AG2011/429, Transcript of Proceedings [2011] FWATrans 386 (18 April 2011)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 45558-1

COMMISSIONER CAMBRIDGE

AG2011/429

s.185 - Application for approval of a single-enterprise agreement

CareFusion Australia 200 Pty Ltd
and
National Union of Workers
(AG2011/429)





Sydney

10.12AM THURSDAY, 7 APRIL 2011

PN1

THE COMMISSIONER: Yes; on record, thanks. Can I have the appearances in the matter, please?

PN2

MR J. STANTON: May it please. Stanton, initial J., solicitor, appearing with permission of Fair Work Australia in the matter for the applicant, with Mr Maggio, initial F.

PN3

THE COMMISSIONER: Thank you. The matter is listed today for hearing. The purpose of the proceeding is to advise of some issues that have arisen in respect of the application. I’d like to identify the issues and then leave those matters with the employer for consideration and possible rectification by way of undertakings. I’d have to say I don’t think these are matters that are unlikely to disturb the ultimate approval of the document but they’re issues that I think just might need to be thought about and perhaps subsequently addressed.

PN4

MR STANTON: Yes.

PN5

THE COMMISSIONER: Could I just take you straight to these matters? I don’t think there are any process issues that I could identify. These are just questions in relation to the content of the actual document that just gave rise to some concern. I think that in terms of the time frame with the notice of representational rights and all of those other difficult time line questions - I think they’re all resolved here. I don’t anticipate any problem in that regard.

PN6

MR STANTON: May it please.

PN7

THE COMMISSIONER: The matter that arises is in relation to clause 4 of the agreement and in particular here, the operation of section 53 of the Act. Normally a coverage clause or a parties bound provision would bind the employer and this one doesn’t seem to. It covers the employees and it’s picked up the union, the National Union of Workers, New South Wales branch, but, perhaps just an omission, it doesn’t actually cover or bind the employer, which is an unusual provision.

PN8

When you look at section 53 of the Act, enterprise agreements cover those parties that they say they cover. I wonder if that isn’t just an oversight, frankly, that the employer is not named in there.

PN9

MR STANTON: If it pleases. I see what you’ve drawn our attention to, Commissioner. I note at clause 5 - it just occurs to me at clause 5 - I don’t know whether this will address the concerns adequately. I don’t know but we’ll certainly do what’s necessary. I see at clause 5, the second paragraph reads:

PN10

This agreement represents a full and final settlement of all terms and conditions between the company -

PN11

which of course is defined earlier -

PN12

the employee and the union covered by this agreement.

PN13

It’s just the first sentence of that - - -

PN14

THE COMMISSIONER: That’s talking about the scope of the agreement.

PN15

MR STANTON: Yes, it is, yes. I don’t put it any higher than that of course.

PN16

THE COMMISSIONER: This would be rectified with a very simple undertaking, I would have thought.

PN17

MR STANTON: Yes.

PN18

THE COMMISSIONER: I don’t think it was ever anyone’s intention not to be bound or covered by this.

PN19

MR STANTON: No.

PN20

THE COMMISSIONER: It just didn’t get in the words, so to speak.

PN21

MR STANTON: Yes. Thank you.

PN22

THE COMMISSIONER: As I say, these aren’t things that I would have thought caused great trouble but they need to be addressed, I think, if this is going to be dealt with. The next issue relates to clause 18 and it also emerges in respect of another clause further on, clause 36. This is something that I think might require some thought, and I don’t expect any immediate response to any of these things, as I said earlier.

PN23

Clause 18 talks about the deduction of moneys from an employee’s - amounts essentially paid in terms of wages to employees. Now, section 324 and, I think, 326 of the act - and there’s a regulation as well that is made - deal with just what you can and can’t do in respect of deduction of wages. It might be worth examining those provisions in the Act, and this also applies to clause 36 where in 36(b) it’s talking about the company being entitled to deduct unspecified amounts in respect of things on - I think this is in terms of termination of employment.

PN24

Now, there are a variety of clauses of this nature in enterprise agreements but I think that in broad terms, they need to reference the relevant provisions of the Act so that it’s clear that you’re not endeavouring to do something that isn’t contemplated by the relevant provisions of 324, 326 and the regulations made under those sections.

PN25

MR STANTON: Yes.

PN26

THE COMMISSIONER: There are some things that, you know, you can’t convert or you can’t deduct certain amounts and so forth that are mentioned there in the regulations.

PN27

MR STANTON: Yes.

PN28

THE COMMISSIONER: It might just be that something to the effect that the provisions of either those clauses - there’s no intention in any way to provide for a deduction contrary to the relevant terms of the Act that I’ve mentioned.

PN29

MR STANTON: Yes.

PN30

THE COMMISSIONER: Clause 28.5. I just wanted to clarify here, and it might be something that needs to be discussed with the union that’s been involved in this as well. Clause 28.5 - these amounts are fixed for the life of the agreement? I note that there’s some - I think three by three is the way to describe the wage increases that are contained somewhere I saw, clause 14 I think - three per cent increases.

PN31

It might be of little moment or concern to anyone but I just wanted to clarify that it was the position that those rates for travel there were fixed for the life of the agreement. If that’s the case and that clarification is made, then fine, but that’s something that might need to be clarified and the union might need to be advised of that.

PN32

MR STANTON: Yes. May it please. We’ll do that.

PN33

THE COMMISSIONER: The only other issue that gives rise to some concern here is the provisions of clause 40.4. Now, a lot of these enterprise agreements try to rewrite the law, frankly, in respect of the notion of summary termination of employment. It would just be contrary to such an enormous body of employment law if you said you could summarily dismiss someone without any notice because they were unable to fulfil the inherent requirements of the job, or, you know, that there was a poor work performance or something.

PN34

MR STANTON: I see. Yes.

PN35

THE COMMISSIONER: Now, what’s happening here is for some reason or another, I think - it can get people into trouble if they think that they can summarily dismiss someone for poor work performance. Summary dismissal has its own particular notions that have to exist before you can invoke summary dismissal as opposed to dismissal with notice.

PN36

MR STANTON: Yes.

PN37

THE COMMISSIONER: I know when I’ve raised this in other instances, parties have said, “But look, obviously an unfair dismissal case - and the employment law will stand and override these terms,” and so forth, but my concern is that these sorts of provisions are misguiding people that look at these documents and that can create an unfair dismissal where there shouldn’t have been one on the simple basis that it might have been justified if there was notice given but not without notice, so to speak.

PN38

MR STANTON: Yes.

PN39

THE COMMISSIONER: I’d urge the parties, and the employer in particular, to look at that clause and give some serious thought to really whether you want to put something as an alternative to the basis for summary - now, there’s no difficulty in that an employer reserves and preserves the right to summarily dismiss employees in certain instances, but those instances are really confined to acts of gross and wilful misconduct which the employer has reasonable basis for belief.

PN40

MR STANTON: Yes.

PN41

THE COMMISSIONER: It’s no more elaborate than that, frankly.

PN42

MR STANTON: Yes.

PN43

THE COMMISSIONER: If you start particularising these things, sometimes - and this is what my experience has been - an individual manager or someone grabs this and says, “I can sack you because of this and you’re sacked now,” and we’ve got a problem on our hands we shouldn’t have had, and it’s because simply there was a misdirection from the industrial instrument.

PN44

MR STANTON: Yes.

PN45

THE COMMISSIONER: I think a little bit of thought, consideration, maybe even discussion with the union, about this clause - as I say, there’s a clear right for an employer to preserve that capacity but it really is, when you look at it, confined to those sort of circumstances of cases of gross and wilful misconduct, and that extends to particular things like, for instance, the deliberate falsification of a time sheet; you know, something like that, but if you start getting into the realm of trying to particularise these things, I think you can probably be creating more problem rather than less problem.

PN46

MR STANTON: Yes.

PN47

THE COMMISSIONER: The old terminology that’s been around for decades about gross and wilful misconduct is, I think, probably a safer proposition.

PN48

MR STANTON: Yes. I think the regulation also deals with that expression, “serious and wilful misconduct”, for the purposes of notice periods too, which reflects the general principles at common law, yes.

PN49

THE COMMISSIONER: Yes, and notions of performance or failure to obey a reasonable instruction have to be tested. It can’t just be a one-sided - and, you know, this is the sort of thing that I see with unfair dismissal cases; you know, a one-off event, and all sorts of misunderstandings, and then people’s blood pressures go through the roof and the next thing, you’ve got a person sacked and they’re abusing one another and it’s - you know, it should have never occurred.

PN50

I’m not saying that this is what would happen by my concern is that if there are lots of these instruments out there that are trying to, as I describe it, rewrite the basis for instant dismissal, as it’s described, you’re probably creating more problems rather than resolving problems.

PN51

MR STANTON: And just to clarify, Commissioner, it is 40.4(b) in particular which refers to that?

PN52

THE COMMISSIONER: Well, even 40.4(a) has some concern. If you’re trying to say serious misconduct involves behaving in a manner which in the reasonable opinion of the company might adversely affect the reputation of the company, I’m not sure that that’s really helpful. It may or may not be serious conduct, depending upon what it is. The circumstances are so difficult.

PN53

Now, refusal to perform work in accordance with the employee’s classifications or duties - well, in the absence of knowing just what the refusal was for, it may or may not be serious misconduct. I think (b) is, as I say, fundamentally wrong, and the things that set out in placitum (1) through to (7), is it, or (8)?

PN54

MR STANTON: (8), yes.

PN55

THE COMMISSIONER: Yes. I mean, they might be - depending upon the circumstances, they might provide a basis for summary dismissal as opposed to dismissal with notice, but in many instances, the idea of refusing to carry out an instruction is just too broad. There needs to be an understanding of what the refusal is for.

PN56

Now, if it is an unjustified refusal to carry out a reasonable instruction, usually that’s not the basis for summary dismissal. It’s probably the basis for dismissal with notice; you know, “You’re just being deliberately difficult and you won’t go and do that because you think it’s beneath you or something, and it’s a reasonable instruction. Well, I’m instructing you to do it,” but that’s not usually characterised as the gross and wilful misconduct that justifies summary dismissal, like a falsification of a time sheet, being caught red-handed with your hand in the till, fighting on the job; you know, those sorts of things which have historically represented that gross and - it’s a different characterisation: dismissal with notice - you know, ordinarily just one week or whatever - as opposed to the sort of event that would give rise to the basis for summary dismissal.

PN57

MR STANTON: Yes.

PN58

THE COMMISSIONER: There’s a major case that Justice Hungerford did. It’s the sort of seminal reference of Gartrell White Number 3.

PN59

MR STANTON: The Pastrycooks matter, wasn’t it?

PN60

THE COMMISSIONER: Yes, exactly. You know the case?

PN61

MR STANTON: Yes.

PN62

THE COMMISSIONER: That really set, I think, the framework for all of that and I’m just a little concerned that this is sort of trying to rewrite that somehow. No immediate response in any way I think is necessary, perhaps just some thought about whether or not some slightly - even if there’s a sort of caveat placed upon this that any of these particular notions here would have to be considered in context or something to that effect so you weren’t trying to put together something that overrode the generally accepted principles that apply for summary dismissal. That’s my only concern with that.

PN63

MR STANTON: Yes. I think we can accommodate that.

PN64

THE COMMISSIONER: Yes. I think a bit of thought will fix that, yes. That’s really it. They are the only issues that I had with the application. I think the simplest way is to allow you to digest all of that. There’s a requirement that if there are some undertakings, that Fair Work Australia seeks the opinion of the other bargaining representative - that would be the NUW here - about the undertakings. That’s a reasonably simple process for us to follow.

PN65

Usually from this point forward, within the space of a week or two, we usually get a communication with some undertakings and then that’s it. The approval is then given with the undertakings having been made.

PN66

MR STANTON: We’ll certainly address that without any undue delay.

PN67

THE COMMISSIONER: I think it’s a reasonably simple process and I wouldn’t see any of that impeding the approval of the document with some undertakings.

PN68

MR STANTON: May it please.

PN69

THE COMMISSIONER: All right. Well, unfortunately, I don’t think we got the NUW here today for whatever reason, but I’m sure that you’ll have some communication with them about these matters. There’s a transcript so that if that needs to be obtained for the purposes of your discussion with the NUW, you can refer to that, and that should help the process from this point forward.

PN70

I’ll anticipate receiving some communication and then I’ll look at your undertakings and I would think that you’ll address the matters that have been raised and then the approval will be provided.

PN71

MR STANTON: May it please.

PN72

THE COMMISSIONER: All right. On that basis, the proceedings now stand adjourned.

<ADJOURNED INDEFINITELY [10.30AM]