[2018] FWC 3918
FAIR WORK COMMISSION

REASONS FOR DECISION


Fair Work Act 2009

s.739—Dispute resolution

Australian Nursing and Midwifery Federation
v
Japara Healthcare Limited T/A Japara Healthcare / Better, in every respect; Japara Healthcare Limited T/A Japara Healthcare Limited Goonawarra

(C2018/3265; C2018/3525)

COMMISSIONER WILSON

MELBOURNE, 3 JULY 2018

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] The following are the reasons for my decision which I gave at the end of the hearing of these matters on Friday, 29 June 2018. The decision concerned my refusal of two separate applications by the Australian Nursing and Midwifery Federation (ANMF) that the Commission issue interim orders in relation to the Respondent, Japara Healthcare Limited, (Japara) at its Central Park and Goonawarra facilities, both of which are in Victoria.

[2] Each application was made pursuant to s.739 of the Fair Work Act 2009 (the Act) which enables the Commission to deal with a dispute, in this case pursuant to the terms of a dispute resolution procedure within an applicable enterprise agreement, the Aged Care Services Australia Group Pty Ltd, ANMF and HWU (Victoria) Enterprise Agreement 20171 In each case the disputes related to an allegation that Japara had failed to properly consult with employees regarding the introduction of roster and staffing changes scheduled to commence Monday, 2 July 2018. The interim orders sought by the ANMF would prevent the implementation of the new rosters and would require Japara to consult with the ANMF in accordance with its construct of the consultation clause at clause 55 of the enterprise agreement.

Background to the disputes

[3] The matter in relation to Central Park concerns the introduction of changes within the workplace first identified to the ANMF in April 2018 which identified a number of proposed cuts to staffing levels that were to be implemented on 2 July 2018. The notification provided by Japara to its employees was given to them on 27 April 2018 in the form of a change impact statement which included advice that it proposed to introduce substantial changes to care hours across a range of shifts at the Central Park facility. In particular, it proposed the following:

  Removal of two personal care workers on the afternoon rosters between 3:00 PM and 8:00 PM and two personal care workers on the night duty rosters between 9:00 PM and 7:00 AM;

  Removal of one registered nurse on the morning roster between 8:30 AM and 4:30 PM;

  Removal of one registered nurse on the afternoon roster between 2:15 PM and 9:15 PM (the only increase to compensate being one additional enrolled nurse in the morning roster between 6:45 AM and 2:30 PM); and

  A decrease to lifestyle assistance staff of approximately 1 shift during the week and 1 on the weekend.

[4] Separate to the changes advised at Central Park employees at Goonawarra had been notified of changes to their rosters and staffing levels a few days earlier on 24 April 2018. The changes advised at Goonawarra were set out in the ANMF’s Form F10 and include the following:

  A reduction in personal care workers hours by 2.75 hours per day on the AM shift;

  A reduction in personal care workers hours by 3.75 hours per day on the PM shift;

  A reduction of 17.75 hours per day on the night duty rosters. This includes the loss of the medication endorsed enrolled nurse (MPEND) role completely (7.25 hours per day) on the PM shift.

  A proposed loss of two registered nurses on the morning roster (two clinical care coordinators (CCC) and two ACFIs) and a loss of one hour/per day on the PM shift;

  A proposed loss of 0.5 hours per day of enrolled nurses on the AM shift.

  A proposed loss in lifestyle employees of one hour per day (45 hours per week) and a cleaning employee for 10 hours per week impacting on remaining staff workloads.

[5] The broad chronology of each dispute includes:

DATE

C2018/3265 – CENTRAL PARK

26 April 2018

Change impact statement provided to ANMF, inviting them to consultation meeting

27 April 2018

Email from Japara to ANMF advising Central Park Aged Care proposing master roster change

27 April 2018

Japara consultation meeting with affected employees with no representation from ANMF regarding changes to rosters. Change impact statement issued.

1-4 May 2018

Individual consultation sessions held by Japara with affected employees.

4 May 2018

Right of entry notice/letter from ANMF for meeting on 8 May 2018

7 May 2018

Japara issued updated timetable regarding the proposed changes

8 May 2018

Japara responded to ANMF concerns and provided copies of requested documents including the unpopulated proposed master roster issued 27 April 2018 and sample response forms

8 May 2018

ANMF Members Meeting - 12 members present where a resolution passed to raise concerns with Japara

8 May 2018

ANMF visited Central Park and raised concerns of roster change with members with resolution passed to raise concerns with Japara

11 May 2018

ANMF raised concerns regarding proposed changes confirming staff concerns passed in resolution on 8 May 2018

14 May 2018

Conversation between Japara and ANMF regarding the concerns of nurses to be able to provide adequate care for patients

16 May 2018

Japara sent ANMF a response to the concerns raised in the member resolution

18 May 2018

Japara wrote to ANMF advising no foreseeable risk to staff or residents

22 May 2018

ANMF responded to Japara outlining concerns surrounding consultation obligations.

25 – 30 May 2018

Japara held meetings with affected employees regarding redundancies proposed as a result of the roster changes

30 May 2018

Japara wrote to ANMF advising of its intention to amend rosters to reintroduce one registered nurse position to the night shift roster

30 May 2018

Japara issued updated proposed master roster; amended change impact statement and memo to all staff as well as emailing it to ANMF

31 May 2018

ANMF advised that despite reintroduction of one registered nurse to night roster that ANMF were still concerned regarding consultation obligations.

1 + 4 June 2018

Japara provided responses to ANMF denying the allegations/concerns raised

4 June 2018

Japara raised jurisdictional concerns regarding the dispute & submitted consultation obligations complied with

4 June 2018

Draft master roster including populated shifts published and provided to affected employees to review and provide feedback by 8 June 2018

4 + 5 June 2018

Final implementation of roster distributed

7 June 2018

ANMF meeting with Members to discuss cuts to their hours; resolution passed to raise consultation inadequacies.

13 June 2018

ANMF replied to jurisdictional concerns raised and pressed consultation concerns

15 June 2018

Form F10 lodged

15 June 2018

Japara issued memo to affected staff addressing feedback provided in respect of compensation for roster changes made in November 2017.

18 June 2018

Final roster communicated to affected employees

25 June 2018

Phone conversations between Japara and Elizabeth McGrath

regarding roster changes/withdrawal of dispute

26 June 2018

Conciliation at FWC before Cribb C

26 June 2018

Offer for settlement by Japara and refusal by ANMF

27 June 2018

ANMF wrote to Japara urging it to maintain custom and practice until dispute resolved to no avail

DATE

C2018/3525 – Goonawarra

23 April 2018

Japara provided change impact statement to ANMF and invited ANMF to attend group consultation meeting with affected employees on 24 April 2018

24 April 2018

Group consultation held and change impact statement issued to affected employees

26 April – 4 May 2018

Individual consultations took place and feedback forms provided to affected employees (due 11 May 2018)

14 May 2018

Analysis and consideration of feedback provided by affected employees by Facility Manager

20 May 2018

ANMF wrote to Japara advising of concerns with proposed roster change and seeking a response

27 May 2018

Right of entry notice from ANMF proposing meeting on 20 May 2018 provided to Japara

28 May 2018

Japara responded to ANMF concerns without relieving the ANMF of their concerns

3 June 2018

Analysis and consideration of feedback provided by affected employees by Mr Ryan

4 June 2018

ANMF wrote to Japara advising of concerns with proposed roster change and seeking a response

4 June 2018

Roster updated and draft master roster including populated shifts published and provided to affected employees

5 June 2018

Japara responded to ANMF concerns without relieving them of their concerns

7 June 2018

Japara contacted ANMF by phone to arrange a time to meet

8 June 2018

ANMF emailed Japara requesting a meeting and/or phone conference to discuss the concerns raised

8 June 2018

Japara email to ANMF advising they would be able to meet to discuss roster change

18 June 2018

Final roster published

26 June 2018

Updated proposed master roster with retention of one personal care worker on night shift

27 June 2018

Form F10 lodged

[6] As a result of concerns held by the ANMF in relation to the Central Park facility an alleged dispute arising under an enterprise agreement was notified to the Commission pursuant to s.739 on 15 June 2018. That matter was the subject of conciliation proceedings before Commissioner Cribb on 26 June 2018 where the matter was not resolved. I am advised that in the course of those proceedings that Japara indicated the same jurisdictional objection to the progress of the ANMF’s application as it now raises before me.

[7] The proposed changes were amended slightly after they were announced with Japara retaining one personal care worker on night shifts at the Goonawarra facility 2 and an additional registered nurse was placed on the PM shift at the Central Park facility.3

[8] The matter relating to the Goonawarra facility was not the subject of notification of a dispute to the Commission until 27 June 2018, after the Central Park conciliation had concluded and the matter had been assigned to me for determination in respect of the application for interim orders.

RELEVANT LEGISLATIVE AND ENTERPRISE AGREEMENT TERMS

[9] The ANMF’s substantive applications to the Commission are made pursuant to s.739 of the Act, which provides jurisdiction to deal with disputes in certain circumstances set out within s.738, namely where a “term” of a modern award, an agreement, a contract or Public Service Determination allows. Arbitration of a dispute may only occur where the parties have agreed, in accordance with the provisions of the term. The Commission’s powers to deal with a dispute under s.739 are constrained in several ways, most particularly of which is set out in sub-section (5), such that the Commission may not make a decision that is inconsistent with the Act or a fair work instrument applicable to the parties.

[10] Sections 738 and 739 provide:

738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(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.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(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.”

[11] Relevant to determination of this matter are the Agreement’s Dispute Resolution Procedure (clause 52) and the Consultation provisions (clause 55), each of which provide:

52 Dispute Resolution Procedure

52.1 This dispute resolution procedure will apply to any dispute relating to:

(a) a matter arising under this Agreement; or

(b) the National Employment Standards; or

(c) a matter arising under section 65(5) of the Fair Work Act.

52.2 In the event of a dispute in relation to the above, in the first instance the parties will attempt to resolve the matter at the workplace by discussions between the Employee or Employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, there will be further discussions between the Employee or Employees concerned and more senior levels of local management as appropriate.

52.3 A party to the dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute at any time.

52.4 If the grievance is still unresolved following the steps outlined In clause 52.2, the matter shall be referred to the Senior Manager of the Employer, however titled and a meeting arranged.

52.5 The above steps shall take place as soon as reasonably practicable.

52.6 If a dispute in relation to a matter arising under the Agreement is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to the FWC for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration. If arbitration is necessary the FWC may exercise the powers conferred by the Fair Work Act.

52.7 It is a term of this agreement that while the dispute resolution procedure is being conducted work shall continue normally according to the custom or practice existing before the change or omission that gave rise to the grievance until either the grievance is resolved or, if referred to the FWC, up to the first hearing and then subject to any direction of the FWC. No party shall be prejudiced by the continuation of work. Health and safety matters are exempted from this clause.

52.8 FWC The decision of the FWC will bind the parties, subject to either party exercising a right of appeal in accordance w1th the Fair Work Act.”

55 Consultation

55.1 This term applies if the Employer:

(a) has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise; and the change is likely to have a significant effect on the Employees; or

(b) propose to introduce a change to the regular roster or ordinary hours of work of Employees.

55.2 Major change

(a) For a major change referred to in clause 55.1(a):

(i) the Employer must notify the relevant Employees of the decision to introduce the major change; and

(ii) clauses 55.2(b) to 55.2(g) apply.

(b) The relevant Employees may appoint a representative, which may be a representative from the ANMF or HWU, for the purposes of the procedures 1n this term.

(c) If:

(i) a relevant Employee appoints, or relevant Employees appoint, a representative for the purposes of consultation; and

(ii) the relevant Employee or Employees advise the Employer of the identity of the representative; the Employer must recognise the representative.

(d) As soon as practicable after making its decision, the Employer must

(i) discuss with the relevant Employees and any nominated representative:

(A) the introduction of the change; and

(B) the effect the change is likely to have on the Employees; and

(C) measures the Employer is taking to avert or mitigate the adverse effect of the change on the Employees; and

(ii) for the purposes of the discussion - provide, in writing, to the relevant Employees and their nominated representative:

(A) all relevant information about the change including the nature of the change proposed; and

(B) information about the expected effects of the change on the Employees; and

(C) any other matters likely to affect the Employees.

(e) The Employer must give prompt and genuine consideration to matters raised about the major change by the relevant Employees and any nominated representative.

(f) If a term in the enterprise agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the Employer, the requirements set out in subclauses 55.2(b}, 55.2(b) and 55.2(d)are taken not to apply.

(g) In this term, a major change is likely to have a significant effect on employees if it results in the termination of the employment of Employees; or major change to the composition, operation or size of the Employer's workforce or to the skills required of Employees; or the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or the alteration of hours of work; or the need to retrain Employees; or the need to relocate Employees to another workplace; or the restructuring of jobs.

55.3 Change to regular roster or ordinary hours of work

(a) For a change referred to in clause 55.1(b):

(i) the Employer must notify the Employees of the proposed change; and

(ii) subclauses 55.3(b) to 55.3(e) will apply.

(b) The relevant Employees may appoint a representative, which may be a representative from the ANMF or HWU, for the purposes of the procedures in this term.

(c) If:

(i) a relevant Employee appoints, or relevant Employees appoint, a representative for the purposes of consultation; and

(ii) the relevant Employee or Employees advise the Employer of the identity of the representative; the Employer must recognise the representative.

(d) The Employer will:

(i) provide information to the relevant Employees about the change; and

(ii) invite the relevant Employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and

(iii) consider any views given by the relevant Employees about the impact of the change.

(e) However, the Employer is not required to disclose confidential or commercially sensitive information to the relevant Employees.

55.4 In this clause, relevant employees means the Employees who may be affected by a change referred to in clause 55.1 (as applicable). (original formatting)”

CONSIDERATION

[12] The orders sought by the ANMF are to the effect that Japara be restrained from implementing the staffing proposals it has notified of or altering the present staffing levels below those that presently apply on account of “custom and practice”. The orders sought by the ANMF also include that Japara must continue to meet its consultation obligations as set out in the enterprise agreement with those obligations said to include discussing measures to avert or mitigate the adverse effect of the change and by providing in writing information about the expected effects of the change and any other matters likely to affect the employees.

[13] The ANMF also seeks that the clause of the enterprise agreement requiring that “work shall continue normally according to the custom and practice existing before the change” (52.7) be followed by Japara until such time as these disputes are determined in finality.

[14] The application made by the ANMF puts forward both that there is a serious question to be tried as well as the balance of convenience favouring the granting of interim orders. It puts forward that the powers under both s.589 and s.739 of the Act enable the making of orders in its favour.

[15] Japara submits that interim orders of the nature sought by the ANMF not be granted. It puts forward firstly that there is a lack of jurisdiction for the Commission to proceed to determine the application either on an interim or final basis. The basis of the jurisdictional argument being to the effect that the ANMF has not complied with the dispute resolution procedure and as result the application is not validly before the Commission.

[16] Japara’s argument is that the source of the Commission’s powers to deal with disputes generally is derived from s.595 of the Act with that section permitting the Commission to deal with a dispute only if it is expressly authorised to do so under or in accordance with another provision of the Act. In the present circumstances Japara submits such a power in relation to arbitration only exists where clause 52 of the enterprise agreement, the dispute resolution procedure has been satisfied in full, which it submits has not occurred in the present case.

[17] Japara also submits that even in the event there is jurisdiction for the Commission to deal with the matters that the usual criteria for the consideration of interim orders have not been met. It is to be noted that in the case of both disputes, Japara’s change proposal is to implement the changes it has notified from the start of shifts on Monday, 2 July 2018.

[18] Japara’s jurisdictional argument may be summarised as being an obligation on the part of the Commission to satisfy itself that it has jurisdiction with the question being enlivened by the fact that its powers in relation to determination of the dispute are derived entirely from the Act and the applicable enterprise agreement. It notes that the Agreement provides a number of limitations within clause 52, the dispute resolution procedure with respect to jurisdiction.

[19] In the course of a sequentially stepped dispute resolution procedure a dispute which arises under the enterprise agreement, the National Employment Standards or s.65(5) of the Act, dealing with flexible working arrangements must first be the subject of an attempt to resolve the matter at the workplace level in discussions between those concerned and the relevant Supervisor. Further, and in the event those initial discussions do not resolve the dispute then there are to be further discussions between the employees and more senior levels of local management. The next step, if the dispute is still not resolved, involves reference of the matter to a senior manager and it is only after that point if the dispute is “unable to be resolved at the workplace level, and all agreed steps for resolving have been taken” that the dispute may be referred to the Commission for resolution.

[20] Japara’s argument in this respect is that there has been no attempt by the ANMF to resolve the matter in the way contemplated at the earlier parts of the stepped process; there was no attempt to resolve the matter by discussions between the employees concerned and the relevant Supervisor; nor were there further discussions between the employees and more senior levels of local management. There also could not be a reference to a senior manager because the earlier meetings had not taken place. It is then argued that because of the ANMF’s failure to follow these processes that there has been no valid referral of the purported dispute to the Commission and as a result there is no jurisdictional conferred by clause 52.6.

[21] Japara also note, with particular reference to the Goonawarra dispute, that there is a further jurisdictional issue in relation to that matter. The way clause 52.6 is framed means that arbitration is only jurisdictionally enlivened where the matter in dispute remains unresolved. This is within the context of a clause which says that an unresolved dispute “may be referred to the FWC for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration.” It is said by Japara about these matters that since the Goonawarra dispute has not yet been the subject of mediation and/or conciliation, a finding of fact is not available to be made that “the matter in dispute remains unresolved” meaning that consideration of interim orders is beyond the jurisdiction of the Commission to arbitrate or to exercise its powers under the s.589(2) of the Act. 4

[22] In advancing its jurisdictional argument Japara relied upon the findings of the Full Bench in the matter of the Australian Workers Union v MC Labour Services Pty Ltd5 In that matter the Full Bench confirmed that the capacity of the Commission to deal with a dispute arising under s.739 is a product of the dispute resolution term itself. In MC Labour Services the Commission was faced with a dispute settlement procedure which relevantly provided for the following:

“10.2 Work shall continue without interruption from industrial stoppages, bans and/or limitations while these procedures are being followed. The pre-dispute status quo shall prevail while the matter is being dealt with in accordance with this procedure.

10.3 All Employees have the right to appoint a representative in relation to a dispute. It is the express priority of all Parties to attempt to settle a dispute at the workplace level at first instance.

10.4 In the event of any work related grievance arising between the Employer and an Employee or Employees, the matter shall be dealt with in the following manner:

(a) The matter shall be first submitted by the Employee/s or his/her job delegate/Employee representative or other representative, to the site foreperson/supervisor or the other appropriate site representative of the Employer, and if not settled, to a more senior Employer representative.

(b) Alternatively, the Employer may submit an issue to the Employee/s who may seek the assistance and involvement of the job delegate/ Employee representative or other representative.

(c) If still not resolved, there may be discussions between the relevant Union official (if requested by the Employee/s), or other representative of the Employee, and senior Employer representative.

(d) Should the matter remain unresolved, either of the parties or their representative shall refer the dispute at first instance to the Victorian Building Industry Disputes Panel (which shall deal with the dispute in accordance with the Panel Charter).

(e) Either party or their representative may, within 14 days of a decision of the Panel, refer that decision to FWC for review. FWC may exercise conciliation and/or arbitration powers in such review.

10.5 This procedure shall be followed in good faith without unreasonable delay.

10.6 If any party fails or refuses to follow any step of this procedure the non breaching party will not be obligated to continue through the remaining steps of the procedure, and may immediately seek relief by application to FWC.” 6

[23] The Commissioner at first instance had decided that she did not have jurisdiction to deal with a dispute for the reason that certain mandatory steps in the dispute settlement procedure had not been followed with those steps being a precondition for the dispute to be referred to the Commission.

[24] By way of background the Full Bench summarised the matters to which it needed to have regard as including;

[17] Clause 10.4 sets out what is to occur in the event of a “work related grievance arising between the Employer and an Employee or Employees”. As the Commissioner observed, the clause provides for an escalating process for dealing with such disputes. It states that “first,” the matter will be submitted by the employee to the site foreperson or supervisor (clause 10.4(a)). If the matter is “still not resolved”, there may be discussions between the relevant union official or other representative and senior company representatives (clause 10.4(c)). Next, “should the matter remain unresolved”, a party may refer it to the VBIDP (clause 10.4(d)). Then, “within 14 days of the decision of the Panel”, either party may refer the decision to the Commission for review, where the Commission may exercise conciliation or arbitration powers (clause 10.4(e)).

[18] The first question is whether there existed a grievance of the relevant kind. MC Labour was unaware of any dispute until the AWU filed its application in the Commission. It is still unclear precisely which employees or group of employees were said to have a workplace grievance with MC Labour. However, even accepting that a “work related grievance [had arisen] between the Employer and Employees”, it is clear that the process laid down by clause 10.4 was not followed. The grievance was not first submitted to the site foreperson or supervisor. Critically, it was not referred to the VBIDP. That body had not issued a decision at the time when the AWU sought to have the matter dealt with by the Commission. The Commission’s role under clause 10.4 is confined to the review of such a decision. In the present case, there was nothing to be referred to or reviewed by the Commission under clause 10.4(d).” 7 (footnotes omitted)

[25] In relation to the Commission’s jurisdiction under s.739 and the capacity for the appellant in that matter to have raised the dispute alleged at first instance, the Full Bench considered a contention that other decisions of the Commission should be applied in which it was found that the provisions of s.186(6), dealing with approval of enterprise agreements separately provided a head of power for the agitation and progression of disputes:

[27] The decisions in CBI and Unilever support the AWU’s contention that the Commission has a residual discretion to deal with disputes referred to it under an enterprise agreement, despite the requirements of the agreement. The rationale for these decisions is based on s.186(6), which sets out one of the requirements of which the Commission must be satisfied before it approves an enterprise agreement under s.185, namely:

(6) The FWC must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee

organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards.’

[28] The AWU contended that, if a dispute resolution provision subjects the role of the Commission or other independent person to conditions or limitations, it does not meet the requirements of s.186(6). In CBI, Commissioner Ryan stated (emphasis added):

“[37] Where a term of an enterprise agreement contains a dispute resolution process which has several steps for dealing with the dispute at the workplace and lastly provides for the dispute to be referred to the Commission, or another person who is independent of the employers, employees or employee organisations covered by the agreement to settle the dispute, the steps for dealing with the dispute at the workplace cannot operate as a bar to the Commission, or another person who is independent of the employers, employees or employee organisations covered by the agreement, having jurisdiction to settle the dispute. If such was allowed to occur then the term would not be a term that met the requirements of s.186(6) of the Act.” 8 (underlining in Full Bench decision)

[26] The Full Bench rejected these propositions, and found:

[34] On a plain reading of the provisions, the imposition of limitations on the role of the Commission contemplated by s.739 is compatible with the requirements of s.186(6). There is a logical connection between these two provisions, and it is clear that this did not escape the Parliament’s attention. The introductory words in s.739(1) employ the same formulation found in s.186(6): s.739(1) applies if a term of an enterprise agreement ”requires or allows” the FWC to deal with a dispute.

[35] In CBI, emphasis was placed on the contrast between s.186(6) and the corresponding provision under the Workplace Relations Act 1996 (WR Act), which specifically required compliance with any steps that had to be taken under the dispute resolution process in a workplace agreement, prior to the dispute being referred to the Commission. That provision is not reflected in the FW Act, and it appears that the Commissioner drew from this an inference that the FW Act no longer contemplates any such requirement. However, s.595 and s.739 must be accorded their natural meaning, and are not to be read down because a provision in the earlier legislation was not replicated in the FW Act.

[36] The AWU contended before us that it could not responsibly have complied with the steps in paragraphs (a), (b) and (d) of clause 10.4 because this would have required it to provide the names of its members to MC Labour and the VBIDP, with potential adverse consequences for the employees in question. However, the union acknowledged that its concerns were based only on supposition. Indeed it was not established that either MC Labour or the VBIDP would actually have required the AWU to identify the names of its members involved in the alleged dispute. MC Labour for its part rejected any suggestion that employees would have suffered any detriment in connection with having raised a workplace grievance.

[37] It may be that situations will arise where it is genuinely impossible for a party to comply with a mandatory step in a dispute resolution procedure, and that the effect of this is that the Commission or other independent person cannot attempt to settle the dispute. This might be an issue for the Commission to examine when considering whether to approve an agreement under s.185 of the FW Act. However, once an agreement has been approved, and a dispute is referred to the Commission under it, it would not be permissible for the Commission to recast or ignore certain components of the dispute settlement procedure. Section 186(6) is not a source of power to do this. An enterprise agreement comes into operation seven days after it is approved by the Commission. Once in operation, the agreement is presumed to be valid, until such time as the decision of the Commission to approve the agreement is overturned on appeal, or the agreement is otherwise found by a court to be invalid. The various terms of an enterprise agreement are also assumed to be valid, with the exception only of unlawful and certain other terms, which have no effect as a result of s.253 of the FW Act.

[38] The requirements of s.186(6) may be relevant in identifying the proper construction of a dispute resolution clause in an agreement. If the proper meaning of such a clause is disputed, the resolution of the disputed construction will begin with the ordinary meaning of the relevant words, considered in context, in accordance with the principles summarised in AMWU v Berri. The legislative framework, including s.186(6), is part of that context. There may be cases where, properly construed, the clause allows the Commission to proceed to deal with a matter, despite certain steps not being satisfied. And of course, there may be clauses which expressly allow certain steps to be bypassed, or for the Commission to have a general discretion to deal with disputes.

[39] However, the parties to an enterprise agreement are free to impose limitations on the role afforded to the body that is to settle disputes about matters arising under the agreement. Where these limitations are not observed, the Commission (or other persons) has no discretion to deal with a dispute referred to it under the agreement, unless one is conferred on it under the terms of the agreement.” 9 (footnotes omitted)

[27] The dispute settlement procedure in question in MC Labour Services is broader in scope than the procedure in question in this matter. The procedure operating in respect of MC Labour Services allows for disputes to be agitated over any work-related or industrial matter as well as any matters arising out of the operation of the agreement or incidental to it. In contrast the Japara dispute resolution procedure only deals with the matters arising under the enterprise agreement, the National Employment Standards or under s.65(5) of the Act, dealing with flexible work arrangements.

[28] While there are differences between the two procedures they are analogous in sufficient respects in relation to the stepped nature of the resolution procedure. In each case there are several steps with each successive step only accessed after a certain test is met in respect of the former. In each case the first step is for submission of the matter in question to a supervisor and then if not settled to a more senior representative. In each case the second step is only accessed if the matter in question is “still not resolved” in the case of MC Labour Services or “still unresolved” in the case of Japara. MC Labour Services involves a third step not featured in Japara, being reference to the Victorian Building Industry Dispute Panel (VBIDP) with that step only being accessed in the event that “the matter remain unresolved”. A further step is then available with MC Labour Services in the event that the parties remain dissatisfied where they or their representative may refer the VBIDP decision “to FWC for review” with the Commission then being permitted to exercise conciliation and/or arbitration powers upon such review. In the case of Japara, the third step in the escalating process permits that a dispute may be referred to the Commission if the dispute “is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken”. The Commission’s power at that time is for the Commission to assist “for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration”.

[29] Although concerns were raised by the ANMF with Japara in the early stages of each dispute, there was both an insufficient activation by the union of the dispute resolution procedure for a finding to be available that the ANMF had been appointed by members as their representative in the manner envisaged in clause 52.3, as well as the commencement of the dispute in the manner required by clause 52.2.

[30] As a result, I am satisfied that the considerations set out by the Full Bench in MC Labour Services have application to this matter as well. The capacity of the Commission to deal with the disputes alleged by the ANMF is entirely within the scope of the proper construction of the dispute resolution procedure set out in clause 52 of the enterprise agreement. The nature of that procedure provides for a stepped process which does not permit the bypassing of a step. It is also the case that the final of the steps dealing with the question of the matter to be referred to the Commission, set out in clause 52.6, provides limited and not general rights of access to the Commission, with the clause providing as follows:

“52.6 If a dispute in relation to a matter arising under the Agreement is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to the FWC for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration. If arbitration is necessary the FWC may exercise the powers conferred by the Fair Work Act.” (underlining added)

[31] It is to be noted from this clause firstly, with relevance to both Central Park and Goonawarra, that reference to the Commission is only at the point that “all agreed steps for resolving it have been taken” and, secondly with relevance to the dispute relating to Goonawarra, that arbitration on the part of the Commission can only occur after endeavours by the Commission to resolve the dispute through mediation and/or conciliation have taken place.

[32] As a result I was satisfied that the Commission does not have the requisite jurisdiction in relation to either alleged dispute.

[33] Although, on the basis of this finding, it was not strictly necessary for me to consider the merits of the ANMF applications for interim orders I advised the parties in the course of my oral decision that I would not have been disposed to grant the application of the ANMF in the event that jurisdiction had been found.

[34] The basis upon which the Commission is able to make interim orders is well settled. Such consideration is to be determined in accordance with conventional principles for the issuing of interim relief. 10 It was accepted by both parties that the ordinary approach taken by the Commission in these matters is to apply principles similar to those applied by the Courts in applications for interlocutory relief.11 In broad compass that requires the Commission to consider whether the Applicant has shown there is a serious matter to be tried “in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief”12; whether, and the extent to which, there is irreparable prejudice to the Applicant, and I consider in the context of the matters requiring determination in this matter, the Respondent as well, considered on the balance of convenience.

[35] The ANMF’s arguments with respect to there being a serious matter to be heard relate to its arguments that there has been a failure by Japara to follow clause 55, the consultation clause, as well as a failure by the Respondent to comply with commitments given in clause 21 to the following effect:

“21 Workload Management and Filling of Vacancies

21.1 The Employer is committed to ensuring that staffing levels are appropriate, thus ensuring the delivery of quality resident care and keeping within the accreditation principles which take into account the level of care appropriate for the assessed needs of the resident.

21.2 Should any Employee feel the workloads are unreasonably heavy on a regular basis, then they have a responsibility to discuss their concerns with their Manager. If appropriate action is not taken to address the workload issues, the Employee may utilise the dispute resolution

procedure of this Agreement.

21.3 Where a vacancy arises in the Employer’s staffing or where a change to either resident needs or numbers occurs, the Employer will consider staffing requirements based on factors including but not limited to the assessed needs of the residents.”

[36] In particular the ANMF argues that the Respondent has failed in the following respects:

● to provide information in writing about the expected effects of the change on employees;

● to provide information to address the concerns of affected employees being the giving of adequate care to residents with reduced staff;

● to discuss the measures the Respondent has been taking to avert or mitigate the adverse effects of the change on employees; and

● to meet its obligations to maintain custom and practice whilst a dispute was being resolved.

[37] In contrast, Japara submitted that there was in fact ample consultation on the part of the company with the affected employees, with it putting forward:

“6. The Respondent, Japara Healthcare Limited, operates approximately 43 aged care and retirement living facilities across Victoria, NSW, QLD, Tasmania and South Australia. Two of those facilities are Central Park and Goonawarra, which are referred to in the current applications.

7. On 24 April 2018 in respect of Goonawarra and 27 April 2018 in respect of Central Park, the Respondent informed affected employees of proposed changes to rosters at their respective facilities. This information was initially provided via a Change Information Statement and group consultation sessions.

8. Copies of the Change Information Statements were provided in advance to the ANMF, and it was invited to attend the group consultations. The ANMF did not attend.

9. Subsequent to those group consultations, Affected Employees were invited and scheduled to attend individual / 1:1 consultation meetings and were afforded the opportunity to have a support person or a union representative present. No employees requested that the ANMF attend with them at their individual / 1:1 consultation meeting.

10. In conjunction with the individual / 1:1 consultation sessions, individual feedback forms were provided to staff. The individual Employee Response Forms sought specific input from Affected Employees, including in respect of the effect of the Roster Changes to the individual’s own personal circumstances.

11. Further, at Goonawarra, additional consultation was held with 5 Registered Nurses at Goonawarra on the afternoon shift who may be affected with redundancy. Those Affected Employees were invited to have a support person or a union representative present at the meeting. No representative of the ANMF attended the meeting.

12. The consultation also included providing draft master rosters in early June 2018, and considering feedback received from affected employees in relation to the proposed changes.”

[38] Japara is also critical of the ANMF in that no employee at any time indicated that they were represented by the ANMF, or vice-versa, in accordance with clauses 21, 52 or 55 of the enterprise agreement. Neither did any affected employee request, or take part in, discussions of a kind described in clause 52.2 or make referrals under clause 52.4 of the enterprise agreement.

[39] The company also argued that the provisions of clause 21 are placatory only, with no rights as such arising from them. The argument stemming from the notion that the words of clause 21.1 are hortatory and aspirational in nature only and therefore do not give rise to enforceable obligations of a kind which can be the subject of a dispute before the Commission.

[40] Japara also reserved their right to argue at the final determination of the proceedings that there was no obligation on its part to consult in the way contended by the union because the roster changes are not a major change as defined within clause 55.1(a). That argument depends upon a finding consistent with that of the Federal Court in ANMF v BUPA Aged Care Australia 13 (BUPA), which, amongst other matters, dealt with the relevant threshold for the term “a major change”.

[41] In relation to this matter while demonstrably Japara is similarly a large business with many facilities the argument of whether or not there is a serious matter to be heard will turn on whether in the two facilities in question a major change likely to have a significant effect on employees has been mooted. At least at this stage of the proceedings that is by no means a clear question but is instead one that would need to be dealt with on the evidence, both as to the context of “the Employer” as defined by the enterprise agreement, which in this case appears to be limited to residential aged care facilities, excluding retirement living facilities and community care services in the State of Victoria, as well as whether the change, if it is a major change, is likely to have a significant effect on employees.

[42] Those matters are evidently threshold issues which may be met or not. On the other side of those considerations, which go to the question of whether Japara was obliged to consult, are considerations of whether it actually did so. In this particular case Japara argued that it consulted directly with employees and ascertained their views on a number of occasions. The ANMF put forward the reverse as well as putting forward that Japara did not accord the union the status of the representative of employees and in failing to do so, failed to consult in accordance with the clause.

[43] Findings on the matter in question could well go in either direction.

[44] A full hearing on the application of BUPA may well lead to the finding that what was decided by Japara and discussed with employees does not amount to “a major change” for the same reasoning as within that judgement, in which case there would have been no obligation on the part of Japara to actually consult. A cursory analysis of the BUPA decision as well as the factual material presently before the Commission in these matters would suggest that it is more likely than not that BUPA would lead to the conclusion that consultation was not obliged by the clause. On the other hand the Commission has not heard the union’s response to that proposition and in particular whether there may be a different factual base which could lead to a different conclusion.

[45] If there were to be a finding that BUPA does not have application in this particular matter consideration would then need to be given to the application of the consultation requirements and in particular whether it could be said that, by not disclosing who it acted for or that it acted for anyone, the ANMF should still have been accorded representative rights with its views then being considered in detail by Japara. Allied to that question would be a consideration of whether Japara’s actual interactions with staff and the ANMF were sufficient to be compliant with the obligation set out in Clause 55(d), which is in the following terms:

“(d) As soon as practicable after making its decision, the Employer must

(i) discuss with the relevant Employees and any nominated representative:

(A) the introduction of the change; and

(B) the effect the change is likely to have on the Employees; and

(C) measures the Employer is taking to avert or mitigate the adverse effect of the change on the Employees; and

(ii) for the purposes of the discussion - provide, in writing, to the relevant Employees and their nominated representative:

(A) all relevant information about the change including the nature of the change proposed; and

(B) information about the expected effects of the change on the Employees; and

(C) any other matters likely to affect the Employees.”

[46] The evidence presently before the Commission would lead to a conclusion that at the very least Japara was not comfortable with dealing with the ANMF on these matters and probably did not wish to, going to some lengths to avoid having to do so. Those features of Japara’s actions probably sat outside of the obligations set out in Clause 55(d), with it being unlikely, on the basis of the very preliminary evidence presently before the Commission, that a finding would be made to the effect that the company had in fact given life to its commitment in Clause 55(e) that:

“(e) The Employer must give prompt and genuine consideration to matters raised about the major change by the relevant Employees and any nominated representative.”

[47] However, balanced against those criticisms of Japara and its interactions with the ANMF, must be the actions the company took directly with its staff which in totality appear, again on the basis of the preliminary evidence presently before the Commission, to be close to the obligations to discuss, inform and consider the matters in question.

[48] Japara submitted that consultation occurred notwithstanding the fact that the ANMF and affected employees did not secure the outcome that that they sought in the consultations.

[49] Overall, I considered that the ANMF’s case for interim orders should not be viewed as darkly as put forward by Japara, largely for reason of the way that the company went about its interaction with the ANMF. That aspect at least appeared to allow it to be argued that there has not been consultation in the way envisaged by the enterprise agreement clause. On the other hand it could be that a full argument for the Commission, particularly about the application of BUPA, may well lead to findings in favour of Japara.

[50] Were there to have been jurisdiction for the Commission to proceed, the matter of whether there was a serious question to be heard would have resolved in favour of the ANMF.

[51] In relation to considerations of prejudice and balance of convenience, my view in relation to the issuing of interim orders was that the combined effect of these two considerations leaned in favour of Japara.

[52] The ANMF put forward in relation to matters of prejudice that it believed that if the roster changes proposed by Japara were put in place then it would be unable to reverse the effect of those changes. Furthermore it put forward that employees would leave the facilities either because of their concerns about reductions in hours or pay or because of concerns they held about their professional standing if asked to work in accordance with the reduced hours regime. In relation to the question of professional standing, the ANMF put forward that there would be an increased risk of workplace accidents with reduced staff as well as an increased risk of professional discipline in the event of some harm coming to a resident as a result of the changes to rosters.

[53] Japara put forward that, with the hearing of the matter having taken place on Friday, 29 June 2018 and the rosters commencing two days later, on Monday, 2 July 2018, that the roster changes were all but implemented. Affected employees had dealt with the issue either by finding work elsewhere or by making appropriate childcare and other family arrangements. Any change at this late hour would not only be practically difficult for the company to implement because of those arrangements, but they would increase the company’s costs because it would need to make agency staff arrangements when it could not draw back employees who may have made alternative employment or family arrangements.

[54] All evidence before the Commission on the matter of prejudice would indicate that the question was evenly divided between the parties. Neither side was putting forward irreversible prejudice but instead matters of their respective convenience. The issues that the ANMF put forward in relation to the professional standing of its members appeared to be somewhat overstated as well as overlooking matters of the liability which Japara itself may have incurred as a consequence should the matters pointed to by the ANMF come about. That is not say that matters of professional standing may not have importance, but merely that the issues appear to be overstated at this time as well as insufficiently evidenced.

[55] While the matter of prejudice may be evenly divided, consideration of the balance of convenience has it falling in favour of Japara. I agree that because the matter has been brought to the Commission very close to the time that the roster changes were to be implemented that it would be entirely foreseeable, as Japara put forward that employees would have made alternative employment and family arrangements and that the company would now be faced with some difficulty, perhaps not insurmountable though, to unwind the arrangements it had already put in place.

[56] As a result I was not satisfied that it would have been appropriate to issue interim orders in the matter.

[57] In any event having found that there is no jurisdiction for the Commission to entertain the applications it is appropriate to dismiss each application and an order doing so is issued at the same time as these reasons for decision.


COMMISSIONER

Appearances:

Mr J Tierney, of Counsel for the Australian Nursing and Midwifery Federation

Mr B Avallone, of Counsel for the Respondent

Hearing details:

2018.

28 June;

Melbourne.

Printed by authority of the Commonwealth Government Printer

<PR608653>

 1   AE427835.

 2   Exhibit R4, Witness Statement of Stephanie Parry, [22].

 3   Exhibit R2, Witness Statement of Jane Geeson, attachment JG16.

 4   Exhibit R6, Respondent’s Outline of Submissions, [32]

 5   2017 FWCFB 5032.

 6   Ibid, [10].

 7   Ibid.

 8   Ibid, with reference to AMWU v CBI Constructors Pty Ltd (CBI) [2016] FWC 4896 and AMWU v Unilever Australia Trading Limited (Unilever) [2016] FWC 7600

 9   Ibid.

 10   See Communications, Electrical And Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation (2003), PR933892 at [88]; with reference to Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153, per Mason ACJ.

 11   Ibid; see also Maritime Union of Australia, The v Patrick Stevedores Holdings Pty Ltd [2014] FWC 3349 [14]; Alcoa of Australia Limited v The Australian Workers' Union [2010 FCA 610 [23]–[24].

 12   Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153, per Mason ACJ.

 13   [2017] FCA 1246.