s.739 - Application to deal with a dispute

Tasmanian Water & Sewerage Corporation Pty Ltd T/A Taswater

Construction, Forestry and Maritime Employees Union

Alleged dispute about any matters arising under the enterprise agreement and the NES - TasWater General Employees (Northern Region) Enterprise Agreement 2021 - TasWater General Employees (North Western Region) Enterprise Agreement 2021 - TasWater General Employees (Southern Region) Enterprise Agreement 2021

• [1] Tasmanian Water and Sewerage Corporation (TasWater) and the Construction, Forestry, Mining and Energy Union (CFMEU) were in dispute about TasWater's direction that its employees comply with TasWater's Personal Protective Equipment (PPE) Procedure including the PPE Procedure's requirements relating to the use of respiratory protective equipment (RPE). Fundamentally, the dispute concerned whether TasWater's employees should be required to be clean shaven when using RPE in the performance of their work - relevantly whether the direction given to employees was a lawful and reasonable direction. TasWater applied to the Commission under s 739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a dispute in accordance with a dispute settlement procedure of the applicable enterprise agreements.

• [2] I dealt with the same substantive dispute involving TasWater and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) in Tasmanian Water and Sewerage Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2024] FWC 786 (TasWater v CEPU).

• [3] The questions posed by the parties in this dispute are the same as those posed and answered in the above matter, namely:

• first, is the direction that TasWater's employees comply with the Applicant's PPE Procedure a lawful and reasonable direction?
• second, does the 'status quo' provision of the Enterprise Agreements apply?

• [4] In its written submissions, TasWater identified the dispute settlement procedures as relevant to this application are those contained in the enterprise agreements that cover TasWater's operational employees, namely, the TasWater General Employees (Northern Region) Enterprise Agreement 2021, the TasWater General Employees (North Western Region) Enterprise Agreement 2021, and the TasWater General Employees (Southern Region) Enterprise Agreement 2021.[1] These are the same agreements which engaged with the dispute determined in TasWater v CEPU.[2] In TasWater v CEPU I answered yes to the first question and no to the second.

• [5] By its email correspondence to my chambers and to TasWater dated 4 March 2024, the CFMEU advise that it had advised TasWater on 20 February 2023 that the CFMEU:

". . . agreed that the relevant portion of the Applicant's PPE Procedure, namely that which states "Employees and Contractors must be clean shaven between the face and the respiratory protection seal if using respiratory PPE" constitutes a lawful and reasonable direction."

• [6] Consequently, the CFMEU contended as there was no ongoing dispute the first question needs no longer to be determined and the second was now academic. TasWater does not dispute that the first question needs no longer be determined but it has in its written submissions set out several reasons why it says there remains utility in resolving the second question.[3] Without repeating them, I am not persuaded that the matters breathe life into an inutile question. I do not consider there is now any utility in determining the second question. My reasons may be shortly stated.

• [7] First, the dispute as notified on 17 January 2024 was as against the CFMEU, not any of the employees who were CFMEU members. Since 20 February 2024, the CFMEU has conceded the main dispute encapsulated by the first question. Beyond that date there was no ongoing dispute about any continuing requirement to maintain the predispute status quo.

• [8] Second, a conclusion about whether the status quo was engaged will only be relevant for this dispute and does not say anything about whether in any future disputes the status quo must be maintained.

• [9] Third, to the extent there is any constructional dispute about the status quo provisions in the three enterprise agreements, these were dealt with and resolved in TasWater v CEPU. My constructional conclusions about the operation of the clauses in the agreements in that case remain unaltered having regard to the CFMEU's submission.

• [10] Fourth, that which I am now being asked by TasWater to do amounts to no more than a request to give an advisory opinion in circumstances where there is no present or ongoing dispute.

• [11] For these reasons as the dispute the subject of the first question has been resolved since at least since 20 February 2023, there is no utility in answering the second question. Therefore, the application is dismissed.

[1] Applicant's outline of submissions at [3]

[2] Tasmanian Water and Sewerage Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2024] FWC 786 at [1]

[3] Applicant's submissions in reply at [15]

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