DECISION

Fair Work Act 2009
s.739—Dispute resolution

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Simplot Australia Pty Limited
(C2015/7294)

Application to deal with a dispute – whether two actions concerning same persons should be allowed.

[1] This decision concerns an application made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU or the Union) on 12 November 2015, pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute between it and Simplot Australia Pty Ltd (Simplot or the Company).

[2] The dispute was referred to the Commission by the AMWU pursuant to clause 44 (Dispute Resolution) of the AWMU, CEPU and Simplot Pty Ltd National Collective Agreement 2014-2017 (the Agreement). The Agreement was approved on 29 January 2015 and has a nominal expiry date of 28 February 2017.

[3] Clause 44 of the Agreement sets out the steps to be followed when there is a “dispute regarding the application of this agreement, matters pertaining between the employee and the Company; and matters pertaining between the Unions covered by this Agreement and the Company …”

[4] Clause 44 further provides that where a dispute cannot be resolved between the parties it “may then be referred to FWC for conciliation and/or arbitration.” Simplot and the AMWU are covered by the Agreement and the AMWU has requested that the Commission deal with and determine its application.

[5] A directions hearing was held on 18 December 2015. The future progress of the application was discussed at the directions hearing in the light of the Company’s assertion that the s.739 application was a duplication of issues in dispute in three unfair dismissal applications. Those applications were initially lodged by telephone by Mr M Johnson, Mr J Martin and Ms P Oates on 13 November 2015. They were later filed in written form on or about 20 November 2015.

[6] Simplot further claimed that the relief sought in the three unfair dismissal applications was also a duplication of relief sought in the s.739 application. Accordingly, the Company sought an interlocutory hearing to determine whether the s.739 application should be dismissed or stayed in favour of the three unfair dismissal applications proceeding to hearing and determination.

[7] After considering Simplot’s request and after hearing argument from the parties at the directions hearing, it was my decision to grant Simplot’s request. The interlocutory application then went to hearing in Launceston on 11 January 2016. Ms N Segbedzi appeared for Simplot and Mr M Nguyen appeared for the AMWU.

Background

[8] In this decision, I am dealing with the narrow issues outlined above and not the substantive issues between the parties in the s.739 application. However, some brief background will, I believe, be of general assistance.

[9] For some time, the AMWU has been in dispute with Simplot about the Company’s plans to reorganise its business and the resulting need for redundancies at the Company’s site in Ulverstone, Tasmania. There has been considerable litigation which resulted in Recommendations being made by his Honour Deputy President Abey. Subsequently, some six employees were made redundant by Simplot and three of those employees subsequently filed applications for relief from unfair dismissal. The remaining persons dismissed did not contest their terminations of employment. The three persons who have filed unfair dismissal applications are the same persons whom the AMWU is representing by way of this application by the union pursuant to s.739 of the Act. The AMWU also acts for each of the three persons in the unfair dismissal applications. The Union has requested that the s.394 applications be placed ‘on hold’ until this application has been determined.

Relief sought in s.739 application

[10] In its form F10 (Application for the Commission to Deal with a Dispute in Accordance with a Dispute Settlement Procedure), the Union seeks the following relief:

“1. The Union seeks an order from the Commission that:

a. Simplot must provide in writing to the Union:

(i) The full details of the new restructure and changes proposed;
(ii) The rationale for the various parts of the new restructure;
(iii) Details of the usage of casuals over the course of the year (including personnel hours and work area);
(iv) Details of the usage of External personnel (labour hire/contractors) over the course of the year (including personnel hours and work area); and
(v) Details of any alternatives considered by the company to mitigate the effects, or reduce the number of redundancies.

b. Simplot must:

(i) Conduct training for local management as required under 13.1(d); and
(ii) Commence the review of maintenance personnel levels as required under Appendix 8 of the Agreement.

c. Until Simplot has concludes the above processes of training, consultation and review, Simplot must:

(i) Reinstate employees Mr Michael Johnson, Ms Paula Oates and Mr Jason Martin who were in positions that were not part of the first restructure consultations;
(ii) Make payment of wages to these employees for the period since 23 October 2015 to ensure that status quo prevails;
(iii) Not commence or (if already advertised) not conclude any recruitment under the new restructure;
(iv) Not give effect to any redundancies under the new restructure.”

Relief sought in the unfair dismissal applications

[11] In their forms F2, Mr Johnson, Mr Martin and Ms Oates each seeks reinstatement as relief. Each applicant claims that he or she was not dismissed as the result of a “genuine redundancy”. Accordingly, each applicant claims that there was no valid reason for dismissal and that the dismissals were harsh, unjust and unreasonable in that they arose from a flawed process conducted by Simplot.

Submissions

Simplot

[12] In written submissions filed prior to the hearing, Simplot submitted that the s.739 application was a duplication of proceedings and argued that:

“The facts and circumstances that are necessary or will weigh in favour of the exercise of a court’s discretion to stay or dismiss a proceeding are:

a. That the 2 proceedings arise out of the same sub-stratum of facts. These need not be absolutely identical, but substantially similar; and the proceedings also do not need to have identical parties;

b. That the 2 proceedings are based in (or capable of being based in) the same or substantially similar or overlapping causes of action;

c. That the 2 proceedings seek, or are capable of seeking the same or substantially similar relief. Is there anything different to be gained from the parallel proceeding; alternatively, is complete relief is available in a single proceeding? If there is something additional to be gained, then it is less likely that the institution of the parallel proceeding will be found vexatious and oppressive and it is less likely to be stayed.

d. The dictates of equity and good conscience require that both the injustice to the moving party if the other party is allowed to pursue the parallel proceedings, and the injustice to other party if it is not allowed to do so, be taken into account.” [references omitted]

[13] Simplot’s submissions went on to analysis a number of matters in case law to which I have paid regard.

[14] Simplot went on to argue that courts “have an inherent jurisdiction to control their own processes and prevent their processes being abused.”

[15] “FWC, being a creature of statute, lacks both the inherent jurisdiction of a court to prevent abuse of its processes and a separate and distinct equitable jurisdiction. Rather, its jurisdiction and the powers it may exercise are given by its enabling legislation, and all of its functions and powers are to be exercised equitably and in good conscience. The most relevant, analogous statute-based powers given to the FWC in these regards are:

e. The express power to dismiss an application if it ‘is frivolous or vexatious’: section 587(1)(b);

f. that the FWC must perform its functions and exercise its powers in a manner that, relevantly:

‘(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent....’: section 577; and

g. in exercising its powers under the Act, the FWC must take into account ‘… equity, good conscience and the merits of the matter’: section 578(b) of the Fair Work Act.”

[16] Simplot’s submissions closed with a helpful summary of its position:

“The Company submits that … FWC should exercise its powers in equity and good conscience to dismiss the current s.739 Application C2015/7294 on the ground that:

a. it duplicates the unfair dismissal applications in U2015/15016, 15017 and 15018;

b. the duplication is substantial, or substantially overlapping in respect of:

i. the substratum of facts underlying the matters;
ii. The respective causes of action and the necessary facts in issue in each;
iii. The material relief that is sought.

c. In respect of the overlapping relief, the unfair dismissal applications offer or are capable of offering complete, enduring relief;

d. The prejudice to the Company of defending two, substantially overlapping Applications and not reaching a final determination of its obligations any time soon outweighs the prejudice to the Union and the employees of not obtaining shortterm orders for training, consultation, provision of information etc.”

[17] Simplot’s written submissions were supported by brief oral submissions at the hearing. In those submissions, the Company argued that the steps under the dispute notification procedure were not commenced until well after the three employees concerned had been dismissed and that ‘complete relief’ is available pursuant to s.394 of the Act “which makes this application appear vexatious and abuse of process.” 1

The AMWU

[18] As agreed prior to the hearing, Mr Nguyen responded orally to Simplot’s written submissions and Ms Segbedzi’s supporting oral comments.

[19] Mr Nguyen argued that Simplot’s interlocutory application “… seeks to stop the union from accessing the range of broader remedies available under the Fair Work Commission’s private arbitration jurisdiction. Simplot is seeking to oppress the right of the union and the rights of individual employees, to those rights which exist under the enterprise agreement and which do not exist under the statutory unfair dismissal regime …” 2

[20] Mr Nguyen continued by saying that the omission of any mention of s.739 proceedings in s.725 and following of the Act is an explicit omission “relating to private arbitration which is written into legislation”. 3

[21] “The union's ability to dispute the company's application of the enterprise agreement in relation to consultation and to seek orders in relation to the correct application of the consultation clauses is not available in the statutory unfair dismissal regime.  In particular, the orders sought by the union which are not available under the unfair dismissal regime are; that Simplot provides specific information about the positions which are to be dismissed, details of the usage of casuals, details of the usage of external personnel et cetera, is not available in the unfair dismissal regime.  Also, secondly, that Simplot ensure training of Simplot management as required by the enterprise agreement, clause 13.1, and thirdly, that Simplot not commence or conclude any recruitment and fourthly that Simplot not give effect to any further redundancies.” 4

[22] “Whilst reinstatement and back pay are common to both proceedings, only private arbitration under the dispute settlement procedure is capable of delivering all orders, including status quo orders requiring reinstatement and back pay.” 5

[23] “In the present proceedings there is an agreement to be subjected to the jurisdiction of a forum.  The enterprise agreement contains an agreement that disputes are to be settled in accordance with the dispute settlement procedure.  The company now seeks to void an ability to seek for a dispute to be dealt with under the dispute settlement procedure, which in equity is unconscionable conduct, and the company should be estopped from pursuing this line of argument given it has agreed to the dispute settlement clause which includes arbitration in the enterprise agreement.” 6

[24] Mr Nguyen argued that the Union is not a party to the unfair dismissal proceedings but is the applicant in the s.739 application. “… the unfair dismissal regime does not address the various clauses of the enterprise agreement as a substantive issue.” 7

Simplot in reply

[25] In reply to Mr Nguyen, Ms Segbedzi said that Simplot conceded that s.725 of the Act does not specifically preclude an action under s.739 proceeding at the same time as an action under s.394 of the Act. “What is not conceded is whether the Fair Work Act is exhaustive … the Fair Work Act leaves it open for the Commission to exercise its discretion and make an order such as the company has sought.” 8 “… Section 587 of the Act [allows the Commission] to dismiss a proceeding if it is frivolous or vexatious.”9

[26] “… The Commission should … say, ‘Look, this is where equity and good conscience, the need for quickness or speed would cause me to exercise my discretion in section 587 to dismiss this proceeding in favour, say, of the unfair dismissal applications going ahead.’” 10

Conclusions and Determinations

[27] In reaching my conclusions and determinations, I have paid regard to all relevant written and oral submissions, materials and documents and also the case law cited by the parties.

[28] My task is to determine whether the AMWU’s s.739 application should be stayed or dismissed in the light of subsequent applications by Mr Johnson, Ms Oates and Mr Martin pursuant to s.394 of the Act.

[29] Firstly, it is my determination that the s.739 application is neither frivolous nor vexatious. There is nothing in the Act which specifically precludes the making of an application pursuant to s.739 by the Union whilst three individuals, represented by the Union, pursue actions under s.394. The previous history of litigation over the restructure by Simplot merely provides useful historical context to the current application and is not a duplication of previous proceedings before DP Abey.

[30] However, it is my further determination that the issues canvassed in this s.739 application and in the three s.394 applications are, for all intents and purposes, the same insofar as they rely on the same sub-stratum of facts and essentially seek the same relief for the same three persons. The fact that the AMWU is the applicant in the s.739 application and the three individuals are the applicants in the s.394 applications, is not of any practical importance.

[31] Although the Act does not specifically preclude the Union from making a s.739 application in the circumstances, it is a general principle that more than one action over basically the same matter or matters is undesirable. In this case, I certainly consider it undesirable that I determine the s.739 application prior to the hearing of the s.394 applications, for the practical reason that any determination by me could impact one way or the other on the determination of the s.394 applications or be in conflict with the findings of the Member who deals with the s.394 applications. The possibility of two different outcomes, or part outcomes, for the same three persons would be perverse.

[32] It is my further view that full relief is available to Mr Johnson, Mr Martin and Ms Oates from proceedings for unfair termination of employment. The complete range of relief is not available under s.739, particularly reinstatement and back payment of wages.

[33] All in all, I have decided to exercise my discretion by dismissing the s.739 application. The panel head in charge of unfair dismissals will be advised accordingly.

COMMISSIONER

Appearances:

M Nguyen for the Applicant.

N Segbedzi for the Respondent.

Hearing details:

2015.

Hobart:

December 18.

2016.

Launceston:

January 11.

 1   Transcript PN162.

 2   Transcript PNs174-175.

 3   Transcript PN185.

 4   Transcript PN208.

 5   Transcript PN210.

 6   Transcript PN246.

 7   Transcript PN288.

 8   Transcript PN333.

 9   Transcript PN335.

 10   Transcript PN379.

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