which applied to him, which was not what he had initially put. In any event, the Abetz principle still applied.

[34] Mr Murray said the applicant then raised a new defence - that this dispute related to the AFPCS. This is a dispute about the respondent's exercise of discretion, not about the AFPCS. In any event, the AFPCS does not help the applicant, as it does not allow for disputes to be dealt with by arbitration by the Tribunal.

[35] Mr Murray also dismissed the applicant's reliance on Grainger, C's decision as the replacement agreement in that case contained a savings clause which protected the maternity leave provisions from the replaced agreement. This is not the case here, as no savings clause exists in the 2008 Agreement.

[36] Mr Murray said that the applicant's final submissions did not add anything to the debate. In summary, Mr Murray said:

The initial argument, the 2005-2008 agreement doesn't apply because of Abetz. Then he shifts to the 2002-2005 agreement, doesn't apply because of Abetz. In shifting there, he's also relied on the contract but the contract, even putting aside Abetz, makes it quite clear that disputes in relation to sick leave or personal leave or the notice claim can't be dealt with because the contract limits what can be dealt with to those matters that are specifically referred to, and they're not referred to in the contract. So he's not helped by any of these things and that leads us to the very last one, the 2008-2011 agreement, which he would be helped by if the individual contract didn't make it clear that, again, being a CSOF 7 or above, he doesn't have access to those dispute resolution procedures in the 2008-2011 agreement dealing with such matters as personal leave, sick leave or the notice claim that he's made.

[37] Mr Murray agreed that there may be a lacuna in that there is no disputes procedure in the applicant's Contract, but it is not the next logical step to say that in the absence of a disputes procedure, one relies on the Agreement's provisions. The Contract makes clear that the dispute resolution procedure in the Agreement did not apply to the applicant.

[38] The applicant said that he had argued the applicability of the 2005 Agreement because this was the Agreement the respondent had said he was not entitled to make claims under. He went back to the 2002 Agreement when he realised this was where his Contract came from. The applicant said he had relied on his entitlements to sick leave, carers leave and notice by reference to cl 11 of his Contract. He believed he had a right to have his dispute heard by virtue of cl 11(b) which contains a no disadvantage provision. The exclusion of the Agreement only applies if he is not disadvantaged; which he had been. The applicant added that a savings provision was not necessary where fundamental rights such as sick leave, personal leave and notice were concerned.

[39] Mr Murray said that the No Disadvantage reference - cl 11(b) of the Agreement - operated similarly to the BOOT. An overall assessment needs to be made and it was absolutely clear that a disputes resolution procedure was excluded by agreement between the parties.

[40] I intend to make some preliminary comments. This case has been very much a moving feast of arguments and counter arguments. The applicant filed no less than four written submissions requiring the respondent to reply as each new argument was advanced by him. In addition, the parties made oral submissions.

[41] Nevertheless, in my opinion, the applicant has been unable to advance a cogent or logical argument, either as to jurisdiction or merit, as to why he has been treated unfairly or unreasonably. In my view, he has not proved that the respondent has breached the Act, its own policies or various industrial instruments. Each time the respondent rebutted an argument, the applicant came up with a new one. The end result was a potpourri of unconnected propositions which the applicant 'cherry picked' from either his Contract, various industrial instruments or Acts, in order to fit each shift in the argument. In short, he wanted the best from both the Contract he had agreed to and the enterprise agreement clauses which did not apply to him. I shall come back to the details of the jurisdictional challenge shortly.

[42] The above observation is no better illustrated than the applicant's claims to both three month's notice under cl 11 of his Contract, which deals with notice at the conclusion of placement and his acceptance of eight week's salary as notice of redundancy under cl 12 which was double the four week's actually provided for. A number of things need to be said about this extraordinary submission, which I will come back to later.

[43] In addition, in one submission the applicant claimed the decision in Abetz did not apply to him because his Contract applied and his Contract had not been terminated. He noted that Abetz applied to extinguish the terms of an expired and replaced agreement. However, on the other hand, the applicant maintained that rights under the Agreement did apply to him. This again demonstrated the circularity of his arguments.

[44] There is another observation which I would make at this point. I do not accept that this dispute concerned matters arising under the AFPCS. The applicant described his claims as being about fundamental entitlements, such as the AFPCS standards. In my view, this mischaracterises the true nature of this dispute. The dispute concerns the exercise of discretion by the respondent's management not to re-credit alleged entitlements to sick leave and personal leave. Indeed, at least in one of his early submissions the applicant described it as exactly that when he said on 27 October 2010, "I contend the Delegate has not exercised his discretionary powers in a reasonable and fair manner". In any event, disputes in relation to the AFPCS cannot be dealt with by arbitration.

[45] In gathering the threads of the jurisdictional argument as best I could, it seems that one matter is abundantly clear - the applicant was at all times covered by the relevant Market - Related Employment provision found in all of the enterprise agreements from 2002. Whether he was covered by other of the agreements' provisions arising from one of the three agreements referred to in this case, are matters I will come to shortly. That said, at least by 31 October 2010, the applicant had accepted that the terms of the 2005 Agreement did not apply to him. He said at par 5 of exhibit 3:

I agree with the interpretation about the non-applicability of the EBA provisions now provided by ME, but why has it taken so long to come to this?

However, he then reverted to and relied on subclause (e) of cl 11 of the 2002 Agreement, which states:

"Any officer may request that any dispute concerning an individual contract, be dealt with in accordance with Clause 20 of this Agreement."

This argument was obviously advanced to counter the Abetz proposition.

[46] For the purposes of the argument and assuming the applicant was covered by any of the three agreements, in my view, it can only have been the Agreement which applied at the time the right to the alleged benefit arose; that must have been in 2007-2008. This was when he claimed to have been sick or had taken personal leave. A right to re-credit the leave arose at that point. It must follow that the applicant's initial view, again assuming he was entitled to the benefits, was a right accrued under the terms of the 2005 Agreement. Nevertheless, irrespective of whether it was the 2002 Agreement or the 2005 Agreement, I accept that the respondent's argument, as to the applicability of the Abetz decision, is compelling. I agree with the respondent's submissions that once the 2005 Agreement (or the 2002 Agreement) had ceased to operate, following its replacement by the 2008 Agreement, any assumed rights of the applicant arising from the replaced agreement were extinguished.

[47] In addition, the decision of Grainger C, in Community and Public Sector Union (CPSU) v Department of Human Services, can be of no assistance to the applicant because, unlike here, that case hinged on a savings clause in the successor instrument, which plainly protected the accrued benefit in that case.

[48] Even if I am wrong about the effect of the Abetz decision, I think the second jurisdictional argument of the respondent is overwhelmingly against the applicant. That is, the terms in the enterprise agreement relating to sick leave and personal leave can have no application to the applicant by the operation of cl 11(b)(ii) of the 2005 Agreement. That requires any term of the Agreement to be expressly referred to in the applicant's Contract if it is to apply. Plainly, cl 58 and cl 64 are not expressly referred to, or at all, in the Contract. Consequently, they can have no application to the applicant. In addition, in my view, these clauses cannot constitute 'disputes concerning an individual contract' as comprehended by subclause (e) of cl 11 of the 2005 Agreement. While in the early exchanges between the parties there was mention of cl 58 and cl 64, this was no more than reference points for the exercise of the Manager's discretion arising under cl 8.2 of the applicant's Contract in respect to the grant of leave with pay.

[49] In summary then, the respondent's jurisdictional challenge to the application must be accepted. To the extent necessary, I find that FWA has no jurisdiction to deal with the applicant's claims by way of final or binding determination. That said, even if I be wrong about the jurisdictional issue, I would dismiss this application on its merits on the following grounds.

[50] At the outset, it seems a reasonable assumption that the applicant's agitation of these claims was motivated by the respondent's audit of his leave entitlements during discussions surrounding his redundancy entitlements in early 2009. As at 20 March 2009, the audit disclosed the applicant had 35 days of unaccounted leave (which was to be deducted from his bonus payments) and 20 days of disputed leave which was to be waived by the respondent. This left the applicant with a negative balance of 36.39 hours. Not surprisingly, the applicant was unhappy with this outcome. He was obviously keen to redress this imbalance. In doing so, he turned to the claims of re-crediting the sick leave and personal leave he had taken during his extended leave overseas.

[51] Many of the applicant's merit submissions are misconceived, illogical and difficult to understand. For example, it was not for the respondent to request the applicant provide evidence of his and his partner's illnesses. It was for him to do so in a timely manner; namely, as soon as 'reasonably practicable'. This is the expression referred to in s 254, s 255 and s 256 of the WR Act. Amazingly, in some cases it was years after the leave had been taken. In any event, waiting six to seven months before making the claims, does not, on any objective analysis, demonstrate a timely attention to the matter. Curiously, he did not do so when he knew redundancy for him was a real possibility. Indeed, he was actively negotiating the terms of a redundancy package.

[52] I do not think much store can be placed on Mr Poole's lack of challenge to the genuineness of the applicant's claims. Mr Poole could hardly have done otherwise. He had no evidence to the contrary and, to his credit, he accepted the word of a long standing employee. The applicant's reliance on his comments is misplaced and, in any event, Mr Poole, at no stage, guaranteed that the applicant's claims would be met. He was being careful, understanding and sympathetic. His comments can have no bearing on the ultimate discretion exercised by him under Cl 8.2 of the applicant's Contract and the CSIRO's policies. For the applicant to describe the discretionary rejection of his claims as a 'fine' of $32,000.00 against an exemplary employee, is really stretching the imagination; particularly given the amount of redundancy pay he received and the generous leave benefits he was entitled to in the 15 month period before returning to work in August 2008.

[53] Putting aside the failure to act as soon as reasonably practicable, in my opinion, the respondent was perfectly entitled to conclude that statutory declarations and emails about illnesses occurring in foreign countries, was not satisfactory medical evidence to convince the respondent that its discretion should be exercised to re-credit the leave. Considering the applicant's long period of service and experience it seems strange to me, that, when he or his spouse were ill, some more tangible evidence would have been sought or retained by him, such as a doctor's letter or a pharmacy receipt, or at the very least, a contemporaneous diary note. Without necessarily questioning the genuineness of the applicant's claims, and given the obvious difficulties of time and distance, it was virtually impossible for the respondent to objectively test the contents of the statutory declarations or emails.

[54] One further matter going to merit concerns the difference between what the applicant originally thought about the re-crediting issue and what he later said were the reasons why he did not attend to the issue promptly. In his letter to Ms Harris of 15 March 2009, he said "It finally dawned on me that in my pragmatic approach to life, I figured things had balanced out in terms of leave recorded and not recorded, sick and personal, whilst I was away, and so on return, I did not enter things as I had said I would in my email of 27 April 2007." In other words, he was not distracted by other events as he later claimed. Rather, he understood there were 'swings and roundabouts' with his leave and, in fact, he was paid 20 days leave for which he was not entitled. My assessment is that the applicant seemed perfectly content to accept the situation, but then many months later, and upon further reflection, raised the re-crediting issue as a basis for claiming benefits for which he was not entitled.

[55] As to the claim concerning additional notice, I make the following observations:

a) cl 11 of the Contract does not apply to the applicant. There had been no 'conclusion of placement'. His position was made redundant. In these circumstances, cl 12 of the respondent's redundancy and severance provisions applied and were applied even more generously than was required by the clause.

b) cl 11 contemplates three months notice to be given of the conclusion of placement in one position and appointment to another. The clause envisages ongoing employment. Obviously, this is not the case here.

c) In another curious twist, the applicant said his position was not redundant, because his position did not cease to exist. It was filled on a part time basis. If this is right, one might query why he accepted the redundancy payments. Was he seriously suggesting he should pay back the redundancy payments made to him? Of course, this was a classic example of redundancy; where the job of a person is restructured, so as to only require it to be performed on a part time basis by someone else.

d) Even so, at all relevant times, the applicant regarded himself as being made redundant and, of course, eligible for full redundancy benefits. It is a 'little rich' to claim a benefit under an unrelated and inapplicable provision, while at the same time accepting benefits for which he was entitled under the redundancy provisions of his Contract.

e) Strictly speaking, the applicant was not entitled to any payment in lieu of notice. This is so because, on his own evidence, he was given formal notice of redundancy on 15 October 2008, and not actually made redundant until 20 March 2009 - some five months later.

f) Notwithstanding all of the above, the applicant received eight weeks pay in lieu of notice which exceeded his contractual entitlement of four weeks.

[56] Despite these conclusions, on one view, the strongest of the applicant's complaints is that he had no access to a disputes or grievance procedure as contemplated by cl 11(e) of the 2005 Agreement. However, this complaint ignores the reality of what actually happened.

[57] Obviously, there is no reference to a disputes procedure in the applicant's Contract. Nevertheless, his complaint overlooks the fact that the applicant, not only sought satisfaction of his claims, up to and including representations to the CEO, but he has brought this application to FWA where his dispute has been aired before the Tribunal, as to both its merits and jurisdictional foundation. In these circumstances, it seems hard to sustain a complaint that he had no access to a formal dispute settlement procedure. In any event, I do not consider that his default position of referring back to the terms of the Agreement is appropriate. This appears to be another example of him 'cherry picking' the best from either the Agreement or his Contract, which best suits his particular argument. It is not permissible.

[58] In addition, at the relevant time of the applicant's dispute with the respondent the most obvious reference point for his dispute would be under Part 13 of the WR Act (30 June 2009 version). This part does not permit the AIRC, (or its successor - FWA) to arbitrate a dispute.

[59] Finally, I am also troubled by the applicant agreeing to a redundancy package, including an early cessation option of eight weeks pay (rather than four), provided he did not contest his redundancy. By continuing this dispute with the respondent, he has, in my view, breached the spirit of this undertaking.

[60] For the foregoing reasons, I can discern no basis for concluding that Mr Poole's refusal to exercise his discretion, was unreasonable or unfair. Moreover, the claims of the applicant can best be described as ambitious. They have no merit. I dismiss this application on both jurisdictional and merit grounds. An order to this effect will be published contemporaneously with this decision.

Printed by authority of the Commonwealth Government Printer