[2022] FWC 1255

Fair Work Act 2009

s.739 - Dispute resolution

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Jurisdictional Objection - disputes process not followed

• [1] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU/Applicant) has lodged an application to deal with a dispute concerning Global Product Search Pty Ltd (Respondent) shutdown roster and the relevant payments under the Global Product Search Enterprise Agreement 2018 (the Agreement).

• [2] On 18 January 2022 I held a conference via telephone. During the course of that conference the Respondent raised a number of objections to the application. The Applicant sought to address these following the Conference.

• [3] The Applicant wrote to the Fair Work Commission (the Commission/the FWC) on 2 February 2022 requesting an update on progress and stated that it had addressed the pre dispute matters and would be waiting for a response from the Respondent and if not resolved would notify the Commission and request its assistance. The Respondent notified the Commission of a Jurisdictional Objection on 10 February 2022 and so I made directions and listed the Objection for Arbitration. Both parties were requested to serve any material and submissions and the Hearing was listed for 4 April 2022. The Union requested an adjournment because of unavailability due to leave and so I re listed the matter for the 22 April 2022.

• [4] The parties proposed that I determine the matters on the papers and I agreed to that course of action and the Hearing date was vacated. Neither party has filed any evidence and have relied upon the submissions only. I note that those submissions make various factual assertions.

• [5] I am not satisfied on the evidence, that I have jurisdiction to arbitrate the Dispute.

• [6] The Respondent operates a labour hire business and, in this matter, the relevant employees are located at the Dalrymple Bay Coal Port. The relevant employees have been engaged on the same roster and working arrangements for a period of time that pre dates the Respondent being appointed to the contract. Rostering arrangements for shutdowns also pre date the contract that Global Product Search now have. Shutdowns for periodic maintenance occur intermittently dependent upon several factors including scheduled equipment maintenance and weather

• [7] The non-shutdown roster requires employees to work 14 shifts over a 28-day roster period. Each of these 12-hour shifts is made up of 10.857 ordinary hours which works out to be an average of 38 ordinary hours per week or 151.998 ordinary hours over a 28-day period.

• [8] During a shutdown roster, they work a 42-day roster and work four days on, two days off, four nights on, two off with a 12 hours per shift, which are made up of 10.857 ordinary hours, which results in employees working an average of 50.666 ordinary hours per week and 217.14 ordinary hours in a 28-day period.

• [9] In July 2021, the first shutdown roster since the Respondent had taken over the contract was implemented by the Respondent. The Respondent claims that there were consultations, and the employees asserted a different position to the company's original proposal. After consideration, the company agreed to the proposal of the relevant workers.

• [10] The Applicant met with the Respondent several times between July and December 2021 regarding payments of ordinary hours during the shutdown roster to "discuss the issues". There is no evidence before me about the context or content of those discussions.

• [11] On 9 December 2021, the Union wrote to the Respondent to notify of a dispute and the Respondent replied on the 20 December 2021. On the 23 December 2021, the Union filed an F10 notifying the Commission of a dispute under s.739.

• [12] I held a conference on the 18 January 2022. During the conference it became apparent that the Union was not a party to the Agreement and could not notify of a dispute as they were not a party and had no evidence that they were a representative. Further, during the last 6 months from July 2021 to December 2021 the Respondent maintains that there was no indication that the Union were representatives. No evidence or document had been provided to the Respondent in that period that confirmed that the Union was acting on their behalf.

• [13] Following the conference, on the 1 February 2022 the Union provided 25 letters signed by employees to act as a representative in the dispute and that they had instructed the Union to commence the current dispute. On 7 February 2022 the Respondent replied indicating that they maintained this jurisdictional objection. Further the Respondent noted that a shutdown had occurred in Feb of this year with no dispute being raised by employees.

• [14] The objections principally are that the pre filing steps as set out in the Agreement have not been complied with. The connected matters are whether the AMWU have standing, is the matter outside the Dispute Resolution process as it occurs for a shutdown that has been and gone, and that in any event what is the utility of the Application.

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.

1. Further provisions specifically dealing with Disputes under Awards and Enterprise Agreements are found at Sections 738 and 739 of the Fair Work Act 2009 (the Act/the FW Act):

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

2. It is therefore necessary for the Commission to be empowered in accordance with a provision of the Respondent's Enterprise Agreement. That Enterprise Agreement includes a Dispute Resolution clause in the following terms:

• [15] The following provisions of the Agreement are relevant to the Dispute:

(b) the National Employment Standards; this term sets out procedures to settle the dispute.

(2) An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.

(3) In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.

(4) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to The Fair Work Commission.

(5) The Fair Work Commission may deal with the dispute in 2 stages:

(a) The Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) if The Fair Work Commission is unable to resolve the dispute at the first stage, The Fair Work Commission may then:

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties.

Note: If The Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act.

A decision that The Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.

(6) While the parties are trying to resolve the dispute using the procedures in this term:

(a) an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

(b) an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:

(i) the work is not safe; or

(ii) applicable occupational health and safety legislation would not permit the work to be performed; or

(iii) the work is not appropriate for the employee to perform; or

(iv) there are other reasonable grounds for the employee to refuse to comply with the direction .

(7) The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this term.

• [16] The Respondent contends that the requirements of the Dispute Resolution Process (DRP) is that "in the first instance the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management," that this step never occurred, and that no employee raised the issues now the subject of this application.

• [17] The Respondent does not oppose that an employee may appoint a representative but note that for the representative to be appointed that there must be a dispute with which they are engaged with the employer. The Respondent states that there can be no dispute if there has been no discussion.

• [18] The Respondent asserts that the Commission is not empowered if the preliminary steps have not been complied with, no single employee raised the matter, and none have indicated that they wished to be represented, until the Applicant, 6 months post the matter arising, presented 25 letters of authorisation.

• [19] The Agreement provides that for a party to progress a matter to the Commission, they must first comply with the relevant steps, being to seek to resolve the dispute in the first instance by discussions between the employee and employer.

• [20] Further, as the employees had not satisfied the criteria for establishing a dispute for the purposes of the relevant provisions, they did not have the right to appoint a representative.

• [21] The Employer asserts that as the Union is not a party to the Enterprise Agreement and has not been engaged in accordance with the relevant provisions of the Dispute Resolution Process, the Union has no standing either in its own right, or as an employee representative in a dispute, to bring this application.

• [22] The Respondent asserts that the Union, in an attempt to cure the Application, intend to either join the individual employees as claimants in the original proceeding, or to commence individual dispute proceedings. Joining the individual claims to the original Application, in the Respondents view, does not correct the already flawed application.

• [23] Even if the Applicant initiates individual dispute applications they too are bound to fail as the original application lacks jurisdiction, namely that none of them complied with the mandatory steps in the Dispute Resolution process,

• [24] It is to be noted that at the time of the shutdown the Respondent alleges that no dispute was raised by any employee, in fact the current proposal that the Union seek to agitate was the position of employees. The Respondent abandoned their proposal and adopted what was proposed by the employees to have a longer ordinary hours paid. The Respondent acquiesced to the requests of the employees. No employee had an issue. The Respondents say the Union wish to agitate a matter post implementation where the employees expressed their preference and they prevailed.

• [25] That the arrangements proposed by the employees were accepted by the employer which they say demonstrates that there was no actual dispute between employer and employees at the time. Thus, they are unable at that point to claim a dispute existed, nor appoint a representative. There was no dispute in existence as the employer had given the employees the roster arrangements they had proposed.

• [26] The Respondent contended that as the employees represented themselves and were successful in their self-representation it cannot now be contended that another party with a different take on what should have happened, should be allowed to intervene after the fact.

• [27] The outcome cannot be a retrospective order as to how events that have already occurred should now be deemed to have occurred. Those are historical facts, and it is not within the power of the Commission (or in fact, mortal beings) to change what occurred.

• [28] The Respondent asserts that it is evident that the relevant employees have been informed that they stand to gain significant backpay if this application succeeds and that the respondent notes that would require the Commission to arbitrate a wage claim, for which it lacks jurisdiction.

• [29] The Respondent further submits that the Applicant appears to be contending that the Commission can arbitrate a wage claim, under the banner of arbitrating a dispute and they referenced the Act at Section 595 (3) provide:

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

• [30] The Respondent argues that the Commission must have a power under some other part of the Act, to determine a wage claim and they state that there is no other part of the Act which provides the Commission with the power to arbitrate wage claims.

• [31] The Respondent asserts that the Commission has the power to arbitrate a dispute once the circumstances satisfy the requirements for the Commission to do so. They assert while the Commission can arbitrate a dispute as to a proposed course of action, it cannot arbitrate after the fact.

• [32] The Respondent further contends that the application lacks utility and, on that basis, should also be refused.

• [33] The Applicant concedes it is not a party to the dispute and could not commence the dispute in its own right. They do assert that they have the power to represent employees and members in the dispute.

• [34] The Union contend that the application can be corrected where they have erroneously identified themselves as the Applicant rather than the representative in a dispute utilizing s.586 of the FW Act. They reference the decision of the Full Bench in Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd t/a Pacific National2 ('Asciano'). Where an Appeal bench found that not naming the employees in an application, amongst a number of other reasons, was not a reason for the failure of the application.

• [35] The Union assert that in the matter of following the DRP that the right to representation clause precedes the first step in the process that all stages of the DRP are able to have a representative at any or all stages of the DRP. The Union reject that there must be a dispute prior to engaging a representative and that it must be an employee exclusively to commence the dispute prior to engaging a representative.
• [36] The Union contends that there have been a series of engagements regarding the matter to attempt to resolve the differences in views over the roster payment. Meetings occurred on 16 July, 5 August, 30 September and December 2021, correspondence from the Union to the Respondent indicating they were to initiate a dispute and seeking a response. No evidence was presented regarding the discussions - what was discussed and how the discussions were framed or whether any employees may have given some type of authorisation prior to those discussions occurring.

• [37] Following a conference involving the Commission on 18 January 2022 the AMWU provided to the Respondent 25 individually signed notification forms from employees indicating that they wished to raise a dispute with the AMWU being their representative and further they had instructed the AMWU to commence the current dispute.

• [38] Given the series of engagements from July 2021 onwards the Applicant contends that the dispute had commenced and the series of discussions with management and these discussions had discharged subclause (2) of the DRP.

• [39] The Applicant asserts that even if the issue of the AMWU's representation was not made out that by 1 February 2022 it was clear as the AMWU provided the individual signed notifications from 25 employees indicating that they wished to raise a dispute with the Respondent and the Union was their nominated representative.

I, [Name of Employee], confirm that I am commencing a dispute in accordance with Part VIII of the Global Product Search Enterprise Agreement 2018 ('the Agreement').

• [40] The Applicant disputes the contention by the Respondent that a dispute must be raised exclusively by an employee prior to a representative being able to intercede. The Union rejects that the assertion by the Respondent that the DRP had not been followed as no employee had commenced the dispute. The Union asserts, that the Union was at all time acting was acting as a representative of employees and thus the DRP was complied with to the extent that meetings occurred on multiple occasions with management representatives from the Respondent.

Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd t/a Pacific National [2017] FWCFB 1702

[15] As to the second reason, in order for the Commission to have jurisdiction to deal with a dispute pursuant to s.739 of the FW Act, the dispute, properly characterised, must fall within the scope of disputes that the applicable enterprise agreement "requires or allows" the Commission to deal with 10 and the parties must comply with any mandatory pre-filing steps set out in the enterprise agreement. However, there is no requirement in the FW Act for every s.739 application filed in the Commission to identify by name each employee who was a party to the dispute at the time the application was filed. In some circumstances the employee parties to the dispute may be identified with sufficient particularity by reference to a class of employees.11 Further, in the event that there is some uncertainty about who belongs to the class of employees or further information is required to enable the employer, as a matter of natural justice, to understand the case it has to meet in dealing with the dispute, including the names and circumstances of employee parties to the dispute, then directions can be sought from, and made by the member of the Commission dealing with the dispute. In the event that a party to a dispute is directed to provide such additional information and refuses to do so, it may provide a foundation for the Commission to exercise its discretion to dismiss the application, decline to grant any relief, or take some other course.

[16] We consider that dealing with disputes in the manner set out in the previous paragraph is consistent with the duty imposed on the Commission to perform its functions and exercise its powers in a manner that is, amongst other things, "quick, informal and avoids unnecessary technicalities." 12 In our view, it would be contrary to the obligations imposed on the Commission pursuant to s.577 of the FW Act for s.739 applications to be automatically dismissed on the basis that every employee party to the dispute was not identified by name in the application.

[2017] FWCFB 5032 The AWU v MC Labour Services Pty Ltd

[37] It may be that situations will arise where it is genuinely impossible for a party to comply with a mandatory step in a dispute resolution procedure, and that the effect of this is that the Commission or other independent person cannot attempt to settle the dispute. This might be an issue for the Commission to examine when considering whether to approve an agreement under s.185 of the FW Act. However, once an agreement has been approved, and a dispute is referred to the Commission under it, it would not be permissible for the Commission to recast or ignore certain components of the dispute settlement procedure. Section 186(6) is not a source of power to do this. An enterprise agreement comes into operation seven days after it is approved by the Commission.22 Once in operation, the agreement is presumed to be valid, until such time as the decision of the Commission to approve the agreement is overturned on appeal, or the agreement is otherwise found by a court to be invalid. The various terms of an enterprise agreement are also assumed to be valid, with the exception only of unlawful and certain other terms, which have no effect as a result of s.253 of the FW Act.

[38] The requirements of s.186(6) may be relevant in identifying the proper construction of a dispute resolution clause in an agreement. If the proper meaning of such a clause is disputed, the resolution of the disputed construction will begin with the ordinary meaning of the relevant words, considered in context, in accordance with the principles summarised in AMWU v Berri. 23 The legislative framework, including s.186(6), is part of that context.24 There may be cases where, properly construed, the clause allows the Commission to proceed to deal with a matter, despite certain steps not being satisfied. And of course, there may be clauses which expressly allow certain steps to be bypassed, or for the Commission to have a general discretion to deal with disputes.

[39] However, the parties to an enterprise agreement are free to impose limitations on the role afforded to the body that is to settle disputes about matters arising under the agreement. Where these limitations are not observed, the Commission (or other persons) has no discretion to deal with a dispute referred to it under the agreement, unless one is conferred on it under the terms of the agreement.

[40] Clause 10.4 of the Agreement set pre-conditions for the capacity of the Commission to deal with a dispute. Those pre-conditions were not met. There is no general discretion afforded to the Commission under the FW Act to deal with a dispute under an enterprise agreement. The Agreement affords no such discretion in the present matter.

22 Or such later day specified in the agreement - s.54(1). 23 [2017] FWCFB 3005 at [114] 24 Ibid at [114], principle 1(iii)

• [41] It is agreed by the parties the principles that apply in properly construing the Agreement were summarised by the Full Bench in AMWU v Berri Pty Ltd 3 (Berri) these are well known and are not needed to be quoted_._ More recently, the Full Court of the Federal Court of Australia stated the principles applicable to the interpretation of an enterprise agreements in James Cook University v Ridd: 4 Which confirmed the principles and stated

"(i) The starting point is the ordinary meaning of the words, read as a whole and in context.

(ii) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a "practical bent of mind". The interpretation "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose".

(iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part, or to other documents with which there is an association".

(iv) Context may include "... ideas that gave rise to an expression in a document from which it has been taken".

(v) Recourse may be had to the history of a particular clause "Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form..."

(vi) A generous construction is preferred over a strictly literal approach, but "Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties".

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry." [references omitted]

• [42] In understanding the DRP the clauses are plainly written, brief and not overly complicated and do not need a more fundamental analysis. The scope of the DRP is set out in the first clause as the Agreement and NES, the possibility of the employees having a representative is clearly articulated, there are no requirements as to how or the process of engaging representatives is to occur, and I do not understand there to be any dispute that the subject matter of the dispute is not a matter within the DRP. No limitations or requirements are placed upon the appointment of representatives. The first action in the escalation process is clear and unambiguous and provides that employees engage with the employer, no organisational levels are specified and no time limits for actions or responses.

• [43] The words read like most DRP's. The first port of call for an employee or employees with an issue is to engage with the "relevant supervisors and/or management"

• [44] The DRP provides that representation is available and that it is an "employee who is party to the dispute may appoint a representative for the purposes of the procedures in this term". There are no qualifiers in this statement, it stands alone and prior to the escalation pathway required in the DRP. The plain and ordinary view of this is that a representative can be appointed at any stage of the dispute. There is no mention that a dispute must be created as a pre-condition to the engagement of the representatives. The clause does not specify how or when the appointment must occur.

• [45] However, the issue of whether the disputes procedure was followed has another leg and that is - was the escalation process followed, the AMWU provided no evidence to the Respondent that at the time of the discussions prior to the notification of a dispute to the Commission that they were acting with authority as representatives of any employee.

• [46] However, at the time of the discussion no employee had notified or engaged with the Respondent that they either had an issue or had someone representing themselves. They engaged with the Union in good faith and outlined the circumstances where the employees and the Respondent had consulted regarding the shutdown roster and the Respondent had agreed to the proposal put forth by the employees. Further that an agreement was reached at the time with employees which in their view and the employees' was consistent with the Agreement's application, and the roster was implemented

• [47] The Commission is allowed to deal with a dispute under s.739 to the extent that the relevant agreement allows for and that the parties to the Agreement set the parameters for the involvement and actions the Commission may take. The Agreement provides the framework within which the Commission can exercise a role and its powers.

• [48] This is not a case where the DRP was difficult or impossible to follow. The AMWU has filed no evidence to establish jurisdiction. There is no evidence that at the time of the 2021 discussions, the AMWU were acting on behalf of, or with the authority of, any employee. The AMWU is not covered by the Agreement and has no ability, under the DRP to agitate disputes generally. It may act as a representative of an employee/employees but it gives no evidence that in fact was what it did in 2021.

• [49] The dispute did not follow the DRP and attempts at post application fixes by providing letters of authorisation and framing the matter as a dispute when the first step in the process was not adhered to does not respect the process agreed to by the parties and set down in the Agreement.

• [50] The correct process has not been followed and the Commission does not have any general discretion under the FW Act nor under the Enterprise Agreement.

• [51] The "letters of appointment" are not evidence in the strict sense and take matters no further. What is relevant, and was necessary for the AMWU to establish, was that at the time discussions were had it acted as a representative of an employee that was raising a dispute with the Employer. It has not established this.

The matter is dismissed. The Commission does not have the power to arbitrate this dispute.

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