In a long running case, Commissioner Smith in his decision of 20th April this year said:

I am satisfied that in this case, there are terms contained in clause 19.3, together with the context of the Agreement read as a whole, which means that the power to transfer for poor performance cannot be accessed through clause 19.3.1 as it would not give meaning to clauses 19.3.2, 23 and 24.

In this case, it appears that the ABC has taken a short-cut to transfer without complying otherwise with its obligation.

The ABC appealed Commissioner Smith’s decision.

The Bench said at paragraph 76:

We are satisfied that in dealing with a performance problem raised with an employee under clause 23, the mandatory provisions of clauses 23 and 24 are to be applied and once initiated do in fact constitute an implied limitation to the ABC’s discretion to transfer an employee for performance reasons under clause 19.3.

It is important to note when performance problems are “initiated”. This is when, under clause 23.6.1, discussions are held between the employee and his/her manager. That is, at the very first informal discussion, when a manger approaches an employee.

The decision is extremely important in the context of up-coming EBA talks. A fact acknowledged by the ABC’s QC at the appeal hearing, where he described Commissioner’s Smith interpretation as “disturbing” and which would give the Alliance a “bargaining chip” in negotiations for a new EBA.

The ABC also appealed Commissioner Smith’s decision to refer Ms Barakat’s allegations of bullying to an independent expert for investigation and report.

The Full Bench upheld the Commissioner’s right to do so, but restricted the nature of the investigation to Ms Barakat’s allegations against Mr Marco Bass.

The Full Bench referred this aspect back to Commissioner Smith for determination.