[14] The AWU annexed to the Application the following letter sent from Mr Paul Delaney, Senior Vice-President of the AWU, to Mr Francis dated 21 August 2018 (21 August Letter):

1. I refer to recent discussions between Bekaert Wire Ropes Pty Ltd T/A BBRG Australia (the Company) and the Australian Workers' Union (the AWU) about the above matter and the Company's unilateral decision of 10 August 2018 to alter Geoff Baker's work arrangements.

2. The AWU considers that we are now in dispute with the Company over matters arising under the BBRG Enterprise Agreement 2016 (the Agreement).

3. The dispute relates to matters arising under clause 2 (Employment Relationship), including the right of employees to resign pursuant to sub-clause 2.1.3.

4. Pursuant to the dispute settlement procedure in clause 8 of the Agreement, we seek to resolve the dispute at the workplace level via discussions with management if at all possible.

1. Mr Baker has been employed by the Company for over 24 years.

2. On 6 December 2017, Mr Baker handed a resignation letter to the Company with a resignation date of 30 November 2018, which was accepted by the Company.

3. In an email dated 6 December 2017, the Company confirmed its request that Mr Baker stay on the 2-shift roster (day and afternoon) rather than transition to the 1-shift roster (day work only).

4. This request differed from the custom and practice of retiring workers moving from the rotating shiftwork roster to the 1-shift roster.

On 9 April 2018, Mr Baker gave a letter to the company seeking to change his resignation date to 29 March 2021.

You and Anne Maree Willis (formerly the Company's HR officer) verbally accepted Mr Baker's variation of his resignation date.

Following the acceptance of the new resignation date by the Company, Mr Baker was returned to the rotating shiftwork roster (now a 3-shift roster - day/afternoon/dog watch), consistent with the custom and practice at the workplace.

On 2 August 2018, Mr Baker and Darren Newell, AWU Delegate, met with the Company to discuss an apparent change in the Company's position with respect to Mr Baker's employment and duties.

On 6 August 2018, Mr Baker and Mr Newell again met with the Company to discuss the Company's plans for Mr Baker.

On 10 August 2018, Mr Baker, Mr Newell and I met with the Company for a third time to discuss Mr Baker's circumstances and confirm our understanding that his retirement date had moved, by agreement, to 29 March 2021.

At that third meeting, the Company advised that due to a new hire, Mr Baker will more than likely need to exit the business in November 2018.

After the third meeting, but following my departure from the site, the Company approached Mr Baker (with Mr Newell) again and formally advised him that he had 48 hours' notice of a change of roster from the 3-shift roster to the 1-shift roster.

1. Through the conduct of its officers, you and Ms Willis, the Company has agreed to Mr Baker's revised 2021 retirement date and cannot withdraw that agreement with Mr Baker's consent (which has not been provided).

2. The Company has acted unreasonably in transferring Mr Baker to the 1-shift roster in circumstances where his transition to retirement is not taking place until 2021.

1. The AWU requests that the Company do the following by 5:00pm Wednesday 29 August 2018, failing which we reserve the right to notify this dispute to the Fair Work Commission:

1. confirm that Mr Baker's resignation date is 29 March 2021; and

2. return Mr Baker to the 3-shift rotation he was on prior to the Company's decision of 10 August 2018 to place him on the 1-shift afternoon roster."

[15] The AWU subsequently clarified that the references to a "1-shift" roster in the 21 August Letter were erroneous and should have been references to a "2-shift" roster.

[16] The AWU submits that the following two questions arise for determination in the dispute:

i. Does the second resignation letter,[6] in conjunction with the conduct of the respondent, constitute valid notice of termination within the meaning of paragraph 2.1.3 of the Agreement?

1. Was the respondent permitted to alter Mr Baker's rostering arrangements pursuant to a provision of the Agreement or otherwise?"

[17] I conducted a conference, by telephone, at 10am on 12 October 2018, for the purpose of clarifying the issues in dispute between the parties. In that conference, the parties agreed that Mr Baker would, with effect from 28 October 2018, move from a two shift roster to a three shift roster for the foreseeable future. BBRG made clear in the conference that its agreement to accede to Mr Baker's request to move him from a two shift roster to a three shift roster would have no impact on its position that there was no agreement made to change Mr Baker's retirement date from 30 November 2018 to 29 March 2021. As a result of the resolution of this issue, the AWU and Mr Baker agree that:

• there is no longer any rostering dispute concerning Mr Baker; and

• the only issue in dispute between the parties (and Mr Baker) is whether an agreement was made to change Mr Baker's retirement date from 30 November 2018 to 29 March 2021.

[18] The AWU and Mr Baker have framed the question for resolution by asking whether, in light of the events which they say have happened, "valid notice of termination within the meaning of paragraph 2.1.3 of the Agreement" has been given.[7] I do not accept that is the proper characterisation of the dispute. There is no doubt that Mr Baker's letter dated 6 December 2017 constituted valid notice of termination within the meaning of clause 2.1.3 of the Agreement. Further, if an agreement was made in or about April 2018 to change Mr Baker's retirement date from 30 November 2018 to 29 March 2021, then there is no doubt that the requirements of clause 2.1.3 of the Agreement would still be met. Having reviewed the entire factual background,[8] I am satisfied that the real issue between the parties is whether an agreement was made to change Mr Baker's retirement date from 30 November 2018 to 29 March 2021. That is the proper characterisation of the dispute the subject of the Application.

Does the dispute, properly characterised, fall within the scope of the dispute resolution clause in the Agreement?

[19] There is no suggestion in this case that the dispute between AWU and BBRG is in any way concerned with the National Employment Standards. The question is whether the dispute is one in relation to a matter arising under the Agreement.

[20] The AWU contends that the dispute falls within the scope of clause 8 in the Agreement because the date of Mr Baker's retirement (a) is subject to the rules found in clause 2.1.3 of the Agreement and, as such, is determined in part by reference to the terms and conditions of the Agreement and (b) governs his eligibility for the special benefits provided to employees transitioning to retirement under clause 10.6 of the Agreement.[9]

[21] BBRG submits that there is no connection between the dispute and clause 2.1.3, clause 10.6 or any other provision of the Agreement. It denies that it agreed to extend Mr Baker's resignation date from 30 November 2018 to 29 March 2021 and submits that the dispute involves the application of common law principles relating to contracts in general and the contract of employment in particular.[10]

[22] As I have already found at paragraph [18] above, whether it is accepted that Mr Baker's resignation date is 30 November 2018 or 29 March 2021, the requisite notice was given by Mr Baker to BBRG under clause 2.1.3 of the Agreement. Therefore, it is not necessary for me to make a decision based on that clause. Similarly, whether it is accepted that Mr Baker's resignation date is 30 November 2018 or 29 March 2021, it is not necessary for me to make a decision based on clause 10.6 of the Agreement. Contrary to the AWU's submission, Mr Baker's eligibility to access the transition arrangements in clause 10.6 of the Agreement can be ascertained without establishing his retirement date. Although such transition arrangements do not "normally exceed a period of 12 months", it is clear from clause 10.6 that transition arrangements can exceed a period of 12 months, subject to "the capacity of the business to reasonably accommodate the needs of the employee". As Mr Baker has nominated his retirement to BBRG in advance, he is eligible to access the transition arrangements in clause 10.6 of the Agreement. In any event, at present there is no dispute concerning Mr Baker's access to any transition arrangements.

[23] Resolution of the dispute as to whether an agreement was made to change Mr Baker's retirement date from 30 November 2018 to 29 March 2021 would not involve making a decision based on the Agreement, nor would it involve interpreting any provision in the Agreement. Resolution of the dispute would require the finding of facts necessary to make a determination as to whether Mr Baker and BBRG entered into a binding agreement to vary Mr Baker's retirement date from 30 November 2018 to 29 March 2021. Common law principles concerning variation of contracts would govern such a dispute. Viewed in that way, it is apparent that the dispute is one-step removed from the Agreement.[11] It follows that there is no matter arising under the Agreement, and thus, there is no dispute in relation to a matter arising under the Agreement.

[24] For the reasons set out above, I find that the dispute the subject of the Application is not a dispute in relation to a matter arising under the Agreement or in relation to the NES. It follows that the Commission does not have jurisdiction to deal with the dispute. Therefore, I dismiss the Application.

[1] Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615, 629

[2] Sensis Pty Ltd v Members of the Full Bench of the Industrial Relations Commission [2005] FCAFC 74 at [65]

[4] LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 at 581, applying R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141, 154

[5] Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367, 382

[6] The so-called second resignation letter is the letter from Mr Baker to BBRG dated 9 April 2018, requesting an extension to his retirement date. See paragraph [5(b)] above.

[7] Subparagraph 6(i) of paragraph [15] above.

[8] TWU v Mayne Nickless Ltd [1998] 1022 FCA per Olney, Drummond and Moore JJ.

[9] Applicant's Outline of Submissions at [23]

[10] Respondent's Outline of Submissions at [4.17]

[11] See, by analogy, United Firefighters' Union v Metropolitan Fire and Emergency Services Board PR973884 at [26]-[29]

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