//
[172]
[2023] FWC 570
General information, not legal advice.
Fair Work Commission
2023-03-08
Original judgment source is linked above.
s.739 - Dispute resolution
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - Jurisdictional objections - Whether dispute in relation to NES entitlement arising under currently operative enterprise agreement can encompass period covered by a previously operative enterprise agreement that has ceased operation when dispute lodged with Commission - Whether resolution of dispute involves exercise of arbitral power - Standing of Union covered by enterprise agreement to make application for the Commission to deal with a dispute in accordance with a dispute settlement term - Jurisdictional objections dismissed - Dispute in relation to NES may encompass a period where enterprise agreement under which dispute is notified was not operative - Arbitration of dispute in manner authorised by s. 739 and dispute settlement term in agreement does not involve exercise of judicial power - Union covered by enterprise agreement has standing to make application to the Commission under dispute settlement term - Dispute to proceed to arbitration.
[1] The Australasian Meat Industry Employees Union (AMIEU/Applicant) applied under s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the Dispute Resolution Procedure contained in clause 3.10 of the Primo Foods Pty Ltd - JBS Primo Wacol Enterprise Agreement 2019 (the Primo Agreement). The Respondent in this matter is Primo Foods Pty Ltd (Primo/Company/Respondent), the employer covered by the Primo Agreement.
[2] The Primo Agreement was approved by the Commission on 24 February 2020. It commenced operation on 2 March 2020 and reached its nominal expiry date on 24 February 2022. The Primo Agreement replaced the Hans Continental Smallgoods Pty Ltd Enterprise Agreement 2016 (the Hans Agreement). The Hans Agreement was approved by the Commission on 9 November 2016 and ceased to be operative when the Primo Agreement commenced operation on 2 March 2020. The employer covered by the Hans Agreement was Hans Continental Smallgoods Pty Ltd (Wacol). The AMIEU was covered by both the Hans Agreement and the Primo Agreement.
[4] The issues in dispute were posed in the application as concerning Primo employees generally. However, correspondence appended to the application, indicates that the dispute was initially raised by the AMIEU with Primo in relation to two employees, Mr Andrew Ioata and Mr Site Li. Both are members of the AMIEU. The AMIEU stated that it had followed the various steps in the Dispute Resolution Procedure in the Primo Agreement. The relief sought was that "employees be paid the correct rate of pay when taking personal leave" and "when there is an entitlement to a public holiday".
[5] In its initial response to the application, Primo characterised the dispute as being about whether the two employees, who regularly perform higher duties, should be paid in accordance with clause 5.3 of the Primo Agreement which deals with the rate of pay for performing higher duties when taking a period of personal/carer's leave and on public holidays not worked. Primo stated that the dispute does not concern annual leave because the Primo Agreement makes specific provisions in clause 9.1.4 for calculating the rate of pay for annual leave by averaging the employee's ordinary earnings in the 4 weeks immediately before the period of annual leave commences.
[6] Primo confirmed that Mr Ioata had been performing higher duties at Level 4 rather than Level 2 on-and-off since 18 August 2020. Mr Li had been performing at Level 5 rather than Level 2 since 8 August 2020 to step up to the permanent role of another employee who had been on leave for a workplace injury. Primo stated that a permanent Level 5 Multivac Operator position was previously offered to Mr Li, but Mr Li declined and indicated that he was only interested in a permanent position as a Quality Checker.
[7] Primo did not oppose the two disputes, involving Mr Ioata and Mr Li, being dealt with together and was prepared to accept that the dispute resolution procedures in clause 3.10 in respect of the two disputes had been complied with and that the AMIEU had been appointed as representative for both employees.
[8] In relation to the framing of the issues in dispute by the AMIEU, Primo's position is that it is unclear how the disputes relate to the proper application of the terms in the Primo Agreement or provisions of the NES. Primo contended that if the AMIEU's case is that the higher rate of pay should be the base rate of pay for the purpose of s. 16 of the Act, the higher duties payment under clause 5.3 of the Primo Agreement is an allowance or a separately identifiable amount, both of which are excluded from the base rate of pay under s. 16 of the Act. Alternatively, Primo contended that if the position of the AMIEU is that employees working in particular roles for an unspecified period of time were entitled to conversion to a higher classification, then no such entitlement exists in the Agreement or the NES.
[9] A conciliation conference before the Commission was held on 23 August 2021 and the matter was not resolved. At a case management hearing conducted 9 November 2021, the AMIEU confirmed that it sought arbitration of the disputes and submitted that the two employees mentioned in the application are only representative examples of the broader issues relating to employees, who have been performing higher duties for extended periods, not being paid the correct rate of pay in relation to public holidays and personal leave. In this regard, the AMIEU reiterated that the correct rate of pay for public holidays and personal/carer's leave under the relevant NES provisions is the higher classification rate. An alternative contention was also advanced by the AMIEU that those employees, who have been performing higher duties for extended periods of time, were misclassified and should have been classified at the higher classification levels.
[10] In response, Primo contended that the present application is not competent on the basis that the applications should have been brought by Mr Ioata and Mr Li rather than the AMIEU. In any event, Primo contended that there was no longer a "live dispute" because both Mr Ioata and Mr Li had since been permanently classified at the higher levels and are no longer required to step up to perform higher duties for the purpose of clause 5.3 of the Primo Agreement. Further, Primo asserted that the present matter went beyond the scope of the dispute resolution procedures in the Primo Agreement as it related to the determination of back-pay prior to the commencement of the Primo Agreement. To determine the present disputes, Primo contended, would involve an impermissible exercise of judicial power as the Commission would be determining past and present rights of the relevant employees in the context of unpaid wages. Primo indicated that it reserved its rights to advance its jurisdictional objections to the application until after it had the opportunity to review the questions for arbitration as formulated by the AMIEU.
[11] By email correspondence of 15 November 2021, the AMIEU proposed the following questions for arbitration:
[12] A further case management hearing was conducted on 16 November 2021. Primo confirmed that, based on the questions proposed by the AMIEU, it wished to press its jurisdictional objections as the disputes framed by the questions were in essence underpayment claims and related to periods that in part fell within the dates that the now inoperative Hans Agreement was in effect. In response, the AMIEU stated that if the jurisdictional objections raised by Primo were sustained, it was prepared to amend the questions for arbitration to confine the periods to those during which the Primo Agreement was operative.
[13] Further, Primo maintained that its understanding of the dispute was that it related to the proper construction of the higher duties clause in clause 5.3 of the Primo Agreement. In response, the AMIEU accepted that clause 5.3 is relevant, but only to the extent that it intersects with the proper construction of the correct rate of pay under the relevant NES provisions, and in the context of a contention by Primo that the higher duties payment is an allowance or separately identifiable amount, excluded from the base rate of pay by s. 16 of the Act.
[14] Directions were issued for the determination of the jurisdictional objections raised by Primo. Parties were directed to file and serve outlines of submissions and witness statements in support of their respective positions. Primo filed an outline of submissions and a witness statement made by its HR Manager, Mr Clinton Jaftha. The AMIEU filed an outline of submissions in response. Initially, neither party sought to be heard on the jurisdictional objections raised and agreed for me to determine the jurisdictional objections on the basis of the material filed by the parties without a hearing.
[16] By email sent on 1 August 2022, I informed the parties of my provisional view that the facts in the present case, appeared to differ from those considered in Falcon Mining in that the dispute does not appear to have arisen or been raised with Primo until after the Hans Agreement (which was replaced by the Primo Agreement) had ceased to operate. In this regard, I noted that while the dispute related to the mixed functions provisions in clause 5.2.5 of the Hans Agreement, and other clauses of that Agreement, the dispute does not appear to have been on foot until after the Hans Agreement ceased to operate.
[17] The parties were directed to file further submissions in relation to the matters raised by Falcon Mining that bear upon the present disputes. Primo was also directed to indicate whether it continued to press its jurisdictional objections on all grounds in its original submissions. Further submissions by Primo and the AMIEU were subsequently received, and a short hearing was conducted on 10 November 2022. At the hearing, the AMIEU was represented by its Industrial Officer, Mr C. Buckley and Primo was represented by its Legal Counsel - Employee Relations, Ms B. Sakrzewski-Hetherington. In a Decision on 6 February 2023, I dismissed the Respondent's jurisdictional objections. These are the reasons for my Decision.
[18] Clause 2.1 of the Primo Agreement provides as follows in relation to the coverage:
2.1.1 This Agreement shall apply to Primo Foods Pty Ltd (ABN 67 002 781 142) (Company) and all employees for whom classifications and rates of pay are prescribed in this Agreement who are employed at Primo Foods facilities located in Wacol in the state of Queensland (Employees) excluding any apprentices.
2.1.2 It is intended that upon approval, the Agreement will apply to and cover the Australasian Meat Industry Employees Union and the Bacon Factories Union of Employees Qld.
[19] The Dispute Resolution Procedure in the Primo Agreement is found in clause 3.10 and provides as follows:
3.10.1 In the event of a dispute about a matter under this Agreement, or in relation to the NES, the Company and the Employees (and any Representative of the Employee) commit to follow the sequential steps in this procedure to resolve any such dispute.
3.10.2 The Company or Employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this paragraph. The Company respects the role of a Union delegate in this process.
3.10.3 In the first instance the parties must attempt to resolve the matter at the workplace by discussions between the Employee or Employees concerned and the relevant supervisor. The dispute should be acknowledged and attempts made to resolve it within 72 hours.
3.10.4 If discussions at the workplace level do not resolve the dispute, the matter should be raised by the Employee or their Representative in writing to the Department Production Manager or equivalent. The dispute should be acknowledged and attempts made to resolve it in a timely manner within 7 calendar days.
3.10.5 If the dispute still remains unresolved, the matter will then be referred to the relevant Operations Manager and/or their delegate. The dispute will be acknowledged and a determination of the matter will be made at this level within 14 calendar days from the escalation of the matter to this level.
3.10.6 Where the dispute remains unresolved and the steps set out in paragraphs 3.10.2 to 3.10.5 have been followed, either party may refer the dispute to the FWC for mediation and/or conciliation. In the event that mediation and/or conciliation is unsuccessful in resolving the dispute, the FWC may arbitrate the dispute.
3.10.7 While the dispute resolution procedure is being followed, work must continue to be performed in the normal manner in accordance with this Agreement and the requirements of the Act.
3.10.8 Subject to applicable workplace health and safety legislation, an Employee must not unreasonably fail to comply with a direction by the Company to perform work, whether at the same or another workplace, which is safe and appropriate for the Employee to perform.
[20] Clause 5.3 of the Primo Agreement deals with the rate of pay for employees performing higher duties. Relevantly, clause 5.3 states that:
An Employee who is required by the Company on any day or shift to perform work carrying a higher rate of pay than their ordinary Job Role/classification, and this is not for the purpose of training, shall be paid as follows:
5.3.1 if the higher level work is performed for two hours or more, the higher rate for the whole of the day or shift; and
5.3.2 if the work is for less than two hours, the ordinary rate of the higher Job Role/classification for two hours and the balance of the shift at the Employee's ordinary classification rate."
[21] Where annual leave is taken by an employee performing higher duties, clause 9.1.4 makes specific provision for the calculation of the employee's rate of pay. Clause 9.1.4 states that:
9.1.4.1 Subject to paragraph 9.1.4.2, an Employee on annual leave shall be paid the Employee's ordinary rate of pay, excluding any weekend penalties or any shift or other allowances ordinarily payable to the Employee, for the total period of annual leave to be taken.
9.1.4.2 An Employee who performs higher duties in accordance with paragraph 5.3 during the period four weeks prior to the commencement of annual leave will be paid based on an average of their ordinary time earnings (excluding any weekend penalties or any shift or other allowances) for the four complete pay periods immediately prior to the annual leave being taken.
9.1.4.3 In addition to the payment set out in paragraph 9.1.4.1 or 9.1.4.2, an Employee will receive:
9.1.4.3.1 a loading of 17.5% of the Employee's ordinary rate of pay; or
9.1.4.3.2 if the Employee would have worked on Shift work had they not been on leave, the greater of the shift allowance or the 17.5% loading, but not both.
9.1.4.4 Annual leave payments shall be paid into the Employee's nominated bank account on their usual pay day during the period of annual leave. Provided that an Employee may request to be paid in advance for a full period of annual leave and if approved by the Company, such payment shall be made to an Employee no later than the first pay day after the commencement of annual leave or at such later date requested by the Employee."
[22] The Dispute Resolution Procedure contained in clause 3.10 of the Hans Agreement provided that the Commission could exercise all forms of dispute resolution including arbitration. The rate of pay for employees performing higher duties under the Hans Agreement was contained in the Mixed Functions provision in clause 5.2.5, which provided that:
5.2.5.1 Any Employee who is required on any day to perform work for which a higher rate of wage is prescribed, and this is not for the purpose of training, shall be paid as follows:
5.2.5.1.1 If more than 4 hours on any day, the higher rate for the whole of such day
5.2.5.1.2 If 4 hours or less then payment of the higher rate for the hours worked."
Submissions and evidence in relation to Jurisdictional Issues
[23] Primo submitted that to deal with the matters in dispute, the Commission will be required to consider clause 5.3 of the Primo Agreement to determine whether the payments made pursuant to that clause were amounts that fell within the exclusions from the base rate of pay in s. 16(1) of the Act. The Commission will also be required to consider clause 9.1.4.2 of the Primo Agreement to ascertain the proper construction of the enterprise agreement in respect of the payments in clause 5.3 and their interaction with s. 16(1) of the Act.
[24] In further submissions filed in relation to the Full Bench Decision in Falcon Mining, Primo no longer relied on Simplot to support its jurisdictional objections and relied instead on Falcon Mining. In this respect, Primo submitted that the dispute was not raised under the Hans Agreement and therefore, the Commission was not, and is not, authorised to arbitrate the dispute. The Commission was not seized with jurisdiction through an application made when the Hans Agreement was in operation. The dispute was first raised around 10 months after the Hans Agreement had ceased operation and the application was filed around 17 months after the that Agreement had ceased operation. Therefore, there is no jurisdiction for the Commission to exercise to completion.
[25] Primo also contended that the AMIEU is asking the Commission to determine rights under the Hans Agreement, which has ceased to operate. It is asserted by Primo that the Commission cannot answer the questions posed by the AMIEU because the function of answering those question as to whether Mr Ioata and Mr Li were underpaid between September 2019 and September 2020 or September 2021 respectively, is one which is to be performed by an eligible State or Territory Court, pursuant to s. 544 of the Act. Primo said that only an eligible state or territory Court can determine the whole of both disputes as framed, noting, however, that under the terms of clause 3.10 of the Primo Agreement, the Commission retains discretion in this matter as to whether it arbitrates one or both disputes.
[27] Further, Primo submitted that while many enterprise agreements are "roll-over" agreements and likely contain the same terms, without very clear terms in an operative enterprise agreement, it cannot be the case that a dispute may be brought about previous generations of an enterprise agreement for a period that may exceed the limitation period under the Act. In any event, this tension does not arise in the present matter as the terms of the dispute resolution procedure and the disputed clauses under the Primo Agreement are different from those under the Hans Agreement. The dispute was not raised during the operation of the Hans Agreement. Initially Primo submitted that the Hans Agreement was not made with the Company but later accepted that there was a period where the Hans Agreement covered Primo and its employees. In addition, Primo submitted that it is not the case where the dispute was first raised under one enterprise agreement which was replaced by a new one during the resolution of the dispute. The dispute notification was made to the Commission some 17 months after the Hans Agreement had ceased to apply.
[29] Primo contended that the AMIEU now attempts to recast the dispute as an underpayment claim. The dispute between Mr Li, Mr Ioata and Primo had never been framed as an underpayment claim until the formulation of the questions for arbitration by the AMIEU. In answering the questions, Primo said that the Commission would need to identify the accrued paid personal/carer's leave balances of Mr Li and Mr Ioata as both had exhausted their balances at various points in time, as many of the absences were unpaid. In Primo's view, the AMIEU are now seeking a conclusive determination of existing rights and obligations, rather than the determination of what legal rights and obligations should be created in the future. In this respect, Primo referred to the decision of the Full Bench of the Australian Industrial Relations Commission in Police and Nurses Credit Society:
[47] The characterisation of a claim and the form of any order made is often decisive in determining whether the exercise of judicial power is involved.
[48] For example, the Commission cannot give a binding interpretation of an award or agreement where that interpretation is sought for the purpose of enforcing a right said to be created by the award or agreement in question. But arbitral proceedings may involve the formation of views and opinions about matters of interpretation, including the interpretation of laws, awards and other legal instruments, without the usurpation of judicial power. Moreover the arbitral function can involve the determination of a dispute relating to past transactions, events and conduct.[7]
[30] Primo stated that the questions posed by the AMIEU are about an alleged underpayment from more than 2 years ago. Clause 3.10.1 of the Primo Agreement provides that a dispute must be about a matter under "this Agreement" whereas the questions for arbitration concern matters under both the Primo Agreement and the inoperative Hans Agreement. Primo characterised the case of the AMIEU as asking the Commission to draw a conclusion about the existing rights of the parties rather than to form that opinion as a step in arriving at a position on the future rights of the parties. Primo stated that the reason for this characterisation was because there is not a dispute as to the future rights of the parties - only a dispute about what the employees should have been paid between September 2019 and September 2021.
[31] Primo further stated that clause 3.10 of the Primo Agreement is not as broad as many dispute settlement procedures that authorise the Commission to arbitrate any disagreement or dispute arising under an enterprise agreement. It provides that there must be a dispute about a matter under the Agreement and on the proper construction of clause 3.10, the dispute cannot only be about past matters and must be a "live" dispute. As such, Primo's position is that the Commission cannot answer the questions posed by the AMIEU as the dispute is not a dispute about a matter under "this Agreement". In respect of Mr Ioata, the dispute is about a matter under the Hans Agreement insofar as it related to the periods between September 2019 and 1 March 2020 and under the Primo Agreement for the periods between 2 March 2020 and December 2020.
[32] Primo also contended that it is unclear how the AMIEU has standing to make the present application in its own name and that the only way there can be a competent application before the Commission is if it is accepted that (a) the proper Applicants are Mr Li and Mr Ioata; and (b) the AMIEU has made the application on their behalf as their appointed representative in accordance with clause 3.10.2 of the Primo Agreement. Primo submitted that if the Commission accepts its submissions that the Commission has no jurisdiction to deal with the dispute insofar as it relates to any matters prior to 2 March 2020 (for want of an operative agreement) and arising on or after 2 March 2021 (for want of any "live dispute") then the dispute becomes a hypothetical dispute pursued by the AMIEU on behalf of hypothetical employees.
[34] Primo submits that the proper construction of the dispute settlement procedure in clause 3.10 of the Primo Agreement does not allow the AMIEU to bring an application for the Commission to deal with a dispute, in its own right. Clause 3.10.2 makes clear that the AMIEU's role in the dispute resolution process is in the capacity of an appointed representative, and that the formation of a dispute about a matter under the Agreement necessarily involves an employee of Primo and Primo. In this regard, Primo also referred to the inclusion of a requirement in clause 3.10.3 that "Employee or Employees concerned and the relevant supervisor" are required to attempt to resolve the matter in the first instance. It is said that a hypothetical dispute concerning hypothetical employees could not possibly satisfy this requirement.
[35] Mr Clinton Jaftha is the Human Resources Manager for Primo in New South Wales and has held the role since around June 2016. Mr Jaftha was also the interim Human Resources Manager for Primo in Queensland between 24 September and 15 November 2021 after Ms Cheryl Wolens had left the role. Mr Jaftha said he was involved in the negotiation for the Primo Agreement.
[36] In preparing for the present matter, Mr Jaftha said that he had caused time and attendance reports regarding Mr Li and Mr Ioata to be generated. Mr Jaftha noted that the periods of time identified by the AMIEU in the questions for arbitration roughly line up with the periods of time in which Mr Li and Mr Ioata regularly performed higher duties. Mr Jaftha stated that both employees also performed higher duties outside of those periods of time but with less regularity. Mr Jaftha expressed the view that the AMIEU had selected periods of time for each employee where "their underpayment looks better" (in the sense that it appears to be a higher amount).
[37] Further, Mr Jaftha noted that the Primo Agreement commenced operation on 2 March 2020 replacing the Hans Agreement. Mr Jaftha expressed the view that the Primo Agreement "is very different to the one it replaced" on the basis that there is a new higher duties clause in the Primo Agreement which was agreed to during negotiation. In addition, Mr Jaftha stated that a new clause was also inserted in the Primo Agreement which calculates the rate of pay for annual leave for employees performing higher duties by averaging their ordinary time earnings in the period immediately preceding the period of annual leave. Mr Jaftha said that no such averaging clause was found in the Hans Agreement and that a new clause in respect of the dispute resolution procedure was also discussed and agreed during the negotiation.
[38] In relation to the jurisdictional objection raised by Primo, the AMIEU stated that the objection can be summarised into following bases and submitted that all contentions of the Respondent are fundamentally wrong in principle and contrary to binding appellate authority:
(a) determination of the proposed questions would necessarily involve an impermissible exercise of judicial power;
(b) there is no "live dispute" because the employees have been permanently re-classified to a higher classification;
(c) the dispute does not arise under the Agreement because it pertains (in part) to a period prior to the Agreement's approval; and
(d) the AMIEU does not have standing to bring a dispute in its own name.
"[Arbitral powers are] essentially different from the judicial power. Both of them rest for their ultimate validity and efficacy on the legislative power. Both presuppose a dispute, and a hearing or investigation, and a decision.
But the essential difference is that judicial power is concerned with the ascertainment, declaration and enforcement of the rights and responsibilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted; whereas the function of arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce, what, in the opinion of the arbitrator, ought to be the respective rights and liabilities of the parties in relation to each other."
"Underlying each of those dimensions of the judicial power of the Commonwealth is its fundamental character as a sovereign or governmental power exercisable, on application, independently of the consent of those whose legal rights or legal obligations are determined by its exercise... Judicial power "is conferred and exercised by law and coercively", "its decisions are made against the will of at least one side, and are enforced upon that side in invitum", and "it is not invoked by mutual agreement, but exists to be resorted to by any party considering himself aggrieved"
Therein is the essential distinction between the judicial power of the Commonwealth and arbitral authority, of the kind governed by the Model Law, based on the voluntary agreement of the parties. The distinction has been articulated in the following terms:
"Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it."
[43] According to the AMIEU, the exercise of private arbitral power by the Commission, may be contrasted with the exercise of statutory arbitral power, such as in making workplace determinations under s. 266 of the Act or unfair dismissal orders under ss. 391 or 392 of the Act. When exercising statutory arbitral power, the traditional distinction between judicial and arbitral functions in the Boilermakers Case must be carefully observed.
"...an industrial dispute is not necessarily fixed and definite, either in terms of its subject-matter or in terms of the parties to it; a dispute 'may be diminished or ended or enlarged or altered during ... proceedings in the Commission' or, for that matter, at any stage during the course of the dispute itself."
"[45] A dispute referred to the Commission must be properly characterised before powers conferred by a dispute settlement provision in a certified agreement are exercised. This is necessary in order to determine whether the dispute is 'over the application of the agreement' within the meaning of s.170LW of the WR Act. As noted by a majority of the Full Bench in Automated Reading Services (AMRS) v ASU, this expression has not been judicially considered. The majority went on to observe that:
"A relationship between the provisions of the relevant agreement and the subject matters in dispute would appear to be an essential element in the identification of any dispute over the application of the agreement..."
[46] We adopt these observations. Further, in our view the expression should not be narrowly construed. In this context we agree with the observation of the Full Bench in Shop, Distributive and Allied Employees Association v Big W Discount Stores that:
"...what compromises a dispute over the application of the agreement should not be narrowly construed; to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement."
"Clause 18 ... confers the authority of the parties on the Commission to arbitrate any disagreement or dispute in respect of any matters arising under the Kentz Agreement for the purpose of resolving the dispute. It affords the Commissioner a power of private arbitration in relation to such disputes. It does not limit the scope of an arbitration to preclude the resolution of disputes in relation to past events or about rights and obligations under an agreement. There is no basis for reading an unstated limitation on the scope of the dispute resolution procedure in the context of the broad scope which is expressed in it - "[A]ny disagreement or dispute". Clause 18 does not provide or purport to provide an authority that exceeds what is permitted by either the Constitution or the Act."[23] (emphasis added)
[50] The AMIEU submitted that clause 3.10 of the Agreement confers a power of private arbitration on the Commission in relation to "disputes about a matter under this Agreement, or in relation to the NES". It is said that there is no express or implied limitation on disputes about past rights and entitlements, provided they relate to that subject matter. As to the present disputes, the AMIEU considered that they plainly relate to the NES, as the central issue is the correct calculation of personal/carer's leave and public holiday payable to Mr Li and Mr Ioata pursuant to ss. 99 and 116 of the Act.
[51] Further, the AMIEU said that Primo, while accepting that the steps of the disputes procedure have been complied with, submitted that there is no "live dispute" because prior to these proceedings, the dispute solely concerned whether Mr Li and Mr Ioata should be permanently reclassified, and not their correct pay rate for leave and public holidays. The AMIEU considered this submission to be untenable and directly contradictory to Primo's own evidence. The emails between Mr Warren Earle and Primo representatives are said to clearly establish that the dispute concerned interrelated issues of Mr Li and Mr Ioata's ongoing substantive classifications, as well as their pay rates for leave and public holidays.
[52] In relation to the email correspondence, the AMIEU said that Mr Earle expressly outlined concerns about Mr Li and Mr Ioata's pay rates on multiple occasions during the disputes process. It is said that many of those emails directly referred to s. 16 of the Act and set out precisely the same arguments now advanced before the Commission and in that factual context, there can be no serious suggestion that the employees' pay rates did not form part of the dispute. Those email exchanges were as follows:
...in regard of what an employee should be paid on personal leave and when taking public holidays the agreement cannot have less favourable terms than that stated in the National Employment Standards (NES)...
When Andrew was on personal leave and when there was a public holiday Andrew's pay rate dropped to a lower rate of pay only on the days of those leave days. However, regardless of what his permanent job role is, the union believes the Company has not met its legal obligation in respect of Andrew's leave payments...
In Andrew's situation, it is clear that he would have continued to perform the work at the higher rate of pay, had he not taken the leave. Therefore, the "base rate of pay" which he is entitled to receive for those periods of leave is the "base rate of pay" at the higher rate...
On 30 December 2020, Mr William Ash responded on behalf of Primo:
Andrew's substantive classification is Level 2. When he is required to perform work at Level 4 (for two hours or more) he receives the applicable higher duties allowance in accordance with clause 5.3 of the enterprise agreement. That payment is not part of his base rate of pay as defined by section 16 of the Act (which expressly includes an allowance)...
The union does not agree that Andrew was paid an allowance. The agreement does not identify higher duties as an allowance. It was Andrew's actual rate of pay."
[53] The AMIEU stated that it is entirely unsurprising that Mr Earle did not frame the dispute solely in relation to pay rates, because at the time of his emails, neither Mr Li or Mr Ioata had been permanently reclassified and that aspect of the dispute concerning their classifications was ongoing prospectively. The fact that Mr Li and Mr Ioata have now been reclassified, and there is unlikely to be a dispute about their pay rates in future, does not extinguish the existence of an ongoing live dispute in relation to their correct pay rates during the relevant past periods, which remains a matter in dispute under clause 3.10 of the Agreement. It is submitted by the AMIEU that this simply reflects the evolving nature of industrial disputes observed by Gaudron J in Re PKIU; Ex parte Vista Paper Products Pty Ltd.
[55] Further, the AMIEU said that clause 3.10 permits disputes "in relation to the NES". Even if the terms of the enterprise agreement covering Primo have changed, the terms of the NES have remained the same. There is a single dispute between the parties in relation to the NES which overlaps the operation of both the current Agreement and its predecessor. That temporal dimension is said to do nothing to alter the character of the dispute as one "in relation to the NES" and within the scope of clause 3.10.
[56] In the event that the Commission were to uphold Primo's objection, the AMIEU would seek leave to amend the arbitral questions to focus solely on the period after March 2020. In this regard, the AMIEU stated that, at its highest, Primo's contention could only restrain the Commission from dealing with that part of the dispute prior to the approval of the Primo Agreement. Such an amendment would cure any defect and allow the Commission to determine the remainder of the dispute.
[57] In the further submissions filed by the AMIEU addressing the implications of Falcon Mining on the present matter, the AMIEU noted that the dispute was first raised with Primo during the life of the Primo Agreement. The Primo Agreement contained a dispute resolution clause of the kind identified in s. 738(b) of the Act and the dispute was raised in accordance with the terms of the dispute resolution clause. This, the AMIEU said, was sufficient to enliven the jurisdiction of the Commission as conferred by s. 739 of the Act.
[58] As the present dispute concerns whether or not the AMIEU's members were paid the correct remuneration in the period from September 2019 to September 2021 in the case of one member, and September 2019 to December 2020 in the other, the AMIEU stated that the Primo Agreement was approved by the Commission on 24 February 2020 and came into force on 2 March 2020. The bulk of the period of the dispute (from 2 March 2020 to September 2021) falls within the period of the Primo Agreement, and it is therefore clearly within the jurisdiction of the Commission to deal with the dispute to that extent.
[59] The only real question as to jurisdiction, the AMIEU submitted, is whether the Commission can arbitrate the dispute in relation to the period which falls prior to 2 March 2020 (i.e., during the period in which the Hans Agreement operated). The Full Bench in Falcon Mining proceeded on the basis that "...s 739 only applies in relation to a dispute resolution term in an enterprise agreement if the agreement is in operation." The AMIEU said that, on one view, this statement envisages that for a dispute to be raised under the dispute resolution clause of the Hans Agreement, it would need to be done while the Hans Agreement was still in operation.
[60] However, the AMIEU submitted that situation in the present matter can be distinguished based on the nature of the dispute. The dispute, although raised under the dispute resolution clause of the Primo Agreement, is fundamentally one in relation to the National Employment Standards. The AMIEU submitted that the operation of the NES means that its members were entitled to a specific rate of remuneration which, in the circumstances, was higher than the rate of remuneration provided for by the "higher duties/mixed functions" clauses in Hans Agreement or the Primo Agreement. The NES was in force throughout the whole of the period to which the disputes relate. The entitlement which is in issue is an entitlement under statute. Reference to the Hans Agreement, the AMIEU said, is necessary only to quantify the members' base rate of pay for the purposes of s. 16 of the Act.
[61] Further, the AMIEU submitted that once the Primo Agreement has enlivened the jurisdiction to deal with a dispute under the NES, there is no reason to limit the period to which the dispute relates. The NES applies (and applied) to the members of the AMIEU regardless of whether the Hans Agreement was in force or not. In the alternative, the AMIEU submitted that there can be no doubt that the Commission has jurisdiction to deal with the dispute as to entitlements which fall within the period of operation of the Primo Agreement (2 March 2020 onwards).
[62] Finally, the AMIEU submitted that the decision in Falcon Mining makes clear that the jurisdiction of the Commission is not removed or diminished by the fact that the Primo Agreement ceased to operate on 20 May 2022 (upon commencement of a new, replacement enterprise agreement). As such, the jurisdictional objection raised by the Respondent should be dismissed.
[63] In response to the contention that the AMIEU does not have standing to bring a dispute under clause 3.10 of the Agreement in its own name because a dispute can only be bought by an individual employee or employees, the AMIEU submitted that it may be accepted that a literal reading of clause 3.10 lends some support to the view a dispute may only exist between an "Employee" and the "Company"; albeit the language of clause 3.10.3 onwards refers to "the parties" and weighs against this. The reference to parties may be understood to mean those parties covered by clause 2.1 of the Agreement, which includes the AMIEU in its own right.
[65] In summary, the Court in Yallourn held that because unions have a right to initiate judicial proceedings against an employer for contraventions of an enterprise agreement under s. 50 of the FW Act, a dispute between an employer and a union is one which s. 186(6) of the FW Act requires a dispute resolution procedure to be provided for in an enterprise agreement, even if no individual employee initiates a complaint. A construction which prevented a union from bringing a dispute in its own right would necessarily mean the agreement would not comply with s. 186(6) and could not have been approved by the Commission. This would be directly contrary to the industrial and legislative context in which the agreement was made and approved, and such a construction must therefore be rejected.
[67] Should the Commission determine that Primo's objection is sustained, the AMIEU stated that it would seek leave to file an amended Form F10 substituting Mr Li and Mr Ioata as the Applicants as both employees plainly have standing under the disputes procedure to bring a dispute concerning the same subject matter.
Inoperative enterprise agreements and dispute resolution procedures
[69] The fundamental proposition in the Simplot decision, as described by the Full Bench in Falcon Mining, was that for the Commission to arbitrate and make an arbitral decision in respect of an application for the Commission to deal with a dispute made pursuant to s. 739(6) of the FW Act, the enterprise agreement to which the application relates, must have operative effect in accordance with s. 54 at the time the decision is made. The consequence of the decision in Simplot was said by the Full Bench in Falcon Mining, to be that there is no power to continue with such an arbitration and make an arbitral decision once the relevant enterprise agreement has ceased to operate, even if the parties had agreed for the purpose of s. 739(4) that the Commission may arbitrate the dispute, at a time when the enterprise agreement was operative.
[70] Specifically, the Full Bench in Simplot held that:
[71] The Respondent in these proceedings initially relied on Simplot as a basis for its jurisdictional objection to the application. As previously noted, while the decision in the present matter was reserved, a Full Bench of the Commission decided Falcon Mining. In summary, the facts in Falcon Mining were that a dispute was notified to the Commission while an enterprise agreement was in operation. Relevantly, the dispute related to entitlements of employees under the NES and the agreement, upon termination of their employment. At the point the dispute was to be arbitrated, the agreement that was in effect when the dispute arose and was notified to the Commission, had been replaced by a later agreement with the same coverage, classifications, and dispute resolution procedure, which provided for either party to refer a dispute for arbitration after a series of steps had been taken. Also, before the dispute in Falcon Mining was arbitrated, the Full Bench decision in Simplot was handed down. After hearing from the parties in relation to the effect of the earlier agreement being replaced by the later agreement, the Member of the Commission dealing with the dispute at first instance, dismissed the application on the basis that, consistent with the Full Bench Decision in Simplot, the earlier agreement under which the dispute was notified, had ceased to operate upon being replaced by the later agreement.
"The context of that articulation puts its reference to 'private arbitration' in appropriate perspective. The context was that of a challenge to the capacity of a statutory body consistently with Ch III of the Constitution to exercise a statutory function to settle a dispute where so empowered by an agreement entered into as a result of statutory processes. The reference to 'private arbitration' was not to a private function, as distinct from a public function, but rather to a function the existence and scope of which is founded on agreement as distinct from coercion."[31] (underlining added)
[62] Therefore, to the extent that a dispute resolution procedure in an enterprise agreement confers, conditions or limits the Commission's power to arbitrate disputes, that conferral, condition or limitation is not effective by virtue of the operation of the agreement itself. An enterprise agreement is not a law and therefore cannot of its own force delimit the powers of the Commission. Rather (as submitted by the appellants), it is s 739(4) which gives effect to an agreement by parties for the arbitration of a dispute by the Commission pursuant to a dispute resolution term of a type described in s 738, and it is s 739(3) which limits the powers of the Commission to deal with the dispute by reference to any such limitations contained in the relevant dispute resolution term. Therefore, the scope of the authority of the Commission to engage in arbitration of disputes pursuant to a dispute resolution term is ultimately a question of statutory construction although, in a particular case, the application of the statutory provisions will be affected by the terms of the relevant dispute resolution procedure.
[74] The Full Bench next considered the provisions of the FW Act concerning the power of the Commission to arbitrate disputes in accordance with dispute settlement procedures in enterprise agreements and analysed ss. 595, 738, 739 and relevant provisions relating to enterprise agreements in ss. 172 and 54. At [66] the Full Bench set out alternative views about the question as follows:
[66] Subsection (1) of s 739 provides that the section applies if a term referred to in s 738 "requires or allows" the Commission to deal with a dispute. On one view (and presumably from the Simplot perspective), a term of an enterprise agreement can only require or allow something if it is in operation in accordance with s 54, since s 52(1)(a) provides that an agreement will only apply to an employee, employer or employer organisation if (relevantly), it is in operation, and s 51 provides that an agreement does not impose obligations on or give an entitlement to a person unless the agreement applies to the person. On this view, s 739 only applies in relation to a dispute resolution term in an enterprise agreement if the agreement is in operation. An alternative view would be that:
[71] On the facts of this case, the application for the Commission to deal with the dispute in question was made on 19 June 2020, at which time the 2017 Agreement was in operation. Likewise, the requisite agreement for arbitration existed at the latest by about 27 October 2020, when the 2017 Agreement remained in operation. That agreement for arbitration may be inferred from the respondent's accession to the 2017 Agreement, and the fact that the appellants in their application had sought arbitration of the dispute should conciliation be unsuccessful. This constitutes the requisite agreement in accordance with the principles stated by the Federal Court Full Court majority in One Tree Community Service Inc v United Workers' Union. There is no issue that the dispute in question was "about a matter under this agreement". Thus, if, as earlier discussed, s 739 is to be read on the basis that its provisions only apply in respect of a dispute resolution term in an enterprise agreement if the agreement has operative effect, it is clear in this case that the relevant provisions of the section were engaged at a time when the 2017 Agreement was operative. The Commission had the authority under s 739(4) to arbitrate the dispute at that point, and in fact proceeded to exercise arbitral powers thereafter until the decision under appeal was issued.
Application of principles in Falcon Mining to the present case
[76] The application to the Commission to deal with the dispute in the present case was made on 2 August 2021. At that time, the Primo Agreement was operative, and the application cited that Agreement as the industrial instrument containing the dispute settlement procedure for the purposes of the dispute. Further, the Hans Agreement ceased to operate on 2 March 2020 when the Primo Agreement commenced. The asserted facts set out in the Form F10 included that the Union had members who had been working in higher roles than their official classification for "almost two years" and had been paid at their official classification rate for periods of sick leave and public holidays not worked. The questions for arbitration proposed by the AMIEU ask the Commission to determine, for the purposes of s. 16 of the FW Act, the base rates of pay for Mr Li and Mr Ioata during periods of personal carer's leave and public holidays taken between September 2019 and September 2021.
[77] Accordingly, some of the leave and public holiday payment entitlements the Commission would be determining, if it answers those questions - from September 2019 to 2 March 2020 - relate to periods that are coterminous with the operation of the Hans Agreement which ceased to operate before the dispute was notified. Initially the Respondent objected to the Commission arbitrating the dispute contending that the AMIEU was asking the Commission to determine rights under an enterprise agreement that had ceased to operate and that the Decision of the Full Bench in Simplot prevented such an exercise. In its further submissions following the Full Bench Decision in Falcon Mining, the Respondent indicated that it no longer relied on Simplot and instead, relies on Falcon Mining, contending that the dispute was not raised under the Hans Agreement and accordingly, the Commission was not, and is not, authorised to arbitrate the dispute. Further, the Respondent contends that the Commission was not seized with jurisdiction through an application made when the Hans Agreement was in operation and the dispute was first raised around 10 months after the Hans Agreement had ceased operation and lodged with the Commission 17 months after that date. Accordingly, there is no jurisdiction for the Commission to exercise to completion.
[78] I do not accept this submission. At its heart, is the proposition that the Commission has no power to arbitrate or otherwise deal with a dispute lodged under an agreement that is operative when the dispute comes into existence, where the dispute involves terms and conditions of employment or events that occurred, under a previous agreement that has ceased to operate. As I observed in Construction, Forestry, Maritime, Mining and Energy Union v BIS Industries Limited (BIS Industries), which was decided after Simplot and before Falcon Mining,
"[133] The central point in Simplot is that at the time the Commission exercises power to deal with a dispute under a dispute settlement term in an enterprise agreement, the source of the power must be found in an agreement that is in operation, regardless of when the dispute arose. Simplot is not authority for the proposition that the Commission can never continue to deal with a dispute which arose under an agreement that has ceased to operate before the Commission has exercised power in relation to the dispute.
[134] It is often the case that an enterprise agreement that supersedes an earlier agreement has the same dispute settlement term and a range of other identical terms to those which were previously found in the inoperative agreement. If a dispute arose in relation to a term in an enterprise agreement, while that agreement was in operation and was progressing through the steps in the dispute settlement procedure, that dispute may continue under a later agreement if that later agreement contains the same (or a similar) dispute resolution term and the same (or a similar) disputed provision. To overcome the issue that arose in Simplot an applicant in such a dispute could seek to amend the application so that a remedy is sought under the dispute settlement term in the later agreement, or absent stipulated time frames for each step of the dispute settlement procedure, commence the dispute again by invoking the dispute resolution term in the later agreement."[34]
[79] Following the Full Bench Decision in Falcon Mining, these observations may impose an unwarranted limitation on the authority of the Commission to arbitrate a dispute arising and notified to the Commission under an earlier iteration of an enterprise agreement and continuing under a later, and substantially similar iteration of the agreement. It is not necessary to consider this point in the present case, for the reasons following.
[80] The present dispute was brought under the dispute resolution term of an enterprise agreement that was in operation when the dispute arose. The dispute also concerns the entitlements of employees under a now inoperative agreement that was operative when the dispute arose. It is also the case that the present dispute is in relation to the NES. Specifically, the dispute is about whether amounts payable to employees performing duties at a classification level above the level at which their substantive position is classified, are part of the base rate of pay defined in s. 16 of the FW Act, for the purpose of payment of NES entitlements to personal leave under s. 99, and public holidays falling when the employee is absent from work, as provided in s. 116.
[81] The Primo Agreement is a single enterprise agreement made under Part 2 - 4 of the FW Act. Section 186 of the FW Act prescribes matters about which the Commission must be satisfied in order to approve an enterprise agreement upon application to do so including s. 186(6) which requires that an agreement contain a dispute resolution procedure as follows:
(6) The FWC must be satisfied that the agreement includes a term:
(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:
(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and
(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure. (Statutory notes omitted)
[82] Section 186(6) prescribes the minimum in terms of matters that must be the subject of a dispute settlement term. The parties to an enterprise agreement may agree to the Commission arbitrating disputes limited to the matters in s. 186(6) or additional matters. The Primo Agreement could not have been approved unless it allowed the Commission to settle disputes in relation to the NES. Contrary to the submission of Primo, clause 3.10 of the Primo Agreement is not confined to disputes under the Agreement. A dispute in relation to the NES may arise with respect to a matter that is not dealt with by the terms of an enterprise agreement.
[83] Further, it is common that disputes in relation to the NES involve periods spanning current and previous enterprise agreements. In Falcon Mining the NES entitlements in dispute related to notice of termination of employment under the NES, which is dependent on an employee's period of continuous service with the relevant employer and not simply service under a particular enterprise agreement. A dispute about payment in lieu of notice crystallises at the point employment is terminated. That the dispute lodged under a dispute settlement term in a currently operative enterprise agreement involves an employee's continuous service under a previous agreement that is inoperative when the dispute is notified, does not deprive the Commission of power to deal with the dispute under the terms of an operative enterprise agreement, in a manner authorised by s. 739(4) of the FW Act, and the terms of the relevant agreement.
[84] While it may be argued in the present case that the provisions in relation to payment at higher rates for work at higher classification levels differ between the inoperative Hans Agreement and the operative Primo Agreement, and that this can be distinguished from disputes in relation to the application of the NES relating to continuous service of an employee, I do not accept that this is determinative of the power of the Commission to arbitrate the dispute under s. 739 of the FW Act and clause 3.10 of the Primo Agreement. The dispute relates to s. 16 of the FW Act and whether the payments under clauses of the Hans Agreement and the Primo Agreement are within the meaning of base rate of pay in that section.
[85] Accordingly, I conclude that s. 739 of the FW Act authorises the Commission to arbitrate the dispute, as it is articulated in the AMIEU application, in accordance with clause 3.10 of the Primo Agreement.
[86] As the Full Bench made clear in Falcon Mining, the High Court in Gordonstone determined that the Commission could not, by arbitrated award require parties to submit to binding procedures for the determination of legal rights and liabilities because the Commission is not a court within the meaning in Chapter III of the Constitution. However, where the parties agree to submit their differences for decision by a third party, that party does not exercise judicial power but a power of private arbitration. Further, the arbitrator's powers depend on the agreement of the parties - for present purposes a dispute settlement term contained in an enterprise agreement - and the effect of a decision by the Commission pursuant to that term depends on the law which operates in relation to it. In the case, that law is the FW Act.
[87] In the present case, the Respondent objected to the Commission arbitrating the dispute on the basis that in doing so the Commission would be determining existing rights and obligations and that this involves an impermissible exercise of judicial power. In this regard, the Respondent contended that the questions posed by the AMIEU are about an alleged underpayment more than two years ago and not about a matter under the current agreement and would involve a conclusion about existing rights rather than a step in arriving at a position about future rights. The Respondent also points to the reclassification of both employees to the classification for the higher duties they had been performing, effectively granting them the relief sought and contends that the AMIEU is attempting to recast the dispute as an underpayment claim, when it is no longer a live dispute.
[91] Accordingly, to the extent that the judicial/arbitral dichotomy is relevant in dispute resolution under enterprise agreements, I do not accept that to arbitrate the present dispute as framed in the application would involve an impermissible exercise of judicial power.
[94] In reaching this conclusion, the Full Court noted that:
"63 Since each of the five unions had a right to initiate proceedings in the Court, s 186(6) required cl 28 to provide a procedure to resolve a dispute that would be litigated in such a matter, because that dispute would arise under the Yallourn agreement, even if no individual employee had initiated a complaint, provided that Energy Australia had contravened its obligations under cl 5.3 in respect of one or more casual employees (see s 540(2)).
65 As s 172(1) of the Act provides, an enterprise agreement can be "about" matters pertaining to the relationship "between the employer ... and the employee organisation or employee organisations, that will be covered by the agreement". A dispute about, or involving, that relationship is a subject-matter for which s 186(6) requires a dispute resolution process to be included in an enterprise agreement. However, neither cl 28.1(a) nor par (3) of the model term, in Sch 6.1 to the Regulations, expressly addresses whether a dispute that any of the five unions may have with Energy Australia, arising under the Yallourn agreement as to its interpretation or Energy Australia's compliance with its terms, can be addressed only by discussions between the employer and one or more employees, without the involvement of the union(s) concerned.
66 Clearly enough, the literal phrasing of each of par (3) of the model term and steps 1 and 2 in cl 28.1(a) is apposite to cover a dispute that involves only the employer and one or more employees. However, both the model term and cl 28 are intended to provide, as s 186(6)(a)(i) requires, "a procedure that requires or allows [the Commission] ... to settle disputes ... about any matters arising under the agreement" (emphasis added). Therefore, a literal construction of cl 28 that precluded any of the five unions that are parties to the Yallourn agreement from initiating a dispute about a matter arising under it for which it has a workplace right, would defeat the purpose which the first three paragraphs of cl 28 (preceding cl 28.1) and ss 186(6) and 341(1) required the dispute resolution process in the clause to serve.
67 Energy Australia's argument that the Yallourn agreement did not provide any basis for any of the five unions to raise a dispute under cl 28 must be rejected. That is because, if the five unions themselves could never raise or pursue a dispute about their workplace rights, as employee organisations, covered by the Yallourn agreement within the meaning of ss 53(2), 172(1)(b) and 186(6)(a)(i), then cl 28 would not provide a procedure to settle a class of category 1 matters that could arise under the enterprise agreement. Accordingly, cl 28 would not comply with s 186(6)."
[96] Flick J also concluded that the submission of the employer that a union could not have a dispute about a matter pertaining to the employment relationship was wrong and there was no reason to confine the meaning of that phrase as referring only to a dispute between an employer and its employees. His Honour also noted the fact that in many cases it may be the Union rather than an individual employee seeking to have a dispute resolved about the application or interpretation of the agreement as provided in the dispute resolution term.
[98] Clause 3.10 of the Primo Agreement indicates that the AMIEU may represent an employee(s) in a dispute but does not limit the role of the Union to that of a representative. Clause 3.10.6 provides that "either party" may refer the dispute to the Fair Work Commission provided that earlier steps have been followed. It is not in dispute that those steps were followed in the present case.
[99] I see no basis to construe the provision as limiting the parties who may refer the dispute to the Commission to Primo and the employee(s) in dispute. The dispute resolution term in Yallourn at clause 28.1(d) also referred to "either party" referring the matter to the Commission and was not considered to be limited on that basis. Even if there is such a limitation, for the reasons set out above, Mr Ioata and Mr Li brought a dispute in relation to their NES entitlements and that dispute is unresolved and has been referred to the Commission for arbitration.
[100] For these reasons I found that the Commission has jurisdiction to deal with a dispute in relation to the NES, in a manner authorised by the dispute settlement term in the Primo Agreement notwithstanding that part of the period to which the NES entitlements, the subject of the dispute relate, falls outside of the period of operation of the Agreement and within the period of operation of a now inoperative enterprise agreement. I also found that the arbitration of such a dispute, authorised by s. 739 of the FW Act and the dispute settlement term, does not involve the exercise of judicial power. Further, I found that the AMIEU, an organisation of employees covered by the Primo Agreement has standing to apply to the Commission in its own right, for the dispute to be dealt with in accordance with the dispute settlement term in the Agreement. The matter will be listed for Mention/Directions to program a hearing for the arbitration of the dispute.
C Buckley of the Australasian Meat Industry Employees Union for the Applicant.
[1] Fair Work Act 2009 (Cth) ss. 16, 99, 116.
[5] The Police Federation of Australia (Victoria Police Branch) v Victoria Police [2021] FWCFB 4161.
[6] Construction, Forestry, Mining and Energy Union-Mining and Energy Division v Dendrobium Coal Pty Ltd T/A South 32 [2017] FWC 4062.
[7] Cited in Construction, Forestry, Maritime, Mining and Energy Union v Laing O'Rourke Australia Construction Pty Ltd T/A Pacific Complete [2017] FWC 4467 at [7].
[8] National Union of Workers v Stanley Black & Decker Pty Ltd [2018] FWC 1339.
[10] [1956] HCA 10; (1956) 94 CLR 254 at 281.
[11] Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16 at [30].
[13] One Tree Community Services Inc v United Workers' Union [2021] FCAFC 15 at [77], [85] and [86].
[14] Re Cram; Ex parte the Newcastle Wallsend Coal Company [1987] HCA 29 at [9].
[15] TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5 at [37] per French CJ and Gageler J, at [76]-[79] per Hayne, Crennan, Keifel and Bell JJ.
[16] Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16 at [25] to [34]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [31] to [35] (subsequently cited with approval by the Full Court of the Federal Court in Endeavour Energy v CEPU [2016] FCAFC 82 at [13] to [33]; and Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112 at [56] to [58]); Kentz (Australia) Pty Ltd v CEPU [2016] FWCFB 2019 at [46] to [75].
[17] UFU v Metropolitan Fire and Emergency Services Board [2019] FWCFB 184 at [59].
[18] See, for example, Kentz (Australia) Pty Ltd v CEPU [2016] FWCFB 2019 at [46] to [75] (pay in lieu of notice owed to redundant employees); Seo v Bindaree Food Group Pty Ltd [2021] FWCFB 2691 at [60] to [61] (unpaid overtime for work during meal breaks); ING Administration Pty Ltd v Jajoo [2006] AIRC 773 (redundancy and severance payments owed to former employees).
[19] Simplot Australia Pty Ltd v AMWU [2020] FWCFB 5054 at [37].
[20] [1993] HCA 81 at [45] - Brennan, Dawson, and Toohey JJ relevantly agreed.
[21] AMWU v Holden Limited [2003] AIRC 1382 at [45]- [46].
[25] [2018] FCAFC 146 at [56] to [67].
[26] [2019] FWCFB 3585 at [37] and [38].
[39] Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd [1989] HCA 10; (1989) 166 CLR 311 at 319.
Printed by authority of the Commonwealth Government Printer
Australasian Meat Industry Employees Union
Primo Foods Pty Ltd [2023] FWC 570
(1956) 94 CLR 254
(1989) 166 CLR 311