Fair Work Act 2009

s 739 - Dispute resolution

Application to deal with a dispute in accordance with a dispute procedure in an enterprise agreement - jurisdictional objection - dispute not about a term in the enterprise agreement or national employment standards - relief sought cannot be granted - applicant did not comply with the dispute resolution procedure - application dismissed.

• [1] This decision is about Mr Gurbhej Singh Deeda's application under s 739 of the Fair Work Act 2009 (Cth) regarding the Housing Choices Western Australia Enterprise Agreement 2024. Mr Deeda says that the Agreement should have a clause that is in the Social, Community, Home Care and Disability Services Industry Award 2010.

• [1] Mr Deeda's employer, Housing Choices Western Australia Ltd, says that Mr Deeda's application is outside of the Commission's jurisdiction on the following grounds:

(a) Mr Deeda has not raised a dispute under the Agreement or the National Employment Standards;

(b) The relief sought by Mr Deeda cannot be granted by the Commission; and

(c) Mr Deeda did not seek to resolve the dispute with HCA before making this application.

• [2] The parties filed materials on HCA's jurisdictional objections and consented to the matter being determined without holding a hearing under s 607(1)(b) of the Act.

• [3] Having considered the submissions and evidence of the parties, I find that all of HCA's objections are made out. Mr Deeda's application must be dismissed.

2. The Commission's jurisdiction to deal with disputes

• [5] It is uncontroversial that the Commission may only deal with a dispute where the Commission is authorised to do so or in accordance with another provision of the Act.[1]

• [6] Subdivision B of Div 2 of Pt 6-2 of the Act concerns "Dealing with disputes". Section 738 of the Act provides:

(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

(ba) a minimum standards order includes a term that provides a procedure for dealing with disputes; or

(bb) a collective agreement includes a term that provides a procedure for dealing with disputes; or

(bc) a road transport contractual chain order includes a term that provides a procedure for dealing with disputes; 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.

• [7] Section 739 provides the Commission's power to deal with disputes as follows:

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

(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.

• [8] Clause 2.3 of the Agreement sets out the dispute resolution procedure as follows:

2.3 What is the process for dealing with disputes about the Agreement?

(a) a matter arising under the agreement; or

(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 two (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) 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.

• [9] As set out in his Form F10, Mr Deeda's application is made under clause 2.3 of the Agreement.[2] Mr Deeda's grievance is that the Agreement does not have an analogous clause to clause 27.2 of the SCHCADS Award. Clause 27.2 of the SCHCADS Award provides that employees will be entitled to a paid 10-minute tea break in each four hours worked at a time to be agreed between the employer and employee and will be counted as time worked. Mr Deeda wants the Commission to amend the Agreement to insert an equivalent clause.

4. Mr Deeda's application does not relate to the Agreement or the NES

• [10] As per clause 2.3(1) of the Agreement, disputes must be raised in relation to a term of the Agreement or the NES. Clause 1.5 of the Agreement excludes the SCHCADS Award from applying to an employee covered by the Agreement. The SCHCADS Award therefore does not apply to Mr Deeda.

• [11] I state for complete clarity that the SCHCADS Award does not form part of the NES. Mr Deeda's grievance therefore does not arise from a term of the Agreement or the NES.

• [12] In his written submissions, Mr Deeda asserted that a dispute has arisen under a "safety net contractual entitlement" as per s 738(c). Section 738(c) provides that the Commission's powers to deal with a dispute applies where there is a contract of employment or other written agreement includes a dispute resolution term, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement. "Safety net contractual entitlement" is defined in s 12 of the Act as an entitlement under a contract that relates to any of the subject matters described in the NES or subsection 139(1).

• [13] Mr Deeda's application has been made pursuant to the Agreement, not his contract of employment. Section 738(c) has no relevance to this application.

• [14] Mr Deeda's written submissions also state that his rostered hours breach s 139(1)(c) of the Act. Section 139(1)(c) provides that modern awards may include terms about arrangements for when work is performed, including hours of work, rostering, notice periods, rest breaks and variations to working hours. It does not stipulate what those arrangements should be. It is unclear how Mr Deeda's rostered hours can breach a section of the Act that sets out what sort of terms can be in an Award, but regardless, Mr Deeda's submission does not persuade me that the Commission's jurisdiction to deal with a dispute has been enlivened.

• [15] I find that Mr Deeda's application does not relate to a term of the Agreement or the NES, and the Commission does not have the jurisdiction to deal with it.

5. The outcome Mr Deeda seeks cannot be granted

• [16] For completeness, I address HCA's other two objections. Mr Deeda wants the Commission to amend the Agreement to insert an analogous clause to clause 27.2 of the SCHCADS Award. Mr Deeda is not seeking that the Commission determine the meaning of a term that is in the Agreement; he is effectively seeking a variation to the Agreement to insert an entitlement that currently does not exist in the Agreement. This is not permissible under the terms of Clause 2.3 of the Agreement.

6. Mr Deeda did not follow the disputes procedure

• [17] HCA tendered the witness statement of Ms Chantal Swanepoel, who is the Manager WA Property Services for HCA. Mr Deeda did not seek to cross-examine Ms Swanepoel on her evidence.

• [18] Ms Swanepoel's evidence can be summarised as follows:

(a) Mr Deeda is employed as a Property Service Support. He directly reports to an individual, who then reports to Ms Swanepoel.

(b) On 14 October 2024, a union delegate at HCA (who I will refer to as 'Doe' for ease of reference) raised with Ms Swanepoel that an employee had asked them to look into whether clause 27.2 of the SCHCADS Award could be inserted into the Agreement. Doe also sent Ms Swanepoel an email to this effect.

(c) As part of their email, Doe forwarded their email correspondence with the employee who had raised the issue with their identity redacted.

(d) Ms Swanepoel responded to Doe that HCA could not approve the employee's request.

(e) On or around 16 October 2024, Ms Swanepoel conducted a team meeting which Mr Deeda attended. Ms Swanepoel outlined the differences between the SCHCADS Award and the Agreement and explained that as the Agreement had been recently approved, HCA would not be looking to review whether 10-minute tea breaks could be provided.

(f) Ms Swanepoel has never had any direct discussions with Mr Deeda about the Agreement or his grievance.

• [19] Clause 2.3 of the Agreement provides that parties to a dispute must try to resolve the dispute at the workplace level by discussions between the employee and relevant supervisors and/or management.

• [20] Mr Deeda submits that he had a general discussion with his supervisor, who then passed the matter onto Ms Swanepoel. Mr Deeda further submits that he was subsequently "pulled" into a meeting where Ms Swanepoel stated that the Agreement would not be changed. Mr Deeda also references discussing the matter with a union representative who acknowledged his concern and then escalated it to higher management's attention.

• [21] It is not controversial that Mr Deeda was the employee who contacted Doe in their capacity as a union delegate. It is unclear whether Mr Deeda says that Doe was also his supervisor or management. I accept Ms Swanepoel's evidence that Mr Deeda reported to an individual who is not Doe, and that Mr Deeda never raised the issue with Ms Swanepoel. Mr Deeda has not led any evidence to persuade me that he raised his grievance with a relevant supervisor and/or management.

• [22] I am also not satisfied that Mr Deeda raising the issue with Doe in their capacity as a union delegate constitutes raising a dispute under clause 2.3 in these circumstances. A union representative can raise a dispute on behalf of a union member in many situations, and clause 2.3(2) expressly contemplates the nomination of a representative. However, Mr Deeda did not lead any evidence or submit that he is a union member or that he had appointed Doe in some other capacity to raise a dispute on his behalf. I therefore cannot be satisfied that he complied with the dispute resolution procedure.

• [23] For the above reasons, the Commission does not have the jurisdiction to deal with Mr Deeda's application. I order that his application be dismissed.

[1] Fair Work Act 2009 (Cth) s 595.

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