AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170LW application for settlement of dispute
Australian Municipal, Administrative, Clerical and Services Union
and
Jabiru Town Council
(AG2004/1670)
Northern Territory | |
DEPUTY PRESIDENT LEARY |
MELBOURNE, 30 JULY 2004 |
DECISION
[1] This is an application by the Australian Municipal, Administrative, Clerical and Services Union - South Australian and Northern Territory Branch (the union) pursuant to s.170LW of the Workplace Relations Act, 1996 (the Act) and Clause 24(3) of the Jabiru Town Council Enterprise Bargaining Agreement 2000 [Print T4871] (the EBA).
[2] The EBA came into effect from the first pay period on or after 21 December, 2000, with a nominal expiry date of 31 July, 2002.
[3] S.170LX of the Act provides:
"(1) A certified agreement comes into operation when it is certified, and subject to this section, remains in operation at all times afterwards.
(2) The certified agreement ceases to be in operation if:
(a) its nominal expiry date has passed; and
(b) it is replaced by another certified agreement.
(3) The agreement:
(a) ceases to be in operation if it is terminated under section 170LV, 170ME, 170MG, 170MH or 170MHA; and
(b) does not operate if subsection 170LY(2) applies.
The agreement may also be set aside under subsection 113(2A)."
[4] Neither party suggested that any application had been made to vary, set aside or terminate the EBA, accordingly it continues in force.
[5] Clause 24, Dispute Settlement Procedure, provides:
"24(1)An employee with a grievance shall bring it to the notice of the appropriate supervisor who shall provide a response within two days.
24(2) If the matter is not resolved in 48 hours, the employee may discuss the grievance with his or her union representative. The accredited union representative will then discuss matters affecting the employee(s) he or she represents with Council's relevant management staff member.
24(3) Notwithstanding all the above it is open to any party to have the matter referred to the Australian Industrial Relations Commission for resolution."
[6] The s.170LW application claims that the dispute relates to "the alleged unprofessional conduct that is allegedly designed to construct the termination of employment of Mr Dennis Cryer." Mr Cryer is an employee of the Jabiru Town Council (the employer).
[7] The employer, represented by the Western Australian Local Government Association, agreed to attend a conciliation conference where the validity of the application by the union was challenged.
[8] The conciliation conference did not resolve the issue/s in dispute.
Employer argument:
[9] The employer argued that the application by the union addressed issues for resolution which were outside the jurisdiction of the Commission. Further it argued that the application was filed under the procedures for preventing and settling disputes provision of the EBA but does not identify any dispute, accordingly the Commission is not able to arbitrate on the issues that have been raised. [PN7]
[10] The employer argued that the union had failed to follow the process found in clause 5(16) of the EBA and had not attempted to settle the dispute through direct negotiation and consultation. It was also submitted that "quite a few of the issues have not been yet raised with Jabiru." [PN14]
[11] The EBA consists of a number of Objectives and Principles. Objective Five is found at Clause 5(15) of the EBA and prescribes as follows:
"5(15) To prescribe employment relationship procedures including those concerned with dispute settlement, termination, occupational health and safety, anti-discrimination, disciplinary and redundancy matters."
[12] Clause 5(16) [Principles] prescribes:
"5(16) The following principles apply in relation to this objective:
(a) Employees and Council agree that in the event of a grievance, complaint, claim or any matter that is likely to result in a dispute between the employer and an employee (or group of employees or between employees) that there be a procedure for settling it.
(b) Employees and Council agree disputes shall be handled by those most closely involved with the issues and every attempt shall be made to settle it amicably through direct negotiations and consultations.
(c) Employees and Council agree that work should continue during the period of negotiation unless it is work which is unsafe to avoid interruption to the performance of work and consequential loss of productivity and wages.
(d) Employees and Council agree that there may be occasions when it may be necessary for Council to make positions on Council redundant or to terminate employees or for employees to terminate their employment.
(e) Employees and Council agree that there should be in place equal employment opportunity, anti-discrimination and occupational health and safety policies for the work force.
(f) Employees and Council agree that a disciplinary procedure should be in place for handling work performance problems except in cases of summary dismissal where the disciplinary procedures shall be waived." [my emphasis]
[13] Clause 5(17) [Procedures] prescribes:
"5(17) The procedures in relation to this objective are contained in Parts E and F of this agreement."
[14] I note that Part E refers to Leave and Part F is titled Other Conditions which includes Clause 24 Dispute Settlement Procedure. It is not clear which part of clause 5(16) it is alleged the union has not complied with other than a claim that there have been no direct negotiations and consultations. Clause 5(16) seems to set out a range of principles but is lacking in any specific process other than a reference to an attempt to settle a dispute by negotiation and consultation.
[15] The employer argued that there had been no breach of the EBA and that the union and Mr Cryer had failed to follow procedures requiring direct negotiation and consultation.
Union argument:
[16] It was submitted that Mr Cryer had been employed by the employer for some 16 years and it was his concern that "he may be facing termination of employment." [PN30]. It is Mr Cryer's view, according to the union, that the employer, through the Chief Executive Officer (CEO), has not followed in good faith the principles enunciated in clause 5(16) of the EBA.
[17] It was agreed that one of the issues causing Mr Cryer concern was related to his relationship with the CEO. The union is seeking through this application to have withdrawn from Mr Cryer's personnel file a letter given to him (Mr Cryer complains that it was left on his keyboard) and headed "First Warning Letter" which refers to a number of issues of work performance. The letter alleges a failure to provide a further written response in respect to questions posed by the CEO; that Mr Cryer had advised that he would only take orders from the Deputy Chairperson rather than the CEO, his direct supervisor, although it was noted that Mr Cryer no longer refused to take orders from the CEO; and his refusal to carry out a lawful order by his supervisor which was considered to be misconduct and contrary to the provisions of the EBA and the employer's Policy Statement No. 82.
[18] It was submitted by the union that Mr Cryer had a good employment record until the time the current CEO commenced with the employer in late 2003.
[19] Since that time there were a number of issues which the union claimed were matters in dispute. One of the issues was the non-payment to Mr Cryer of a 3% wage increase due July, 2002, available under Clause 10 (2)(a) and 10(c) of the EBA which prescribe:
"10(2) Increases are to be implemented as follows:
(a) 3% for existing employees as of the date of certification from 1 July, 2000, followed by a further 3% on 1 July, 2001 and a further 3% on 1 July, 2002.
10(3) Confirmation of the above increases shall be subject to each employee satisfactorily completing an annual performance appraisal (individually not collectively) and the achievement of the agreed productivities as set out in clauses 5(14)."
[20] Clause 5(14) prescribes:
"5(14) The workforce agrees to undertake to reduce operating costs or increase operating income by:
(a) 1.3% during the 2000/2001 financial year; and
(b) 1.3% during the 2001/2002 financial year subject to Council not increasing operating costs outside of its budget or subject to extenuating circumstances that cause either abnormal or extraordinary changes to operating expenditure."
[21] It was submitted that all employees, other than Mr Cryer, received the 3% increase due July, 2002.
[22] The EBA is to be read in conjunction with three (3) awards of the Commission, namely the:
Municipal Officers (NT) Award, 1993;
Municipal Employees (NT) Award, 1993; and
Municipal Officers (Jabiru Town Council Officers) NT Award,
and "in the event of any inconsistency between any of the awards listed above and this agreement, the agreement shall prevail to the extent of the inconsistency." [Clause 4(2)]
[23] A further issue in dispute relates to an entitlement to an Air Fares Allowance. The union submitted that the entitlement is not prescribed in the current Municipal Officers (Jabiru Town Council Officers) NT Award 2003 (the 2003 Jabiru award) nor is it found in the EBA however it claimed that "when the award got pared back unfortunately this clause inadvertently got overlooked....." [PN81] The award relied upon in the EBA would seem then to be the Municipal Officers (Jabiru Town Council Officers) NT Award, 1987, (the 1987 Jabiru award) which following `award simplification' became the 2003 award.
[24] It was the submission of the union that the Air Fares Allowance prescribed in the 1987 Jabiru award, which has since been superseded by the 2003 Jabiru award which does not include the provision, should continue to apply to Mr Cryer by reference to the Supersession clause found in the 2003 Jabiru award which states:
"7.1.1 This award supersedes the Municipal Officers (Jabiru Town Council Officers) Interim Award 1987 [AW788065 Print H1024], but no right, obligation or liability accrued or incurred under such previous award will be affected.
7.1.2 It is a condition of this award that no officer shall be reduced in salary or conditions of employment by reason of the coming into operation of this award with respect to allowable award matters only."
[25] Employees employed after February, 1993, do not have an entitlement to the air fares allowance. The union submitted that Mr Cryer is the only employee who maintains the entitlement as he has been employed for some sixteen years and his entitlement should continue. The dispute about air fares seems to be in respect of the quantum which has been paid and the intention, alluded to by the union, of changing how it has been applied in the past.
[26] The union claimed that the Air Fares Allowance is an allowable matter pursuant to s.89A of the Act.
[27] A further issue raised by the union relates to "the removal of Mr Cryer as superintendent of the ground maintenance contracts on December, 23, 2004." [PN101]
[28] The union and Mr Cryer rely on a number of the provisions found in Clause 5, Objectives of the Agreement.
[29] Clause 5(2)(e) provides:
"5(2). The objectives are:
(e) to prescribe employment relationship procedures including those concerned with dispute settlement, termination, occupational health and safety, anti-discrimination, disciplinary and redundancy matters."
5(4)(b) Employees and Council agree to abide by the code of conduct principles contained in Council's policy as amended from time to time."
5(5) Specifically the procedures for meeting this objective includes;
(a) being helpful and showing courtesy when dealing with members of the public, Councillors and other staff."
[30] The union submitted that the issues in dispute were also relevant to Clause 5(10) Procedures which states:
"5(10) The procedure for dealing with change in the workplace shall include:
(a) if it becomes evident that change is required, both employees and the employer are to work together to devise a new strategy to implement the change;
(b) if change is introduced without notice, employees are to be consulted of the change from the moment they can be contacted and given all the relevant information;
(c) where the change involves redesign of an employee's job, the employee shall be given five (5) working days in which to comment on a new position description; and
(d) employees and the Town Clerk shall sign all position descriptions.
5(11) The procedure for managing training for employees shall include:
(a) undertaking performance appraisals for each employee every twelve months, (or in the case of an employee on probation, after three months from initial engagement);
(b) developing an annual training plan for each financial year which is based on the training needs identified as a result of a jobs skills audit, performance appraisals, as a consequence of the introduction of change or recognised need in the workplace."
Findings:
[31] The employer's own submission, arguing that the Commission lacks jurisdiction to hear the application lodged on behalf of Mr Cryer, makes reference to clause 5(16) of the EBA and claims that the union, and Mr Cryer, had not complied with the requirements of that clause. The union tendered a number of documents which would indicate that attempts had been made to address some of the issues raised and complained of by Mr Cryer.
[32] The complaints raised by Mr Cryer are wide ranging and in some respects are as a result of a difficult personal relationship with the CEO. However there is no doubt that a number of the issues are over the application of the EBA and in respect to the air fares issue, it is at least arguable, in respect to the provisions of the award.
[33] The dispute notification refers to a number of issues some of which may not be over the application of the EBA however the issue about the non payment of an increase provided in the EBA is certainly an issue over the application of the EBA [clauses 10(2)(a) and 10(c)], likewise the issue purportedly about performance assessment may also be about the application of the EBA [clause 5(11)] and his alleged removal from the role of superintendent of ground maintenance contracts may refer to the application of clause 5(10).
[34] The employer argues that the notification should not have been lodged pursuant to s.170LW of the Act, rather that clause 5(16) should have been followed and that direct negotiations and consultations with the employer should have been arranged in an attempt to resolve Mr Cryer's concerns. There were a number of documents tendered which indicate that there have been some discussions and/or negotiations in respect to the claim for the air fares allowance and the First Warning Letter to Mr Cryer records that Mr Cryer has responded to allegations made against him and also records some comments allegedly made by him to the CEO. Accordingly it would therefore seem that the requirement to attempt resolution by reference to clause 5(16) has been met.
[35] The EBA consists of a number of Objectives and Clause 5(16) addresses Objective 5 which states:
"To prescribe employment relationship procedures including those concerned with dispute settlement, termination, occupational health and safety, anti-discrimination, disciplinary and redundancy matters."
[36] Clause 5(16) then describes the Principles to apply in respect to Objective 5 and lists a number of Principles one of which states that the parties to the EBA agree that there be a procedure for settling grievances, complaints, claims or any other matter likely to result in a dispute. Other than the statement that the parties to the EBA agree that disputes be handled by those most closely involved and that work shall continue there is no process for resolution.
[37] The dispute settlement procedure is found at clause 24 and does provide a process to be followed and provides that:
"Notwithstanding all the above it is open to any party to have the
matter referred to the Australian Industrial Relations Commission
for resolution."
[38] I refer to the decision of Deputy President Hamilton, [Print PR938689] relied on by the employer in support of its argument that the Commission lacks jurisdiction, and note that His Honour referred to the decision of a Full Bench in SDA v Big W Discount Stores [Print PR924554] where it was said at paragraph 20:
"Section 170LW authorises agreed dispute resolution provisions that have been incorporated into a certified agreement to empower the Commission to exercise a power of private arbitration and make decisions as to the legal rights and liabilities of the parties to the agreement. In that sense the section authorises the Commission to `settle disputes over the application of [an] agreement' and its powers are limited to disputes of that kind. It is necessary for the Commission, where it is asked to deal with a matter arising under the dispute settling procedure in an agreement, to ascertain the character of the dispute that is before it in order to determine whether the matter is a dispute over the application of the agreement.
Although the referral of a dispute over the application of the agreement is narrower than the referral considered in Heyman v. Darwins, what comprises a dispute over the application of the agreement should not be narrowly construed; to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement."
[39] It would seem, despite the imprecise wording of the notification, that the dispute relates to entitlements Mr Cryer claims under the EBA and to a disagreement as to procedural matters proposed in the EBA.
[40] The EBA provides the following objectives:
· customer focus; [objective 1]
· continual improvement of service delivery; [objective 2]
· principles to address change in the workplace; [objective 3]
· to strive in containing costs; [objective 4] and
· prescribe employment relationship procedures re dispute settlement, termination, occupational health and safety, anti-discrimination, disciplinary and redundancy matters [objective 5].
[41] Neither party provided any submissions which would indicate whether the prescribed objectives have been achieved or that appropriate procedures have been implemented in respect to those objectives.
[42] I reject the claim by the employer that the Commission lacks jurisdiction to deal with the notification filed by the union. A number of the issues in dispute are grievances (the Dispute Settlement Procedure refers to grievances about matters affecting the employee/s) and are about matters related to the application of provisions found in the EBA. The issues which appear to relate to the personality conflict between Mr Cryer and the CEO are possibly not matters pertaining to the application of the agreement. However those matters require further explanation and examination but, subject to that examination and explanation, they may relate to the application of clause 5(5)(a).
[43] The application will be listed in due course for conciliation or arbitration, if required.
BY THE COMMISSION:
DEPUTY PRESIDENT
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