Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd

Industrial Relations Commission (NSW)|2017-10-05

Solicitors: Crown Solicitor (Respondent) File Number(s): 2017/00240154

……………………. 16 Part 6-2 (dealing with disputes) modern award copied State award for transferring employee

768BY Modification of the Transitional Act and regulations for copied State instruments (1) Each relevant transitional provision (see subsection (2)) has effect in relation to a transferring employee as if a reference to a term referred to in column 1 were a reference to the term referred to in column 2. The provision has effect from the time specified in column 3 of the table in subsection (2). Item Column 1 Column 2 Current term New term

1 Division 2B State instrument Copied State instrument for the transferring employee

………………….. (2) For the purposes of subsection (1), the relevant transitional provisions are: (a) the provisions of the Transitional Act that are listed in column 1; and (b) the regulations made for the purposes of those provisions. Item Column 1 Column 2 Column 3 Relevant transitional provision Which is about Relevant time

………………………. 3 item 13 (other than note 1 and note 2) of Schedule 3A references to State industrial bodies The transferring employee's termination time

Also relevant are the following provisions of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) ("the Transitional Act"): Schedule 3A - Treatment of State awards and State employment agreements of Division 2B referring States …………………………. 7 Terms about disputes relating to matters arising under Division 2B State awards (1) If the source award for a Division 2B State award includes a term that provides for disputes relating to matters arising under the award to be settled by: (a) a State industrial body; or (b) a person who is independent of the employers, employees or organisations covered by the source award; the Division 2B State award is taken not to include that term. (2) Each Division 2B State award is taken to include the model term that is prescribed by the regulations for dealing with disputes relating to matters arising under Division 2B State awards. Note: This subitem applies whether or not the source award included a term as mentioned in subitem ((1). (3) The model term does not apply to disputes about matters arising under the source award before the Division 2B referral commencement. (4) The model term, as taken to be included in a Division 2B State award: (a) cannot be varied; and (b) cannot be removed from the award. ………………………. 13 References in Division 2B State instruments to State industrial bodies (1) Subject to subitem (2), if a term of a Division 2B State instrument is expressed to confer a power or function on a State industrial body, that term has effect as if references in it to the body were instead references to the FWC. (2) If a term of a Division 2B State instrument is expressed to confer a power or function on the registrar, or a deputy registrar, of a State industrial body, that term has effect on and after the Division 2B referral commencement as if references in it to the registrar or a deputy registrar were instead references to the General Manager of the FWC. (3) This item has effect subject to: (a) a contrary intention in this Act; and (b) the regulations. Note 1: A Division 2B State award will be taken not to include a term from the source award that provides for the settlement of disputes relating to matters arising under the award: see item 7. Note 2: This item does not apply to a term of a Division 2B State employment agreement that provides for the settlement of disputes relating to matters arising under the agreement: see item 8.
The Respondent made the following submissions, based upon these legislative provisions: 28. At the time of transfer of employees to the non-government sector, the 2017 Nurses Award will become a copied State award pursuant to Part 6 - 3A Transfer of Business from a State Public Sector Employer of the Fair Work Act 2009 (the FW Act) for those employees transferring and the relevant non-government sector provider. 29. In summary, where there is a transfer of business, as defined in section 768AD of the FW Act from a State public sector employer to a national system employer, the State industrial award that applied before the transfer continues to apply to the relevant employees after the transfer and binds the new national system employer. The State award becomes a copied State award and is a federal instrument enforceable under the FW Act. The copied State Award comes into operation immediately when the employee is terminated by the State public sector employer and will cease to operate at the end of five years pursuant to section 768AO of the FW Act. 30. Section 768BX of the FW Act sets out the modifications to the Act for copied State instruments, which includes a copied State award. Item 16 in section 768BX provides that in relation to Part 6 - 2 Dealing with Disputes of the FW Act, where the term modern award is used, this term includes a reference to a copied State award. 31. The FWC, therefore, has power to deal with disputes in accordance with Part 6 - 2 of the FW Act, arising out of a copied State award. Part 6 - 2 includes section 739 Disputes dealt with by the FWC. 32. Also relevant is section 768BY of the FW Act. This section provides for modification of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ((the Transitional Act) for copied State instruments. 33. Section 768BY(1) provides that a reference to a Division 2B State instrument is a reference to a copied State instrument for the transferring employee for each relevant transitional provision from the time specified in section 768BY(2). 34. "Relevant transitional provision" is defined in section 768BY(2) of the FW Act. Item 3 of section 768BY(2) designates item 13 of Schedule 3A of the Transitional Act as a relevant transitional provision, with the exception of note 1 and note 2. The exception of the notes achieves the result that the particular regime provided for dispute clauses in Item 7 of Schedule 3A in the Transitional Act is inapplicable to copied State Awards - so that the provisions requiring references to the IRC NSW to be read as references to FWC take full effect. 35. Item 13(1) of Schedule 3A of the Transitional Act relevantly states that if a term of a Division 2B State instrument is expressed to confer a power or function on a State industrial body, that term has effect as if references in it to the body were instead references to the FWC. The FWC, a creature of statute, can only exercise power in accordance with the provisions of the FW Act. Therefore, the replacement of IRC NSW with FWC necessarily brings with it the powers applicable to the Fair Work Commission under the FW Act - but no more. Importantly, the relevant time is expressly stipulated to be the time of the "transferring employee's termination time" 36. Taking the 2017 Nurses Award as it is now, from the moment that an employee is transferred to a non-government employer, the provisions of the Award will apply to that employee and his or her employer as modified by these sections of the Transitional Act. Clause 18 will apply to the employee so that any dispute concerning that employee arising will be able to be dealt with, in accordance with the provisions of the FW Act, by the FWC. 37. That is, Clause 18(v) will be read as replacing the IRC NSW with the FWC. Similarly, the power exercised by the FWC will be necessarily power under the FW Act. This is the only sensible way to give effect to item 3 of section 768BY(2) of the FW Act. 38. As a result, whatever power to arbitrate existed under clause 18 will be transferred to the FWC as long as there is nothing in the Federal Act to provide otherwise. (Emphasis added)
Ultimately, the Association accepted the correctness of these submissions and amended its application by deleting reference to the FWC from its proposed subclause 18(v) of the Award on the basis that term "Industrial Relations Commission" appearing in that subclause will be read as "Fair Work Commission" when the Award becomes a copied State award under the FW Act upon the transfer of employees from FACS to an employer in the non-government sector as part of the implementation of the NDIS.
As a consequence, all that remained in the proceeding was the proposed amendment to the definition of "Department" in Clause 2 of the Award and the addition of the last sentence of the proposed subclause 18(v), which purports to invest this Commission with the power to deal with disputes by "mediation, conciliation and/or arbitration as permitted by relevant legislation at the request of either the Association or Department". The stated purpose of the proposed amendment is to invest the FWC with the power to deal with disputes by arbitration after the affected employees are transferred from the jurisdiction of this Commission into the federal system.

Case for the Association

The Association, in support of its claim for the orders varying the Award, relied upon a witness statement from Dennis Ravlich, Member Industrial Services Team, of the Association. That witness statement canvassed developments leading up to the "forced transfer of employment" of nurses employed by FACS. In that statement, Mr Ravlich stated as follows: 34. The issue of enforceability of employment entitlements (along with other associated concerns) arising from services and employment being transferred from the NSW Government to the NGO sector has also been regularly raised by public sector unions during 2017, including by myself on behalf of the Association, at the monthly Public Sector Union Consultative Forum meetings chaired by NSW Industrial Relations. 35. In the absence of any resolution or certainty being achieved, and therefore the issue remaining unresolved, the Association remains concerned that the current dispute resolution clause in the NSW Award, and therefore future copied State award, could not be assumed to provide the Fair Work Commission the jurisdiction to hear and resolve disputes. 36. In the absence of any alternative dispute mechanism being agreed to by NSW Industrial Relations/FACS to resolve issues pertaining to the employee entitlements of transferred employees, it could not be assumed that access to the Fair Work Commission would be available, including that of arbitration, something currently available to FACS staff under the Industrial Relations Act 1996.
In its initial submissions in support of the proposed amendments to the Award, the Association set out the current terms of clause 18 and then put the following: 21. It is apparent that the present provision contemplates that, if a dispute is incapable of being resolved by direct discussions between the parties, the matter may be referred to the Commission to be resolved in accordance with clause 18(v). The powers capable of being exercised by the Commission include, of course, the capacity to resolve the dispute by arbitration under Chapter 3 of the Act. 22. The Government and FACS has represented to the Association and its members that, upon transfer to non-government employment, disputes will be capable of resolution by the Fair Work Commission. It is unclear how, on the existing provision, it would be possible for this Commission or the Fair Work Commission to deal with disputes upon transfer for the following reasons: (a) Firstly, this Commission is able to exercise dispute resolution functions if authorised or permitted to conduct such a process under a federal enterprise agreement under s 146B of the Act. The Award will take effect as a copied State award following the transfer of staff to non-government employment. A copied State award has effect as if it were a modern award rather than as an enterprise agreement for the purposes of various parts of the FW Act, including with respect to the resolution of disputes: s 768BX((Item 16). On its face, s 146B of the Act would not appear to permit this Commission to deal with a dispute under a copied State award. (b) Secondly, the Fair Work Commission is able to exercise dispute resolution functions if a modern award, enterprise agreement, a contract of employment or public sector determination "requires or allows the FWC to deal with a dispute": ss 738 and 739(1). Clause 18 of the Award, as it current stands, does not expressly require or allow the Fair Work Commission to deal with a dispute relating to employees covered by the Award. Again, on its face, ss 739 of the FW Act would not appear to permit the Fair Work Commission to deal with a dispute arising under the Award as a copied State award. 23. The effect of the variation sought by the Association is no more than to ensure that the existing dispute resolution options remain part of the conditions of employment of employees subject of transfer to non-government employment. As has been mentioned, a copied State award generally has effect under the FW Act as a modern award, including for the purposes of Part 6-2 of the FW Act in relation to dispute: see s 768BX (Item 16). The FW Act specifically contemplates that, if a copied State award requires or allows the Fair Work Commission to deal with a dispute, it may do so in accordance with s 739(1) of that Act. 24. The Commission should vary the Award as sought in the following circumstances: (a) In circumstances in which a large number of employees are in the process of being forcibly transferred from the public sector to non-government employers, it is peculiarly important to employees that effective procedures exist for the resolution of disputes in relation to the transfer and their conditions of employment generally. (b) A number of significant commitments given by the NSW Government, including the employment guarantee period, are subject of agreement between the NSW Government and non-government providers rather than directly with the employees and may be incapable of being enforced at all in the absence of an appropriate dispute resolution provision. (c) The NSW Government and representatives of FACS have repeatedly assured of the Association and its members that the conditions of employees upon transfer to non-government employers will include the capacity for disputes to be resolved by the Federal Courts or the Fair Work Commission. The variation sought is consistent with the representatives made to the Association and its members in the period leading up to the transfer. Case for the Respondent
In opposing the proposed amendments, the Respondent submitted as follows: 39. In paragraph 22(b) of its submission, the Union points to section 739(1) of the FW Act as relevantly limiting the power of the FWC to arbitrate if clause 18 is left in its existing form. This is alleged to be because the Award as it stands "does not expressly require or allow the FWC to deal with a dispute relating to employees covered by the Award." 40. This submission could not be accepted. Once "FWC" is read for "State Industrial Commission" in clause 18, it is clear from the language of the provision that it permits the Tribunal to "deal with" the dispute. That is its very purpose. 41. The critical limiting aspect of section 739 that is however potentially relevant appears from section 739(4) which provides that: "If in accordance with the term the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so." 42. The term (clause 18) clearly does not provide that the parties have agreed that the IRC NSW (let alone the FWC) can arbitrate. 43. Accordingly, it may be considered that the better view of clause 18 is that there is nothing in the clause providing for arbitration by consent as "assistance in resolving the dispute" does not equate with the power to arbitrate. Section 739(4) requires that the term for dealing with disputes must itself specifically refer to the power given to the FWC to arbitrate. There is nothing surprising in the fact that the existing clause does not address matters required by section 739(4) of the FW Act because under state legislation, there is no concept of any requirement for consent as a precondition of arbitration. Indeed, sections 135 and 136 of the IR Act empowers the IRC NSW to arbitrate regardless of the wishes of parties or expressions in relevant industrial instruments. 44. If it is accepted that accordingly clause 18 does not satisfy s.739(4) then, as contended by the Union in paragraph 22(b), there would indeed be a relevant limitation on the capacity of the FWC to arbitrate if the clause remained unamended - though not for the reasons contended for by the Union. 45. However, this situation (unlike the limitation suggested by the Union in paragraph 22(b)) is not able to be altered by any order that the IRC NSW is validly able to make. In terms, the IRC NSW is not empowered to make a decision, in a contested proceeding, that the FWC has jurisdiction to arbitrate regardless of the limitations imposed by section 739(4). This is because the inclusion of a provision for arbitration in the form sought by the Union as a result of this contested proceeding would not be a matter done by consent. 46. In R v Hughes the High Court identified two relevant propositions, saying: "The first is that a State by its laws cannot unilaterally invest functions under that law in officers of the Commonwealth; the second is that a State law which purported to grant a wider power or authority than the acceptance of which was prescribed by Commonwealth law would, to that extent, be inconsistent with the Commonwealth law and invalid under s.109 of the Constitution." 47. On the other hand, if the view is taken that clause 18 meets the requirements of section 739(4) then there is nothing in section 739 or elsewhere in the FW Act that would relevantly limit the capacity for arbitration to occur. 48. On this basis the variation sought, insofar as they refer to a power to arbitrate, would be entirely unnecessary. 49. It follows that, whatever view is taken on the question of whether clause 18 satisfies the requirements of section 739(4) of the FW Act, there is no basis whatsoever justifying a variation of the clause to identify a power to arbitrate. 50. In any event there is the broader consideration that on any view, the proposed amendment specifically takes the form of seeking to empower the Fair Work Commission to arbitrate, and as is made quite clear by the court in R v Hughes, this is not something that can be validly done in any event. ………………... 60. The Union's submissions at paragraph 24 put forward a number of circumstances that, in their view, justify the proposed variations. In response to those matters, the IR Secretary submits: (a) The FW Act currently provides for effective procedures for dealing with disputes and the proposed variations do nothing more than confuse; (b) The FW Act provides the FWC with power. The FWC can only act within this power. Matters of enforcement are not matters within the FWC's jurisdiction and cannot be matters over which a disputes procedure purports to invest in the FWC; (c) The FWC may deal with a dispute in accordance with sections 739 and 595 as set out above. The FWC can only deal with a dispute in the terms of the disputes procedure and the relevant provisions of the FW Act. 61. The net result is that the Union has not and could not identify an issue that is not capable of arbitration now but capable of arbitration should the proposed variation be made by the IRC NSW. Definition of Department 62. The proposed variation to the definition of Department to include any new entity adds to the confusion. 63. Following the creation of the copied State award for each relevant employee, the Department will no longer have any role in an employment dispute between the Union, an employee and any new entity. 64. Sections 768AM and 768AN of the FW Act deal with when a copied State instrument applies to an employer and covers an employer respectively. In simple terms, the effect of these sections is that the new employer will have the obligations of the Department as described in the copied State award. 65. The variation is unnecessary given these legislative provisions. (Emphasis added)

The Association's submissions in reply

In its submissions in reply to the submissions of the Respondent, the Association accepted that it was unnecessary to seek the amendments to subclause 18(v) of the Award that inserted references to the FWC. The Association then put the following: 4. This means that the only amendment to Clause 18(v) that needs to be pursued is the addition of the final sentence in the application without any reference to the FWC. That amendment would now read: The Industrial Relations Commission may deal with the dispute by mediation, conciliation and/or arbitration as permitted by relevant legislation at the request of either the Association or Department. …………………. 6. Contrary to what is suggested by the Respondent's submissions at [62] to [65], it is necessary to pursue the amendment to Clause 2 of the Award relating to the extended definition of "Department" to ensure that the new employer can make such a request. 7. Given that the Association is no longer seeking an amendment that directly seeks that the IRC gives power to the FWC to do anything, no question of validity arises as suggested by the Respondent's submissions at [50]. Any power given to the FWC to arbitrate will arise directly from the transfer of employees and the terms of the FW Act. 8. The Respondent's submissions at [41] seek to raise s 739(4) of the FW Act as an impediment to the application being effective in so far as it refers to a power to arbitrate. 9. However, in relation to copied State instruments, s739(4) is not the only source in the FW Act of the power of the FWC to arbitrate. The effect of s 768BY is that the FWC has the same powers as the relevant State industrial body. If a State industrial body has the power to arbitrate, it follows that the FWC will also have the power to arbitrate. 10. In any event, the question of the satisfaction of the requirements in s 739(4) if the application is granted would depend on whether in Clause 18(v) the parties have agreed that the IRC "may arbitrate (however described)" a dispute. 11. It is evident that in its current form, Clause 18(v) provides that the parties have agreed that the tribunal may arbitrate a dispute. That agreement is described by reference in Clause 18(v) to the dispute being "referred in accordance with the provisions of the Industrial Relations Act 1996, to the Industrial Relations Commission of New South Wales for its assistance in resolving the issue". That provision, made by consent, clearly contemplates that the IRC may arbitrate a dispute in accordance with ss 135 and 136 of the IR Act. 12. The Respondent's submissions at [43] rely on ss 135 and 136 of the IR Act applying irrespective of the consent of the parties. However, that does not detract from the fact that the parties have also consented in Clause 18((v) to the IRC arbitrating disputes in accordance with ss 135 and 136 of the IR Act. It should be noted that the dispute resolution procedure mandated by s 14 of the IR Act does not require any reference to the involvement of the IRC. 13. The submissions of the parties in these proceedings suggest that there might be an ambiguity as to whether the Association and Respondent have agreed under Clause 18(v) that the IRC may arbitrate a dispute. The effect of the Respondent's submissions at [48] is that any such ambiguity need not be resolved at this point in time. 14. However, there are compelling reasons for the IRC to remove any such ambiguity before the terms of the Award apply as a copied State instrument for transferring employees. Although made by consent, Clause 18(v) was approved by the IRC pursuant to the provisions of the IR Act. Therefore the IRC is the tribunal best suited to resolve any such ambiguity. The FWC should not be left in the invidious position of having to investigate the intention of the parties when they were subject to the jurisdiction of the IRC. 15. Although the Association submits that, in its current form, Clause 18(v) provides that the parties have agreed that the IRC may arbitrate a dispute, it is appropriate that any question of ambiguity be resolved before the IRC is replaced by the FWC in relation to the transferring employees. 16. Indeed it is in the public interest that any doubt be removed before the employees are transferred.

Clause 2 - Definitions

An amendment is sought by the Association to the definition of "Department" in Clause 2 - Definitions of the Award to include the words "or the entity whose employees are engaged in a classification covered by this award". The stated purpose of this proposed amendment is to make it clear that, following the transfer of employees to a non-government employer, that employer will have the capacity under subclause 18(v) of the copied State award to take the same steps in relation to an unresolved dispute that the Department is currently able to take under the Award.
This aspect of the Association's claim did not occupy a great deal of attention in the proceedings.
As was submitted by the Respondent, sections 768AM and 768AN of the FW Act operate so that the new employers will, in effect, stand in the shoes of the Department once a copied State award comes into existence. The new employer will have the same rights and obligations under the copied State award as the Department now has under the Award. This will include those rights and obligations which Department currently has under subclause 18(v) of the Award.
The proposed variation to the definition of "Department" is unnecessary and is refused.

Clause 18 - Disputes

The starting point for consideration of this aspect of the Association's application is the current wording of subclause 18(v) of the Award, which is as follows: If these procedures are exhausted without the matter being resolved, or if any of the time limits set out in those procedures are not met, either the Association or the Department may seek to have the matter mediated by an agreed third party, or the matter may be referred in accordance with the provisions of the Industrial Relations Act 1996, to the Industrial Relations Commission of New South Wales, for its assistance in resolving the issue.
On the submissions of the Association, this award provision is uncertain in relation to the Commission's power to resolve disputes by arbitration. The provision does not purport, expressly, to confer upon the Commission the power to resolve disputes by arbitration. It is said by the Respondent that, to the extent that the Commission possesses such power, the source of power is not the Award but the Act. It may be readily argued that the terms of the clause are drafted, and are to be understood, in that context. If so, it is possible the clause may be construed as an agreement that the Commission may, in providing "assistance", arbitrate. The agreement is demonstrated by the consent to the making of the Award.
The dispute settlement powers of the FWC, when dealing with a dispute involving an employer and employees covered by a copied State award, will be governed and limited by the FW Act
The Association points to subs 739(4) of the FW Act as a potential source of power for the FWC to exercise arbitration powers in relation to a dispute involving an employer and employees covered by a copied State award. A number of points need to be made about this submission.
Senior counsel for the Association referred the Commission to the following passage from the judgement of the High Court in Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; 203 CLR 645 at [34] ("Gordonstone"): 34. The parties to an industrial situation are free to agree between themselves as to the terms on which they will conduct their affairs. Their agreement has effect according to the general law. If their agreement is certified, it also has effect as an award. To the extent that an agreement provides in a manner that exceeds what is permitted either by the Constitution or by the legislation which gives the agreement effect as an award, it cannot operate with that effect. But the underlying agreement remains and the validity of that agreement depends on the general law, not the legislative provisions which give it effect as an award.
Senior counsel for the Association then put the following submission: And we make a similar point about clause 18, that the provision that in effect we say provides for arbitration, doesn't depend for its validity on the terms of the legislation, but it depends on the general law and if it gives the power to a body like the New South Wales Industrial Relations Commission or the Fair Work Commission for that matter, the Fair Work Commission cannot exceed what it is entitled to do under the statute, but the provision relies on the general law… If the parties agree to it, they are agreeing according to the general law. It may separately be right that there is a right under the Act to invoke arbitration under the statute, but the parties have still separately agreed to the Commission having a role via arbitration. And as a result of that, the Commission has, we submit by consent, been given the power under clause 18 and by virtue of section 768BY the Fair Work Commission has that power.
However, immediately before the passage from Gordonstone cited by senior counsel for the Association, the High Court stated as follows: 30. There is, however, a significant difference between agreed and arbitrated dispute settlement procedures. As already indicated, the Commission cannot, by arbitrated award, require the parties to submit to binding procedures for the determination of legal rights and liabilities under an award because Ch III of the Constitution commits power to make determinations of that kind exclusively to the courts. However, different considerations apply if the parties have agreed to submit disputes as to their legal rights and liabilities for resolution by a particular person or body and to accept the decision of that person as binding on them. 31. 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. 32. To the extent that s 170MH of the IR Act operates in conjunction with an agreed dispute resolution procedure to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the Commission to exercise a power of private arbitration. And procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation to prevent that situation from developing into an industrial dispute are clearly procedures for maintaining that agreement. Parliament may legislate to authorise the Commission to participate in procedures of that kind. Accordingly, s 170MH of the IR Act is valid.
Section 170MH of the Industrial Relations Act 1988 (Cth) was a predecessor provision to s 739 of the FW Act.
It is apparent from the High Court judgement in Gordonstone that the Australian Industrial Relations Commission was acting in the capacity of a private arbitrator, as it was authorised to do by the legislation and empowered to do by the agreement of the parties, and was not exercising arbitral power conferred by statute.
In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; 235 FCR 305, the Full Federal Court (Dowsett, Tracey and Katzmann JJ) considered the effect of ss 738 and 739 of the FW Act in the light of the High Court judgement in Gordonstone and the subsequent judgement in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533 and then stated: 35. Thus it is well settled that "arbitration" by FWC pursuant to a term in an enterprise agreement is a private arbitration, based upon the consent of the parties, and not upon the coercive authority of the Australian state. Subject to the Union's submission that the proceedings before the Full Bench were by way of appeal pursuant to the Fair Work Act, this principle is not in dispute.
Thus, the power of the FWC to settle disputes by arbitration pursuant to subs 739(4) of the FW Act is as a private arbitrator exercising power pursuant to a "term" in an award or enterprise agreement to which the parties have agreed and which is permitted by the statute.
If the current subclause 18(v) of the Award is not such a "term", which is a matter we cannot authoritatively determine, then making the amendment sought by the Association will not change that position. That is because the amendment is opposed. If the amendment makes the difference it will be to no avail because, in terms of subs 739(4), it is not "agreed".
While we accept the merit of the Association's contention that the application seeks to do no more than put the employees in the position they were in prior to transfer, the application must be refused. The addition of the words proposed by the Association, over the opposition of the Department, will not provide the remedy which the Association is seeking. Moreover, the inclusion of the proposed amendment is likely to add to the issues before the FWC rather than reduce them.
For these reasons we consider the proposed amendment will serve no utility and is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2018

Industrial Relations Act 1988(Cth)

Enabling) Act 2013(NSW)

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