Fair Work Act 2009

s.739 - Dispute resolution

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - dispute about alleged breaches of expired enterprise agreement - no jurisdiction - no jurisdiction conferred by new agreement to preserve disputes.

• [1] On 16 November 2023, Mr Anfruns made an application under s 739 of the Fair Work Act 2009 (Cth) (Act) to deal with a dispute under two enterprise agreements, being:

• the Disability Services Enterprise Agreement Victoria 2018-2022 (2018 Agreement); and

• • the Home@Scope Disability Services Enterprise Agreement Victoria 2022 - 2025 (2023 Agreement). Despite the title of the 2023 Agreement referring to 2022, it commenced operation on 22 August 2023.[1]

• [2] The matter was allocated to me and a conference was conducted in December 2023. The conference proceeded, albeit unsuccessfully in respect of resolving the dispute. From that point, the parties engaged in a series of discussions between themselves over the following months. During all this period, Mr Anfruns was legally represented.

• [3] By the end of March 2024, correspondence from Mr Anfruns' legal representative stated that no agreement had been reached and nor was there reasonable prospect of any agreement being reached. At that point, the legal representative ceased to act for Mr Anfruns.

• [4] Further correspondence ensued from chambers to ascertain Mr Anfruns' intentions. Mr Anfruns stated that he wished to 'bring a hearing' for the matter. The matter was then listed for a mention hearing on 18 April 2024. Following that mention hearing, I wrote to the parties about a possible jurisdictional bar. Among other matters, that correspondence stated:

"The jurisdictional concern is that the Commission's powers to arbitrate a dispute exist under the current enterprise agreement, which has operated since 15 August 2023 (the 2023 Agreement). The dispute was lodged under the dispute provisions of the 2023 Agreement. However, the alleged breach of an enterprise agreement appears to have occurred on 17 May 2023 (the date by which Mr Anfruns was told his application for the full-time position was rejected), which was when the old enterprise agreement applied.

As the parties are presently self-represented, the Deputy President draws attention to the fact that that there are some conflicting decisions of the Commission dealing with the power of the Commission to continue to hear a dispute validly started under an old enterprise agreement that was replaced by a new enterprise agreement during the course of the dispute:

• A Full Bench decision stating that jurisdiction ceases once a new agreement came into operation is Simplot Australia Pty Ltd v AMWU [2020] FWCFB 5054; and
• A later Full Bench decision stating that jurisdiction for an arbitration commenced under an old enterprise agreement can continue is CFMMEU v Falcon Mining Pty Ltd [2022] FWCFB 93.

However, in both of the above cases, the Commission had already been seized of jurisdiction to arbitrate before the new enterprise agreement started to operate. A copy of an earlier Full Bench decision is attached for reference in Battye v John Holland Pty Ltd [2019] FWCFB 8678. In Battye, the Full Bench concluded that the Commission did not have power to arbitrate in circumstances where a new agreement began to operate, even when in the conciliation stage did commence in the Commission under the old agreement. In Mr Anfrun's case, the Deputy President notes that all dealings with the Commission in this matter have been under the 2023 Agreement."

• [5] Following further correspondence, the parties were given an opportunity to file any material and their views were sought on whether a hearing was required. Both parties provided brief submissions and indicated they were content for the matter to be dealt with 'on the papers'.

• [6] I have had regard to the parties' materials and for the reasons that follow, Mr Anfruns' application must be dismissed.

• [7] Mr Anfruns' Form F10 application states that, since December 2021, Mr Anfruns was employed by the respondent as a part-time disability support worker. From May 2022, his primary work location was in Beechworth, Victoria, which was described in his Form F10 as 'the House'.

• [8] In early April 2023, the respondent advertised for a permanent full-time position at the House. Mr Anfruns states he was the only employee from the House to apply for it.

• [9] Clause 15.13 of the 2018 Agreement is as follows (Mr Anfruns' emphasis):

(d) The following process applies to advertising and filling all base grade vacancies:

(i) In the first instance, the vacancy will be advertised to the group home where the vacancy arises and the geographical area in which the group home is located and the Employer will call for an expression of interest. (Note: where there are a substantial number of vacancies or other reasons the Employer may seek to externally advertise concurrently with this process. In these circumstances HACSU will be notified.)

(ii) In determining who fills the vacant position, the following principles are to be applied:

(A) Full-time and/or part-time Employees in the group home where the vacancy arises will be given priority to the vacant position or the additional hours.

(E): To be eligible to participate in the expression of interest Employees must have participated in a merit based selection process at level. For a casual Employee...

(F) The process above can occur concurrently but the outcome will be determined in accordance with the hierarchy above.

(G): Where there is more than one person expressing an interest in a particular role there will be a merit selection process to determine the most suitable candidate.

(H) Where only one staff member express an interest the appointment is subject to satisfactory performance conducted through a referee check."

• [10] It was Mr Anfruns' position that, pursuant to cl 15.13 of the 2018 Agreement, he was not required to attend an interview for the position. He advised the respondent of that position.

• [11] For avoidance of doubt, it is unnecessary for me to express a view on the parties' respective positions on cl 15.13 and I do not do so.

• [12] Notwithstanding Mr Anfruns' stated position on the requirement for him to attend an interview, on 1 May 2023 and again on 6 May 2023, Mr Anfruns was requested to attend an interview. Mr Anfruns reiterated his position and did not attend.

• [13] Separately, Mr Anfruns' Form F10 states that on 17 May 2023, he was advised of various performance and misconduct allegations against him, said to have occurred on 24 April 2023 and 7 May 2023. I infer Mr Anfruns denies those allegations. Also for avoidance of doubt, I express no views as to the parties' respective positions on these issues.

• [14] Also on 17 May 2023, Mr Anfruns was advised that his application for the permanent full-time position was unsuccessful. Mr Anfruns' application states he has been on leave due to mental injury since that time.

• [15] As set out above, on 26 June 2023 the 2023 Agreement was made. An enterprise agreement of this kind is 'made' when a valid majority of employees vote to approve a request by the employer for the enterprise agreement to be made.

• [16] Shortly after, the 2023 Agreement was lodged to be approved by the Commission. The 2023 Agreement was approved by the Commission on 15 August 2023. By s 54(1)(a) of the Act, which is relevant to the 2023 Agreement, the 2023 Agreement commenced operation 7 days after the enterprise agreement was approved, namely on 22 August 2023.

• [17] On 16 November 2023, Mr Anfruns lodged a dispute with the Commission by filing a Form F10 application. The Form F10 asserts a breach of cl 15.13 of the 2018 Agreement. Perhaps with an eye to jurisdictional challenges, it relied on the following parts of clause 4 of the 2023 Agreement:

"4.3 Where clauses have been re-written and there is a dispute at a later date as to their intent or meaning, regard will be had to the antecedent documents and decisions arising from them.

4.4 Nothing in this Agreement will diminish any entitlement which Employees covered by this Agreement had immediately prior to this Agreement coming into effect, except where expressly varied by this Agreement."

• [18] Dealing firstly with the dispute under the 2018 Agreement, the chronology above makes it clear that the events underlying the dispute had fully crystalised entirely during the period of operation of the 2018 Agreement.

• [19] In Battye v John Holland Pty Ltd [2019] FWCFB 8678 (Battye), the Full Bench considered the circumstances where the claimant had commenced a conciliation under an old enterprise agreement but, before any step for arbitration had commenced, a new enterprise agreement commenced operation. Mr Battye's subsequent request to proceed to arbitration was refused and his application was dismissed.

• [20] On appeal, the "central issue" was whether the commencement of the new agreement extinguished the jurisdiction of the Commission to deal with a dispute which had arisen when the old agreement was in operation and which had been referred to it for resolution. The Full Bench noted that the conciliation and arbitration functions under the old agreement had a clear "bifurcation". The Full Bench stated that, at the time Mr Battye first sought to enliven the Commission's power to arbitrate under the old agreement, that agreement had ceased to apply to John Holland and to him.

"[23] ...The relevant effect of s.58 of the Act is that, once the [new agreement] came into operation on 16 May 2018, the [old agreement] ceased to apply to any employee within its coverage, because the coverage of the two agreements was the same. Under s.54(2), the [old agreement] then ceased to operate, and that meant that under s.52(1) it could no longer apply to anyone. If an agreement does not apply to anyone, it cannot impose any obligation or confer any entitlement (s.51). Section 739(4) provides that the Commission may arbitrate a dispute only where the parties have agreed that the Commission may do so in accordance with a disputes resolution term in an agreement. Here, the relevant term in the [old agreement] no longer applied to Mr Battye and John Holland at the time Mr Battye first sought to invoke the arbitration power in that term."

• [22] Mr Battye was refused permission to appeal.

• [23] In contrast to the Battye matter - where at least the conciliation stage had been commenced under the old agreement - Mr Anfruns had taken no step at all under the 2018 Agreement before it ceased to apply. It is clear that I have no jurisdiction to arbitrate Mr Anfruns' dispute under the 2018 Agreement.

• [24] That then leaves the residual question of whether clauses 4.3 or 4.4 of the 2023 Agreement somehow pick up or preserve disputes about alleged historical breaches of the prior enterprise agreement. I do not consider either clause has that effect.

• [25] For clause 4.4 of the 2023 Agreement, it is sufficient to note the opening words, which state "Nothing in this Agreement will diminish any entitlement which Employees covered by this Agreement had immediately prior to this Agreement coming into effect". First, I do not consider that this clause operates to allow disputes arising about the operation of an earlier agreement to be raised under the current enterprise agreement. But even if that was not the case, there is no "entitlement" under the 2018 Agreement for Mr Anfruns' application to be arbitrated. There is no entitlement because there was no application made for an arbitration while the 2018 Agreement was in operation. That does not imply that Mr Anfruns is without rights. It remains the case that he is entitled to allege a breach of the 2018 Agreement, but that allegation must be made in a court of competent jurisdiction. What Mr Anfruns cannot pursue in the Commission is a dispute involving the arbitral powers of an expired enterprise agreement.

• [26] For the foregoing reasons, Mr Anfruns' application is dismissed.

[1] [2023] FWCA 3235.

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