s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

• [1] On 28 October 2024, the United Workers' Union (the UWU/the Applicant) lodged an application (the Application) pursuant to s.739 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission (the Commission) to deal with a dispute with the Commissioner for Public Employment (the Respondent). The dispute relates to clause 89 of the Correctional Officer (NTPS) 2021 - 2025 Enterprise Agreement (the Agreement).

• [2] A number of conferences were conducted in an attempt to conciliate this matter, both in person and by Microsoft Teams. However, the matter was unable to be resolved.

• [3] The Respondent has raised a jurisdictional objection in this matter, that the Commission does not have the jurisdiction to arbitrate the dispute due to the effect of clause 89.8 of the Agreement.

• [4] Directions issued to the parties on 7 January 2025 for filing of materials in relation to the jurisdictional objection.

• [5] By consent of the parties, the jurisdictional issue is determined on the papers.

• [6] This dispute revolves around whether, on 24 October 2024, the Chief Executive Officer (CEO) and Commissioner of the Department of Corrections, Mr Matthew Varley, properly exercised the power in clause 89.6 of the Agreement to implement temporary variations to the Operating Models for each of the Darwin Correctional Centre (DCC), Alice Springs Correctional Centre (ASCC) and Darwin Police Prison (DPP).

• [7] That is, this dispute relates to the overcrowding of the Correctional Facilities in the Northern Territory and whether the actions of the CEO in transferring a significant number of prisoners around the correctional facilities complied with the Agreement.

• [8] The Dispute Settling Procedures are provided at clause 11 of the Agreement:

11.1 The parties are committed to avoiding industrial disputation about the application of this Agreement.

11.2 This clause sets out the procedures to be followed for avoiding and resolving disputes in relation to:

(a) In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee(s) and/or union and relevant managers and/or agency CEO.

(b) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Commissioner for resolution. The referral should be in writing. The Commissioner will work with the parties to the dispute and attempt to resolve the matter as soon as reasonably practicable.

(a) If the dispute remains unresolved after the parties have genuinely attempted to reach a resolution in accordance with clause 11.6, any party may refer the dispute to the FWC, for resolution by conciliation.

(b) Provided the requirements of clauses 11.5 and 11.6 have been met by the parties to the dispute, it is agreed that jurisdiction will not be raised by any party at conciliation.

(c) Conciliation before the FWC will be regarded as completed when:

(i) the parties have reached agreement on the settlement of the dispute; or

(ii) the member of the FWC conducting the conciliation has either of their own motion or after application by any party, satisfied themselves that there is no likelihood that further conciliation will result in a settlement within a reasonable period.

(a) If a dispute remains unresolved at the completion of conciliation, either party may refer the dispute to the FWC for determination by arbitration, subject to any jurisdictional submissions.

(b) Where a member of the FWC has exercised conciliation powers in relation to the dispute, that member will not be the member responsible for conducting the arbitration if any party to the dispute objects to that member doing so.

(c) Subject to clause 11.8(d) the determination of the FWC is final and binding.

(d) A party may appeal an arbitrated decision of a single member of the FWC, with leave of the full bench, provided that such appeal is lodged within 21 days of the decision being made.

(e) For the avoidance of doubt, this clause does not apply in relation to disputes about matters referred to in clause 11.3."

• [9] The issue at hand is in relation to clause 89 of the Agreement as follows:

"89. Operating Models for Correctional Facilities

89.1 The parties agree that there will be Operating Models completed for the Darwin, Alice Springs Correctional Centres, and the Barkly and Datjala Work Camps.

89.2 The parties and Union agree to work collaboratively and genuinely engage in productive discussions ensuring both parties views are reasonably considered.

89.3 The parties acknowledge the need for regular and ongoing monitoring, assessment and review of the Operating Models.

89.4 Variations to the Operating Models and safe staffing levels will be through agreement with the union, except in the circumstances set out in clauses 89.5 and 89.6.

89.5 Where variations to the Operating Models are required in response to a Government direction or changes in Government policy priorities, the variations will be managed in accordance with consultation provisions set out in clause 89.7.

89.6 Where an incident or event threatens the security and good order of a correctional precinct/work camp and/or staff or offenders, with the exclusion of staff shortages, the CEO may implement a temporary variation to the Operating Model with consultation that is practicable in the circumstances, and that variation may be maintained for the life of the incident or event.

89.7 For the purposes of this clause, consultation involves the following:

(a) providing all relevant information to employees about impending changes or decisions or other matters before they have had an impact on them;

(b) providing an opportunity for employees and the Union, to put forward views, comments and suggestions on the matters including the opportunity to meet with management;

(c) genuine consideration of the views, comments and suggestions submitted; and

(d) advising employees and the Union of the final decisions, explaining how the views expressed by the employees and the Union were taken into account.

89.8 In the event of a dispute, clause 11 (Dispute Settling Procedures) will apply, with the exception of disputes relating to clauses 89.5 or 89.6, in which case clause 11.8 (Arbitration) will not apply.

89.9 Subject to the matters set out in clause 89.5 and 89.6, the CEO will not implement a variation until the dispute settlement process has been facilitated."

• [10] Whilst the parties' submissions have not been repeated in this decision, I have taken into account all of the submissions and evidence that have been provided by the parties.

• [11] It is not in dispute that the CEO utilised clause 89.6 in transferring prisoners around the Northern Territory. I have taken this into account.

• [12] The Applicant submitted that the CEO acted outside of his powers in temporarily varying the Operating Model, because there was no single incident or event as required by clause 89.6. Rather, the Applicant submitted, that the issues relating to overcrowding of the correctional facilities were a result of inadequate provision by successive Northern Territory Governments of funding for the Corrections Industry. I have taken this into account.

• [13] Whilst the courts have recently reinforced the relevant principles that a Court and Tribunal should follow when interpreting enterprise agreements, the most concise and comprehensive decision which collated all of the historical precedent was the Commission's Full Bench decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri).[1] Relevantly, in Berri the Full Bench enunciated 15 principles:

"[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

1. the text of the agreement viewed as a whole;
2. the disputed provision's place and arrangement in the agreement;
3. the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

1. evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
2. notorious facts of which knowledge is to be presumed; and
3. evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding."

• [14] It is uncontroversial that the Berri Principles apply in this matter, and that the 'ordinary meaning' of the words in the Agreement must be considered. Applying the 'ordinary meaning' to the words of clause 89.8 of the Agreement, it is clear that, as this dispute relates to clause 89.6 of the Agreement, clause 11.8 (Arbitration) does not apply. That is, the Commission has no power to arbitrate the dispute because of the carve out of the arbitration powers from the disputes procedure for disputes relating to clause 89.6. I have taken this into account.

• [15] There is no alternate or contrary meaning that can be provided to those words. The Commission is forbidden by clause 89.8 from exercising its arbitration powers in relation to the provisions in dispute in this matter. I have taken this into account.

• [16] Further, I note s.595(3) of the FW Act, which provides:

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(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.

• [18] It has been previously held that the Commission cannot determine a matter which is either outside its jurisdiction or for which it has no power to arbitrate. If the Applicant is claiming that the Respondent has breached the Agreement, then that is a matter for the Court. I have taken this into account.

• [19] On the basis that clause 89.8 forbids the Commission from arbitrating any dispute associated with 89.6 of the Agreement, and that the parties agree that the actions of the CEO relate to clause 89.6, I am satisfied and find that the Commission has no jurisdiction to determine the matter.

• [20] As a result, the jurisdictional objection of the Respondent is upheld.

[1] [2017] FWCFB 3005.

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