Fair Work Act 2009

s.739 - Dispute resolution

Southern Cross Care (SA & NT) Inc T/A Southern Cross Care

Section 739 application to deal with dispute regarding operation of enterprise agreement - Commission's power to arbitrate - whether clause 8.1.4 of the Agreement requires consent of both parties or a single party - interpretation of clause 1.8.4 - held no power to arbitrate any application by a single party.

[1] On 25 July 2019 Southern Cross Care SA & NT Incorporated T/A Southern Cross Care SA & NT Incorporated (Southern Cross Care) lodged a Form F10 notifying of a dispute concerning the classification of employees who undertake "buddy shifts". The Respondents contended that the "buddy shift" included duties which were properly described as "mentoring" which would impact the correct classification level under the Agreement.

[2] The Applicant was represented by Mr Shayne Bakewell with permission under s.596(2) of the Fair Work Act 2009 (Cth) (the Act) being granted. The Respondents were represented by Ms Mary Sullivan of United Voice.

[3] The work that is the subject of the dispute is performed in accordance with the Southern Cross Care (SA & NT) Inc. Operations Support Services Staff Enterprise Agreement 2012 (the Agreement). I was advised that the subject matter of the dispute is the subject of proceedings instituted by United Voice before the South Australian Employment Tribunal in respect of a claim for underpayment of wages.

[4] Clause 1.8 of the Agreement provides a process for the resolution of disputes concerning matters under the Agreement and the National Employment Standards. To date there has not been any suggestion that the dispute does not concern a matter under the Agreement.

[5] On 31 July 2019 I conducted a Conference in respect of the dispute. The matter did not resolve.

[6] The Applicant sought that I arbitrate the dispute and the Respondents contended that I did not have the power to arbitrate.

[7] Directions were issued with respect to the filing of evidence and submissions. The Applicant provided submissions dated 7 August 2019 and a reply submission dated 13 August 2019 as well as statements from Ms Joanna Renshaw (dated 14 August 2019) and Ms Stephanie Millard (dated 13 August 2018). The Respondents provided a submission on 8 August 2019 and a submission in reply on 13 August 2019.

[8] The most relevant portions of the dispute procedure contained in the Agreement are reproduced below:

[9] The Respondents contend that the Applicant has not met the requirements of clauses 1.8.1 - 1.8.3 as no meeting has occurred between the parties to this dispute since the receipt of a letter stating the Applicant's view on the dispute.

[10] The Respondents also contended that the Commission's powers to arbitrate this dispute are set out in s.595(3) of the Act and that the decision of the Federal Court in Automotive, Food, Metals Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd[1] required that the Commission, in order to exercise arbitral powers, must be "appointed for that purpose by the parties to the dispute". The Respondents further submitted that the High Court decision in CFMEU v AIRC[2] determined that a power of private arbitration only applies on the basis agreed in the instrument. The Respondents noted that arbitration is not a compulsory feature of Agreement dispute resolution processes[3].

[11] The Respondents contend that the reference to the word "parties" in clause 1.8.4 does not permit a single party to confer arbitral powers on the Commission. The Respondents contend that the terms "parties" expressed in a plural form results in the requirement that the parties to the dispute (in this case, Southern Cross Care, Ms Taylor and separately Ms Dutton) jointly agree to confer arbitral powers on the Commission.

[12] The Respondents contend that in the circumstances the Commission does not have power to arbitrate this dispute.

[13] The Applicant contends that clause 1.8.4 should be interpreted to mean that if a dispute fails to be resolved at the workplace level, either party may choose to refer the dispute to the Commission for resolution.[4]

[14] The Applicant contends that if clause 1.8.4 was read strictly then no dispute could be referred to the Commission without express agreement of both the Applicant, the employees or Union involved in the dispute. The Applicant infers that his would be an absurdity and relies on Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd[5].

[15] The Applicant contends that clause 1.8.4 does not provide any mechanism for the parties to decide how the Commission may deal with the dispute.[6]

[16] The Applicant submits that the general principles of interpretation are detailed in AMWU v Berri[7], and that an overly technical approach (whilst not a universal rule[8]) or a narrow or pedantic approach should be avoided[9].

[17] The Applicant accepts that the Commission only has power to arbitrate if the parties to an agreement agree that it does.[10]

[18] The Applicant referred me to Energy Australia Yallorurn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union[11] where there was a dispute over the reference to the term "parties" in a dispute resolution clause and whether that term included Unions (who are not technically a party to an Agreement). In that case the Court determined that to construe the term "parties" to exclude "Unions" would be an absurdity.

[19] The statements of Ms Renshaw and Ms Millard are relevant as to the conduct of the dispute to date and compliance with steps 1.8.1 - 1.8.3 of the Agreement. The Respondents advised it did not dispute the contents of these statements. Based on the material contained in the statements, I am satisfied that Respondents have complied with the pre-Commission steps in clause 1.8 of the Agreement in respect of the subject matter of this dispute.

[20] On 14 August 2019, the Applicant and the Respondents advised that there were no factual disputes and sought that the matter be determined on the papers.

[21] I accept that the Agreement expressly confers arbitral powers on the Commission on application by the "parties", this requires me to determine what the term "parties" means in the context of clause 1.8.4.

[22] I accept that the general principles of interpretation as set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Limited[12].

[23] Section 595 of the Act details the Commission's power to deal with disputes. Section 595(2) of the Act provides the capacity to deal with dispute other than by arbitration as it deems appropriate. Even if clause 1.8.4 was read as to require the parties plural to consent to any reference to the Commission, a party singular would still have the capacity to refer the dispute under s.739 of the Act and I would have non-arbitral powers by virtue of s.595(2) of the Act.

[24] Section 595(3) of the Act provides that arbitral powers can only be exercised if the Commission is expressly authorised. In this case, the arbitral powers conferred by clause 1.8.4 of the Agreement require a request by the "parties".

[25] I have reviewed the Agreement which contains a number of references to the term "parties". The term "parties" has been used generally throughout the Agreement as a reference to the parties plural.

[26] Clause 1.8.4 of the Agreement does not appear to be ambiguous. It appears to require the consent of the parties (plural) to refer any dispute, and further as a condition precedent to the exercise of arbitral powers.

[27] In my view this requirement does not result in absurdity. Section 595(2) of the Act as discussed previously permits the exercise of conciliation and other non-arbitral powers. As has been submitted by the Respondent, the Act does not require Agreements to confer arbitral dispute resolution powers on the Commission. In my experience, there are many Agreements where parties to agreements have determined to take this approach.

[28] I do not accept that this matter is analogous to Energy Australia Yallorurn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union.

[29] It is clear to me that the use of the term "parties" in clause 1.8.4 of the Agreement is a reference to parties plural and not a single party. Accordingly the exercise of the express arbitral powers under clause 1.8.4 cannot be enlivened by a single party to a dispute.

[30] Accordingly, I find that I do not have jurisdiction to arbitrate this dispute.

Mr S Bakewell (of counsel) on behalf of the Applicant.

Ms M Sullivan (United Voice) on behalf of the Respondents.

[1] [2015] FCAFC 123.

[3] Woolworths Ltd T/A Produce and Recycling Distribution Centre [2010] FWAFB 1464.

[4] Respondent's submission dated 7 August 2019, paragraph 29.

[5] [2011] FCAFC 67.

[6] Submission dated 13 August 2019, paragraph 10.

[7] [2017] FWCFB 3005.

[8] Bass v Permanent Trustee Co Ltd [1999] HCA 9 [22].

[9] Kucks v CSR Ltd (1966) 66 IR 182.

[10] Submission dated 13 August 2019, paragraph 29.

[11] [2018] FCAFC 146 cited in CFMMEU v Mechanical Maintenance Solutions Ply Ltd [2019] FWCFB 3585.

[12] [2017] FWCFB 3005.

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