[2010] FWA 4824

[2010] FWA 4824

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Independent Education Union of Australia
v
Mowbray College
(C2010/3801)

COMMISSIONER GOOLEY

MELBOURNE, 6 JULY 2010

Alleged dispute concerning failure to properly consult over major changes and redundancies.

[1] The Independent Education Union of Australia (IEU) notified a dispute to Fair Work Australia between it and Mowbray College (Mowbray) pursuant to the dispute resolution clause of the Mowbray College Agreement 2009 (the 2009 Agreement). 1

[2] The matter was listed for conciliation on 28 May 2010 and then for hearing on 10 June 2010.

[3] Mr Matson appeared for the IEU and Mr Mazzotta appeared for Mowbray.

[4] Mr Toohey an organiser with the Victorian Branch of the IEU with responsibility for members at Mowbray and Ms Pintarich, a Mowbray employee in the canteen, gave evidence for the IEU. Mr Toohey and Ms Pintarich were not cross examined by Mr Mazzotta. Ms Ball, the Human Resources Director and Ms Bradshaw, Director of Business and Finance gave evidence on behalf of Mowbray and were cross examined by Mr Matson. A written statement of Ms Peach, a Mowbray employee in the canteen, was tendered without objection by Mr Mazzotta except to state that it appeared the statement had been prepared by the union. 2

The background to the dispute

[5] The dispute as notified to Fair Work Australia concerned “the failure of the employer to properly consult over major change and proposed redundancies.” 3

[6] Mowbray is a multi-campus, independent co-educational college catering to students from pre-school to Year 12 at three Melbourne campuses in Melton and Caroline Springs. 4

[7] Mowbray is undertaking a significant restructuring of its operations and it appears that significant change had been under consideration throughout 2009. Ms Ball gave evidence that prior to her commencement with Mowbray in 2009 the Board had discussions with the leadership team about a proposed restructure as did the acting Principal. Further there was an announcement at an end of year function that there would be changes. On 19 March 2010 Ms Goddard the Principal foreshadowed to all staff that there would be changes and advised that she would meet with them in term 2. 5

[8] As a result of that announcement Mr Toohey wrote to Ms Goddard on 25 March 2010 and advised that he expected to be briefed on the content of the college plans. 6

[9] Term 2 commenced on 12 April 2010. Ms Goddard met with all staff in the week beginning 12 April 2010 and advised of a proposed restructure which was referred to as Phase 1 – March – July 2010. 7 Ms Goddard advised employees of the new college leadership structure and advised of the implementation of the decision namely the identification of the new positions and the recruitment process. She advised there had been consultation in March with the leadership team and that consultation with staff would occur in April as would the redundancy and recruitment process.

[10] The restructure involved five positions being declared redundant and thirteen new positions being created. Of the five positions to be declared redundant one was vacant.

[11] On 14 April 2010 Ms Goddard and Ms Ball met with Mr Matson and Mr Toohey. At that meeting Mr Matson and Mr Toohey were shown the same power point presentation provided to staff. At that meeting Ms Goddard and Ms Ball advised Mr Matson and Mr Toohey that they had consulted with the four staff who occupied the positions that were to be made redundant and asked Mr Matson and Mr Toohey who they represented. Mr Toohey advised that they had a written appointment from one staff member but did not disclose the person’s identity to Ms Goddard and Ms Ball. Ms Goddard and Ms Ball advised that they would not discuss the matter further until the IEU advised who it was representing. 8

[12] On 17 April 2010, thirteen new positions were advertised.

[13] On 23 April 2010 Mr Toohey wrote to Ms Goddard and advised that it represented three of the four members whose positions had been declared redundant. He also advised that other members were concerned that some of the tasks performed by them were going to be allocated to the new positions and that the new job descriptions covered jobs already done by them. Mr Toohey requested that Mowbray provide “in writing the reasons for any proposed redundancies, the number and categories of employees likely to be affected, and the period over which any redundancies are intended to be undertaken. It is not sufficient for you to say that these decisions will be taken by others if and when they are appointed to the College, when clearly the jobs of staff members currently employed by the College are potentially being placed at risk.” 9

[14] In her response on 7 May 2010 Ms Goddard advised, in reference to the meeting on 14 April, that “At this meeting, you were unable to confirm the identity of any employees who had requested you to act as representative on their behalf. On this basis we reiterated our obligations required us to provide the details to our employees directly which we have now done.”

[15] In response to the issue about the job descriptions covering jobs already done by existing employees, Ms Goddard denied that this was the case but advised that they had spoken to individual employees about this and “if you have other members who require clarification on this matter please advise us and we will provide clarity to them.”

[16] She further explained that “any affect on employees, other than those we have notified, does fall outside Stage 1 of the restructure. On this basis we are unable to comment further at this stage and this was explained to you at length during our meeting. We acknowledge your notice that you are acting as representative for three of the four members recently declared redundant by the College and your request for relevant information. Firstly we highlight that no employees have been declared redundant. As discussed with you at our meeting, we have identified a number of positions which have been identified as redundant. The incumbents of these positions have been notified in accordance with our obligations. Secondly we are happy to meet any further obligations in providing this information directly to you on the basis that the abovementioned employees advise us of the identity of their representative.” 10 In relation to the request for further information Ms Goddard advised that she was not in a position to comment on any part of the restructure outside of Stage 1.

[17] On 12 May 2010 Mr Toohey advised Mowbray of the names of three employees represented by him and sought information.

[18] On 26 May 2010 Ms Goddard did not provide the information requested by Mr Toohey and advised that “we are happy to meet any further obligations in providing the information directly to you on that basis that the abovementioned employees advise us of the identity of their representatives.” 11

[19] In accordance with the dispute resolution procedure the matter was initially dealt with by conciliation on 28 May 2010.

[20] On 3 June 2010 Mr Toohey went to the Melton Campus as a result of a request by members employed in the canteen who had been asked to attend a meeting called by the employer. The employees advised Mr Toohey that they expected to be advised that their jobs would be contracted out. 12 Ms Ball, who attended the meeting along with Ms Bradshaw, asked the employees to meet with them at first instance without Mr Toohey. 13 Ms Ball was aware that Mr Toohey was there to attend the meeting.14 Ms Ball did not want Mr Toohey in attendance at the meeting because she had not had the opportunity to ask employees if they wanted a representative.15 Ms Ball acknowledged that she proceeded with the meeting even after the employees advised her that they wanted representation.16 Ms Ball in answer to Mr Matson’s question about the purpose of the meeting said it “was to initiate discussions in regard to changes with the canteen staff.”17 Ms Ball in re-examination characterised the meeting as the initial advice to employees that Mowbray was entering a consultative period.18 Ms Bradshaw advised the meeting that one of the proposals being considered by Mowbray was the college canteen may be outsourced and employees could lose their current positions.19

[21] On 3 June 2010 the IEU advised Fair Work Australia that the dispute had again arisen due to the failure of Mowbray to allow the IEU, who had been appointed to represent catering staff, to attend a meeting called to advise the catering staff that major change was proposed for the canteen. 20

[22] On 4 June 2010 Mowbray sent the canteen employees a letter 21 in which they advised that there was a need to introduce some significant change and inviting employees to put forward any proposals. Despite the employees advising Ms Ball on 3 June 2010, that they wished to be represented by Mr Toohey, the letter asked them “to confirm if you wish your representative to be present during the consultative phase.” On 7 June 2010 Ms Goddard wrote to Mr Toohey inviting him arrange a time to discuss the details of the changes and the impact on his members.

[23] At the hearing the IEU identified the following issues in dispute 22 between the parties:

1. Whether there is a distinction between a decision to introduce major change and decisions which are actually the implementation of changes which constitute “significant effects” as defined by the agreement.

2. The time at which a decision is made to introduce major change which crystallises the obligation to consult.

3. Whether the appointment of a representative under clause 61 (or 28 for that matter) requires the provision to the employer of a written nomination.

4. Whether the advice of the appointment of a representative can be made by the representative or whether the employer is entitled to ignore such advice.

5. What constitutes consultation.

6. Who are the relevant employees.

7. Whether the employer is entitled to refuse to consult with a group of employees and insist on individual consultation which each relevant employee (especially when the employees have nominated VIEU as their representative.

8. The status of the Town Centre Campus Canteen Staff.

The industrial instrument

[24] The 2009 Agreement at clause 61 provides as follows:

“61 EMPLOYEE CONSULTATION

61.1 This term applies if:

(a) the employer has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise; and

(b) the change is likely to have a significant effect on employees of the enterprise.

61.2 The employer must notify the relevant employees of the decision to introduce the major change.

61.3 The relevant employees may appoint a representative for the purposes of the procedures in this term.

61.4 If:

(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b) the employee or employees advise the employer of the identity of the representative;

the employer must recognise the representative.

61.5 As soon as practicable after making its decision, the employer must:

(a) discuss with the relevant employees:

(i) the introduction of the change; and

(ii) the effect the change is likely to have on the employees; and

(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and

(b) for the purposes of the discussion – provide, in writing, to the relevant employees:

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

(ii) information about the expected effects of the change on the employees; and

(iii) any other matters likely to affect the employees.

61.6 However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

61.7 The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

61.8 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 (2), (3) and (5) are taken not to apply.

61.9 In this term, a major change is likely to have a significant effect on employees if it results in:

(a) the termination of the employment of employees; or

(b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or

(d) the alteration of hours of work; or

(e) the need to retrain employees; or

(f) the need to relocate employees or another work place; or

(g) the restructuring of jobs.

61.10 In this term, relevant employees means the employees who may be affected by the major change.”

[25] Clause 28 of the 2009 Agreement relevantly provides a follows:

“28.1 Redundancy disputes

28.1.1 Where a redundancy dispute arises, and if it has not already done so, an Employer must provide the affected Employee(s) and the Employee’s representative (if requested by any affected Employee) in good time, with relevant information:

28.1.1 (a) the reasons for any proposed redundancy;

(b) the number and categories of Employees likely to be affected;

28.1.2 Where a redundancy dispute arises and discussions occur in accordance with this clause, the Employer will, as early as possible, consult on measures taken to avert or minimise any proposed redundancies and measures to mitigate the adverse affects of any proposed redundancies on the Employees concerned.”

[26] It is clear that clause 61 of the 2009 Agreement provides that the obligation to consult arises when “the employer had made a definite decision to introduce major change.” Clearly that decision is different to the decision about how to implement the change. For example an employer may decide to reorganise the management structure of the enterprise and have a number of options under consideration. It is when the decision to reorganise is taken, provided that decision is likely to have a significant effect on employees, that triggers the obligations under the consultation clause not when the decision about which particular option to adopt is made.

[27] It is possible of course that the decision to introduce major change coincides with and overlaps the decisions which are the implementation of the changes.

[28] In this matter Mowbray had determined some time in 2009 that it needed to make significant changes at the college. The evidence shows that discussion about this occurred with the leadership team in 2009.

[29] The 2009 Agreement was approved on 3 February 2010 and operated from 10 February 2010 and from that date the obligations arising under the 2009 Agreement commenced.

[30] It is not clear, given the lack of evidence about what occurred in 2009 if such consultation occurred or if the matters under discussion in 2009 were within the scope of the consultation obligations under the predecessor agreement. No submissions were put about that and therefore it is not necessary for the Tribunal to make any decision about the obligations under the predecessor agreement.

[31] While it is clear that a decision was made to restructure the leadership team it is not clear from the evidence when that decision was actually made. The evidence establishes that an announcement to staff that there would be some changes was made by the acting principal at the end of year function in 2009 23 and Ms Goddard made a general announcement to staff about some changes at the end of Term 1, 2010. At the start of Term 2 a more detailed presentation was given by Ms Goddard and Ms Ball to all staff and the new positions were advertised on 17 April 2010. Employees in the leadership team were notified that their positions were redundant some time between 14 April and 23 April 2010.24

[32] On the basis of this evidence, a definite decision to make a major change to the leadership team was made in Term 1. At that time the obligations under the 2009 Agreement to consult arose.

[33] The IEU complain that Mowbray’s contention, that the “definite decision” referred to in clause 61 of the 2009 Agreement was the announcement that five positions were redundant and twelve new positions were created, “conflate the notions of a decision to introduce major change which [the IUE] says was taken in late 2009 and decisions as to detail, firm views at least as to detail about what significant effects are going to be implemented.” 25

[34] There would be substance to the IEU complaint if the 2009 Agreement had applied at the time the initial decision was made in 2009. Clearly had that been the situation Mowbray would have been obliged to consult with the relevant employees at the time it made its original decision to implement major change. However this is a dispute about the 2009 Agreement and not about the predecessor agreement.

[35] Therefore I am left to determine if, having made a decision to make five positions redundant and create twelve new positions, there was an obligation on Mowbray to consult. From their own documents Mowbray acknowledge that it advised its leadership team prior to notifying all staff. Further its own timeline contemplated consultation with the leadership team prior to consultation more generally. Given my latter decision about who were the relevant employees I determine that once the decision had been made to restructure the leadership team Mowbray was obliged under clause 61 to comply with the obligations set out in that clause and advise and consult with all staff.

Did Mowbray comply with those obligations in relation to the restructure of the leadership team?

[36] It is clear from the evidence that Mowbray did not advise all relevant employees of the decision as soon as possible after making its decision.

[37] No evidence was called about what happened at the meeting in the first week of Term 2 so it is not possible to assess whether all relevant information about the changes was then provided.

[38] It is clear that Mowbray responded to some individual employee’s questions about what was occurring but due to the dispute over the IEU’s representational role little or no direct discussion occurred between the IEU and Mowbray.

[39] It is clear from paragraphs 17 to 18 that from 12 May 2010 Mowbray did not comply with its obligations to recognise the representative of the employees and did not comply with its obligations to provide information to the representative.

Did Mowbray comply with its obligations to consult about the canteen?

[40] Mr Mazzotta advised that the decision about the canteen had been taken on 31 May 2010 and employees employed in the canteen were advised of that decision on 3 June 2010. Therefore, the canteen employees were advised as soon as the decision had been made.

[41] After the dispute over Mr Toohey’s attendance at the meeting to advise the employees of the decision, and despite the letter of 4 June 2010, on 7 June 2010 Mowbray agreed to meet with Mr Toohey, given that the canteen employees had indicated a wish to appoint a representative for the purposes of consultation and had identified Mr Toohey as their representative.

2. The time at which a decision is made to introduce major change which crystallises the obligation to consult.

[42] The 2009 Agreement sets out the employer’s obligations if a definite decision has been made to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise. The employer must:

1) notify relevant employees of the decision;

2) if appointed, recognise the representative of employees;

3) provide relevant information in writing to employees about the change and information about the expected effects of the change on employees and any other matters likely to affect the employees (subject to the restriction in 61.6);

4) discuss the change and the effect on employees and measures the employer is taking to avert or mitigate the adverse effect of the change on the employees;

5) give prompt and genuine consideration to matters raised about the major change by the relevant employees.

[43] As discussed above in answer to question 1 Mowbray did not comply with its obligations to advise the relevant employees as soon as practicable after making its decision to restructure the leadership team and it also failed to recognise the employee’s representative and as a consequence did not comply with its obligations under clause 61.

[44] Clearly in respect of the canteen the obligation to consult arose at the time Mowbray decided that efficiencies could be achieved in the College Canteen and one option was the outsourcing of the College Canteen. At that time the obligation to consult crystallised and the evidence shows that having made that decision, Mowbray advised the employees employed in the canteen. By the time of the hearing was conducted, Mowbray indicated it would recognise the representatives.

3. Whether the appointment of a representative under clause 61 (or 28 for that matter) requires the provision to the employer of a written nomination.

[45] Ms Ball’s evidence was that Mowbray required employees tell them directly of the identity of their representative in writing. 26 Mr Mazzotta conceded in final submissions that the notification could be given verbally.27

[46] There is no requirement in the 2009 Agreement that the appointment of a representative under clause 61 or 28 of the 2009 Agreement be in writing. It is not appropriate for the employer to refuse to consult with an employee’s representative until the appointment of the representative is confirmed in writing. It is not a requirement of the 2009 Agreement and there is no reason to imply such a provision.

[47] By 12 May 2010 Mowbray was aware that Mr Toohey represented employees affected by the restructure of the leadership team. It is clear that at 26 May 2010 Mowbray was refusing to recognise Mr Toohey as a representative. In refusing to so do Mowbray failed to comply with its obligations under the 2009 Agreement to recognise the representative.

[48] Mowbray was well aware on 3 June 2010 that Mr Toohey was the employee’s representative yet Mowbray refused to permit Mr Toohey to attend the meeting called to advise employees of the decision and to commence the consultation process. The 2009 Agreement permits employees to appoint a representative for the purposes of the procedures and that includes attending a meeting called to notify the relevant employees of the decision to introduce major change. In refusing to do so Mowbray failed to comply with its obligations under the 2009 Agreement to recognise the representative.

4. Whether the advice of the appointment of a representative can be made by the representative or whether the employer is entitled to ignore such advice.

[49] The 2009 Agreement provides that the employee must advise the employer of the identity of the representative and if that occurs, the employer must recognise the representative. As the employee or employees are entitled to appoint a representative for the purposes of the procedures in clause 61 of the 2009 Agreement this would include authorising the representative to advise the employer of the appointment. In this case at the meeting on 23 April 2010 the IEU held an appointment as a representative but did not inform Mowbray who they represented. As acknowledged by Mr Matson the employer is entitled to know who the IEU is representing and while that information can be conveyed by the representative it must still be conveyed. 28

[50] Once the employees generally were advised of the decision to restructure the leadership team, the evidence established that neither the employees nor their representative notified Mowbray of their decision to appoint a representative until 12 May 2010.

[51] In the 2009 Agreement the IEU is not the default representative for its members. It is of course possible for the IEU to advise the employer that it has been appointed by particular members on an ongoing basis for all purposes under the 2009 Agreement if their members have so appointed them. In those circumstances the employer would have advance knowledge of the need to recognise their representative role throughout the process.

[52] However until such time as the employee or their representative advises the employer of the identity of the representative no obligation is imposed on the employer to recognise the representative.

[53] Once the employer is provided with this information, it will fail to comply with its obligations under the 2009 Agreement if it fails to recognise the representative.

[54] Mr Matson further submits that in circumstances such as this, once a representative has been appointed by one member of the class of employees that are the relevant employees then the employer is obliged to consult about the decision and not simply about how the decision affects that particular employee. 29 This submission was rejected by Mr Mazzotta.30

[55] It is clear from clause 61 that once an employee appoints a representative the employer must recognise the representative. In this case Mowbray had an obligation to discuss the introduction of the change, and that discussion is not limited to the effect the change may have on the particular individual employee who has appointed a representative. Further the employee or their representative is entitled to all relevant information about the proposed change and about the expected effects of the change on employees and that is not limited to information about how the particular individual employee might be affected. Further the employee and their representative are entitled to have any proposal put forward by them given prompt and genuine consideration.

[56] Clearly, and this is accepted by the IEU, if there are particular issues about particular individuals then the IEU would need to be appointed that individual’s representative before their particular circumstances could be discussed.

5. What constitutes consultation?

[57] Logan J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited provided a detail summary of the meaning to give to consultation. 31 I have adopted that reasoning in this decision.

[58] In that decision Logan J referred to the much cited statement of Commissioner Smith. “Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker.” 32

[59] While the IEU complained of lack of consultation in 2009 it is clear that the obligations under the predecessor agreement are not those under consideration in this dispute. No dispute over the predecessor agreement has been notified to the Tribunal. Hence it is only necessary to consider whether Mowbray have complied with its obligation to consult under the 2009 Agreement. I need only have regard to conduct after 10 February 2010.

[60] Mowbray notified employees of the decision to restructure the leadership team in the first week of Term 2. At that time they provided a PowerPoint presentation about the changes and outlined a process of consultation. Consultation with the leadership team was to occur in March and with staff, parents and the VIEU in April. The redundancy process and recruitment were also to commence in April.

[61] It is clear from the evidence that the primary focus of the consultation was with the leadership team and that this occurred prior to consultation with the rest of the staff. It is not clear from the evidence what consultation occurred with the leadership team but it does not appear from the evidence that when that consultation was occurring that any of the leadership team sought to be represented by the IEU.

[62] It is clear that by the time Mowbray made its announcement to all staff that the leadership team was to be restructured it was in the process of implementing the decision. After being advised that their positions may be made redundant the canteen staff were given one week to consult with their employer. These timelines raise serious questions about whether any proposed consultation would provide employees with a bona fide opportunity to influence the decision maker.

6. Who are the relevant employees?

[63] It is not possible in the abstract to define who are the relevant employees.

[64] Ms Ball in her evidence took the view that the relevant employees were “the employees who hold positions which were declared redundant” and no other employees. 33 In his final submissions Mr Mazzotta accepted that the relevant employees in respect of the Stage 1 restructure were not just the employees whose positions were made redundant but employees who might otherwise be impacted by that change.34

[65] However until that concession was made at the hearing of this matter, and as late as 26 May 2010, Mowbray took the view that the “affected employees at this point of the restructure [are] those employees who currently hold positions which have been declared redundant.” 35

[66] In Ulan Coal Mines Limited v Henry Jon Howarth and others 36 in discussing obligations to consult about redundancy held that “the discussions as such will be of relevance to the entire workforce of an enterprise or at least to that part of the workforce whose work or jobs will be affected by the terminations due to redundancy.”

[67] For the same reasons as outlined in Ulan Coal where an employer plans to restructure its leadership team and create an entirely different reporting structure all employees’ work or jobs may be affected by the decision and the obligation to consult is with all employees. At Mowbray this meant the relevant employees in relation to the restructure were all employees.

[68] However when the decision was taken about the canteen, it may be that a more limited number of employees may be affected. For example, it may be that the employees who may be affected are the employees who worked in the canteen. However it may be that more employees are affected. For example if the range of proposals being considered included shutting the canteen then more employees may be affected by the decision because, for example, teachers may have increased supervision duties due to students leaving the school to purchase food at neighbouring shops.

[69] The answer to this question can be found in the 2009 Agreement, the relevant employees are those who may be affected by the major change and this is not limited to those who are immediately or directly affected.

[70] The IEU’s complaint is that Mowbray, after receiving advice about who the IEU represented, only intended having consultation about that individual. 37 Mr Mazzotta on behalf of Mowbray indicated that “where you are talking about a major restructure, that involves consulting with all staff. Now, whether you do that in sub-groups or as a whole staff or, alternatively there may be particular employees who may want to meet individually, that really depends on the factual circumstances.”38 I agree with Mr Mazzotta on this point but it is also clear that the consultation is about the decision, its impact and alternatives. It is not limited to how the decision may impact a particular individual.

Interim Orders

[71] At the conclusion of the hearing on 10 June 2010 I made the following orders on an interim basis:

1) The employer will meet with the IEU next week for the purpose of consultation about the proposed major change in the college canteen.

2) The employer will provide the IEU with all relevant information excluding confidential or commercially sensitive information about the change prior to the meeting.

3) That no final decision in respect of the proposed major change in the college canteen be made until the Tribunal hands down a decision in this matter.

4) Liberty to apply.

Final Orders

[72] The IEU sought the following orders:

“DRAFT DETERMINATION

Having heard the parties in this matter, the Tribunal issues this determination in part settlement of the dispute notified by the IEUA pursuant to the Mowbray College Agreement 2009.

1. PARTIES BOUND

This determination is binding upon:

• The Independent Education Union of Australia (IEUA); and

• Mowbray College.

2. NOTICES TO BE WITHDRAWN

The employer shall, by 5pm today (10 June 2010) give written notice to the VIEU, as representative of the two canteen staff employed at the Town Centre campus, that the letters issues to them on or about 7 June 210 notifying them of their impending redundancy are withdrawn.

3. EMPLOYER TO PROVIDE NOTICE

To ensure compliance with the terms of the Mowbray College Agreement 2009, the employer shall cease and desist from making any further announcement, notice or other communication to employees as to actual or likely termination of employment, redundancy, alteration of hours of work, restructuring of jobs, or other significant effects as defined by clause 61.9 of the Agreement, unless and until:

3.1 Each employee who may be affected (directly or indirectly) has been notified by the Employer pursuant to clause 61.2 that a decision has been made to introduce major change;

3.2 Each employee notified under 3.1 above has been notified by the Employer that they are entitled to appoint a representative pursuant to clause 61;

3.3 The employees so notified are given five working days to appoint a representative should they wish to do so; and

3.4 Discussions have been held, information provided and consideration given in accordance with clause 61 of the Agreement.

4. EMPLOYER TO COMPLY WITH TERMS AS TO REPRESENTATION

4.1 Upon receiving advice from an employee or a number of employees or their representative of the appointment of a representative, the Employer shall ensure that the representative is notified of, and given every reasonable opportunity to attend and participate in any and all discussions with the employees who may be affected which relates to the major change.

4.2 Upon reasonable request, the Employer will meet and confer with a group of employees and/or their representative in relation to matters relating to the major change which may affect the employees collectively.

5. DATE AND PERIOD OF OPERATION

This determination will come into effect on 10 June 2010 and remain in effect until 1 February 2011, or further determination of Fair Work Australia.”

[73] The 2009 Agreement dispute resolution procedure at clause 8 provides as follows:

“DISPUTE RESOLUTION PROCEDURE

8.1 If a dispute relates to:

(a) a matter arising under the agreement; or

(b) the National Employment Standards;

this term sets out procedures to settle the dispute.

8.2 An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.

8.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.

8.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Australia.

8.5 Fair Work Australia may deal with the dispute in 2 stages:

(a) Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) if Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties.

8.6 While the parties are trying to resolve the dispute using the procedures in this term:

(a) an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

(b) an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:

(i) the work is not safe; or

(ii) applicable occupational health and safety legislation would not permit the work to be performed; or

(iii) the work is not appropriate for the employee to perform; or

(iv) there are other reasonable grounds for the employee to refuse to comply with the direction.

8.7 The parties to the dispute agree to be bound by a decision made by Fair Work Australia in accordance with this term.”

[74] Section 739 of the FWA provides as follows:

“739 Disputes dealt with by FWA

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

(2) FWA 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 FWA dealing with the matter; or

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

Note: This does not prevent FWA 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, FWA must not exercise any powers limited by the term.

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

Note: FWA 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), FWA must not make a decision that is inconsistent with this Act or a fair work instrument that applies to the parties.

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

[75] As such the limitations on the scope of orders that Fair Work Australia can make are set out in section 739(5) and the 2009 Agreement.

[76] Fundamentally the dispute between the parties arose because Mowbray failed to recognise Mr Toohey as the employees’ representative for the purposes of clause 61 and possibly clause 28 of the 2009 Agreement. Further the dispute arose because Mowbray, up until the hearing of the matter, considered the relevant employees for the purpose of consultation were the employees whose positions were declared redundant. Further the dispute arose because Mowbray adopted a view that once an individual employee appointed Mr Toohey as a representative, then the consultation with Mr Toohey was limited to that individual.

[77] I have found that these decisions caused Mowbray to fail to comply with its obligations under the 2009 Agreement.

[78] I do not propose to make the orders proposed by the IEU as the determination would impose additional obligations on the employer that are not provided for in the 2009 Agreement.

[79] I do however consider it is appropriate, given my findings set out above, to make the following determinations:

1. Pursuant to clause 61 and 28 of the 2009 Agreement upon the employer being advised by either an employee or employees (or by the employee’s/ employees’ representative) of the identity of his/her/their representative the employer is obliged to recognise the representative. The employee or employees or his/her/their representative is not required to provide this advice in writing. Should the employee/employees’ representative advise the employer, the representative is obliged to identify who he or she represents.

2. The relevant employees for the purpose of consultation under clause 61 are those employees who may be affected by major change and this is not limited to those employees who are directly or immediately affected.

3. The employer is obliged to consult about the decision, the effects of the change and measures to avert or mitigate the effects on employees and provide relevant information subject to the limitations in clause 61.6 of the 2009 Agreement and such consultation is not limited to the effects on individual employees.

4. This determination will come into effect on 6 July 2010 and remain in effect until further determination of Fair Work Australia.

[80] Since the adjournment of this matter a further dispute has arisen between the parties about the information requested by the IEU about the major changes proposed for the canteen. The IEU has asked that this matter be re-listed to deal with this dispute and it will be listed initially for conciliation and if the matter cannot be resolved, for hearing.

[81] Finally, I was asked to make orders that the employees who attended the hearing be paid for their time at the hearing. This matter was not canvassed in any detail during the hearing and there were conflicting submissions from the bar table about whether the employees sought and were granted leave to attend the hearing. I am therefore not prepared to make any orders in relation to payment.

COMMISSIONER

Appearances:

D Matson for the Independent Education Union of Australia

S Mazzotta for Mowbray College

Hearing details:

2010

Melbourne:

June 10.

1 [2010] FWAA 805 clause 9

2 Transcript PN 79

3 Dispute notification by IEU

4 www.mowbray.vic.edu.au

5 Transcript PN 426

6 Exhibit VIEU 3 Attachment 1

7 Exhibit VIEU 3 Attachment 2

8 Ibid at [7]

9 Exhibit VIEU3 at Attachment 4

10 Ibid at Attachment 5

11 Ibid Attachment 7

12 Ibid at [19]

13 Transcript PN 163 and PN183

14 Transcript PN 175

15 Transcript PN 184

16 Transcript PN 185 and 206

17 Transcript PN 219

18 Transcript PN 421

19 Transcript PN 434

20 Exhibit VIEU 3 at [21]

21 Exhibit VIEU 6

22 Exhibit VIEU 2

23 Transcript PN 426

24 Exhibit VIEU3

25 Transcript PN 525

26 Transcript PN 405-407

27 Transcript PN 705

28 Transcript PN563

29 Ibid

30 Transcript PN 693

31 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 at [40]-[45]

32 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd [PR911257] at [25]

33 Transcript PN 375-376

34 Transcript PN 677

35 Exhibit VIEU 3 at Attachment 7

36 [2010] FWAFB 3488 at [28]

37 Transcript PN 591-595

38 Transcript PN 738

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