Fair Work Act 2009

s.739 - Dispute resolution

Ensign Drilling Australia T/A Ensign Energy Services

Alleged dispute about any matters arising under the enterprise agreement - jurisdiction of the Commission

[1] Mr David Markham has applied under s.739 of the Fair Work Act 2009 (The Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a dispute settlement procedure.

[2] Mr Markham was employed by Ensign Australia Pty Ltd (Ensign) from 30 January 2013 until 17 October 2015. He was covered by the Ensign Australia Pty Ltd Onshore Drilling Employees Enterprise Agreement 2014 (the Agreement). He made this application to the Commission on 22 November 2016, over one year after his employment was terminated.

[3] The matter was first listed for conciliation by telephone before Senior Deputy President Hamberger on 5 December 2016. It was not resolved.

[4] The file was referred to me for arbitration and I listed it for directions by telephone on 20 December 2016.

[5] Ensign advised the Commission that it objected to the matter being arbitrated on the grounds that Mr Markham was no longer employed by them and was no longer covered by the Agreement.

[6] I issued directions on 22 December 2016 to deal with the jurisdictional objection only.

[7] I received submissions from Ensign on 24 January 2017, from Mr Markham on 8 February 2017 and in reply from Ensign on 10 March 2017.

[8] After considering the parties' written submissions, and with their consent, I decided to make my decision without a hearing.

[9] On 29 March 2017 I wrote to the parties seeking further information. A reply to that request was received from Mr Markham on 30 March 2017. Ensign did not receive his reply until 6 April and by permission Ensign responded on 11 April 2017.

[10] On 24 April 2017 I again wrote to the parties seeking further information. A reply to that request was received from Mr Markham on that day and from Ensign on 27 April 2017.

[11] As the parties' responses to my questions gave rise to another question I wrote to them on 27 April 2017. The parties responded on 28 and 29 April 2017 respectively.

[12] Their responses caused me to come to the view that a hearing would be necessary. I decided to conduct the hearing on both jurisdiction and merit and issued directions accordingly.

[13] I was absent on annual leave from 5 June to 2 July 2017 and as a consequence the matter was listed for hearing on 5 July 2017.

[14] The hearing was to be conducted with Mr Markham appearing in Sydney and Ensign appearing by video link from Adelaide. However to accommodate a change in representation by Ensign the form of hearing was changed to telephone. Mr Markham represented himself and Ensign was represented by Ms McHugh who is Ensign's HR Manager for Australia. Mr Markham gave evidence under affirmation. Ms McHugh did not have any evidence to give as she had not previously dealt with Mr Markham's situation. No evidence was called by Ensign.

[15] I have considered the written material provided by both Mr Markham and Ensign along with the proceedings of 5 July.

[16] The nub of the issue between Mr Markham and Ensign is whether Mr Markham was entitled to Field Service Leave for the period he was engaged on modified duties in Ensign's Adelaide office working ordinary office hours of 8.30am - 5pm Monday to Friday.

[17] Mr Markham believes that he was entitled to Field Service Leave and since it was not granted while he was employed, he considers that he is entitled to 97.5 days of pay in lieu of untaken leave.

[18] As well as mounting a jurisdictional objection to this claim, Ensign argues that Mr Markham was not entitled to Field Service Leave once he no longer worked in the field.

[19] I have decided that the Commission does not have the jurisdiction to deal with the dispute. This is because I have concluded that the dispute resolution procedure contained in the Agreement requires Mr Markham to be a current employee to refer a dispute for arbitration by the Commission.

[20] Had I decided that the Commission did have jurisdiction I would have decided against exercising my discretion to deal with the dispute because it lacks utility. This is because even if Ensign should have provided Mr Markham with Field Service Leave whilst he was engaged in the Adelaide office, the issue would need to have been determined whilst he was an employee. This is because the issue could only be resolved in his favour by providing him with paid time off work. There is no provision in the Agreement for payment in lieu in relation to Field Service Leave.

[21] Had I decided to deal with the dispute I would have found that he was not entitled to Field Service Leave. This is because the entitlement to Field Service Leave arises from clause 3.1 Hours of Work and clause 3.1 (d) clearly states that the work roster is generally based on a number of consecutive days at work in the field followed by an equivalent number of days off from work to be taken as Field Service Leave.

[22] It is clear from Clause 3.1(d) that Field Service Leave only applies when an employee is working in the field. Clause 3.1(e) clearly states that working in the field is generally defined as working on a rig in a location where employees work 12 hours each day, and are unable to return to their home. Mr Markham relied on Clause 4.1 (a)(i) which refers to Field Work as "work at a location where it is not possible for the employee to return home each day" but this is only for the purpose of differentiating between rates of pay and does not confer an entitlement to field service leave.

[23] Mr Markham was employed as a Floorman with Ensign when he sustained a workplace injury on 25 September 2014 while working on a drill rig.

[24] It is agreed that for the period of his employment up to the date of his injury he was engaged in Field Service and was working an even-time roster of 14 consecutive twelve hour shifts on and 14 consecutive days off, on a fly in-fly out basis. He was paid for both his working days and his non-working days. His non-working days were described as Field Service Leave. Mr Markham resided in NSW throughout his entire employment with Ensign.

[25] After he sustained his injury he received medical treatment and, after a period of time off for treatment and recuperation, he commenced working modified duties in the Adelaide office of Ensign on 19 April 2015. His roster was five days per week, Monday to Friday 8.30am - 5pm with the weekend off. He was accommodated in a hotel by Ensign for Monday to Thursday nights of the working week and flew home to NSW each Friday returning on a Monday and travelling largely outside of ordinary working hours.

[26] His employment was terminated by Ensign effective 17 October 2015 after his treating doctor advised Ensign's work cover insurer Gallagher Bassett that he would not be fit to work again in his substantive role. Mr Markham has not been employed since this time and his weekly payments from Gallagher Bassett have ceased as a result of the time limit for payments in the relevant South Australian workers' compensation legislation.

[27] While working on modified duties he was paid by Ensign at the rate of 100% of an amount calculated as his Average Weekly Earnings for the preceding 12 months. During his period on modified duties he did not work every week day. He gave evidence that he had time off to see his doctors and attend other necessary appointments. He also took annual leave for personal reasons. During such periods he was paid at the rate of 80% by Gallagher Bassett.

[28] During this period he complained about the roster he was working and his weekly payments.

[29] He communicated his dissatisfaction at working consecutive weeks without paid time off as had been his experience when working in the field. He complained to Ensign Human Resources and Gallagher Bassett about the absence of paid time off in relation to each week worked.

[30] He also complained about the quantum of his weekly payments to Ensign Payroll and Gallagher Bassett. He believed that his Average Weekly Earnings had been incorrectly calculated. Ultimately he took this complaint to the South Australian Employment Tribunal and was successful in obtaining a consent order to rectify underpayments on 29 March 2017. That matter is no longer in dispute and is not the subject of this decision.

[31] Mr Markham gave uncontested evidence that he raised his complaint about "working full-time" with Ensign and Gallagher Bassett. He said that he first raised this on several occasions with Kate Hayden HR representative and was told that that was what Gallagher Bassett had asked for. Mr Markham said:

"I asked a question as to why I had to work full-time instead of my normal roster and I was told that that's what Gallagher Bassett had asked for. I brought it up with Gallagher Bassett. I had a return to work specialist and she said that if Ensign has asked me to work full-time then I need to work full-time but I couldn't get both parties to agree who had actually decided it".[1]

[32] I asked Mr Markham what he thought his work pattern should have been and he replied:

"I was under the assumption that I would still be on my normal roster so that I had my time with my family. I just assumed that then whilst I was having the two weeks off that I would have been getting paid by Return to Work SA and they would be paying me at the 80 percent rate while I was having the time off. I assumed it would be covered because they hadn't given me the answer that I should have been paid as per my agreement at the time but I wasn't happy with working full time because it was a lot of time away from my family. I had quite a few issues with my youngest son at the time who was developing a separation anxiety. But at the same time I was quite scared about the process and I was trying to make sure that I did whatever I was told. Because it's very frightening the fact that I had loss of control of how I was working, and how I was getting paid and I was worried that if I did the wrong thing my payments would stop and then I wouldn't be able to support my family which is a big concern for me."[2]

[33] I asked Mr Markham what he had said to Ensign about his preferred pattern of work, to which he replied:

"I just said that is there a reason why I am being asked to work fulltime and I was told that Gallagher Bassett had asked me to work fulltime. I had mentioned that my doctor was under the assumption I would be on my normal roster so that I had time off to see the physiotherapy and for my body to rest from being over and doing the work. And I was just told that Gallagher Bassett had said that I had to work fulltime but Gallagher Bassett was saying that Ensign wanted me to work fulltime. So it was quite confusing. But I mean I even found in my file doctor's reports that stated that they only wanted me working - well, the doctor's report I found actually says that they wanted me working one week-on, one week-off but I never saw those reports at the time."[3]

[34] I also asked Mr Markham to whom he had expressed his preferred pattern of working. He replied:

"I spoke with my HR representative, Kate Hayden and she made phone calls to - I am assuming - Gallagher Bassett to find out what was happening."[4]

[35] Mr Markham did not lodge a formal grievance pursuant to the Ensign Grievance Policy at any stage.

[36] Ensign concedes that "conversations (were) held from time to time regarding Mr Markham's payments ..."[5] They agree that queries were raised with Gallagher Bassett. Ensign make no submissions about any conversations concerning his roster.

[37] Neither Mr Markham nor Ensign can identify the specific dates of conversations held with Ensign Payroll, Ensign Human Resources and Gallagher Bassett. However the parties agree that conversations about Mr Markham's pay were held while he was still employed.

[38] Mr Markham made his application for the Commission to deal with this dispute on 22 November 2016, over one year after his employment was terminated. He believes that he is entitled to payment for 97.5 days in lieu of the Field Service Leave he should have been able to take while he was working in the Adelaide office. He calculates this quantum based on having worked 97.5 days during the period 29 April to 17 October 2015.

[39] An application for the Commission to deal with a dispute in accordance with a dispute settlement procedure must be dealt with in accordance with s.739 of the Act. A dispute must be dealt with as provided for in a dispute settlement procedure. Where, as in the present case, the Agreement contains a dispute settlement procedure that allows the employee or the employer to refer the matter for arbitration, the arbitration takes place by way of private arbitration.[6] That is, the Commission has the power given to it by the parties as part of their agreement that the Commission may arbitrate.

[40] The dispute settlement procedure contained in the Agreement reads as follows:

If a dispute relates to a matter arising under the agreement, or to the National Employment Standards, this term sets out procedures to settle the dispute:

If an employee feels comfortable to do so, the employee should try to sort the matter out themselves with the person or people involved.

If Step 1 does not resolve the matter to the employee's satisfaction, or the employee is not comfortable raising the matter directly with the person or people involved, the employee should report the matter or behaviour to their manager.

If Step 2 does not resolve the matter to the employee's satisfaction, or the employee is not comfortable raising the matter directly with their manager, the employee should report the matter or behaviour to the local Human Resources Manager.

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 for conciliation.

If the matter is not able to be conciliated, the matter may be referred by the employee or by Ensign, to the Fair Work Commission for arbitration. The Fair Work Commission may make a determination that is binding on the parties in accordance with provisions of the Fair Work Act 2009 (Cth).

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

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

(i) An employee must continue to perform their work as they would normally unless they have a reasonable concern about an imminent risk to their health or safety.

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

b. applicable occupational health and safety legislation would not permit the work to be performed; or

c. the work is not appropriate for the employee to perform; or

d. there are other reasonable grounds for the employee to refuse to comply with the direction."

[41] In order to establish the powers of the Commission it is necessary to carefully examine the terms of the dispute settlement procedure.

[42] In Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd[7] (Goonyella) a Full Bench of the Commission considered the dispute settlement procedure contained in Clause 41 of the North Goonyella Underground Mine Collective Enterprise Agreement 2012 and found that it had no application. This was because there was no attempt on the part of the applicant to engage the procedures of the dispute resolution clause in respect of the dispute identified in the application to the Commission at a time when any of the employee parties to the dispute were actually employed by the employer.

[43] It is apparent from Goonyella that it is necessary to examine the dispute settlement procedure contained in the relevant agreement. The Full Bench said:

"[34] The issue of jurisdiction was one capable of determination in a straightforward way by reference to the relevant provisions of the Agreement. The Commission's powers under s.739 to deal with disputes derive, in the case of an enterprise agreement, from the terms of the disputes resolution procedure contained in the enterprise agreement. The Commission may deal with a dispute only on application by a party to the dispute (s.739(6)), is prohibited from exercising any powers limited by the disputes resolution procedure (s.739(3)), may arbitrate only if the agreed disputes resolution procedure permits it to do so (s.739(4)), and must not make a decision that is inconsistent with the FW Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)).

[35] It was not contended by any party, or concluded by the Commissioner, that the provisions of the Agreement upon which the CFMEU relied upon to found jurisdiction for the Commission to deal with the October 2013 application - in particular clauses 38.5(e) and 41 - were provisions which were not permitted to be included in an enterprise agreement under s.172 of the FW Act. It was not therefore relevant for the Commissioner (or us) to consider the outer limits of the powers that might theoretically be conferred upon the Commission by a dispute resolution procedure in an enterprise agreement by reference to the jurisprudence concerning the "matters pertaining to the relationship between an employer ... and that employer's employees..." formulation that is used in s.172(1)(a). Nor was it contended by either party, or found to be the case by the Commissioner, that the disputes resolution procedure in clause 41 of the Agreement was to be read as if confined by the requirements of s.186(6) of the FW Act. It is well established that s.186(6) does not prescribe the content of all disputes resolution procedures in enterprise agreements but establishes a minimum standard only, and that an enterprise agreement may contain a disputes resolution procedure which is broader in scope than the minimum requirement provided that it is a permissible matter under s.172(1). 14 The relevant task was therefore to identify the powers actually conferred upon the Commission by the Agreement and the limits upon those powers. This involved a straightforward process of interpretation of the relevant provisions of the Agreement." (My emphasis)

[44] In examining the relevant provisions of the Agreement I consider that there are two relevant questions to be addressed in relation to the Commission's power of arbitration in this case.

Does the application relate to a "matter arising under the agreement"?

[45] The first question is whether the matter allegedly in dispute is a "matter arising under the agreement" pursuant to the preamble to clause 2.13 of the Agreement.

[46] In order to invoke the dispute settlement procedure the dispute must be of a kind that is capable of being dealt with by the dispute settlement procedure.

[47] I am satisfied on the evidence that the dispute before me concerns the construction of clause 3.1 Hours of Work and clause 4.1 Rates of Pay of the Agreement.

[48] Clause 3.1 Hours of Work of the Agreement is as follows:

(a) Ordinary hours of work will be based upon working 38 hours per week, averaged over each roster cycle.

(b) Employees may be required to work to a roster which will involve working reasonable additional hours In addition to the employees' ordinary hours. Generally employees will be rostered to work up to 12 hours per shift, plus an additional 15 minutes per shift for the purposes of participating in a Pre-Shift Safety Meeting.

(c) The shifts may be worked during the day or night, or a combination of both depending on the operational requirements of the particular worksite.

(d) The work roster is generally based on a number of consecutive days at work in the field followed by an equivalent number of days off from work to be taken as Field Service leave. Indicative work rosters are:

(e) Working in the field is generally defined as working on a rig in a location where employees work 12 hours each day, and are unable to return to their home on completion of their daily work.

(f) If employees are required to work at a location where they are able to return to their

home on completion of their daily work, they will receive payment at the Hourly Yard Rate, and Field Service Leave will not accrue.

(g) Employees' rostered hours may be changed to meet operational, maintenance and/or manpower requirements. This may involve transferring the employee from one roster system to another or from one shift to another, changing the types of shifts worked or altering the hours of work. If this is the case, the employee will be given as much notice as practicable of such change.

(h) If an employee is required by Ensign to transfer from one shift to another, they will receive a minimum break of eight (B) hours between finishing one shift and commencing the next shift."

[49] Clause 4.1 of the Agreement is as follows:

Employees will be paid the applicable dally rate of pay for the relevant job classification as set out below

Remuneration rates may be reviewed from time to time and any increase in remuneration rates is to take effect 1 January.

(i) Field Work means work at a location where it is not possible for the employee to return home each day; and

(ii) Non-Field Work means work at a location where the normal work cycle is Monday to Friday and the Employee is able to return home each day

(b) The Daily Rig Rate applies to Field Work for each 12 hour shift worked, in addition to providing compensation for an additional 15 minute period worked for the purposes of attending a Pre-Shift Safety Meeting.

(c) The Daily Rig Rate is the maximum amount payable per shift, and includes payment in advance for travel to and from the camp to the work site, and payment for public holidays worked and not worked, penalties, leave loading, allowances and reasonable additional hours.

(d) The Dally Field Service leave Rate will be paid to employees when taking Field Service Leave (during rostered periods off from Field Work). Field Service Leave will be accrued on the basis of employees accruing one day of Reid Service Leave for each day worked at the Daily Rig Rate.

(e) Any extra days of Field Work worked in addition to the normal number of work cycle days must be authorised by the Area Manager before they are worked. These days must be notated in writing on the timesheet. Additional days of work will be paid at the rate of 150% of the Daily Rig rate.

(f) When an employee is required to work in a location which is not deemed to be Field Work, they will be paid an Hourly Yard Rate. Employees performing this work will not accrue Field Service Leave for the period of Non-Field Work.

(g) Ensign employees traveling out from the worksite for the purposes of commencing rest and recreation leave (R&R), will receive an allowance for travel time paid at the Daily Field Service Rate. These employees will not accrue Field Service Leave in addition to this payment.

(h) All employees may be required to remain at work outside of their normal work cycle in the event of an unusual situation or rig operation. This may include, but is not restricted to; Rig Up, Rig Down, Rig Moves, down hole problems, mechanical problems, a Rig emergency, or the late arrival of relief staff. In such situations employees agree to perform any such duties as may be required subject to the terms and conditions of this Agreement."

[50] Mr Markham believes that on the proper application of these clauses he would be entitled to Field Service Leave for the time that he worked in the Adelaide office and having not received such leave is now entitled to pay in lieu for the leave that was not granted. Ensign dispute that this is the proper application of these clauses. Ensign contends that working Monday to Friday in the Adelaide office is not Field Service so Field Service Leave does not apply.

[51] This is clearly a matter arising under the Agreement and as such is a dispute of a kind that is capable of being dealt with by the dispute settlement procedure.

Is Mr Markham able to access the Fair Work Commission pursuant to the Dispute Resolution Procedure in the circumstances that he is not an "employee"?

[52] The second question is whether Mr Markham is able to access the Fair Work Commission pursuant to the Dispute Resolution Procedure in the circumstances that he is not an "employee".

[53] Step One found in Clause 2.13 (a) Dispute Resolution Procedure of the Agreement invites an employee to "try to sort the matter out themselves with the person or persons involved". This is what Mr Markham did when he approached Kate Hayden. It is uncontroversial that he was an employee when he did so.

[54] Step Two invites an employee to report the matter to their manager. This is either a sequential step or one that an employee may take as their first step. So much is clear from the words:

"If Step 1 does not resolve the matter to the employee's satisfaction, or the employee is not comfortable raising the matter directly with the person or people involved."

[55] Kate Hayden was for all intents and purposes Mr Markham's manager when he was working in the Adelaide office. Mr Markham applied both Step One and Two together in approaching Kate Hayden.

[56] Step Three invites an employee to report the matter to the local Human Resources Manager. Again this step may be applied sequentially or as the first step. It is apparent that Kate Hayden was the local Human Resources Manager so in effect Mr Markham applied Steps One, Two and Three together.

[57] In Goonyella the Full Bench considered the wording of the relevant dispute settlement procedure as follows:

"[36] Clause 41 of the Agreement does not in express terms identify who may be party to a dispute of the type referred to in clause 41.1 - that is, a dispute that arises as to the interpretation or application of the Agreement, is about matters in relation to the NES, or is one that another provision of the Agreement authorises to be dealt with under clause 41. However there are a number of indications in the language and structure of clause 41 which make it reasonably clear that what is contemplated is a dispute between a current employee or employees covered by the Agreement and the employer, North Goonyella:

(1) The first sentence of clause 41.2 refers to "[t]he employee" choosing representation.

(2) Step 1 requires that the dispute be discussed in the first instance between the employee(s) and the immediate supervisor, and requires them to make every available effort to resolve the matter.

(3) Steps 2 and 3 then require discussion between the employee(s) and/or the representative of the employee(s) and, respectively, the relevant Department Manager or his representative and senior Company representatives.

(4) Clause 41.4 requires that while the steps in the procedure are being followed, work must proceed in accordance with North Goonyella's reasonable and lawful directions and in accordance with the skills, competence and training of the employee(s) and safe work practices.

[37] That the "employee(s)" referred to in the clause refers to current employees and not former employees is apparent for three reasons. Firstly, the word "employee" on its ordinary meaning and without qualification is entirely inapt to refer to a former employee. Secondly, clause 2.1(b) of the Agreement provides that it binds, relevantly, employees of North Goonyella at the Mine "who are engaged in the classes of work contained in Schedule A of the Black Coal Mining Industry Award 2010". The Agreement therefore does not bind persons who are no longer so employed. Clause 41 could not be read as conferring rights on persons who are not bound by the Agreement. Thirdly, the requirements for workplace discussions and for work to continue as normal could only be complied with by persons in current employment. The fact that clause 41.3 allows for the requirements for workplace discussions in Steps 1-3 to be bypassed by agreement or by determination of the Commission in specified circumstances does not vitiate the proposition that clause 41 is constructed on the basis that such workplace discussions are capable of taking place."

[58] Guided by the decision in Goonyella I consider that Clause 2.13 of the Agreement clearly contemplates that a person accessing Steps One - Three of the procedure is a current employee.

[59] I am satisfied on the evidence before me that Mr Markham initiated this dispute by following Steps One - Three while he was employed by Ensign. I accept his evidence that he raised his belief that his roster should have been an even time roster like he worked when he was in the field. Ensign agreed that he raised his rate of pay and I consider it likely that he would have raised both his complaints at the same time. His failure to put his concerns in writing or to follow the Ensign Grievance Policy does not mean he did not initiate the dispute.

[60] Mr Markham took Step Four of the procedure when he was no longer employed by Ensign.

[61] Step Four invites a "party" (rather than "employee" as is the case in Steps One, Two and Three) to refer the matter to the Fair Work Commission for conciliation if Steps One, Two and Three do not resolve the dispute.

[62] Is the use of the term "party" in Step Four relevant? Did Mr Markham become a party to a dispute while he was an employee and remain a party after his employment ceased such that he was able to make a valid application to the Commission to deal with the dispute?

[63] In Goonyella the Full bench said:

"The reference in clause 41.3 to a "party" and "parties" are, we consider, to be understood as referring to the parties to the instant dispute - that is, North Goonyella and the relevant employee(s) - not to the definition of "The parties" in clause 3 of the Agreement."[8]

[64] There is no definition of the word "party" or "parties" in this Agreement however I think the same principle applies.

[65] The Full Bench in Goonyella distinguished their decision from the decision of the Australian Industrial Relations Commission in ING Administration Pty Ltd v Jajoo, Ramsin[9] (Jajoo) and a number of subsequent decisions of this Commission concerning s.739 of the Act that have supported Jajoo.[10]

[66] In Jajoo a Full Bench of the Commission found that the applicant, Mr Jajoo "sought to progress a dispute under the relevant dispute settlement procedure while still employed. It was unresolved when his employment was terminated."[11]

[67] The relevant provision of the legislation was then s170LW of the Workplace Relations Act 1996, the predecessor legislation to the current Act.

[68] The dispute settlement procedure in the relevant agreement, the ING Administration Pty Ltd Certified Agreement 2003, was as follows:

Any grievance or dispute about a matter arising under the Agreement will be dealt with in accordance with the following procedure.

(a) In the first instance the matter may be raised with the Employee's immediate manager or supervisor who will attempt to resolve it within a reasonable time.

(b) If the matter cannot be resolved with the Employee's immediate manager or supervisor, either party may refer the matter to the supervisor's manager who will seek to resolve the matter within a reasonable time, failing which the assistance of a more senior manager may be sought.

(c) If the matter remains unresolved either Party may refer the matter to the appropriate People and Culture representative or another senior person (up to and including the CEO).

(d) If the matter still remains unresolved, either Party may refer the dispute to the AIRC for conciliation and/or arbitration.

(e) During the dispute resolution process, normal work practices and procedures will continue in accordance with INGA's reasonable directions.

(f) Nothing in these procedures will prevent any party from exercising its rights under the Act.

(g) INGA recognises that an Employee who is a member of the FSU may wish to raise a matter with their Union representative who may become involved in the discussion at any stage of the process."

[69] On the question of whether s. 170LW limited the powers of the Commission to current employees the Full Bench said:

"In the circumstances of this matter, Mr Jajoo sought to progress a dispute under the relevant dispute settlement procedure while still employed. It was unresolved when his employment was terminated. We do not believe that there is a sound basis for construing the terms of s.170LW in a way which would deprive him of a right to progress his dispute to other levels of the procedure, including to the Commission, after the termination of his employment"[12]

"[53] It may be that a former employee cannot initiate a dispute under the clause after his or her employment has ceased. The notion of an employee raising the matter with the immediate manager or supervisor in the first instance tells against the existence of jurisdiction in such a case. Indeed, that was the situation and one of the bases for the decision of Commissioner Cribb in the Pugsley decision referred to above.

[54] However in this case, Mr Jajoo alleges that he first raised the relevant issue and sought to follow the steps contained in clause 3.15(a)-(c) in 2005. After his employment was terminated, he sought to utilise the step in the dispute settlement process in sub-clause (d). That sub-clause states that "If the matter still remains unresolved, either Party may refer the dispute to the AIRC for conciliation and/or arbitration." In our view, the reference to "either Party" is a reference to the parties to the dispute. Mr Jajoo was a party to the dispute when he invoked the procedure and in our view, remained so when the dispute was unresolved and he sought to refer the dispute to the AIRC."

[71] As in the case of Mr Jajoo, I consider that Mr Markham became a party to the dispute while he was an employee and remained a party after his employment ceased such that he was able to make a valid application to the Commission to deal with the dispute.

[72] I consider that Mr Markham could avail himself of Step Four of the procedure and refer the matter to the Commission for conciliation.

[73] Conciliation between Mr Markham and Ensign was unable to resolve the matter and Mr Markham then sought arbitration to resolve the dispute.

[74] In so doing he was availing himself of Step Five of the procedure that permits "the employee" or Ensign to refer the matter to the Commission for arbitration if "the matter is not able to be conciliated".

[75] Does the use of the term "employee" in Step Five mean that although Mr Markham could make an application to the Commission to deal with the dispute by conciliation, he could not refer the matter for arbitration?

[76] I think it is relevant that the terms of the dispute resolution procedure in Jajoo were different to the procedure in this Agreement. The step that allowed referral to the Commission in Jajoo was "If the matter still remains unresolved, either Party may refer the dispute to the AIRC for conciliation and/or arbitration." It used the term "Party" and dealt with both conciliation and/or arbitration in the one step.

[77] The guidance from Goonyella suggests that the Commission must closely examine and consider the words of the relevant dispute settlement procedure.

[78] Step Five of clause 2.13 of the Agreement is:

"If the matter is not able to be conciliated, the matter may be referred by the employee or by Ensign, to the Fair Work Commission for arbitration. The Fair Work Commission may make a determination that is binding on the parties in accordance with provisions of the Fair Work Act 2009 (Cth)"

[79] As the Full Bench said in Goonyella "the word "employee" on its ordinary meaning and without qualification is entirely inapt to refer to a former employee." The use of the word "employee" cannot be ignored in Step Five of clause 2.13 of the Agreement.

[80] The Full Bench also said:

"Secondly, clause 2.1(b) of the Agreement provides that it binds, relevantly, employees of North Goonyella at the Mine "who are engaged in the classes of work contained in Schedule A of the Black Coal Mining Industry Award 2010". The Agreement therefore does not bind persons who are no longer so employed. Clause 41 could not be read as conferring rights on persons who are not bound by the Agreement."[13]

[81] Clause 1.2 of the Agreement reads:

(a) Ensign Australia Pty Ltd (herein referred to as 'Ensign'); and

(b) Employees employed by Ensign who perform work in connection with or incidental to the operation of onshore drilling and well service rigs, who perform work in one of the job classifications set out in later parts of this agreement.

(a) Replaces the Ensign Australia Pty Ltd Onshore Drilling Enterprise Agreement 2009 (2009 Agreement). The 2009 Agreement ceases to have effect upon commencement of this Agreement; and

(b) Replaces any express or Implied terms and conditions of employment that may have applied prior to the date of this Agreement which are inconsistent with the terms of this Agreement."

[82] Guided by Goonyella this reinforces the strict reading of the word "employee" in Step Five of the procedure because the Agreement applies to "employees employed by Ensign".

[83] The Full Bench in Goonyella also said:

"Thirdly, the requirements for workplace discussions and for work to continue as normal could only be complied with by persons in current employment. The fact that clause 41.3 allows for the requirements for workplace discussions in Steps 1-3 to be bypassed by agreement or by determination of the Commission in specified circumstances does not vitiate the proposition that clause 41 is constructed on the basis that such workplace discussions are capable of taking place."[14]

[84] Similar to the dispute resolution procedure in Goonyella, Clause 2.13 (b) Other Matters of the Agreement contemplates work being undertaken as usual while the procedure is being applied, a circumstance that could only pertain to current employees.

[85] Guided by Goonyella I consider that the use of the term "employee" in Step Five of Clause 2.13 of the Agreement disqualifies Mr Markham from making an application to the Commission to deal with the dispute by way of arbitration because he is no longer an employee.

[86] I find that the Commission does not have the power to arbitrate to resolve this dispute. Accordingly, Mr Markham's application is dismissed.

[5] Email from Ensign to my chambers, 11 April 2017.

[6] CFMEU v AIRC (Private Arbitration Case) [2001] HCA 16; (2001) 203 CLR 645.

[7] [2015] FWCFB 5619.

[8] [2015] FWCFB 5619 [39].

[9] (2006) 158 IR 239; PR974301

[10] Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2007] AIRCFB 374; Deakin University v S Rametta [2010] FWAFB 4387.

[11] (2006) 158 IR 239; PR974301 [41].

[12] (2006) 158 IR 239; PR974301 [41].

[13] [2015] FWCFB 5619 [37].

[14] [2015] FWCFB 5619 [37].

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