PR957426 AG834607 PR957426 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170LW - Application for settlement of dispute (certification of agreement) CPSU, the Community and Public Sector Union and Department of Education and Training (C2005/2420) VICTORIAN PUBLIC SERVICE AGREEMENT 2004 (ODN AG2004/3481) [AG834607 PR947441 ] State government administration DEPUTY PRESIDENT HAMILTON MELBOURNE, 23 MAY 2005 Section 170LW - Settlement of Dispute Over the Application of an Agreement - Characterisation of the Dispute - Application dismissed as outside jurisdiction DECISION [1] On 10 March 2005 application was made by the Community and Public Sector Union (CPSU) for the settlement of a dispute under clause 12 of the Victorian Public Service Agreement 2004 1 ("Agreement"), pursuant to s.170LW of the Workplace Relations Act 1996 (`the Act'). [2] The matter was listed for conference on 1 April 2004, and then for hearing on 9 May 2005. On 1 April 2004 the parties were directed by consent to put submissions in relation to the Commission's jurisdiction to hear the application. Agreed Facts [3] The following is the sequence of events in this matter, agreed between the Department and CPSU 2 . [4] Ms Shafer was engaged on 12 May 2004 as an administrative officer with the Victorian Department of Education and Training. [5] Her employment ended with her termination on 12 November 2004, at the end of her probation period. [6] She lodged a grievance with the Merit Protection Board pursuant to clause 12.1.3 of the grievance procedure in the Victorian Public Service (Non-Executive Staff) Agreement 2001. The grievance procedure is set out in Appendix 1 to this decision. [7] On 9 December 2004 the Merit Protection Board issued a determination 3 headed ` grievance upheld' , which concluded: `The Board was satisfied that Ms Schafer was able to provide grounds for review and therefore recommends that she be reinstated for a further three months on probation.' [8] The Merit Protection Board has the power to `confirm, vary or quash the action taken' 4 . [9] As a result of the determination, Ms Schafer was re-employed on 20 December 2004 on a further probation period. She was not reinstated. [10] She resigned from the Department effective on 2 February 2005. [11] She lodged a further grievance with the Merit Protection Board pursuant to clause 12.1.3, claiming payment of her wages and conditions for the period 15 November to 17 December 2004. On 3 March 2005 the Board issued a determination 5 headed ` grievance disallowed' which concluded: `The Board was satisfied that Ms Schafer was unable to provide grounds for review and therefore confirms the decision of the Department of Education and Training (DE&T) that she is not entitled to payment of wages from 15 November to 17 December 2004'. [12] On 10 March 2005 the application before me was lodged by the CPSU. The Notice lodged by the CPSU describes the ` matter in dispute' to be: `Payment of wages to Anne Schafer for the period 15 November 2004 until 17 December 2004.' [13] Directions for a jurisdiction hearing were issued by consent. [14] I have had regard to all the submissions put by the Department and CPSU. The Agreement [15] A number of relevant clauses are set out in Attachment 1 to this decision. Section 170LW of the Act Section 170LW provides: `170LW Procedures for preventing and settling disputes Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following: (a) to settle disputes over the application of the agreement; (b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes.' Submissions of the Department of Education and Training [16] The Department's submissions include the following. The subject of the dispute is whether the department is obliged to pay wages to Ms Schafer for the period 15 November 2004 until 17 December 2004 6 . The Notice lodged by the CPSU describes the ` matter in dispute' to be: `Payment of wages to Anne Schafer for the period 15 November 2004 until 17 December 2004.' [17] Clause 12 of the Agreement sets out procedures for settling disputes between employers and employees. Ms Schafer resigned from her employment on 2 February 2005, one month prior to the CPSU's application. [18] Therefore the Department submits that the Commission has no jurisdiction to deal with this dispute pursuant to s.170LW of the Act as Ms Schafer had ceased to be an employee when the application was made 7 : "The Agreement does not deal with the provisions of benefits or entitlement to non-employees or former employees..." 8 . [19] The Department submits that the question arises in this matter of whether it is a `dispute over the application of the agreement' within s.170LW. Even if given a liberal construction a dispute over whether Ms Schafer should receive back pay in respect of lost wages during a period when she was not an employee does not have a relationship or sufficient nexus with any provision in the Agreement to be a dispute over the application of the Agreement. The Agreement does not contain a provision relating to the payment of lost wages to a former employee during a period when she was not employed by the Department or subject to the Agreement. [20] Ms Schafer has no existing right to receive `back pay' under the Agreement. [21] Nor does the dispute settlement clause in the Agreement apply to a dispute about a former employee who is no longer subject to the Agreement. Under s.170LW the Commission only has jurisdiction to settle disputes in relation to employees whose employment is subject to the Agreement. [22] The Department said that the dispute is personal to Ms Schafer and has no general concern to a class of persons of which Ms Schafer is one. Submissions of the CPSU [23] The CPSU made extensive submissions that I have had regard to. In summary, it submitted 9 that while Ms Schafer was no longer an employee at the time the current application was lodged with the Commission by the CPSU, the CPSU has the capacity pursuant to the disputes procedure to refer matters to the Commission. A ` party' may refer the matter to the Commission under clause 12.1.3, and clause 12.2 provides that `No Party or Employee will be prejudiced...' Clearly an employee is not a party, because otherwise the distinction drawn in clause 12.2 would be meaningless. [24] In any event Ms Schafer was an employee at the time the earlier parts of the dispute settlement procedure were in operation. [25] The CPSU is concerned about the integrity of the Agreement and the application of the Agreement to prospective employees or current employees who are still in their probation period, and for example negotiated the probationary clause in the agreement `to prevent capricious termination of employment without explanation'. The dispute is directly related to a clause of the Agreement concerning probationary employment. [26] It says that the `genesis for this matter is the treatment of a probationary employee'. While it is true that there are two Merit Protection Board determinations, both arise from the same issue. It is not possible to differentiate the two grievances - the second grievance, namely payment for the period 15 November to 17 December 2004, clearly is related to the earlier grievance. [27] The CPSU noted in its submission that the Commission has on occasion rejected applications by former employees as outside jurisdiction, but this matter directly arose from employment, and the outcome sought in this matter is to protect the Agreement clause from abuse. The CPSU has a legitimate concern for existing and prospective probationary employees in pursuing this matter. Conclusions about the dispute [28] Both parties agreed, as they had to, that I have to characterise the dispute in order to determine whether it concerns the application of an agreement. If it does not concern the application of an agreement, then s.170LW does not authorise me to hear and determine the matter 10 . [29] The CPSU submitted that the earlier grievance, dispute or matter and resulting Merit Protection Board decision of 9 December 2004 were relevant in characterising the dispute. The Department said that the earlier Board determination arose from a different grievance, dispute or matter. It is of course also the case that the grievance, dispute or matter dealt with in that earlier determination was not then referred by the CPSU to the Commission to be dealt with by conciliation and arbitration. In effect it was not challenged then as it could have been. [30] It is important to remember that the proceedings have come before me pursuant to the dispute procedure, clause 12. Ms Schafer had her ` dispute or grievance ', or ` matter ', referred to the Merit Protection Board pursuant to clause 12.1.3 of the Agreement. The Merit Protection Board considered her grievance, and on 3 March 2005 confirmed the Department's decision that Ms Schafer was not entitled to payment of wages from 15 November to 17 December 2004. The Merit Protection Board determination of 3 March 2005 did not however apparently resolve the matter. [31] Pursuant to clause 12.1.3, either party may refer a `dispute or grievance' to the Commission if `the internal review process is unable to resolve the matter'. The matter was apparently not resolved because the CPSU utilised the provisions of clause 12.1.3 and had the matter referred to the Commission. This is the present matter before me. The Notice lodged by the CPSU describes the ` matter in dispute' to be: `Payment of wages to Anne Schafer for the period 15 November 2004 until 17 December 2004.' [32] As the Department submitted, the Agreement does not provide for payment for a period where Ms Schafer was not an employee. She was not an employee during that period 11 . Termination of employment took effect on 12 November 2004. The decision to terminate her employment was not quashed by the Merit Protection Board on 9 December 2004. That Board made a recommendation only. The CPSU did not challenge that Board decision by having it reviewed by the Commission. Ms Schafer withdrew an application pursuant to s.170CE and then accepted an offer of re-employment. That left the termination of employment in place and effective. [33] The CPSU sought to argue that the ` recommendation' was in fact something more than that, and that the ` recommendation' to reinstate on a further period of probation `obviously varied or quashed' the Department's decision 12 . With the greatest respect I find it difficult to accept this submission. The Board described its remedy as a ` recommendation ', and I accept its description of what it was. [34] There is no relevant clause that provides for payment of Ms Schafer during a period in which she was not employed, or any other relevant clause, and the matter before me therefore does not relate to the application of the Agreement. Other Jurisdictional Problems [35] Even if I have regard to the earlier matter and earlier Board decision in characterising the dispute, it leads to the same conclusion. Clause 14.3.3 of the Agreement seems from submissions to be the clause most relevant to Ms Schafer's employment and termination and the current proceedings, and provides: `If conduct or performance issues are identified during the probationary period, the Employer shall counsel the Employee during the probationary period in relation to his or her conduct or performance and shall provide a written record of such counselling. The probationary period may be extended by a period of not more than 3 months to allow the Employee to address performance issues.' [36] The CPSU did not claim in its submissions before me that subclause 14.3.3 was breached or otherwise wrongly applied, or that any other subclause or clause was wrongly applied. In its submissions the CPSU said no more than that, for example: . `the dispute is clearly concerned with the application of the agreement and it meets the test of character of the dispute...' 13 . `Probationary employees are covered by a specific clause of the Agreement.' 14 . `The MPB found that the Department acted inappropriately.' 15 . `The matter in dispute is directly related to a specific clause of the agreement concerning Probationary employment. It also bears a relation to the disputes procedure and whether one party can unilaterally interpret or ignore the decision of the internal review process' 16 . . `The outcome sought in this matter is to protect the Agreement clause from abuse'. 17 . `The Union has a legitimate concern for existing and prospective probationary employees in pursuing this matter 18 . . ` We say that the claim meets that test about maintaining the integrity of the agreement ... the probation clause . 19 ' . `The Merit Protection Board was looking at the question of whether during her probationary period, Ms Schafer had been treated appropriately and whether the requirements of the 14.3.3 specifically, had been met 20 . [37] None of these submissions or other submissions put by the CPSU, when carefully examined, amount to a claim that the Department acted other than in accordance with clause 14.3.3 or any other clause. [38] The outcome sought from the Board in the first claim filed with it by Ms Schafer was: `That I have the extension to my probation withdrawn and withdrawal of termination of employment effective 12 November 2004 and to have my position confirmed.' 21 [39] In the resulting 9 December 2004 determination, the Board says that Ms Schafer `may not have received fair and reasonable treatment in the manner in which her probation period of employment was handled.' It then seems to outline the nature of this lack of fair and reasonable treatment, which include: . the concerns of her managers were not put in writing until 23 August 2004; . feedback of managers may have been initially based on expectations not appropriate for a person beginning a new position; . it is unfortunate that a mid-probation meeting did not take place and that Ms Schafer was not always accompanied by an observer; . there was some support for bullying allegations, although the Board could not arrive at firm conclusions, and it recommended the Department investigate. [40] The Board did not for example claim that counselling did not take place as required by clause 14.3.3, or that concerns had not been put in writing as required by that clause, nor could it on the evidence found in the determination. [41] The outcome sought by Ms.Schafer recorded above does not include an allegation that the Department breached any clause of the Agreement, the Board did not find any breach, nor is there any record in its determination of allegations of a breach, nor did the CPSU challenge the Board's findings by having that matter referred to the Commission. [42] It should be remembered that the dispute settlement procedure in the Agreement relates to a ` dispute or grievance' , which may or may not be about application of a clause of the Agreement . The matters that may be dealt with by the Board go beyond the scope of what I am authorised to do pursuant to s.170LW. The claim and proceedings before the Board all related to those wider issues. [43] If I have regard to the earlier proceedings, the submissions and material before me lead me to find that the dispute is about fair and equitable treatment and matters not specifically dealt with in the Agreement, including in clause 14.3.3, if the earlier matter is relevant. On the material before me there are no grounds for finding that the CPSU and the Department disagree about whether or how 22 to apply clause 14.3.3 to Ms Schafer, or any other clause. They disagree about other matters. If there is no dispute between the parties that the Department complied with the Agreement, I fail to see how there is a dispute before me over the application of the Agreement. [44] The very general statements made that the CPSU had concerns about capricious use of the clause, abuse of the clause, integrity of the Agreement, and other allegations, are insufficient to establish that the dispute concerns the application of the agreement. In fact they seem to all relate to wider issues of fairness and equity, about the unfair manner in which a probationary employee, Ms Schafer, was treated. Conclusion [45] I dismiss the application as outside jurisdiction. BY THE COMMISSION: DEPUTY PRESIDENT Appearances: Mr R Richardson and Ms Bzovy of the Community and Public Sector Union Mr Ruskin of Phillips Fox for the Department of Education and Mr Hardman of the Department of Education . Hearing Details: 2005 Melbourne 1 April (conference) 9 May. Printed by authority of the Commonwealth Government Printer <Price code C> Attachment 1: Clauses of the Agreement The Agreement provides for Probationary employees at Clause 14.3 as follows: 14.3 Probationary Period - New Employee 14.3.1 The Employer may appoint a new Employee on a probationary basis. 14.3.2 The period of probation shall be a reasonable period having regard to the nature of the position but, subject to clause 14.3.3, shall be no more than 3 months. 14.3.3 If conduct or performance issues are identified during the probationary period, the Employer shall counsel the Employee during the probationary period in relation to his or her conduct or performance and shall provide a written record of such counselling. The probationary period may be extended by a period of not more than 3 months to allow the Employee to address performance issues. 14.3.4 A Probationary Employee's employment may be terminated by the Employer during the Employee's probationary period by giving two weeks notice, subject to the right to terminate an Employee's employment without notice or payment in lieu of notice if the Employee has committed any act of serious misconduct (as defined in the Workplace Relations Regulations). 14.3.5 Unless the employment is terminated earlier in accordance with clause 14.3.4, at the end of the period of probation, the Employer shall confirm the Employee's appointment in writing or, in the event that the Employee's conduct or performance during the probationary period is unsatisfactory, terminate the employment by the giving of two weeks notice. 14.3.6 A person initially employed in an Agency on a fixed term basis who is subsequently employed in that Agency on an ongoing basis shall have the fixed term employment taken into account in the determination of any probationary period. The dispute procedure in the Agreement provides in clause 12: `DISPUTES AND GRIEVANCES 12.1 A dispute or grievance must be dealt with in the following manner: 12.1.1 The matter must first be discussed by the aggrieved Employee with his or her immediate supervisor. 12.1.2 If the matter is not settled, the Employee can require that the matter be discussed with another representative of the Employer appointed for the purposes of this procedure. The Employee is entitled to have a representative, including an Accredited Representative of the Union, present at this discussion. 12.1.3 If the matter still remains unresolved it may be referred to the relevant internal review process in the relevant Agency. Where the internal review process is unable to resolve the dispute or grievance, it may be referred by either Party to the Commission for resolution by conciliation and, if necessary, arbitration. Any arbitration includes access to appeal rights, to be applied in accordance with the Workplace Relations Act 1996 and its Rules and Regulations. 12.2 Until the matter is determined, work must continue in accordance with usual practice. No Party or Employee will be prejudiced as to the final settlement by the continuance of work in accordance with this procedure. 12.3 The Parties must cooperate to ensure that these procedures are carried out expeditiously. 1 Victorian Public Service Agreement 2004, AG834607 PR947441 2 PN38-39 3 Exhibit R2 4 Delegation by the Secretary to the Department made pursuant to the Public Service Management and Employment Act 1998 (Vic.), Personal Grievance, paragraph 2. 5 Exhibit R3 6 Outline of defendant's submissions , 18 April 2005, paragraphs 2, 10 7 Outline of defendant's submissions , 18 April 2005, paragraph 4, 18-21 8 Outline of defendant's submissions , 18 April 2005, paragraph 19 9 See PN342-344; PN280; CPSU2 Applicant's Submission 10 Automated Meter Reading Services v. AMWU , Munro J, Kaufman SDP, Cribb C, 3 September 2002, PR922053; SDA v. Big W , Watson SDP, Kaufman SDP, Foggo C, 12 November 2002, PR924554 at paragraph 20; AMWU v. Mildura Fruit Juices Australia, Hamilton DP, PR938689. 11 See the definition of employee in clause 3.7 of the Agreement, and coverage of the Agreement in clause 5. 12 PN272 13 Exhibit CPSU 2, paragraph 19 14 Exhibit CPSU 2, paragraph 16. 15 Exhibit CPSU2, paragraph 25 16 Exhibit CPSU2, paragraph 26 17 Exhibit CPSU2, paragraph 27 18 Exhibit CPSU2, paragraph 28 19 PN294-296 20 PN245 21 Exhibit CPSU2, paragraph 10 22 CEPU v. Telstra , Lawler VP, 2 July 2003, PR933892, at paragraph 13.