Fair Work Act 2009

s.604 - appeal of a decision

John Holland Pty Ltd (JHPL) t/as Territoria Civil

Appeal against decision [2019] FWC 4122 of Commissioner Bissett at Melbourne on 20 June 2019 in matter number C2017/4132 - permission to appeal refused

[1] The matter before us is an appeal from a decision of Commissioner Bissett (the Decision)[1] which dealt with a dispute notified by Mr Battye under the Territoria Collective Agreement 2013 (the 2013 Agreement).[2] The Commissioner concluded that she did not have jurisdiction to deal with Mr Battye's application because the 2013 Agreement ceased to operate when a new agreement, the Territoria Collective Agreement 2017 (the 2017 Agreement)[3] commenced. The Commissioner dismissed Mr Battye's application on that basis.

[2] We propose to say something about the proceedings at first instance and the uncontested facts before turning to the appeal.

[3] The 2013 Agreement was approved on 3 October 2013 and commenced operation on 10 October 2013, with a nominal expiry date of 10 October 2017.[4] The 2013 Agreement applies to John Holland Pty Ltd and all employees covered by the classifications set out in the Agreement. The 2017 Agreement, which has the same coverage as the 2013 Agreement, commenced operation on 16 May 2018.[5]

[4] On 27 July 2017, Mr Battye lodged an application pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute in accordance with the dispute settlement term in the 2013 Agreement.

[5] There are three aspects to the dispute notified by Mr Battye. First, Mr Battye claims that he should have been classified (and paid) at Level 5 and not Level 4 on and from his commencement date with John Holland (clause 13.3 of the 2013 Agreement). Second, he claims that he was unilaterally and improperly demoted from Level 5 duties to Level 4 duties on 27 April 2017 by the actions of Mr Aaron Sacagio (Project Manager). Finally, Mr Battye says he was entitled to receive the multi-skilled allowance from his commencement date with John Holland (clause 19 of the 2013 Agreement).

[6] At first instance the Commissioner was satisfied that these matters arose under the 2013 Agreement.

[7] The following factual matters are not in dispute between the parties:

• Mr Battye commenced employment on 1 January 2016;

• Mr Battye resigned from his employment on 16 October 2017;

• Mr Battye made his application to the Commission on 27 July 2017, before his employment ended;

• The 2013 Agreement ceased to operate on 16 May 2018 when the 2017 Agreement commenced operation;

• Clause 45 of the 2013 Agreement is the disputes resolution procedure.

[8] Clause 45 of the 2013 Agreement deals with, relevantly, disputes 'arising from a matter dealt with by this Agreement or the National Employment Standards (except s.65(5) and s.76(4) of the FW Act)'. Clause 45.1.4 deals with the Commission's role in resolving such disputes:

'If the matter is not resolved at this stage, the matter may be referred to Fair Work Commission for conciliation and/or arbitration for resolution. The decision made by Fair Work Commission shall be binding to both the Company and affected Employee(s).'

[9] The matter was first listed for conference, by telephone, before the Commissioner on 3 August 2017. At the conclusion of the conference the Commissioner requested that Mr Battye advise her within a period of two weeks if he wished to proceed to arbitration. No such advice was received from Mr Battye. On 20 December 2018, some 16 months after the conference on 3 August 2017, Mr Battye requested that his application be re-listed for the purpose of programming 'an arbitration conference during the year 2019.'[6]

[10] A further conciliation conference was conducted, by telephone, on 18 February 2019. At that conference the Commissioner requested that the parties have further discussions to determine if the matter could be resolved. John Holland indicated that it had a jurisdictional objection to the dispute proceeding but it was prepared to have further discussions with Mr Battye.

[11] On 27 February 2019 the Commission received advice from Mr Battye that further discussions had been unsuccessful in resolving the dispute. Subsequently John Holland's jurisdictional objection was determined 'on the papers.'

[12] John Holland contended at first instance and on appeal that the Commission will no longer have jurisdiction to deal with a dispute if the agreement under which the dispute arose ceases to operate while the dispute is on foot unless the successor agreement allows the dispute to continue through a savings provision. There is no such savings provision in the 2017 Agreement.

[13] In short, John Holland submitted that clause 45 of the 2013 Agreement empowered the Commission to deal with disputes in relation to the 2013 Agreement; the 2013 Agreement ceased to operate on 16 May 2018 when the 2017 Agreement commenced; the 2017 Agreement does not have a savings clause; and the dispute notified to the Commission was in relation to matters arising under the 2013 Agreement and not the 2017 Agreement.

[14] After considering the relevant authorities the Commissioner concluded as follows:

'[41] On the basis of the authorities considered and the factual circumstances of this case I am satisfied that the Commission does not have jurisdiction to deal with Mr Battye's application.

[42] The 2013 Agreement covered Mr Battye's employment for the period he was an employee of John Holland. It applied at the time Mr Battye made his application for the Commission to deal with his dispute. It ceased to apply to him when he resigned his employment.

[43] These circumstances alone would not have been fatal to Mr Battye's application had he pursued it at the time he first made his application to the Commission in 2017. On 16 May 2018 the 2017 Agreement commenced operation and by virtue of the FW Act the 2013 Agreement ceased operation at that time. Having ceased operation the 2013 Agreement ceased to apply (if Mr Battye was an employee at that time).

[44] Mr Battye finds himself in these circumstances purely of his own making. He made his application in July 2017. It was first dealt with by the Commission in August 2017. He then chose to take no action in relation to the matter until December 2018, and then only because of a follow up note from my chambers. His dispute clearly was not of such a pressing nature that he gave it anything but scant attention.

[45] For these reasons the application of Mr Battye is dismissed for want of jurisdiction.'[7]

[15] An appeal of a decision is not as of right and permission to appeal must first be obtained.[8] Subsection 604(2) of the FW Act requires the Commission to grant permission to appeal if satisfied that it is 'in the public interest to do so'. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[9]

[16] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused.[10]

[17] The central issue in this appeal is whether the commencement of the 2017 Agreement extinguished the jurisdiction of the Commission to deal with a dispute which had arisen when the 2013 Agreement was in operation and which had been referred to it for resolution.

[18] It may be accepted that the general issue of the Commission's power to arbitrate a dispute arising under an enterprise agreement is one of general importance, but for the reasons which follow we have decided not to grant permission to appeal in this instance.

[19] Mr Battye acknowledges that in order enliven the disputes resolution procedure in the 2013 Agreement, it had to have been enlivened whilst that agreement was in operation. He contends that the procedure was so enlivened by his application on 27 July 2017 which, he submits, referred the dispute to the Commission for resolution by way of both conciliation and arbitration.

[20] We disagree. It seems to us, from both the language of the disputes resolution term of the 2013 Agreement and the conduct of the parties, that there was a clear bifurcation of the conciliation and arbitration functions of this dispute.

[21] First, the relevant term of the 2013 Agreement (clause 45.1.4; see [8] above) speaks of a matter being referred to the Commission 'for conciliation and/or arbitration for resolution' (emphasis added). The use of the word 'or' suggests a separation of the conciliation and arbitration functions. A dispute referred to the Commission under this clause may, but will not necessarily, involve both functions.

[22] Second, the manner in which Mr Battye's dispute was advanced and then dealt with by the Commission also supports the proposition that there was a bifurcation of the conciliation and arbitration functions. Pursuant to Mr Battye's application of 27 July 2017, the Commission's conciliation function was engaged. Only on 27 February 2019 did Mr Battye advise that further discussions had been unsuccessful, and it was not until that point (or at the earliest on 20 December 2018) that Mr Battye sought to have the Commission exercise arbitral power under the disputes resolution settlement term of the 2013 Agreement.

[23] It is clear that at the time Mr Battye first sought to enliven the Commission's power to arbitrate under the 2013 Agreement, that agreement had ceased to apply to John Holland and to him. The relevant effect of s.58 of the Act is that, once the 2017 Agreement came into operation on 16 May 2018, the 2013 Agreement ceased to apply to any employee within its coverage, because the coverage of the two agreements was the same. Under s.54(2), the 2013 Agreement then ceased to operate, and that meant that under s.52(1) it could no longer apply to anyone. If an agreement does not apply to anyone, it cannot impose any obligation or confer any entitlement (s.51). Section 739(4) provides that the Commission may arbitrate a dispute only where the parties have agreed that the Commission may do so in accordance with a disputes resolution term in an agreement. Here, the relevant term in the 2013 Agreement no longer applied to Mr Battye and John Holland at the time Mr Battye first sought to invoke the arbitration power in that term.

[24] It seems to us that in these circumstances the Commissioner plainly reached the right conclusion and there is no warrant for the grant of permission to appeal. Accordingly, we refuse permission to appeal.

Mr Gibian SC instructed by Mr A Guy for the Appellant

Mr M Follett instructed by Mr B Milne for the Respondent

[1] [2019] FWC 4122

[4] [2013] FWCA 7766

[5] [2018] FWCA 2442

[6] Appeal Book 116; [2019] FWC 4122 at [3]

[7] [2019] FWC 4122 at [41] - [45]

[8] Section 604(1) Fair Work Act 2009 (Cth)

[9] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025, 238 IR 258; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177

[10] Also see CFMEU v AIRC [1998] FCA 1404, 89 FCR 200; and Wan v AIRC [2001] FCA 1803, 116 FCR 481. Also see the Explanatory Memorandum to what is now s.604, at paragraph 2328.

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