| [2017] FWC 4734 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Michael Pearce
v
Aurizon Operations Limited
(C2017/313)
SENIOR DEPUTY PRESIDENT HAMBERGER |
SYDNEY, 12 SEPTEMBER 2017 |
Application for the Fair Work Commission to deal with dispute – jurisdictional objections by respondent – whether an employee can continue to pursue a dispute under a dispute settlement procedure after employment has ceased – jurisdictional objections dismissed.
[1] On 19 January 2017, Michael Pearce (the applicant) applied to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (Cth) (the FW Act) to deal with a dispute in accordance with a dispute settlement procedure (DSP). The application indicated that the industrial instrument containing the DSP relevant to the application was an enterprise agreement. The name of the enterprise agreement was given as ‘Freight Support prior 2014’. The respondent was identified as ‘Aurizon’.
[2] The applicant indicated under ‘relief sought’:
‘As I continued to carry out the duties of a Train Service Designer as I was appointed in 2012, I feel that I am owed back dated wage and Superannuation benefits from 18.11.2013 when my wage was frozen to 09.12.2016.’
[3] The application was initially referred to Spencer C, who directed the respondent to provide a written response to the application by 27 January 2017.
[4] In its written response, the respondent indicated that it interpreted the reference to ‘Freight Support prior 2014’ as being to the QR National Coal and Regional Freight Support Enterprise Agreement 2010 (the 2010 agreement). The respondent noted that the employer bound by the 2010 agreement was QR Limited. On 1 December 2012, QR Limited changed its name to Aurizon Operations Limited. The nominal expiry date of the 2010 agreement was 31 December 2013. On 21 January 2015, the Commission approved the Aurizon Staff Enterprise Agreement 2014 (the 2014 agreement). The employers bound by the 2014 agreement are Aurizon Operations Limited and Aurizon Network Pty Ltd. The applicant ceased employment with Aurizon Operations Limited on 10 December 2016.
[5] The respondent indicated that at all material times until 27 January 2015, the applicant’s employment was covered by the 2010 agreement, and at all material times from 28 January 2015 until 10 December 2016 the applicant’s employment was covered by the 2014 agreement.
[6] In its written response, the respondent indicated its view that the Commission had no jurisdiction to deal with the application.
[7] A telephone conference was held before Spencer C on 22 March 2017 and the parties exchanged further documentary material. The matter was subsequently referred to me, and I held a second telephone conference on 14 July 2017. Following this conference, I issued directions for written submissions, together with any relevant evidence, concerning the respondent’s jurisdictional objection. This decision deals with that objection.
[8] At the time the 2010 agreement came into operation, the applicant was employed as a Rollingstock Deployment Officer (classified as AS5.1 – AS5.4).
[9] Commencing 3 September 2012, as a result of a business restructure, the applicant was redeployed to a position as a Train Service Designer (classified as AS6.1). On 26 June 2013, the applicant received a salary increment increase to AS6.2.
[10] As a result of a second restructure, the applicant was again redeployed – this time back to a position as Rollingstock Deployment Officer, commencing 18 November 2013 (classified as an AS5). The applicant was advised at the time that:
‘As your new role is at a lower EA classification than your previous role, you will continue to be paid your current base rate of pay as per the relevant enterprise agreement (the maintained rate). The maintained rate will be adjusted by any EA wage increases applicable to your new classification. The maintained rate will not be increased by the incremental payments applicable to your new or previous classification. This arrangement will cease when the base rate of pay for your new classification equals or exceeds the maintained rate. At that time, you will receive the base rate of pay for your new classification.’
[11] This in effect ‘froze’ the applicant’s salary at the AS6.2 level. During the first half of 2014, the applicant says that he approached his manager seeking to have this salary freeze reviewed. This request was denied. The applicant says that he then approached his General Manager on 23 December 2014, who also denied his application for a review. The applicant contended that he was still performing the same duties as he had performed prior to November 2013.
[12] On 24 February 2016, according to the applicant, he contacted payroll ‘as EBA wage increased but I didn’t get it, no reply’. The applicant said that he continued to raise the possibility of a review with various managers in the second half of 2016 until he was made redundant on 9 December 2016, but to no avail.
[13] It is clear that the applicant’s dispute with the respondent concerns the ‘freeze’ that was applied to his salary from November 2013. The basis of his objection is that there was no change to the work he performed in November 2013. By implication he is asserting that his classification should not have been reduced – that is, that since November 2013 he was wrongly classified. If he had still been classified as an AS6 he would have continued to receive incremental increases each year up to AS6.4 (the highest pay point for an AS6). However, the dispute itself concerns the ‘freeze’ in the applicant’s pay from November 2013 till he ceased working for the respondent in December 2016, not just simply whether his role was properly classified. I note that the applicant raised the apparent failure of the respondent to pay him an ‘EBA wage increase’, which on its face would appear to be inconsistent with the terms of the 18 November 2013 letter.
[14] When the applicant first raised his concerns with management, the 2010 agreement was in place. However, he continued to raise these concerns after the 2014 agreement commenced.
[15] Part 2-4 of the FW Act deals with enterprise agreements. Section 172 of the FW Act authorises the making of enterprise agreements between national system employees and their employer(s) about permitted matters.
[16] The general requirements for approval of an enterprise agreement in s.186 of the FW Act include in s.186(6) a requirement for a term about settling disputes that provides a procedure that requires or allows the Commission, or another independent person, to settle disputes about any matters arising under an agreement and in relation to the NES.
[17] Section 186(6) of the FW Act sets out the minimum statutory requirements in relation to a dispute settlement term. The parties to an enterprise agreement may agree to a term for the settlement of disputes of broader compass, provided it relates to the permitted matters in s.172 of the FW Act.
[18] The Commission has a function set out in s.576(2)(a) of the FW Act dealing with disputes as referred to in s.595. Section 595 of the Act provides a power to the Commission to deal with a dispute if ‘expressly authorised to do so under or in accordance with another provision’ of the Act. In such a circumstance, s.595 provides that:
‘(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation;
(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.’
[19] Subdivision B of Division 2 of Part 6-2 of the FW Act is ‘another provision of the Act’ which expressly authorises the Commission to deal with disputes (also conditioning the manner in which the Commission can deal with them).
[20] Section 739 of the Act concerns disputes dealt with by the Commission where a term referred to in s.738 requires or allows the Commission to deal with a dispute. Section 738(b) of the FW Act includes, a term in an enterprise agreement that provides a procedure for dealing with disputes, including a term referred to in s.186(6). (That is, a DSP.)
[21] In dealing with a dispute, the Commission must not exercise any powers limited by the term that requires or allows the Commission to deal with the dispute: FW Act s.739(3). The Commission may deal with a dispute only on application by a party to the dispute: FW Act s.739(6). If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, the Commission may do so (FW Act s.739(4)) but must not make a decision that is inconsistent with the Act or a Fair Work instrument that applies to the parties: FW Act s.739(5).
[22] The 2010 agreement contained two clauses dealing with workplace dispute resolution, clauses 12 and 13. The agreement was approved with an undertaking that clause 13 was the process by which disputes arising under the agreement or in relation to the NES would be dealt with.
[23] Clause 12 was as follows:
‘12. RESOLVING WORKPLACE ISSUES
12.1 The Company will continue to provide a mechanism for employees to work towards resolving individual workplace issues (which are distinct from disputes about this Agreement).’
[24] Clause 13 was as follows:
‘13. DISPUTES PROCEDURE
13.1 In the event of any dispute arising during the course of employment the following procedure will apply. The objectives of this procedure are the resolution of disputes, or matters that may give rise to a dispute, by measures based on consultation, cooperation and discussion.
13.2 An employee may, at any step in the procedure, appoint a representative (including an organisation or association). Unless revoked by the employee, the appointment will continue for any subsequent steps of the procedure.
13.3 A representative may do all the things which the procedure authorises an employee to do.
13.4 While this procedure is being followed, employees will continue to work in accordance with their contract of employment and comply with lawful and reasonable directions given by the Company. However, employees will not be required to perform any work where the employee holds a reasonable concern about an imminent risk to the employees’ health or safety.
13.5 The steps in this procedure are as follows:
STEP 1:
In the event of a dispute an employee/s will attempt to resolve the dispute with the employee’s immediate supervisor. If the dispute is unresolved the employee may refer the dispute to step 2.
STEP 2
The relevant manager and/or the manager’s representative, and the employee will attempt to resolve the dispute. Unless otherwise agreed, such attempt will take place within 24 hours after the referral by the employee. If the dispute remains unresolved it may be referred by the employee to step 3.
Any referral to step 3 must be in writing. The written notice of dispute must contain these details:
- The location of the dispute
- The subject of the dispute
- The particulars of the dispute
- At least one proposed resolution of the dispute.
STEP 3:
Consistent with this agreement, a dispute may commence at this level by the provision of a written notice which contains the same details as identified in step 2.
More senior management and the employee will attempt to resolve the dispute. If the dispute is not resolved, the Company will issue to the employee a written notice setting out the Company’s decision. This notice will include, where relevant, the date of implementation, which will be no earlier than 3 working days from the date of the notice.
To avoid doubt, this means the disputed changes will not be implemented until the 3 working day period has ended.
Where the dispute remains unresolved, it may be referred to step 4 by way of an application to Fair Work Australia (FWA). The application to FWA must be lodged within 3 working days of the employee receiving written notice of the Company’s decision. For the purposes of this clause a “working day” shall be any day other than Saturday, Sunday or public holiday.
STEP 4:
Where an application is lodged in accordance with step 3 the Company will not implement the disputed changes until this step is completed. Where the application is lodged after 3 working days from the notice referred to in step 3, the company may implement the change and the matter may only proceed to conciliation.
FWA will first attempt to resolve the dispute by conciliation. The employee and the company will act expeditiously and without delay to progress the dispute. Due consideration will be given to any recommendation made by FWA.
Where the dispute pertains to the application or interpretation of this agreement or an alleged breach of this agreement and, where the dispute remains unresolved following conciliation FWA is authorised to resolve the dispute by private arbitration.
To the extent necessary the following powers are conferred upon FWA:
- Making procedural directions as to the time, place and conduct of the conciliation or arbitration;
- Directing the parties as to the manner of receiving submissions, including requiring formal submissions;
- Hearing oral submissions;
- Taking written submissions;
- Hearing evidence by oath or affirmation;
- Conducting inspections;
- Determining the representation of the parties applying the same criteria as contained in S596 of the Fair Work Act 2009.
The Company or an employee will not be represented by a legal practitioner during the conciliation and/or arbitration unless:
- The consent of the other party to such representation is obtained; or
- The legal practitioner is a permanent employee of the Company or of the employee’s representative organisation or association; or
- Where FWA grants leave to appear in accordance with the powers granted herein.
Where the dispute is subject to private arbitration, the decision of FWA is binding.’
[25] The 2010 agreement also contained clause 28, concerning classification reviews:
‘28. CLASSIFICATION REVIEW
28.1 An employee can request to have the classification of their appointed position reviewed. The employee can provide input into the review process. Should the request for a review be declined or the employee disagrees with the outcome of the classification review, the employee, or their representative, if so requested by the employee may access the mechanism available for resolving workplace issues.’
[26] The DSP in the 2014 agreement is set out in clause 7. It provides as follows:
‘7. DISPUTE RESOLUTION
7.1. In the event of a dispute about a matter arising under this Agreement or in relation to the NES the following steps will be followed:
7.1.1. Discussions will be held between the employee/s concerned and the relevant supervisor. If such discussions do not resolve the dispute;
7.1.2. Discussions will be held between the employee/s concerned and more senior levels of management as appropriate. If such discussion do not resolve the dispute;
7.1.3. The employee/s or the Company may refer the dispute to the FWC.
7.2. The FWC may exercise any method of dispute resolution permitted by the Act in relation to a dispute referred to it in accordance with this procedure.
7.3 The Company or employee/s may appoint another person, organisation or association to accompany and/or represent them during the steps contained in this procedure.
7.4. While the dispute resolution procedure is being followed work must continue in accordance with this Agreement and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the Company to perform work, whether at the same or another workplace that is safe and appropriate for the employee to perform.’
[27] The respondent’s jurisdictional objection is made on several grounds:
1. The application is made against an entity that is not covered by the relevant enterprise agreement;
2. To the extent the application is made pursuant to the 2010 agreement it was made at a time when that agreement had ceased to apply to the applicant and could never apply to him again;
3. The issue of the applicant’s classification was not an issue capable of being dealt with under clause 13 of the 2010 agreement;
4. To the extent that the issue of the applicant’s classification was an issue capable of being dealt with under clause 13 of the 2010 agreement, it was not a matter that could go any further than conciliation;
5. To the extent that the application can be considered as being made pursuant to the 2014 agreement, it is not open to the Commission under the process in clause 7 of that agreement to deal with the classification of a position at a date prior to the commencement of the 2014 agreement;
6. The applicant had not followed the steps in the dispute resolution process under clause 7 of the 2014 agreement necessary as a precursor to an application to the Commission;
7. There may be an issue as to whether the Commission has the power to arbitrate a dispute under clause 7 of the 2014 agreement (the respondent reserved its right to make further submissions on this point); and
8. The application was not lodged with the Commission while the applicant was still an employee of the respondent.
[28] I will deal with each of these submissions in turn.
[29] The respondent noted that in the Form F10 that initiated this matter, the respondent’s legal name is given as ‘Aurizon’ and the respondent’s trading name is also given as ‘Aurizon’. The ABN of the respondent is given as 14 146 335 622.
[30] The respondent stated that the ABN given belongs to Aurizon Holdings Limited. Aurizon Holdings Limited (formerly QR National Limited) is not an employer covered by the 2014 agreement; neither was it an employer covered (at any time) by the 2010 agreement. It added that ‘Aurizon’ is a trading name used by a number of subsidiary companies of Aurizon Holdings Ltd; among them Aurizon Operations Limited (ACN 124 649 967).
[31] The respondent submitted that if the application is made against Aurizon Holdings Limited, then the Commission is without jurisdiction, as an application made pursuant to s.739 in accordance with a dispute procedure in an enterprise agreement cannot be brought against an entity that is not covered by an enterprise agreement.
[32] Under s.577 of the FW Act, the Commission must perform its functions and exercise its powers in a manner that, inter alia, is fair and just, and is quick, informal and avoids unnecessary technicalities.
[33] Under s.586 of the FW Act, the Commission may allow a correction or amendment of any application, or other document relating to a matter before the Commission, on any terms that it considers appropriate; or waive any irregularity in the form or manner in which an application is made to the Commission.
[34] It is not in dispute that Aurizon Operations Limited was the employer of the applicant at all times material to the application. The application will be amended so that it applies to Aurizon Operations Limited (ACN 124 649 967).
[35] As previously noted, the nominal expiry date of the 2010 agreement was 31 December 2013. On 21 January 2015, the Commission approved the 2014 agreement.
[36] The respondent noted that, by the operation of s.58(2) of the FW Act, the 2010 agreement ceased to apply to the applicant from 21 January 2015 and could never apply to him again. It follows that the application has been made after the 2010 agreement ceased operating in relation to the applicant.
[37] The respondent submitted that in Samuel Streeter v BHP Coal Pty Ltd 1 (Samuel Streeter), a Full Bench of the Commission found that the Commission had no jurisdiction to deal with a dispute application made in accordance with a DSP in an enterprise agreement where that agreement had ceased operating before the dispute application was filed in the Commission. To the extent that the application is an application made pursuant to the 2010 agreement, the respondent submitted, the Commission has no jurisdiction to deal with it.
[38] The Full Bench in Samuel Streeter stated:
‘There are two reasons why it appears to us that the Deputy President was plainly correct in concluding that there was no jurisdiction to deal with Mr Streeter’s dispute.
First, the 2004 Agreement was replaced by the BHP Coal Pty Ltd Workplace Agreement 2007 (the 2007 Agreement). Once the 2007 Agreement commenced operation the 2004 Agreement ceased to operate, by virtue of s.347(5) of the Workplace Relations Act 1996 (Cth) (the WR Act). Further, s.347(7) of the WR Act provided that:
‘If a workplace agreement has ceased operating under subsection (4), it can never operate again.’
The 2004 Agreement ceased operating well before Mr Streeter filed his dispute application, accordingly the Commission has no jurisdiction to deal with that dispute.’ 2
[39] Adopting the same reasoning as the Full Bench in Samuel Streeter, to the extent that the applicant’s dispute application was made pursuant to the 2010 agreement, I am satisfied that the Commission has no jurisdiction to deal with it. Given this finding, I do not consider it necessary to consider the third and fourth grounds of the respondent’s jurisdictional objection, which go to the capacity of the Commission to consider or arbitrate a dispute about the correct classification of an employee under the 2010 agreement.
[40] Having found that the Commission could not entertain an application made under an agreement that had ceased to operate, the Full Bench in Samuel Streeter went on to consider whether Mr Streeter’s application could be regarded as a continuation of an earlier dispute under the 2004 Agreement. In that case it found that while there was a subsequent dispute under a successor agreement, that dispute had been resolved prior to Mr Streeter’s application to the Commission. Moreover, it found, Mr Streeter was not a party to the later dispute. 3
[41] Similarly, it is appropriate to consider whether the application in this case could be considered a continuation under the 2014 agreement of a dispute that originated under the 2010 agreement.
[42] While there may be a dispute about some of the facts, it appears that the applicant approached the General Manager, Catherine Baxter, with his concerns at the ‘freeze’ on his wages on 23 December 2014. It is clear that at that time, he had a dispute with the respondent, and this was not resolved at the time the 2014 agreement replaced the 2010 agreement.
[43] According to the applicant, all his approaches to management during 2015 for a review ‘were denied or just not answered’. 4
[44] The applicant claims that on 24 February 2016, he sent an email to payroll questioning his pay rate. He also sent a copy of the email to Rebecca De Souza in human resources, but said that he did not receive a reply. 5
[45] The applicant says that he then emailed his then manager Brendan O’Brien on 20 July 2016 with his dispute, who he forwarded it onto Michael Bourke, Industrial Relations for Aurizon. He continued:
‘Michael advised me that under the EBA, my frozen wages would stay until a review by HR was carried out on my duties. Then came another restructure when Aurizon decided that the both positions of Rollingstock Deployment officers were to be relocated to Brisbane. When Aurizon finally realized that I had not been doing the Rollingstock Duties for the last 3 years, I was approached by Janine Phillips HR and I requested again for a position review. The reply to this request is the letter dated 12.08.2016 from Mark Kirkpatrick VP Operations which states my duties are now aligned to Day Roster, not Rollingstock as for the past 3 years. This letter only shows who I report to but does not address the pay freeze or position review that I requested. At no time did I carry out any Day Rosters duties.’ 6
[46] On 8 December 2016 (that is, just before the applicant’s employment with the respondent ceased), an official from the RTBU wrote to an officer of the respondent, Gary Wegert, contesting the freeze applied to the applicant’s pay.
[47] It is clear that the dispute concerning whether the applicant was being paid correctly between the applicant and the respondent continued under the 2014 agreement and was not resolved at the time his employment ceased. Given this finding, and given the need to avoid unnecessary technicalities etc. referred to earlier, I consider that the application should be considered as one made under the 2014 agreement.
[48] The respondent notes that the 2014 agreement contains criteria for the classification of positions and that clause 7 provides a mechanism for the settlement of disputes arising under the 2014 agreement or in relation to the NES.
[49] The respondent submitted, however:
‘A dispute over the correct classification of a position under the [2014 agreement] is a matter arising under the [2014] agreement which could be the subject of a dispute under clause 7. However, the classification criteria under the [2014 agreement] became effective only at 28 January 2015. It is not open to the Commission under the process in clause 7 of the [2014 agreement] to deal with the classification of a position at a data prior to the commencement of the [2014 agreement]. Neither is it open to the Commission, in considering whether the work of a position is correctly classified under the [2014 agreement] to take account of the classification of the same or similar work, under an earlier, internal employer process which did not form a part of any award or enterprise agreement.
There is no continuing dispute from before the advent of the [2014 agreement] which can be dealt with under the [2014 agreement]. The Commission, in dealing with any classification matter is limited to an assessment of the work being performed at the commencement of the [2014 agreement] against the classification criteria in the [2014 agreement].’
[50] This is an unduly narrow reading both of the dispute and of the 2014 agreement. Clause 7 provides a procedure for dealing with disputes ‘about a matter arising under this Agreement….’ The agreement includes a classification structure and wage rates corresponding to each classification. The applicant contends that he was paid incorrectly. While the original decision to ‘freeze’ his wages may have been taken prior to the 2014 agreement coming into operation, the freeze continued under it. He still contended that he was paid wrongly under the 2014 agreement. I see no good reason why such a dispute cannot be said to ‘arise under’ the 2014 agreement. Of course, any determination made by the Commission would need to be consistent with that agreement.
[51] The respondent concedes that the 2014 agreement DSP does not contain the same formal timetabling and response requirements that were necessary under clause 13 of the 2010 agreement. However, it submits, there is no evidence that the applicant (or the employer) considered that the issue of the applicant’s classification from January 2015 was being raised as a dispute pursuant to clause 7 of the 2014 agreement. It says that the fact that the applicant did not make an application after receiving the letter of 12 August 2016 from Mr Fitzpatrick suggests either that he believed the matter was resolved or that he did not consider that he was raising a dispute under the clause 7 procedure.
[52] The DSP in the 2014 agreement is expressed in very general terms. It provides that as a first step, discussions are to be held between the employee concerned and the relevant supervisor. There is no suggestion that this did not happen. If that does not resolve the dispute, discussions are to be held between the employee concerned and more senior levels of management. It is clear that the applicant took the matter up with more senior managers. It is not clear how much this took place by correspondence rather than ‘discussions’, but again, I do not think much turns on this. Whether the applicant or the respondent thought this was a dispute under the DSP rather than just a ‘dispute’ between them is irrelevant. As a last step, the employee may refer the matter to the Commission. This is what the applicant has done. No time limits are placed on how long the employee has to complete this step. I find no basis to conclude that the applicant has not followed the steps in the DSP necessary as a precursor to an application to the Commission.
[53] The respondent says there ‘may be a question as to whether or not the Commission has power to arbitrate a dispute under clause 7 of the [2014 agreement]’ and reserves it right to make further submissions on this point. I merely note that the DSP on its face empowers the Commission to exercise any method of dispute resolution permitted by the FW Act in relation to a dispute referred to it under the procedure.
[54] The applicant applied to the Commission to deal with his dispute after he ceased to be employed by the respondent. There are a number of Full Bench decisions dealing with whether the Commission has jurisdiction to deal with disputes in these circumstances.
[55] It is important to bear in mind that there are (at least) three possible scenarios that are relevant. In each scenario the applicant was formerly employed by the respondent employer
[56] It will be noted that the facts as I have found them in the matter currently under consideration accord with Scenario B; that is, Mr Pearce was in dispute with Aurizon at the time his employment with the respondent ceased, but was no longer so employed when he referred the dispute to the Commission.
[57] In the case of ING Administration Pty Ltd v Ramsin Jajoo 7(Jajoo), the applicant was likewise in dispute with his employer at the time his employment with that employer ceased. He subsequently sought the assistance of the Australian Industrial Relations Commission (AIRC), as the Commission then was. A Full Bench by majority affirmed on appeal that the Commission had the jurisdiction to deal with the dispute between Mr Jajoo and ING, even though Mr Jajoo was no longer employed by ING at the time his solicitors notified the Commission of the dispute and sought its assistance under the terms of the DSP in the certified agreement under which Mr Jajoo had been employed. The circumstances in Jajoo correspond to Scenario B.
[58] In Jajoo the respondent, ING, argued, inter alia, that the terms of s.170LW of the Workplace Relations Act 1996 (Cth) (which broadly corresponded to s. 739 of the FW Act) did not enable a procedure to be inserted into a certified agreement that allowed ex-employees to process disputes in the Commission, and that the terms of the certified agreement did not empower the Commission to settle disputes of the type in question between an ex-employee and ING.
[59] In relation to whether s.170LW prevented the Commission from dealing with disputes concerning former employees, the Full Bench said the following:
‘[38] We accept that a single person dispute which arises for the first time after the termination of employment is not a dispute between an employer and an employee. However, many disputes will arise while employment exists and continue after the termination of employment. In such a case, when the dispute arises, it is a dispute between an employee and an employer. If the dispute is progressed to the point of seeking the assistance of the Commission, the ING interpretation would require the employee to remain in employment. If it was intended to incorporate a limitation in s 170LW of the nature contended for by ING, we would expect there to be a clear express reference to that effect.
[39] The ING interpretation involves construing the provision as disqualifying employees from any process the parties may agree to confer on the Commission once they cease to be employed by their employer. Further, it requires s 170LW to be construed as depriving the parties to agreements of the ability to have a dispute continue to be resolved under an agreed procedure after termination of employment. Such a consequence would arise with respect to any dispute over any aspect of the agreement, even claims such as the non-payment of a meal allowance. It would also operate to deprive the Commission of jurisdiction at any time during the process. If termination arises after a decision is reserved, the jurisdiction to hand down the decision would not exist.
[40] As a matter of interpretation, a court or tribunal should not read a limitation into a source of power unless the words clearly bear such a meaning. Further, we do not believe that concepts of legal and industrial disputes provide any assistance in resolving the matter. Nor do we believe that it matters how the termination of employment occurred. We do not believe that s 170LW should be interpreted as including a limitation on the rights of parties to agreements in this way. If a dispute arises when the employment relationship exists, we are of the view that it is a dispute between the employer and an employee. We believe that a limitation of the nature contended for by ING should not be inferred from the words of s 170LW.
[41] In the circumstances of this matter, Mr Jajoo sought to progress a dispute under the relevant dispute settlement procedure while still employed. It was unresolved when his employment was terminated. We do not believe that there is a sound basis for construing the terms of s 170LW in a way which would deprive him of the right to progress his dispute to other levels of the procedure, including to the Commission, after the termination of his employment.’
[60] The Full Bench then turned to whether the terms of the agreement itself meant that the relevant DSP could not relate to a dispute with an ex-employee. The decision set out the terms of the DSP, as follows:
‘3.15 Dispute Settlement Process
Any grievance or dispute about a matter arising under the Agreement will be dealt with in accordance with the following procedure.
(a) In the first instance the matter may be raised with the Employee’s immediate manager or supervisor who will attempt to resolve it within a reasonable time.
(b) If the matter cannot be resolved with the Employee’s immediate manager or supervisor, either party may refer the matter to the supervisor’s manager who will seek to resolve the matter within a reasonable time, failing which the assistance of a more senior manager may be sought.
(c) If the matter remains unresolved either Party may refer the matter to the appropriate People and Culture representative or another senior person (up to and including the CEO).
(d) If the matter still remains unresolved, either Party may refer the dispute to the AIRC for conciliation and/or arbitration.
(e) During the dispute resolution process, normal work practices and procedures will continue in accordance with INGA’s reasonable directions.
(f) Nothing in these procedures will prevent any party from exercising its rights under the Act.
(g) INGA recognises that an Employee who is a member of the FSU may wish to raise a matter with their Union representative who may become involved in the discussion at any stage of the process.’
[61] The Full Bench said the following:
‘[52] In this matter, the Agreement was reached between the employer and the majority of employees whose employment was subject to the Agreement at the time of certification and who voted in a ballot on the matter. The effect of the submission by ING is that as a matter of construction of the terms of the Agreement, the ordinary meaning of the words in the Agreement or the intention of the parties is that grievances or disputes raised under the procedure could only be progressed so long as the employee in question remained employed by ING.
[53] It may be that a former employee cannot initiate a dispute under the clause after his or her employment has ceased. The notion of an employee raising the matter with the immediate manager or supervisor in the first instance tells against the existence of jurisdiction in such a case. Indeed, that was the situation and one of the bases for the decision of Commissioner Cribb in the Pugsley decision referred to above.
[54] However in this case, Mr Jajoo alleges that he first raised the relevant issue and sought to follow the steps contained in clause 3.15(a)-(c) in 2005. After his employment was terminated, he sought to utilise the step in the dispute settlement process in sub-clause (d). That sub-clause states that “If the matter still remains unresolved, either Party may refer the dispute to the AIRC for conciliation and/or arbitration.” In our view, the reference to “either Party” is a reference to the parties to the dispute. Mr Jajoo was a party to the dispute when he invoked the procedure and in our view, remained so when the dispute was unresolved and he sought to refer the dispute to the AIRC.
[55] We do not believe that the words of the Agreement suggest that an employee is disqualified from activating sub-clause (d) if the employment is terminated. Further, we believe that it would be highly artificial to suggest that the parties to the Agreement intended, when making the Agreement, that an employee’s ability to progress a dispute under the procedure would come to an end when he or she ceased to be an employee. Such an interpretation would mean that even a dispute which progresses to a full hearing and a reserved decision of the Commission, would be incapable of finalisation in the event of termination of employment. We see no basis to find that an employee who commences step 4 while still employed can follow that step through to the end regardless of termination, yet an employee who does not reach step 4 while still employed is precluded from accessing the final step in the process. If such serious consequences were intended, it would reasonably be expected that a clearer limitation would be written into the Agreement by the parties.
[56] We note that the opening words of clause 3.15 are unrestricted. They require “any grievance or dispute about a matter arising under the Agreement” to be dealt with in accordance with the procedure. There is no reference to ‘Employee’ in the opening words. The only reference to ‘Employee’ in the four steps of the process is as part of the phrase “Employee’s immediate manager”.
[57] We are also mindful of the alternative remedies available to Mr Jajoo under the Act, but we do not believe that these indicate that he does not have a remedy under the Agreement. It would be a curious result if Mr Jajoo could now take an action under the Act because he is held to be “an employee who is bound by the Agreement” (s 718) or “an employee whose employment is subject to the Agreement” (s 849) but could not take an action under the Agreement because he is not “an employee of the INGA whose employment is subject to this Agreement” (clause 1.3).
[58] In our view, the dispute settlement process should be viewed as a single process agreed by the parties to resolve disputes, rather than a series of separate rights and obligations which should be viewed conjunctively. That being so, an employee who had commenced to deal with a grievance or dispute while employed is not precluded, in our view, from continuing to progress that matter if it remains unresolved, notwithstanding that in the interim period they may have ceased to be employed by the employer.
[59] In reaching this conclusion, we acknowledge that parties to agreements are entirely free to draft disputes procedures in any number of different ways. Agreements may limit rights to resolve matters under disputes procedures to persons who are current employees and many agreements may properly be construed as doing so. In the circumstances of this case, we believe that the Agreement empowers the Commission to determine the dispute notwithstanding that prior to the matter being resolved (and prior to Mr Jajoo referring the dispute to the Commission) his employment was terminated by ING.’
[62] Jajoo was subsequently followed by another Full Bench presided over by the President of the Australian Industrial Relations Commission in Telstra Corporation Limited v CEPU, 8 as well as the Full Bench in Deakin University v Rametta.9
[63] While Jajoo was decided under the Workplace Relations Act 1996, it has continued to be followed by Full Benches dealing with matters under the FW Act. 10
[64] The question of whether Jajoo should still be followed was addressed by a Full Bench of the Commission in CFMEU v Broadspectrum Australia Pty Ltd 11 (Broadspectrum). While the reasoning in Broadspectrum is a little opaque, the Full Bench explicitly declined to depart from Jajoo.12
[65] The respondent in the current matter made a supplementary submission drawing attention to a recent decision by Booth DP in Markham v Ensign Drilling Australia t/a Ensign Energy Services 13 (Markham). In Markham, it appears that the applicant was in dispute with his employer while he was still employed by them, but did not refer the dispute to the Commission until well after his employment had terminated. This appears to correspond to Scenario B (similar to the situation in the matter currently under consideration and Jajoo).
[66] In Markham, Booth DP referred to the Full Bench decision in CFMEU v North Goonyella Coal Mines Pty Ltd 14 (Goonyella). Booth DP said:
‘The guidance from Goonyella suggests that the Commission must closely examine and consider the words of the relevant dispute settlement procedure.’
[67] Booth DP continued:
‘[78] Step Five of clause 2.13 of the Agreement is:
“If the matter is not able to be conciliated, the matter may be referred by the employee or by Ensign, to the Fair Work Commission for arbitration. The Fair Work Commission may make a determination that is binding on the parties in accordance with provisions of the Fair Work Act 2009 (Cth)”
[79] As the Full Bench said in Goonyella “the word “employee” on its ordinary meaning and without qualification is entirely inapt to refer to a former employee.” The use of the word “employee” cannot be ignored in Step Five of clause 2.13 of the Agreement.’ 15
[68] Booth DP concluded on the basis of the reasoning in Goonyella that the use of the term ‘employee’ in Step Five of the clause in the DSP that enables a person to refer a matter to the Commission for arbitration must be read as a reference to a current employee, rather than someone who is no longer employed. Accordingly, she found that the Commission did not have the power to arbitrate to resolve the dispute.
[69] The Full Bench decision in Goonyella concerned a matter where there had been ‘no attempt to engage the provisions’ of the DSP prior to the termination of the relevant employees who were party to the dispute. In other words, it accorded with Scenario C referred to earlier. The Full Bench distinguished the circumstances of the case before it from those in Jajoo.
‘The position here is distinguishable from that considered in ING Administration Pty Ltd v Jajoo, Telstra Corporation Limited v CEPU and Deakin University v Rametta, where in each case the dispute resolution procedure had been initiated by or on behalf of the relevant employee before the employee’s employment had been terminated even though the procedure had not been completed prior to termination. In each of those matters it was determined that arbitration under the disputes resolution procedure could proceed notwithstanding that the employment of the relevant employee/s had terminated. Here, it is apparent that there was no attempt to engage the procedures in clause 41 [the DSP] in respect of the dispute identified in the October 2013 application at a time when any of the employee parties to the dispute were actually employed by North Goonyella. In that circumstance, clause 41 had no application, and consequently there was no power for the Commission to deal with the dispute under s.739 of the FW Act.’
[70] The circumstances in the case currently under consideration are much closer to those in Jajoo than those in Goonyella. I consider the Full Bench decision in Jajoo remains binding authority for a single Member of the Commission in dealing with applications in similar circumstances, that is, Scenario B, where the dispute arose prior to the termination of the relevant employee’s employment. Of course, one must always have regard to the specific terms of the DSP in the relevant agreement. But I consider that both the circumstances and the terms of the DSP in this matter are sufficiently similar to those in Jajoo to require me to follow the approach taken in that case. Accordingly, I find that the timing of the referral of the matter to the Commission after the applicant ceased to be employed by the respondent does not mean that the Commission lacks the power to deal with the matter before me.
[71] I note that the Full Bench in Goonyella distinguished the circumstances of the case before them from those in Jajoo, and its decision is not authority to depart from Jajoo where the circumstances are similar to those dealt with in the latter decision. However, it must be acknowledged that there is some tension in the reasoning in the two decisions. In particular the Full Bench in Goonyella was of the view that:
‘… the word “employee” on its ordinary meaning and without qualification is entirely inapt to refer to a former employee’. 16
[72] By contrast, the Full Bench in Jajoo observed:
‘It would be a curious result if Mr Jajoo could now take an action under the Act because he is held to be “an employee who is bound by the Agreement” (s 718) or “an employee whose employment is subject to the Agreement” (s 849) but could not take an action under the Agreement because he is not “an employee of the INGA whose employment is subject to this Agreement” (clause 1.3).’
[73] The FW Act uses the term ‘employee’ in a way that would include a former employee in a similar way (see, for example, s.539).
[74] Any apparent inconsistency between Jajoo and Goonyella can only be resolved by a further Full Bench. As indicated earlier, in the circumstances of this case, I am bound to follow the reasoning in Jajoo.
[75] On the basis of the material and the submissions presented to me, I am satisfied that the Commission has jurisdiction to deal with the application. The matter will be listed for further directions.
SENIOR DEPUTY PRESIDENT
Written submissions:
Aurizon Operations Limited: 30 July, 18 August 2017.
Michael Pearce: 14, 29 August 2017.
2 Ibid [20]-[22].
3 Ibid [23].
4 Applicant’s submissions (3 April 2017) [11].
5 Ibid [12].
6 Ibid [13]
10 E.g. Kentz (Australia) Pty Ltd v CEPU [2016] FWCFB 2019 [65]-[66].
12 Ibid [50].
15 [2017] FWC 4058 [78]-[79].
16 [2015] FWCFB 5619 [37].
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