In the original claim, the respondent union filed an application on behalf of its member regarding an ongoing working from home request made under clause 51 of the Public Sector CSA Agreement 2022.  The union member was employed as an Investigator Advocate for the appellant and had been working from home for approximately 12 months when an extension to the arrangement was requested due to health concerns.  The appellant’s refusal coincided with a blanket direction for all employees to cease COVID-19 WFH arrangements.  The matter was not resolved by conciliation and was referred for arbitration. 

An application was made by the appellant that the application be dismissed on jurisdictional grounds, contending the matter involved enforcement of the Agreement.  It was also contended that the proceedings contravened the no extra claims clause of the Agreement in cl 7.2.  The Arbitrator dismissed the appellant’s application, concluding that clause 51 of the Agreement imposes substantive obligations on the employer to consider working from home requests, unless there are reasonable business grounds to refuse them. Further, the Arbitrator concluded the dispute was amenable to the dispute resolution provision in the Agreement and that the proceedings did not involve the enforcement or contravene clause 51 or clause 7.2 of the Agreement.

The Full Bench considered the principles of procedural fairness, the interpretation of clause 51 of the Agreement, and the distinction between judicial and arbitral power. The Full Bench found that clause 51 creates an enforceable entitlement for employees to request working from home arrangements, which can only be refused on reasonable business grounds.  It was concluded that the dispute was about enforcing the terms of clause 51 and that the orders sought were problematic because they aimed to seek an entitlement of WFH under the Agreement, which is the exclusive jurisdiction of the Industrial Magistrates Court.  The Full Bench also held that the claim was covered by the no extra claims clause and was precluded on that basis.  There was no denial of procedural fairness. 

Accordingly, the Full Bench upheld the appeal, quashing the decision at first instance and dismissing the substantive application on the basis of want of jurisdiction. 

 

The decision can be read here.