Fair Work Act 2009
s.604—Appeal of decision

Sharon Isabelle Scurr
v
Commissioner for Public Employment (Northern Territory)
(C2022/400)

Appeal against decision [2021] FWC 6638 of Commissioner Spencer at Brisbane on 20 December 2021 in matter number C2020/33.

Introduction and background

[1] Ms Sharon Scurr has lodged an appeal, for which permission is required, against the decision of Commissioner Spencer issued on 20 December 2021 1 to dismiss her application for the Commission to deal with a dispute under s 739 of the Fair Work Act 2009 (FW Act) and the dispute resolution procedure in clause 12 of the Northern Territory Public Sector 2017-2021 Enterprise Agreement2 (Agreement). The dispute primarily concerned Ms Scurr’s contention that the employer under the Agreement, the Northern Territory Commissioner for Public Employment (CPE), as well as the Chief Executive Officer (CEO) of the Northern Territory Department of Education (Department) in which Ms Scurr previously held her substantive position, did not comply with their obligations under clause 10.3 of Schedule 10 to the Agreement to make every endeavour to place her in other suitable employment after her substantive position was made redundant. The Commissioner determined in the decision under appeal that Ms Scurr’s application was “jurisdictionally barred”, and also found on the merits that Ms Scurr had not demonstrated that there had been a failure to comply with Schedule 10 to the Agreement. Ms Scurr appeals the decision on the following grounds:

“1. The Commissioner erred in finding at [329] and [330] that the application was jurisdictionally barred because:

a. the application was made within jurisdiction;

b. section 59 of the Public Sector Employment and Management Act 1993 (NT) (PSEM Act) did not and could not prevent the Commission from having jurisdiction to determine the matter;

c. no s.59 review was ever requested by the Applicant;

d. the Applicant initiated the dispute with the Respondent prior to any review under s.59 of the PSEM Act;

e. the Commissioner allowed herself to be guided by extraneous or irrelevant matters at [330] by finding that the application was jurisdictionally barred because the Applicant had the opportunity to conduct her whole case and that the outcome had confirmed the outcome of the review; and

f. the Commissioner later found at [352] that ‘it was considered that there was jurisdiction for the Fair Work Commission to proceed to consider the matter’.

2. The Commissioner erred in asking herself the wrong question, being whether the Commission had the power to review decisions made by the Northern Territory Commissioner for Public Employment pursuant to s.59 of the PSEM Act, in circumstances where no such decision was the subject matter of the dispute.

3. The Commissioner erred in concluding that the Respondent had complied with the requirements under Schedule 10 of the Northern Territory Public Sector 2017 - 2021 Enterprise Agreement (Agreement) in relation to the Appellant.

4. The Commissioner erred in concluding at [157] that the Agreement did not require the Respondent to take those steps, in circumstances where it required the Respondent to “make every endeavour to place the employee in suitable employment”.

5. The Commissioner erred in failing to conclude whether the Respondent had made “every endeavour” to place the Applicant in suitable employment.

6. The Commissioner erred in concluding at [341] that the Applicant was assessed for each of the positions that she applied for, in circumstances where the evidence was to the contrary.

7. The Commissioner erred in concluding at [351] that the redundancy and redeployment procedures set out in the Employment Instruction 14 prevailed over Schedule 10 of the Agreement.

8. The Commissioner erred in concluding at [351] that the parameters or remedy for the dispute were never clearly argued or set out and that a s.739 dispute was never substantiated.

9. The Commissioner erred by failing to give adequate reasons for her conclusion that the Respondent met the requirements under Schedule 10 of the Agreement.

10. The Commissioner erred by failing to give adequate reasons for her conclusion that the application was jurisdictionally barred.”

[2] The chronology of this matter is as follows. Ms Scurr commenced employment as an “ongoing employee” in the Northern Territory Public Sector (NTPS) on 13 July 2006. On 10 December 2015, Ms Scurr was “unattached” from her then-substantive position with the Teacher Registration Board. On 14 February 2016, the CEO of the Department declared that Ms Scurr was potentially surplus to agency requirements. That declaration, as will be explained later, triggered obligations upon the CPE and the CEO under clause 10.3 of the Agreement to endeavour to redeploy Ms Scurr to alternative suitable employment.

[3] From 14 February 2016 until her employment was terminated on 17 March 2020, the appellant was placed into 10 different positions within the NTPS on a temporary or fixed-term basis. The evidence does not disclose that Ms Scurr’s work performance was other than satisfactory in any of these roles. Over this period, Ms Scurr applied for multiple ongoing positions. Her endeavours were facilitated by various human resource officers from the Department who acted as her “case managers”, but she was not successful in any of her applications.

[4] On 13 July 2018, Ms Scurr was offered voluntary retrenchment from the NTPS, but she declined this. On 15 January 2019, the CEO issued Ms Scurr with a notice of redundancy pursuant to clause 10.5.2 of Schedule 10 to the Agreement, by which she was given 52 weeks’ “formal notice of redundancy”. The notice relevantly went on to state:

“… During this period, the Department… and this office will continue to make all reasonable efforts to assist you to gain suitable ongoing employment in accordance with the requirements of Employment Instruction Number 14 – Redeployment and Redundancy (attached). While your suitability for a vacancy must be demonstrated, the merit principle will not apply to you and you will be given preferential treatment over other applicants in the recruitment process.

If you cannot be placed in suitable ongoing employment during this notice period, you will be given an additional five weeks’ formal notice (which constitutes the required notice period for the purposes of the Fair Work Act, at the end of which your employment with the NTPS will be terminated.”

[5] On 9 July 2019, after Ms Scurr was found to be unsuitable for a role in the Department of Local Government, Housing and Community Development for which she had applied, she lodged a grievance with the Office of the Commissioner for Public Employment (OCPE) under s 59 of the Public Sector Employment and Management Act 1993 (NT) (PSEM Act) regarding that finding and sought that it be overturned. On 11 July 2019, Ms Scurr was advised by the then-Grievance Manager at the OCPE that, after a review of the situation, there was no basis to overturn the finding and that the CPE would not take any further action on the matter. On 30 August 2019, Ms Scurr requested that her grievance be referred to the newly-appointed CPE and, on 5 September 2019, Ms Scurr requested “a complete review of my situation by the new Commissioner, not only in light of my entitlements under NTPS conditions of employment but also under the Fair Work legislation”. Further, in an email to the OCPE’s Acting Director, Public Sector Appeals & Grievance Reviews on 22 October 2019, Ms Scurr contended that she should never have been issued with a notice of redundancy because she was easily redeployable, and requested that the notice be rescinded. On 1 November 2019, the CPE wrote to Ms Scurr and advised that, after a review, the request to rescind the notice of redundancy was declined on the basis that she was satisfied that the obligations in the PSEM Act, Employment Instruction Number 14 – Redeployment and Redundancy Procedures (Employment Instruction 14) and Schedule 10 to the Agreement had been met.

[6] On 3 January 2020, Ms Scurr lodged her application under s 739(6) of the FW Act for the Commission to deal with a dispute pursuant to clause 12 of the Agreement. Her application outlined the chronology of events since she was declared potentially surplus, including the events following her s 59 grievance, and then characterised the dispute in the following terms:

“The dispute

20. The Applicant claims that the Respondent has not complied with its obligations under Schedule 10, clauses 10.3.1, 10.3.2 and 10.4.1 of the Agreement. Clause 10.3.1 provides: [not reproduced]

21. Clause 10.3.2 of the Agreement provides that: [not reproduced]

22. Clause 10.4.1 of the Agreement provides: [not reproduced]

23. As has been demonstrated, since being given notice of the redundancy of her position, the Applicant has applied for various other suitable positions with the Respondent without success.

24. The Respondent is an extremely large employer. The Applicant contends that the Respondent has not made ‘every endeavour’ to ‘place’ the Applicant into other suitable employment. This is at least by failing to:

(a) take any positive steps to place the Applicant in a new position, including for example providing or facilitating retraining;

(b) fairly and reasonably assess the Applicant in all of her applications for new or vacant positions; and/or

(c) prematurely offering the applicant voluntary retrenchment.

25. The Applicant also contends that the Respondent is in breach of clause 12.2(b) of the Agreement by failing to make genuine attempts to resolve the dispute through the processes set out in clause 12 of the Agreement and failing to cooperate to ensure that the processes are carried out expeditiously.”

[7] On 13 January 2020, the CPE filed a response to Ms Scurr’s application in which it contended:

“The Application should be dismissed on the basis that there is no genuine dispute in relation to the application of the Northern Territory Public Sector 2017-2021 Enterprise Agreement.

The Application is essentially a complaint in relation to the unsuccessful outcomes of the Applicant’s redeployment process.”

[8] On 14 January 2020, the chambers of the Commissioner (who had been allocated the matter) wrote to Mr Scurr requesting a response to the “jurisdictional issues” raised by the CPE. On 17 January 2020, Ms Scurr filed a submission in response to this request. The submission included the following:

“. . .

2. The Respondent filed an application on 13 January 2020 seeking that the Dispute Application be dismissed on the basis that there is ‘no genuine dispute.’

3. The Respondent’s application does not provide any explanation for the contention that the Dispute application should be dismissed. The Applicant maintains that the Respondent has not made every legitimate attempt to place the Applicant in other suitable employment.

4. Schedule 10, clause 10.3 provides that the employer and the CEO must make every endeavo[u]r to place a potentially surplus employee in other suitable employment. The Applicant has applied for other suitable employment without success and without adequate explanation as to why she was unsuccessful. The Applicant maintains that the Respondent has failed to meet their obligations under the Northern Territory Public Sector 2017 – 2021 Enterprise Agreement (the Agreement)…” [emphasis in original]

[9] The submissions went on to refer to a number of authorities concerning the summary dismissal of matters pursuant to ss 399A and 587 of the FW Act. Ms Scurr contended that the CPE’s application to dismiss the dispute was misconceived, did not deal directly with the dispute, failed to identify any provision of the FW Act sought to be relied upon and did not address the requirements of ss 587 or 399A. She further submitted that there was no evidence before the Commission that supported the relief sought by the CPE.

[10] The Commissioner did not determine the “jurisdictional objection” at this time, but rather conducted a conciliation conference on 23 January 2020. The matter was then stood over, apparently on the basis that the parties would have further discussions and pending the outcome of Ms Scurr’s application for alternative employment. On 3 February 2020, the CPE issued Ms Scurr with a notice of termination. On 5 March 2020, Ms Scurr’s then-legal representative wrote to the Commissioner’s chambers advising of this and that the dispute remained unresolved, and sought a further conference. This correspondence also stated:

“Pursuant to Commissioner Spencer’s indication that further details should be provided as to the parameters of the dispute to inform any further conciliation, we submit the following:

We note that the OCPE maintains that it has complied with all obligations under the Northern Territory Public Sector 2017 – 2021 Enterprise Agreement (the Agreement), in that it asserts that it has made every endeavour to place our client in suitable employment.

The Applicant maintains that the OCPE has not taken positive steps to place our client in alternative employment – rather, it has merely permitted her to apply for other positions. In that regard we note that:

(a) the applicant has not received any retraining, since receiving the Notice of Redundancy, that would assist her in being placed in suitable employment;

(b) the applicant has not been provided with any work experience, since receiving the Notice of Redundancy, that would assist her in being placed in suitable employment;

(c) the applicant was not offered any trial employment in any new or vacant positions, which would have assisted her to be placed in suitable employment.

The Applicant seeks that the OCPE reconsiders its position and rescinds the Notice of Redundancy and Termination, and takes positive actions to place the Applicant i[n] a new suitable position.”

[11] The Commissioner then listed the matter for a further conference on 3 April 2020. Notwithstanding this, the CPE proceeded to terminate Ms Scurr’s employment on 17 March 2020. She was paid the redundancy entitlements prescribed by s 119 of the FW Act and her accrued leave entitlements. The day before the conference, Ms Scurr’s legal representative advised the Commissioner’s chambers by email of Ms Scurr’s termination date and that she now sought reinstatement or, in the alternative, compensation. The email said: “If a resolution is not reached and the dispute remains unresolved at the completion of the conciliation tomorrow, the Applicant has instructed us to seek the matter be listed for determination by arbitration.”

[12] The conference proceeded, but the dispute was not resolved. There was subsequently some attempt to formulate questions for arbitration but, in correspondence dated 1 May 2020, the CPE (via her representative) advised Ms Scurr’s legal representative that she did not agree with Ms Scurr’s proposal for such questions (without identifying any alternative proposal), and further stated:

“ The respondent maintains that there is no jurisdiction for the FWC to consider this matter, for reasons which include:

1. There is no genuine dispute about the application of the Northern Territory Public Sector 2017-2021 Enterprise Agreement (the Agreement).

2. The applicant has not taken any steps to resolve the alleged ‘dispute’, as required by the Agreement. For example, the applicant has at no stage identified any additional measures which could have been taken to support the applicant’s redeployment, but were not taken. Rather, the applicant has made factually incorrect and generalised complaints regarding a perceived lack of support.

3. The basis of the ‘dispute’ is a grievance made pursuant to section 59 of the Public Sector Employment and Management Act 1993 (PSEMA) in relation to an unsuccessful recruitment outcome with the Department of Local Government, Housing and Community Development.

4. The Fair Work Commission has no jurisdiction to review matters under PSEMA, including:

a. grievances made pursuant to section 59 of PSEMA;

b. the redundancy and redeployment framework established under Division 2 of Part 6 of PSEMA; and

c. Employment Instructions relating to the management of the public sector, made by the Commissioner for Public Employment under section 16 of PSEMA. This includes Employment Instruction 14 – Redeployment and Redundancy Procedures, which sets out the Northern Territory Public Sector redeployment and redundancy procedures, including the mutual responsibility of the employee, employer and agency, for redeployment outcomes.

5. The Applicant, by her own actions, limited her redeployment opportunities during the time she was a redeployee, by refusing to be considered for vacancies in certain departments and at different classifications. This is inconsistent with the obligations of a redeployee under Employment Instruction 14.

6. Schedule 10 of the Agreement has existed in essentially the same terms, alongside the PSEMA and the matters set out in Employment Instruction 14 for many years and is well understood by employees and the industrial parties in the Northern Territory.”

[13] The Commissioner listed the matter for a conference on 15 May 2020, but then cancelled this listing and instead requested by email that Ms Scurr respond to the CPE’s “jurisdictional objections”. On 15 May 2020 and again on 9 June 2020, Ms Scurr’s legal representatives sent correspondence to the Commissioner’s chambers requesting that that the Commissioner clarify whether she was considering dealing with the “jurisdictional objections” as a preliminary matter on the papers and, if so, seeking to be heard about this. No reply to this correspondence was given by the Commissioner. On 14 August 2020, Ms Scurr’s legal representatives filed a further, lengthy submission in response to the “jurisdictional objections” which, among other things, responded in detail to the various matters raised in the CPE’s correspondence of 1 May 2020. It is sufficient to say that the submissions rejected the proposition that the dispute was a complaint in relation to the unsuccessful outcomes of the redeployment process and confirmed that the dispute was whether the CPE and the CEO had made every endeavour to place Ms Scurr in other suitable employment, as required by clause 10.3 of Schedule 10 to the Agreement. In this respect, Ms Scurr contended, among things:

“25. The Applicant contends that it is a requirement of clause 10.3 of the Agreement, that the Respondent does more than simply identify vacant positions to meet the obligation to ‘make every endeavour to place a potentially surplus employee in other suitable employment.’

. . .

31. The Respondent made no positive effort to redeploy the Applicant into a genuine vacancy within the NTPS. In circumstances where the Applicant worked for the largest employer in the Northern Territory, and has qualifications, skills, knowledge and experience which that employer considers relevant, the Respondent should have taken positive steps and made ‘every endeavour’ to place the Applicant in a suitable employment opportunity that arose prior to the Applicant’s termination.”

[14] Ms Scurr requested at the end of her 14 August 2020 submission that the dispute “be programmed for hearing in the usual way”. However, nothing happened in response to this. On 30 October 2020, Ms Scurr’s legal representatives sent an email to the Commissioner’s chambers inquiring whether the Commissioner required any further information to progress the matter or to list it for further directions. There was no response until 27 November 2020, when the Commissioner’s chambers sent an email to the parties, setting out the questions Ms Scurr had proposed for arbitration and the CPE’s jurisdictional objections and requesting that the parties confer and revert by 3 December 2020 with proposed directions for a hearing. In response, Ms Scurr’s legal representative sent correspondence to the Commissioner’s chambers on 3 December 2020 indicating that the CPE had not responded to its endeavours to confer and proposing a timetable of directions which would involve a hearing on the first available date after 26 February 2021. On 8 December 2020, the CPE’s representative indicated that it had not yet conferred with Ms Scurr, and on 15 December 2020, further indicated that no agreement on proposed directions had been reached and that the Commissioner should determine the outstanding issues. There were further exchanges of correspondence about this issue until, eventually, the Commissioner listed the matter for a directions conference on 29 January 2021.

[15] On this occasion, the directions conference proceeded. Later that day, the Commissioner issued a “Draft Directions” document which set out a timetable for the filing of evidence and submissions, leading to a hearing on 20 and 21 April 2021. However, the parties were directed to make further submissions about identified issues before the directions would be finalised. As part of this, Ms Scurr was directed yet again to address the CPE’s “inter jurisdictional matters”. Further submissions were promptly filed by the parties on 5 and 12 February 2021, addressing what chambers’ covering email to the “Draft Directions” described as “a range of preliminary issues”.

[16] On 15 February 2021, the Commissioner’s chambers sent an email to the parties including the following:

“The Commissioner advises the parties that, subject to the outcome of the threshold matters to be determined, the ‘draft merits directions’ also issued to the parties with the correspondence of 29 January 2021 are reflective of the actual formal dates for filing that will need to be complied with by the parties for the filing of material and evidence and the appearance at the hearing of witnesses and representatives. Again it is noted this is dependent on the consideration of the jurisdictional submissions. However, the Commissioner wanted the parties at this stage to ensure that they were mindful that they retained these dates for compliance if required.” [emphasis added]

[17] On 17 February 2021, the Commissioner then listed the matter for hearing in Darwin on 21 April 2021, without otherwise formalising the “Draft Directions”. On 12 March 2021, Ms Scurr filed submissions and a comprehensive witness statement with several annexures, on the apparent understanding that the 15 February 2021 email from the Commissioner’s chambers had operated to finalise the 29 January 2021 “Draft Directions” document. Despite this, on 29 March 2021, the CPE advised that its understanding was that, because there had yet been no “determination on the preliminary issues”, the draft directions were not operative and, accordingly, had not filed any material pursuant to those directions. Ms Scurr’s legal representative disputed this understanding the following day, but the Commissioner did not respond to clarify the situation until, on 13 April 2021, she listed the matter for a directions conference the following day. The result of this conference was that the hearing on 21 April 2021 was vacated and, instead, the Commissioner conducted another conciliation conference in Darwin on that day. The result of the 21 April 2021 conference was that the Commissioner issued another “Draft Directions” document, which set out a timetable for the filing of evidence and submissions leading to hearings to occur on 22 June and 16 July 2021. This document sparked further debate and disputation but, finally, on 22 April 2021, the Commissioner made formal directions for the filing of evidence and submissions, and hearing dates of 22 June 2021 (to hear the evidence) and 28 July 2021 (for closing submissions only) were listed. This was over a year after Ms Scurr had first requested that the matter be listed for determination.

[18] The hearing on 22 June 2021 proceeded, but the evidence was not completed on that day and, by agreement, there was a further hearing on 15 July 2021 to complete the evidence. There then arose an issue about the making of final submissions, with Ms Scurr (whose legal representative had ceased to act for her on 9 June 2021) giving consideration as to how long she might need to prepare her closing submissions, but expressing concern about whether the upcoming nominal expiry date of the Agreement on 10 August 2021 might endanger the capacity of the Commission to issue a decision and the exercise of any appeal rights. This issue was resolved when the CPE on 21 July 2021 stated the following position (which apparently reiterated an undertaking made at the 21 April 2021 conference):

“I confirm that the respondent has no jurisdictional objection to the Commission dealing with this matter beyond the nominal expiry date of the agreement. Clause 12.2(g) of the existing agreement facilitates unresolved disputes under the previous agreement being carried over to the existing agreement, and it is not anticipated that there will be any change to these arrangements in a new agreement.”

[19] On this basis, the hearing date on 28 July 2021 was vacated, directions were made for the filing of written closing submissions, and 28 September 2021 was listed for finalisation of the hearing. The Commissioner reserved her decision at the end of that hearing day and, as previously stated, published her decision on 20 December 2021.

Relevant provisions of the Agreement

[20] As earlier stated, Ms Scurr’s application sought that the Commission deal with a dispute pursuant to the dispute resolution procedure in clause 12 of the Agreement. Clause 12.1 of the Agreement identifies the type of disputes to which the procedure in the clause applies, and relevantly provides:

12.1 …

(a) Subject to clause 12.1(b), this clause sets out procedures to be followed for avoiding and resolving disputes in relation to:

(i) a matter arising under this Agreement; or

(ii) the National Employment Standard[s].

(b) However, this clause does not apply in relation to disputes about:

(i) refusals for requests for flexible working arrangements on reasonable business grounds under clauses 36 and 37.20(e) of the Agreement and section 65(5) of the FW Act;

(ii) refusals for requests for extended parental leave on reasonable business grounds under clause 37.21 of the Agreement and section 76(4) of the FW Act; and

(iii) assessment outcomes for Senior Classification level positions.

(c) An employee who has a grievance about matters referred to in clause 12.1(b) can utilise section 59 of the PSEM Act to have the decision reviewed.

(d) In the event of a dispute about a By-law issued under the PSEM Act clauses 12.3 to 12.4 will apply.

[21] Clause 12.2 provides for some general matters concerning the operation of the dispute resolution procedure. Relevantly, clause 12.2(f) provides:

(f) Subject to the right of appeal under clause 12.5(d) any direction or decision of the FWC, be it procedural or final, shall be accepted by all affected persons and complied with by the parties.

[22] Clause 12.3 provides for the initial internal resolution stages of the procedure. Clause 12.4(a) provides that if the dispute remains unresolved after the parties have genuinely attempted to reach a resolution in accordance with clause 12.3, either party may refer the dispute to the Commission for conciliation. Clause 12.4(c) provides that conciliation shall be regarded as completed when an agreed settlement has been reached or the member of the Commission conducting the conciliation, either of their own motion or after application by any party, is satisfied that there is no likelihood that further conciliation will result in a settlement within a reasonable period. Clause 12.5 then provides for arbitration by the Commission as follows:

12.5 Arbitration

(a) If a dispute remains unresolved at the completion of conciliation, either party may refer the dispute to the FWC for determination by arbitration, subject to any jurisdictional submissions.

(b) Where a member of the FWC has exercised conciliation powers in relation to the dispute, that member will not be the member responsible for conducting the arbitration if any party to the dispute objects to that member doing so.

(c) Subject to clause 12.5(d), the determination of the FWC is final and binding.

(d) A party may appeal an arbitrated decision of a single member of the FWC, with leave of the full bench, provided that such appeal is lodged within 21 days of the decision being made.

[23] Clause 7 of the Agreement deals with its relationship with the PSEM Act. Clause 7.1 provides that “[t]he parties acknowledge the long established and continuing role of the PSEM Act as an instrument regulating NTPS conditions of employment”. Clause 7.2 provides that the Agreement will be read in conjunction with the PSEM Act and “will prevail over the PSEM Act to the extent of any inconsistency”, and that for the avoidance of doubt, the PSEM Act is not incorporated into the Agreement. Clause 7.4 provides that clause 7 will not operate in any way to diminish the CPE’s statutory powers under the PSEM Act.

[24] Ms Scurr’s dispute application was concerned with the provisions of Schedule 10, Northern Territory Public Sector Redeployment and Redundancy Entitlements of the Agreement. Clause 10.1.1 sets out a number of definitions for the purpose of the Schedule, and relevantly provides:

10.1.1 For the purposes of these provisions:

(a) potentially surplus employee means an employee who has been declared by the CEO to be potentially surplus to the requirements of the agency under section 41 of the PSEM Act.

. . .

(c) suitable employment means employment within the NTPS that the employee is capable of performing and is competent and qualified to perform, having regard to section 5D(2) of the PSEM Act, which must be considered in the context of reasonable training possibilities.

(d) surplus employee means an employee in relation to whom the CEO has requested that the employer exercise their powers under section 43 of the PSEM Act.

. . .

[25] Clause 10.3, which is central to Ms Scurr’s application and this appeal, provides:

10.3 Finding of Other Suitable Employment

10.3.1 The employer and the CEO must make every endeavour to place a potentially surplus employee in other suitable employment.

10.3.2 In addition to any other action the employer and/or the CEO may have taken in the period before notice is given in accordance with clauses 10.4 or 10.5, the employee and CEO will, during all such periods of notice, make every endeavour to place a surplus employee in other suitable employment.

10.3.3 Where other suitable employment for a potentially surplus employee or a surplus employee is identified the employee will be transferred. Where the transfer is to a lower level designation and salary, the written consent of the employee is required and the income maintenance provisions of clause 10.6.3 apply.

[26] Clause 10.4 provides for a scheme for voluntary retrenchment. Clause 10.4.1 provides that an offer of voluntary retrenchment may be made “[w]here a surplus employee is unable to be placed in other suitable employment”. Clause 10.5 provides for the procedure for notice of redundancy to be given, and clause 10.5.1 provides that such a notice cannot be given to a surplus employee unless the employee has been offered voluntary retrenchment and has declined that offer, or has requested voluntary retrenchment and been refused. In respect of an employee over the age of 45 years (as Ms Scurr was at the relevant time), clause 10.5.2(b) provides that the employee is entitled to 52 weeks’ formal notice of redundancy. In addition to this period of notice, clause 10.5.3 provides that such an employee must be given five weeks’ notice where the period prescribed by clause 10.5.2 has expired and “the employee cannot be placed in other suitable employment and will be terminated.” Clause 10.5.6 requires that the CPE and the CEO continue to make all reasonable endeavours to place the surplus employee into other surplus employment during both these periods of notice. Clause 10.6 prescribes a range of requirements applicable to the transfer of a potentially surplus employee or a surplus employee to other suitable employment, including four weeks’ notice of transfer to a lower designation (clause 10.6.1), reasonable expenses if the employee needs to relocate for the transfer (clause 10.6.2), and income maintenance if the transfer is to a lower designation and salary (clauses 10.6.3-10.6.6).

Relevant provisions of the PSEM Act and Employment Instruction 14

[27] Employment in the NTPS is regulated by the PSEM Act. Part 1A of the PSEM Act provides for “Public sector principles” which s 5A(2) requires to be upheld by, relevantly, the CPE and CEOs. These principles include the “merit principle” prescribed by s 5D, which requires that the employment of an employee or the promotion or transfer of an employee be solely based on the person’s suitability to perform the relevant duties and for employment in the relevant workplace and in the public sector, having regard to the person’s knowledge, skills, qualifications and experience and potential for future development.

[28] Division 2 of Pt 6 of the PSEM Act is concerned with the redeployment of employees in the NTPS and redundancy. Section 41(1) provides that where the CEO of an agency is of the opinion that an ongoing employee is potentially surplus to the agency’s requirements, the CEO may, by written notice to the employee, declare the employee to be potentially surplus and state the reasons for the declaration. Section 42 provides:

42 Transfer of surplus employees

(1) A Chief Executive Officer may transfer under this section an ongoing employee declared under section 41(1) to be potentially surplus, including to perform duties in a different locality from the duties previously being performed by the employee.

(2) The merit principle does not apply in relation to the exercise of a power under this section.

[29] Section 43(1) provides that where a CEO is unable to transfer an employee declared to be potentially surplus under s 35 (which separately provides for a general power to transfer employees) or s 42, the CEO may request the CPE’s powers under the section. Section 43(2) provides that where the CPE receives such a request, the CPE may direct the CEO to take such steps in relation to the training and redeployment of the employee within such time as the CPE sees fit, give the CEO of another NTPS agency directions relating to the transfer of the employee under s 35, or direct the CEO to terminate the employment of the employee on such conditions as the Commissioner thinks fit.

[30] Section 59(1) of the PSEM Act allows an employee, within specified timeframes, to request the CPE to review a decision by the employee’s CEO to terminate the employee’s employment on probation or to take remedial or disciplinary action, or in any other case where “the employee is aggrieved by his or her treatment in employment in the Public Sector”. The powers the CPE has in response to such a request include to conduct the review and confirm the action, intended action or decision (s 59(5)(a)), direct the CEO of the agency concerned to take or refrain from taking a specified action (s 59(5)(b)), or decline to review the matter if satisfied, among other things, that alternative proceedings have been commenced and have neither been withdrawn or failed for want of jurisdiction (s 59(5A)(b)).

[31] Section 16 of the PSEM Act authorises the CPE to make “Employment Instructions” which are not inconsistent with the PSEM relating to the functions and powers of the CPE under the PSEM Act or otherwise relating to the good management of the public sector. Employment Instruction 14 made pursuant to s 16 deals with redeployment and redundancy procedures. Clause 1.1 of Employment Instruction 14 provides, among other things, that it is to be read in conjunction with ss 41 to 43 of the PSEM Act and “the redeployment and redundancy provisions … of applicable enterprise agreements”. Clause 2 provides that “[i]n addition to the specific responsibilities, the following general responsibilities will be observed at all stages of the redeployment process”, and goes on to specify the responsibilities of the “redeployee”, the agency and the CPE. In a general sense, these responsibilities contemplate a process whereby the employee, with the support of their agency and the oversight of the CPE, will be referred to “potentially suitable vacancies” for consideration, and engage in training and development. Clause 3 of Employment Instruction 14 prescribes the procedural requirements for declaring an employee as potentially surplus. Clause 4 describes a redeployment process by which a “case manager” refers the potentially surplus employee to vacant positions for which they can apply, and the employee is assessed for the suitability for the position. Clause 4.4(b) provides that a redeployee’s suitability must be assessed “having regard to section 5D(2) of the Act, which must be considered in the context of reasonable training possibilities”. Clause 4.4(c) provides that “[w]hile suitability must be demonstrated, the merit principle does not apply and the redeployee is given preferential treatment over other applicants that may have applied for the vacancy…”. Clause 5 provides for employee representation during the redeployment and redundancy process and, finally, clause 6 notes that the redeployee has a right of review in respect of actions and decisions relating to the redeployment and redundancy process under the relevant agency’s internal complaints procedures, s 59 of the PSEM Act and the dispute settling clause of the relevant Agreement.

Relevant provisions of the FW Act

[32] Section 40(1) of the FW Act provides that a “public sector employment law” – defined in s 40(3) to include, relevantly, a law of a Territory, or term of an instrument made under such a law, that deals with public sector employment – prevails over a “fair work instrument” (which expression includes an enterprise agreement) that deals with public sector employment, to the extent of any inconsistency.

[33] Section 595 is concerned with the Commission’s power to deal with disputes. Section 595(1) provides that the Commission may deal with a dispute only if expressly authorised to do so under or in accordance with another provision of the FW Act. Section 595(3) provides:

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

[34] Division 2 of Pt 6-2 of the FW Act is concerned with “Dealing with Disputes”. Section 738(b) provides that the Division applies if (relevantly) an enterprise agreement includes a term that provides a procedure for dealing with disputes. Section 739 applies if, relevantly, such a term requires or allows the Commission to deal with a dispute. Subsections (3)-(6) of s 739 provide (excluding the statutory note):

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

. . .

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

The decision under appeal

[35] At the outset of her decision, the Commissioner noted that the parties had agreed that the CPE’s “jurisdictional objections” as well as the merits of Ms Scurr’s application should be dealt with together. 3 The Commissioner then set out the questions posed for arbitration by the parties, being:

1. Have the requirements under Schedule 10 of the Agreement been met in relation to the Applicant?

Clause 10.3 of the Agreement is entitled “Finding of Other Suitable Employment” and subclauses 10.3.1 and 10.3.2 provide as follows: [not reproduced]

2. If the answer to question 1 is no:

a. should the Applicant be reinstated to her position;

b. should the Respondent be ordered to comply with Schedule 10 in relation to the Applicant; and

c. what other relief, if any, should be granted by the Commission

[36] After setting out the relevant provisions of the FW Act, the PSEM Act and the Agreement, and summarising the respective evidentiary cases and submissions of the parties, the Commissioner turned to consider the “jurisdictional objections”. The CPE’s “jurisdictional objections” were identified by reference to the matters raised by the CPE in her correspondence to Ms Scurr of 1 May 2020 (set out in paragraph [12] above). 4 In her consideration, the Commissioner dealt with these “jurisdictional objections” first. After reciting the parties’ arguments, the Commissioner said:

“[330] Having undertaken the task now, it is clear that the Applicant has had the opportunity to conduct their whole case. It is also clear that this mirrors the matter reviewed initially by the Commissioner for Public Employment. It is also clear (that whilst the Respondent somewhat generously allowed for this process to be conducted whilst maintaining their jurisdictional objection) the outcome has confirmed the outcome of the review. It is also clear that having considered all of the Applicant’s case that it has traversed, on the same grounds. It is an application that was jurisdictionally barred by virtue of the ‘review’ under the PSEM Act, already undertaken that corresponds to the current case. The conclusions however are the same. The Applicant’s case is one of a number of complaints with the process, which do not disturb the outcome of such.”

[37] The Commissioner returned to the “jurisdictional objections” later in her decision, and said:

“[349] The evidence of all of the witnesses in relation to the redundancy and redeployment process has been considered as have the submissions. It is recognised that the Applicant makes various complaints about the series of unsuccessful outcomes in terms of the redeployment process. It is recognised that in this matter there has been the intersection of some matters that relate to recruitment actions undertaken in accordance with the Northern Territory Public Sector employment laws and also matters that fall within the provisions of the Enterprise Agreement. The separation between the statutory codes is respected, in particular the Commissioner for Public Employment pursuant to section 59 of the Public Sector Employment and Management Act 1993 has powers of review, in relation to those matters regulated by that Act.

[350] This is an application whereby there is commonality to the matters that are under review pursuant to s.59 PSEM and the matters that formed a consideration pursuant to the provisions of the Agreement. However, the application is comprised of matters of the complaints about the process, some that have formed the basis of the review, pursuant to section 59. The section 59 review under the PSEM Act was narrower than the dispute lodged in relation to the redeployment process under the Enterprise Agreement. Whilst the current application has been considered, the employer’s submissions in terms of the placement of the provisions that deal with procedural matters related to redeployment, (being placed in Employment Instruction 14), are persuasive, and that this division of matters on this basis, would inform any future similar jurisdictional matters and provide a jurisdictional impediment.

[351] Given the inconsistencies pointed to, the redundancy and redeployment procedures set out in the Employment Instruction 14 prevails over Schedule 10 of the Agreement. Further, the Respondent’s submissions that the s.739 dispute lacked precision, as to what additional support or steps were sought. That is, the parameters or remedy for the dispute, were never clearly argued or set out. It is recognised that from the 5th of February, more particularised elements of the complaint were received, however these still do not substantiate a s.739 dispute.”

[38] Notwithstanding that she found that the Commission had no jurisdiction to arbitrate in respect of Ms Scurr’s application, the Commissioner also gave consideration to the merits of Ms Scurr’s case. The Commissioner’s consideration focused on Ms Scurr’s repeated unsuccessful attempts to apply for alternative positions in the NTPS. The Commissioner accepted the evidence of Ms Scurr’s case managers, which she found to be “measured” and “credible in the approach they had taken and the comprehensive steps to genuinely assist the Applicant to achieve an ongoing position”. 5 The Commissioner referred to evidence given by the case managers that, in some cases, Ms Scurr declined to apply for positions which her case managers advised her to apply for, and failed to respond to encouragement from her case managers to broaden her job search to allow them to refer her for a greater range of jobs.6 The Commissioner found that the case managers were “were quietly tenacious, encouraging the Applicant to apply for other positions” and “clearly wanted to achieve a successful outcome”.7 The Commissioner found:

“[341] In addition, each of the jobs that the Applicant has applied for, has been assessed. No finding can be made that there was an improper process, or that the Employer failed to make any additional endeavour that the Employer was required to make in accordance with the process.”

[39] The Commissioner also criticised Ms Scurr for a lack of “urgency” as her redundancy date drew closer and that “[a]t that stage, the broadest possible range of referred jobs should have been acceptable”. 8

[40] After turning to other matters, the Commissioner returned at the end of her decision and dealt with the merits and the jurisdictional issues in a commingled way. The Commissioner said:

“[352] However, it was arguable that the redeployment process under the Agreement formed a broader consideration of the matters than was reviewed under the PSEM Act and those matters that came within the scope of the provisions of the Enterprise Agreement. Accordingly, it was considered that there was jurisdiction for the Fair work Commission to proceed to consider the matter. Therefore, there has been an assessment of the merits of the Applicant’s complaints regarding the process. However, the complaints do not demonstrate that the employer did not provide an appropriate process in accordance with the required terms. It has not been demonstrated that the employer failed to comply with Schedule 10 to the Agreement, nor Employment Instruction 14. It is recognised on review, that the Applicant has been considerably aggrieved at the outcome of the stages of the redeployment process, however the criticisms do not elevate to non-compliance with the required steps and provisions. On that basis Question 1 is answered in the positive, in that the Respondent has complied with the requirements under Schedule 10 of the Agreement in relation to the Applicant. and due to this, it is not necessary to answer the second question. Therefore, the application as set out, is jurisdictionally barred and further on a merits consideration, is dismissed.”

Appeal submissions

Ms Scurr

[41] Ms Scurr submitted in relation to her first ground of appeal that the dispute settling procedure in clause 12 of the Agreement authorised the Commission to deal with disputes about matters arising under the Agreement, her dispute related squarely to the interpretation and operation of clause 10.3.1 of Schedule 10 to the Agreement, and therefore the Commissioner erred in law in finding that her application was jurisdictionally barred. Ms Scurr submitted that the effect of clause 7.2 was that the Agreement prevailed over the PSEM Act in the event of any inconsistency so that the Commissioner erred in finding that s 59 of the PSEM Act prevented the Commission from having jurisdiction and that, in any event, she never requested any review of her redeployment process under s 59. The dispute, it was contended, was enlivened on or about 19 October 2018 when Ms Scurr attended a meeting at the OCPE and also raised a dispute with the CEO, since under clause 10.3.1 of Schedule 10 to the Agreement it is the CPE (as the employer) and the CEO who must make every endeavour to place potentially surplus employees in other suitable employment. Ms Scurr said that her initiating dispute application of 3 January 2020 provided sufficient evidence that there was jurisdiction to proceed, that CPE’s response of 13 January 2020 contained “a strawman argument only”, and that the Commissioner did not attribute sufficient weight to Ms Scurr’s testimony and submissions which were supported by clear and convincing evidence.

[42] In relation to her second appeal ground, Ms Scurr submitted that the s 59 grievance was never the subject matter of the dispute, nor did the CPE make a decision about the dispute pursuant to s 59 of the PSEM Act, and the Commissioner erred in asking herself whether the Commission had the power to review decision made by the CPE pursuant to s 59.

[43] In relation to the third appeal ground, Ms Scurr submitted that because she had never been declared “surplus”, only “potentially surplus”, she should never have been offered a voluntary retrenchment or issued with a notice of redundancy, as clauses 10.4.1 and 10.5.1 of Schedule 10 to the Agreement provide that such actions may only be taken with respect to a surplus employee. For this reason alone, it was submitted, the Commissioner erred in finding that the CPE had complied with its obligations under Schedule 10 to the Agreement. Further, it was submitted, the Commissioner erred in finding that the CPE had complied with 10.3.1 of Schedule 10 to the Agreement in circumstances where the CPE had “failed to find [Ms Scurr] a position over a period of four years in an agency of more than 4,200 employees during a period of substantial job growth”.

[44] As to appeal ground 4, Ms Scurr submitted that in paragraph [157] of the decision, the Commissioner restated a submission made by the CPE without coming to any conclusion about it, and thus left doubt as to the weight attributed to that submission. In relation to appeal ground 5, Ms Scurr submitted that in paragraphs [349]-[352] of the decision, the Commissioner turned her attention to whether the CPE complied with Employment Instruction 14 rather than dealing with the question of whether the CPE and the CEO made every endeavour to place Ms Scurr in a suitable position as required by clause 10.3.1. In relation to appeal ground 6, it was submitted that the Commissioner erred in finding in paragraph [341] that Ms Scurr was assessed for each position she applied for when, in relation to a number of positions for which Ms Scurr applied, her employment was terminated before the outcome of the selection process was known. As to appeal ground 7, Ms Scurr submitted that because clause 7.2 of the Agreement provided that it prevailed over the PSEM Act to the extent of any inconsistency, the Commissioner erred in concluding at paragraph [351] that Employment Instruction 14, which was made pursuant to s 16 of the PSEM Act, prevailed over Schedule 10 to the Agreement. In relation to appeal ground 8, Ms Scurr submitted that the remedies she sought were made clear in her submissions and that the Commissioner never raised any difficulty about this with her during the proceeding. Finally, as to appeal grounds 9 and 10, Ms Scurr submitted that it is in the public interest for the Commission to give adequate reasons for its conclusions.

[45] Ms Scurr submitted that the grant of permission to appeal would be in the public interest because: the appeal raises issue of general importance and application concerning the interaction between the FW Act and the PSEM Act; it is of public importance to ensure that access to the s 739 jurisdiction is only denied where there is no jurisdiction as a matter of law and to ensure that obligations in enterprise agreements are complied with; the decision was attended by sufficient doubt to warrant its reconsideration and manifested an injustice; and it is in the public interest for decisions of the Commission to contain adequate reasons.

Commissioner for Public Employment

[46] The CPE submitted that leave to appeal should be refused and the matter dismissed on the basis that to grant leave would be futile. Ms Scurr had commenced in new employment the week before the hearing before the Commissioner and had said during the hearing that she had lost trust and confidence in her former employer as a result of the redeployment process and therefore was now seeking compensation rather than reinstatement; consequently, it was submitted, Ms Scurr had no legitimate interest in pursuing the appeal. If the appeal succeeded, the CPE would be put to the cost and inconvenience of repeating the process under Schedule 10 to the Agreement in circumstances where Ms Scurr no longer sought reinstatement; alternatively, to the extent that Ms Scurr now sought compensation for a perceived breach of Schedule 10 to the Agreement, “her remedy lies elsewhere and there is no legitimate purpose in pursuing this appeal”.

[47] It was submitted that, in the event that leave to appeal is granted, the appeal should be dismissed. In relation to the Commissioner’s finding that the application was jurisdictionally barred, the CPE submitted that this conclusion was “reasonably open” in circumstances where the “classification” of the dispute was found to be comprised of matters of complaint about the redeployment process, which was set out in Employment Instruction 14. Ms Scurr was therefore asking the Commission, it was submitted, to arbitrate a dispute about a public sector employment law, which was not a matter arising under the Agreement nor incorporated into to the Agreement by Schedule 10. Further, it was submitted, Ms Scurr had asked the CPE to conduct the same review pursuant to s 59 of the PSEM Act, including to rescind her notice of redundancy, and “in reality” Ms Scurr was asking the Commission to review the CPE’s decision, which was not a matter arising under the Agreement. It was also submitted that because the CPE had made her decision pursuant to s 59(5) of the PSEM Act, s 40(1) of the FW Act provides that the PSEM Act prevails over the Agreement to the extent of any inconsistency and s 739(5) of the FW Act prohibits the Commission from making any decision inconsistent with the FW Act, any decision reached by the Commissioner different to that reached by the CPE would have contravene ss 40 and 739(5) of the FW Act. The Commissioner, after a consideration of all the evidence, had rejected Ms Scurr’s contention that her case was not confined to the matters which had been the subject of the review by the CPE, with the result that Ms Scurr’s application was jurisdictionally barred. The Commissioner’s jurisdictional decision was, read fairly and in the context of the submissions before her, supported by adequate reasons.

[48] In relation to the Commissioner’s merit findings, the CPE first observed that the credit findings made in respect of the case managers were not challenged in the appeal, and submitted that it was implicit in the Commissioner’s finding that the CPE had complied with the requirements of Schedule 10 that the CPE had made every endeavour to place Ms Scurr in suitable employment. Employment Instruction 14, it was submitted, outlined the process required to be undertaken by the CPE and gave effect to the obligation to make every endeavour to find suitable employment for Ms Scurr and, accordingly, it was appropriate for the Commissioner to make findings about compliance with Employment Instruction 14. The Commissioner’s finding that Employment Instruction 14 prevailed over Schedule 10 to the Agreement was correct by virtue of s 40 of the FW Act, irrespective of clause 7.2 of the Agreement. Finally, it was submitted, the Commissioner’s reasoning as to the merit considerations was apparent and appropriate given her findings on the credit of the CPE’s witnesses, whose evidence supported the findings made.

Consideration

Permission to appeal

[49] Because, for the reasons which follow, the decision the subject of the appeal is attended by sufficient doubt to warrant its reconsideration, permission to appeal is granted.

The jurisdictional issues

[50] We consider that the Commissioner erred in finding that Ms Scurr’s application was “jurisdictionally barred” and in upholding the CPE’s contentions to that effect. Under clause 12 of the Agreement, the Commission is conferred with the authority to arbitrate a dispute in relation to “a matter arising under this Agreement” where the dispute has not settled following the completion of the internal resolution procedure and conciliation by the Commission. Where the employee party to such a dispute seeks arbitration, the requisite agreement for arbitration under s 739(4) of the FW Act exists since the employer’s agreement to arbitration is demonstrated by the CPE’s entry into the Agreement in which clause 12 is contained. 9 Section 739(4) thereby expressly authorises arbitration consistent with the requirement for the Commission to deal with a dispute by arbitration in s 595(3).

[51] Ms Scurr’s dispute application filed on 3 January 2020 plainly identified the subject matter of the dispute as being alleged non-compliance with clauses 10.3.1, 10.3.2 and 10.4.1 of Schedule 10 to the Agreement. That this was the basis of her dispute was repeatedly confirmed by Ms Scurr, including in her submissions of 17 January 2020, her legal representative’s correspondence of 5 March 2020, her submissions of 14 August 2020, and the questions she sought to be arbitrated. The dispute was therefore on any view about “a matter arising under this Agreement”. There was never any proper basis for the CPE to contend, as it did in its response to the application and its correspondence of 1 May 2020, that the dispute was not genuine or that it was in fact a dispute about something other than what Ms Scurr said it was about. Certainly, Ms Scurr never contended that the dispute was about alleged non-compliance with Employment Instruction 14 or that the Commission should review the outcome determined by the CPE in response to her grievance lodged pursuant to s 59 of the PSEM Act. And, as we will come to later in this decision, there was at the least a significant degree of substance in Ms Scurr’s contention of non-compliance with the Agreement, in particular in relation to clause 10.3 of Schedule 10.

[52] As earlier stated, the CPE submitted that the Commissioner had found, in a manner that was “reasonably open”, that the dispute was properly “classified” as being concerned with matters of complaint about the redeployment process conducted pursuant to Employment Instruction 14 and, as such, was not a dispute about a matter arising under the Agreement to which clause 12 applied. It is not clear to us that this submission accurately reflects the Commissioner’s process of reasoning but, if it does, the Commissioner’s approach was impermissible and erroneous. Ms Scurr’s contention of non-compliance with the provisions of Schedule 10 to the Agreement necessarily involved an examination of the process for her redeployment following the declaration that she was potentially surplus, but that did not operate to change the character of the dispute to render it something other than what it was said to be. There was never any suggestion, or basis to conclude, that Ms Scurr’s own characterisation of the dispute was not genuine or was colourable. 10 To the contrary, the parties agreed to, and the Commissioner accepted, questions for arbitration which were expressly concerned with the issue of compliance with clause 10.3 of Schedule 10 to the Agreement - the same issue identified in Ms Scurr’s initiating application. On any view, these questions were about matters arising under the Agreement, and the proposition that it was reasonably open for the Commissioner to characterise the dispute as not being about the matters the subject of the agreed questions before her must be rejected.

[53] The propositions capable of being discerned in the Commissioner’s decision which appear to found her conclusion that Ms Scurr’s application was “jurisdictionally barred” are as follows:

1. The review conducted by the CPE pursuant to s 59 of the PSEM Act was “predominantly undertaken on the same basis and the same outcome” as Ms Scurr’s case before the Commission, and Ms Scurr’s case “mirrors” the matter reviewed by the CPE and “traversed … on same grounds”, and was therefore jurisdictionally barred. 11

2. Ms Scurr “makes various complaints” about the outcome of the redeployment process, which was conducted pursuant to Employment Instruction 14. Because of “the inconsistencies pointed to”, Employment Instruction 14 prevails over Schedule 10 to the Agreement. This provides a “jurisdictional impediment”. 12

3. The parameters or remedy for the dispute were never clearly argued or set out. Although, from “the 5th of February, more particularised elements of the complaint were received”, a s 739 dispute was not substantiated. 13

[54] None of these matters constitutes a proper basis to conclude that, notwithstanding the Commission was authorised by clause 12 of the Agreement and s 739(4) of the FW Act to arbitrate a dispute about alleged non-compliance with Schedule 10 to the Agreement, the Commission was “jurisdictionally barred” from dealing with Ms Scurr’s dispute application. While the relevant effect of s 40(1) of the FW Act is that the PSEM Act and Employment Instruction 14 (being an instrument made under the PSEM Act) prevail over the Agreement to the extent of inconsistency (and that clause 7.2 of the Agreement is ineffective in purporting to provide to the contrary), no relevant inconsistency has been identified which would operate to deprive the Commission of the power to deal with Ms Scurr’s dispute.

[55] In respect of the Commissioner’s first proposition above, the decision does not explain why any purported overlap in subject matter between the CPE’s review conducted pursuant (or purportedly pursuant) to s 59 of the PSEM Act and Ms Scurr’s dispute application before the Commissioner would render the latter beyond the Commission’s jurisdiction. There is no relevant inconsistency between s 59 of the PSEM Act and the conferral upon the Commission, by clause 12 of the Agreement, of the power to arbitrate unresolved disputes about matters arising under the Agreement. Section 59(1) of the PSEM Act does not authorise the CPE to deal with complaints concerning alleged non-compliance with the terms of an enterprise agreement made under the FW Act, and we do not consider (nor was it contended) that the reference in s 59(1) to an employee’s grievance concerning “his or her treatment in employment in the Public Sector” is to be read as encompassing a complaint of that nature. Further, nothing in ss 59(5) or (5A), which prescribe the actions which the CPE may take in response to a grievance, authorises the CPE to make a conclusive finding as to compliance or otherwise with an enterprise agreement made under the FW Act. Nor, in any event, is there any indication in the PSEM Act that the lodgement and determination of a s 59 grievance is intended to operate to the exclusion of the dispute resolution procedure in an enterprise agreement. In this respect, two matters may be noted:

1. Section 59(5A)(b) allows the CPE to decline to conduct a review in respect of a grievance where “alternative proceedings” under, relevantly, a law of the Commonwealth, have been commenced by or on behalf of the employee and have neither been withdrawn or failed for want of jurisdiction. This would include proceedings pursuant to s 739 of the FW Act, and is a contra-indicator of any intention that s 59 operates to exclude such proceedings.

2. Specifically in respect of the redeployment and redundancy process, clause 6 of Employment Instruction 14 notes that a redeployee has rights of review under an agency’s internal complaints procedure, s 59 of the PSEM Act and the dispute settling clause of the relevant agreement. This constitutes an express acknowledgement of alternative paths of review.

[56] Nor do we consider that it can be said, in any event, that Ms Scurr ever raised a specific grievance pursuant to s 59 of the PSEM Act concerning alleged non-compliance with Schedule 10 to the Agreement. Her only grievance expressly lodged under s 59 concerned a finding that she was unsuitable for a specific job for which she applied. She subsequently raised other matters with the Grievance Manager in the OCPE, and there is some ambiguity as to whether these constituted s 59 grievances, but what is certain is that Ms Scurr did not raise in her s 59 grievance, nor did the CPE determine, the specific contentions of non-compliance with clauses 10.3.1 and 10.3.2 that were the subject of the agreed questions posed for determination by the Commissioner.

[57] The decision of the CPE, in response to Ms Scurr’s s 59 grievance(s), was to decline to rescind Ms Scurr’s notice of redundancy as Ms Scurr had requested. The CPE contends in this appeal that the relevant effect of s 40(1) of the FW Act is that the Commission cannot make a decision contrary to that of the CPE made pursuant to s 59 of the PSEM Act. That submission assumes that such a decision of the CPE is an “instrument” made under the PSEM Act and is thus itself a “public sector employment law” within the meaning of s 40(3) of the FW Act to which s 40(1) applies. This proposition was not explained or developed in the CPE’s submissions. It must be regarded as being at least a doubtful proposition, having regard to the line of authority which has held that an “instrument” as referred to in s 46 of the Acts Interpretation Act 1901 (Cth) (and in s 33 of that Act as it was until 2011, 14 after the enactment of the FW Act) means an instrument of a legislative rather than an administrative or executive character.15 In any event, taking the CPE’s submission at its highest, it only restricts the relief which the Commission might grant if it found in Ms Scurr’s favour, not the jurisdiction of the Commission to entertain Ms Scurr’s application. In her legal representative’s correspondence to the Commission of 5 March 2020, the relief sought from the Commission in circumstances where Ms Scurr had been issued her notice of termination included rescission of her notice of redundancy as well as the notice of termination, and on the CPE’s case the grant of such relief might be regarded as inconsistent with the CPE’s s 59 determination. However, that specific form of relief became irrelevant once Ms Scurr was terminated, and the relief subsequently sought shifted to reinstatement and, later, compensation. Accordingly, the CPE’s submission in this respect does not support the Commissioner’s decision.

[58] In relation to the Commissioner’s second proposition, the inconsistencies said to exist between Employment Instruction 14 and Schedule 10 to the Agreement were not identified. The CPE did not contend in the appeal that there was any such inconsistency that would render Schedule 10 inoperative in whole or part by reason of the operation of s 40(1) of the FW Act. For such an inconsistency to exist, there must a “real conflict” between Schedule 10 and Employment Instruction 14 such that the former “would alter, impair or detract from” the latter. 16 In our view, no such inconsistency exists. This is made clear enough by clause 1.1(d) of Employment Instruction 14, which relevantly requires the document to be read in conjunction with the redeployment and redundancy provisions of the Agreement. Although Employment Instruction 14 imposes specific obligations on the CEO, the employee and the CPE in the conduct of the redeployment process, none of those obligations is in “real conflict” with the general obligations upon the CEO and the CPE provided for by clause 10.3 of Schedule 10 to the Agreement.

[59] As to the Commissioner’s third jurisdictional proposition, we respectfully disagree that the “parameters” of the dispute were never clearly argued or set out, having regard to the terms of Ms Scurr’s application, her legal representative’s correspondence of 5 March 2020, her submissions of 14 August 2020 and, most importantly, the fact that there were agreed questions which set out in precise terms the matters requiring determination. In respect of the remedy sought by Ms Scurr, her position concerning this understandably changed and evolved as a consequence of the termination of her employment on 17 March 2020 and the subsequent significant delay before she obtained a hearing of her application. However, and in any event, the question of the identification of remedy was not determinative of the Commission’s jurisdiction to deal with Ms Scurr’s dispute application.

[60] We have earlier set out at some length the somewhat extraordinary procedural course which the matter took at first instance. We consider that at no stage did the CPE raise any reasonably arguable contention that the Commission did not have the jurisdiction to deal with Ms Scurr’s application. The CPE’s initial response of 13 January 2020 merely raised the unparticularised assertion that there was “no genuine dispute” because the application constituted a complaint about the unsuccessful outcome of the redeployment process without advancing any contention let alone demonstrating that the dispute was not about a matter arising under the Agreement. The further articulation of the “jurisdictional objection” in the CPE’s correspondence of 1 May 2020 did not take the matter any further, in that it simply repeated the assertion that there was “no genuine dispute”, sought to mischaracterise Ms Scurr’s application as seeking a review of the outcome of her grievance under s 59 of the PSEM Act or other matters arising under the PSEM Act, and otherwise raised matters going to the merits rather than jurisdiction. It should have been apparent by 1 May 2020 at the latest that there was no proper basis for the Commission not to deal with Ms Scurr’s dispute and that, following the failure to reach a settlement at the conciliation conference on 3 April 2020, the matter should have been set down for hearing at that time.

[61] For the reasons given, we uphold grounds 1, 2, 7, 8 and 10 of the appeal.

The Commissioner’s merits consideration

[62] On a strict view, having found that the Commission was “jurisdictionally barred” from arbitrating Ms Scurr’s dispute application, the Commissioner’s conclusions in respect of the merits of the application are merely obiter. Our conclusion that the Commissioner’s jurisdictional conclusion was in error constitutes a sufficient basis to uphold the appeal, quash the decision and remit the matter for rehearing. However, Ms Scurr’s grounds of appeal concerning the Commissioner’s merit findings were fully argued before us, and we think it is appropriate that, insofar as those grounds concerned the proper construction of clause 10.3 of Schedule 10 to the Agreement, we express our view about them so as to guide the redetermination of this matter.

[63] In her decision, the Commissioner did not address the question of the construction of clause 10.3 before making findings about whether it had been complied with. However, we consider that it is readily apparent that the Commissioner proceeded on an erroneous construction of clause 10.3 and conflated its requirements with those of Employment Instruction 14. This is made clear by the Commissioner’s findings, which were primarily directed to the process by which Ms Scurr’s case managers encouraged and supported her to apply for vacant positions, the failure of Ms Scurr to apply for as many vacant positions as she might have, and the assessment of Ms Scurr’s suitability for the positions for which she applied. These findings were obviously relevant to the extent of compliance with Employment Instruction 14 which, as earlier stated, contemplates a process whereby it is left to potentially surplus or surplus employees to apply for vacant positions in the NTPS with the aid of their case managers and, perhaps, with the benefit of additional training. However, Ms Scurr did not contend that there had been non-compliance with Employment Instruction 14, but rather non-compliance with the positive obligation upon the CPE and the Department’s CEO under clause 10.3.1 of Schedule 10 to the Agreement - that is, to “make every endeavour to place a potentially surplus employee in other suitable employment”.

[64] As was contended in the parts of Ms Scurr’s submissions of 14 August 2020 earlier quoted, clause 10.3 requires more than the identification of vacant positions for which the potentially surplus or surplus employee may apply. Indeed, clause 10.3 is not concerned with the actions of the employee at all. Rather, in express terms, clause 10.3.1 and 10.3.2 require the CPE and the CEO to make “every endeavour” to “place” the employee in other suitable employment. “Every endeavour” establishes a high standard of required conduct and may be equated to a requirement to “take all reasonable steps”. The action for which every endeavour is required is to “place” - that is, put - the employee in another suitable position. Clause 10.3.3 supplements this by making clear that discharging the obligation will be achieved by, first, the identification of other suitable employment and, second, the transfer of the employee into that other employment position. Clause 10.3.3 necessarily involves the utilisation of the powers conferred by ss 35 and 42 of the PSEM Act to transfer employees within or between agencies and thus operates harmoniously with the redeployment provisions of the PSEM Act. A transfer under clause 10.3.3 may include a transfer to a lower-paying position where the employee consents in writing, in which case the income maintenance provisions of clause 10.6.3 would apply. There is nothing in clause 10.3 which requires the potentially surplus or surplus employee to apply for a position, or even for a position to be vacant, in order for the employee to be placed by the CPE or the CEO into that position by identifying its suitability and transferring the employee.

[65] It may be accepted that compliance with Employment Instruction 14 may constitute an endeavour that is relevant to clause 10.3, but such compliance will not by itself demonstrate compliance with clause 10.3. The Commissioner’s decision simply did not address the question of what steps the CPE and the CEO took to discharge their positive obligation to make every endeavour to put Ms Scurr in an alternative position for which she was suitable. The Commissioner’s focus on the role of the case managers and Ms Scurr’s purported failings in her applications for positions did not constitute the requisite consideration of the question required to be determined. The Commissioner was entitled, as she did, to accept the evidence of Ms Scurr’s case managers, and there is no proper basis to impugn the findings made by the Commissioner on the basis of that evidence in this appeal. However, that evidence, taken at its highest, was simply not demonstrative of compliance with clause 10.3. For example, one witness, Ms Michelle Stewart, gave evidence as follows in her witness statement of 17 May 2021:

“In July 2018 I was appointed as the Applicant's case manager for redeployment purposes.

As the Applicant's case manager, I was required to follow the requirements of Employment Instruction 14 - Redundancy and Redeployment.

My ultimate goal was to assist the applicant to be placed into an ongoing position within the Northern Territory Public Sector. I sought to achieve this goal by actively supporting the Applicant in identifying, and applying for ongoing positions. …” [emphasis added]

[66] Ms Stewart’s statement went on to describe the efforts she made in the process described above, and some of the difficulties she encountered with Ms Scurr during that process. However, the acceptance of that evidence does not demonstrate compliance with clause 10.3 because it is concerned primarily with Mr Scurr’s efforts to apply for an alternative suitable position rather that the CPE’s and the CEO’s efforts to place her in one.

[67] We observe that it was not in dispute that Ms Scurr was able to be placed in a series of suitable temporary/fixed-term positions in the period from 14 February 2016 until her termination on 17 March 2020, and there was no evidence of unsatisfactory performance in those positions. That being the case, it seems somewhat counter-intuitive that Ms Scurr could not continue to be placed in suitable employment rather than being terminated. However, we consider these matters will need to be examined more closely in a rehearing of the matter.

Other matters

[68] In its submissions at the hearing of this appeal, the CPE made it clear that it did not contend that the Commission lacked jurisdiction to deal with Ms Scurr’s dispute application by reason of her employment having terminated. However, it did submit (as a reason why permission to appeal should not be granted) that determining the dispute would now serve no purpose because Ms Scurr had obtained alternative employment and no longer sought reinstatement to employment in the NTPS, and because the remedy of compensation was not available under the FW Act in resolution of a dispute pursuant to s 739(4). We indicate, without expressing any final view about the matter, that we are not presently persuaded on the basis of the very limited argument before us that the Commission does not have power to determine in the arbitration of a dispute that that an amount of compensation be paid. Under s 595(3) of the FW Act, the Commission may deal with a dispute by arbitration, “including by making any orders it considers appropriate”, if expressly authorised to do so under or in accordance with another provision of the FW Act. As earlier explained, the necessary authorisation in this case arises under s 739(4). We are not prepared to rule out the possibility that an available arbitral outcome in a case such as this might be an award of compensation, subject to the requirement in s 739(5) that any decision to that effect must not be inconsistent with, among other things, the Agreement. However, this issue may be addressed more comprehensively by the parties, if necessary, at the rehearing of this matter.

[69] We also note that it is likely that a new enterprise agreement to cover the NTPS will shortly be approved by the Commission, and the Agreement will cease to operate as a result. This will not prevent the rehearing of Ms Scurr’s application, since we understand that the new agreement contains a provision to the same effect as clause 12.2(g) of the Agreement, which provides:

(g) A dispute being dealt with in accordance with the Northern Territory Public Sector 2013-2017 Enterprise Agreement or the National Employment Standards that remains unresolved at the commencement of this Agreement will continue to apply as if those terms formed part of this Agreement.

Orders

[70] We order as follows:

1. Permission to appeal is granted.

2. The appeal is upheld.

3. The decision of Commissioner Spencer issued on 20 December 2021 ([2021] FWC 6638) is quashed.

4. The application in matter number C2020/33 is remitted to Deputy President Moltoni for re-determination consistent with the above reasons for decision on the basis of the evidence admitted to date and such further evidence as the Deputy President may choose to admit.

[71] Additionally, if the parties wish to engage in further conciliation in light of this decision, a member of the Commission will be made available for that purpose upon a joint request being made to the chambers of the presiding member.

VICE PRESIDENT

Appearances:

S Scurr, the appellant, in person.
K Stewart of counsel for the respondent.

Hearing details:

2022.

Sydney (via video-link):
21 March.

Printed by authority of the Commonwealth Government Printer

<PR739828>

 1   [2021] FWC 6638

 2   AE427964

 3   [2021] FWC 6638 at [10]

 4   Ibid at [39]

 5   Ibid at [334]

 6   Ibid at [335]-[338]

 7   Ibid at [340]

 8   Ibid at [343]

 9   One Tree Community Service Inc v United Workers' Union [2021] FCAFC 15 at [89]-[92]

 10   See Police Federation of Australia (Victoria Police Branch) v Victoria Police [2021] FWCFB 4161 at [35]

 11   [2021] FWC 6638 at [329]-[330]

 12   Ibid at [349]-[351]

 13   Ibid at [351]

 14   Acts Interpretation Amendment Act 2011 (Cth)

 15   See Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 945 at [22]-[24]

 16   See Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2, 266 CLR 248 at [105] in the context of s 109 of the Constitution.