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 Ltd
(C2018/6054)

Alleged dispute about any matters arising under the enterprise agreement – casual conversion – whether Commission has jurisdiction to deal with matter under superseded Agreement

[1] This decision relates to whether the Commission has jurisdiction to deal with a dispute under a dispute settlement procedure (the DSP) contained in the AMWU, CEPU AND Simplot Australia Pty Limited National Collective Agreement 2014 – 2017 (the 2014 Agreement).

Background

[2] The Applicant filed an Application for the Commission to deal with a dispute pursuant to the DSP in October 2018. The dispute related to whether two employees were entitled to be converted from casual employees to permanent employees under the casual conversion provision of the Agreement.

[3] On 10 December 2018 the Agreement was replaced by the AMWU, CEPU AND Simplot Australia Pty Limited National Collective Agreement 2018 – 2021 (the 2018 Agreement).

[4] The Respondent contends that in light of the approval of the 2018 Agreement that event extinguished the Commissions jurisdiction to hear the dispute pursuant to s. 739 under the terms of the 2014 Agreement. The Applicant contends that the Commission continues to have jurisdiction to deal with the dispute.

The Respondents contentions

[5] The Respondent contends that upon the approval of the 2018 Agreement the Commission ceased to have jurisdiction because of the provisions of Part 2-1 Division 2 Subdivision D of the Fair Work Act 2009 (the Act). The Respondent relies on sections 51 to 54 and 58. They are in the following terms:

“51 The significance of an enterprise agreement applying to a person

(1) An enterprise agreement does not impose obligations on a person, and a person does not contravene a term of an enterprise agreement, unless the agreement applies to the person.

(2) An enterprise agreement does not give a person an entitlement unless the agreement applies to the person.

52 When an enterprise agreement applies to an employer, employee or employee organisation

When an enterprise agreement applies to an employee, employer or organisation

(1) An enterprise agreement applies to an employee, employer or employee organisation if:

(a) the agreement is in operation; and

(b) the agreement covers the employee, employer or organisation; and

(c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.

Enterprise agreements apply to employees in relation to particular employment

(2) A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.

53 When an enterprise agreement covers an employer, employee or employee organisation

Employees and employers

(1) An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.

Employee organisations

(2) An enterprise agreement covers an employee organisation:

(a) for an enterprise agreement that is not a greenfields agreement—if the FWC has noted in its decision to approve the agreement that the agreement covers the organisation (see subsection 201(2)); or

(b) for a greenfields agreement—if the agreement is made by the organisation.

Effect of provisions of this Act, FWC orders and court orders on coverage

(3) An enterprise agreement also covers an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement covers the employee, employer or organisation:

(a) a provision of this Act or of the Registered Organisations Act;

(b) an FWC order made under a provision of this Act;

(c) an order of a court.

(4) Despite subsections (1), (2) and (3), an enterprise agreement does not cover an employee, employer or employee organisation if any of the following provides, or has the effect, that the agreement does not cover the employee, employer or organisation:

(a) another provision of this Act;

(b) an FWC order made under another provision of this Act;

(c) an order of a court.

Enterprise agreements that have ceased to operate

(5) Despite subsections (1), (2) and (3), an enterprise agreement that has ceased to operate does not cover an employee, employer or employee organisation.

Enterprise agreements cover employees in relation to particular employment

(6) A reference in this Act to an enterprise agreement covering an employee is a reference to the agreement covering the employee in relation to particular employment.

54 When an enterprise agreement is in operation

(1) An enterprise agreement approved by the FWC operates from:

(a) 7 days after the agreement is approved; or

(b) if a later day is specified in the agreement—that later day.

(2) An enterprise agreement ceases to operate on the earlier of the following days:

(a) the day on which a termination of the agreement comes into operation under section 224 or 227;

(b) the day on which section 58 first has the effect that there is no employee to whom the agreement applies.

Note: Section 58 deals with when an enterprise agreement ceases to apply to an employee.

(3) An enterprise agreement that has ceased to operate can never operate again.

58 Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

(1) Only one enterprise agreement can apply to an employee at a particular time.

General rule—later agreement does not apply until earlier agreement passes its nominal expiry date

(2) If:

(a) an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and

(b) another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and

(c) subsection (3) (which deals with a single-enterprise agreement replacing a multi-enterprise agreement) does not apply;

then:

(d) if the earlier agreement has not passed its nominal expiry date:

(i) the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and

(ii) the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or

(e) if the earlier agreement has passed its nominal expiry date—the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.

Special rule—single-enterprise agreement replaces multi-enterprise agreement

(3) Despite subsection (2), if:

(a) a multi-enterprise agreement applies to an employee in relation to particular employment; and

(b) a single-enterprise agreement that covers the employee in relation to the same employment comes into operation;

the multi-enterprise agreement ceases to apply to the employee in relation to that employment when the single-enterprise agreement comes into operation and can never so apply again.”

[6] The Respondent relies in particular on s 58 of the Act. In its written submissions 1 they put it this way:

“21. Section 58(2)(e) of the FW Act specifies that once an enterprise agreement ceases to apply as a result of a later agreement coming into operation, the enterprise agreement can never apply again.

22. The corollary of the sections in Part 2-1 Division 2, Subdivision D and section 58 discussed above is that an enterprise agreement which no longer applies or no longer covers an employee ceases to be an enterprise agreement.

23. It is unequivocal therefore, that the only enterprise agreement that applies to the employees who are the subject of the Dispute Notification is the 2018 Agreement. It is also incontestable these same employees are only entitled to the rights, terms and benefits of the 2018 Agreement, simply because the 2014 Agreement has been extinguished and no longer applies.”

[7] In addition, the Respondent points out the limitations of the Commission in dealing with disputes under Part 6-2 of the Act. It points out in particulars 793(4) and (5) which provide:

(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.

[8] In its written submissions 2 the Respondent put it thus:

“27. Section 739 (4) provides that the FWC may only deal with disputes to the extent the dispute settlement procedure (the ‘term’ in the enterprise agreement) reflects the parties had agreed that the FWC may arbitrate.

28. It therefore follows, any agreement between the parties to arbitrate that was in existence in the 2014 Agreement as a term of the agreement also falls away along with the extinguishment of the agreement. In other words, the consensus between the parties of the 2014 Agreement to have the FWC arbitrate on matters the FWC was permitted to arbitrate under the 2014 Agreement ceased when the 2018 Agreement came into operation.

29. Furthermore, Section 739(5) sets out that the FWC may only arbitrate disputes to the extent a fair work instrument that is an enterprise agreement pursuant to section 172 of the FW Act, applies to the parties.”

[9] The Respondent relies on Stephenson v Senator the Honourable Eric Abetz (Special Minister of State) 3 which held that if a certified Agreement empowering the Commission to settle disputes over the application of an agreement ceases to operate because of the provisions of the then Workplace Relations Act the Commission no longer had jurisdiction to exercise private arbitration powers in the Agreement.

[10] The Respondent notes that Stephenson was followed numerous times by the Commission under the Workplace Relations Act and also under the Act.

[11] In particular the Respondent points to three authorities 4 which have, since the enactment of the Act followed Stephenson. The Respondent therefore submits in light of the provisions of the Act and the decisions to which it refers the Commission is without jurisdiction to deal with the matter.

The Applicants contentions

[12] The Applicant submits that Stephenson should not be followed and that the Act properly construed does not provide for the extinguishment of the Applicants right to have the matter determined where the application was properly brought pursuant to the 2014 Agreement. The Applicant also relies on the decision of APESMA v NSW Electricity Networks Operations Pty Limited t/as TransGrid 5 (TransGrid) which held that an employee’s right to pursue a dispute under a DSP in an enterprise Agreement no longer in operation is not extinguished. Deputy President Sams noted in TransGrid that when the application has been commenced there was jurisdiction and said that to his mind that once the Commission is seized of jurisdiction there must be a clear statutory bar or the replacement agreement must expressly provide for extinguishment of the right to pursue the application. Absent any such clearly expressed extinguishment the application remained on foot and jurisdiction was exercisable.

[13] After oral submissions were made I sought further submissions in respect to s 58 of the Act. By then the Applicant had refined its submission. While somewhat lengthy I set out what the Applicant says 6

9. It is uncontroversial that at the time the dispute was notified, the 2014 Agreement applied to Simplot, the AMWU, Mr Bonney and Mr Davis.

10. The Commission’s jurisdiction to arbitrate the matter was validly enlivened by way of the application made by the AMWU pursuant to s 739(4) of the FW Act and cl 44.1(a)(ii) of the 2014 Agreement.

11. It follows that the AMWU accrued an entitlement to have the dispute dealt with by the Commission under the terms of the enterprise agreement and s 51 of the FW Act.

12. It does not appear that Simplot contends that the AMWU did not have this entitlement at the time the dispute was notified. Rather, Simplot contends that the AMWU’s right has been extinguished because the 2014 Agreement is no longer operative.

13. For the following reasons, the Commission should find that neither s 58 of the FW Act or the terms of the 2018 Agreement extinguish the AMWU’s accrued right for the dispute to continue to be dealt with by the Commission.

14. Simplot’s contention that s 58(1) extinguishes this right is both inconsistent with the ordinary principles of construction as they apply to arbitration clauses in contract and with principles of statutory interpretation regarding accrued rights.

15. It is a principle of statutory interpretation that the legislature is presumed not to have intended to extinguish accrued rights and liabilities, including the ability to continue legal proceedings.12 Nor should a court or tribunal read a limitation into a source of power, unless the words can clearly bear such a meaning.13

16. These principles have wide application. In NSW Aboriginal Land Council,14 Hope JA stated that:

“a statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a nondiscretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision has been set in train before the repeal or amendment.”

17. Section 58(1) does not disclose a legislative intention to extinguish statutory rights. Rather, it is directed to whether an enterprise agreement applies to an employee at a particular time.

18. Whether an enterprise agreement applies to an employee is not determinative of whether the Commission may continue to deal with a dispute, but may affect how it deals with a dispute.15

22. In any event, rights of private arbitration set out in contract are presumed to survive the termination (or invalidity) of a contract. Clear words in a contract would be required to displace these rights. Clear words of this kind are not found in either the 2018 Agreement or the FW Act.”

Consideration

[14] It is to be borne in mind that this decision deals only with jurisdiction. It does not deal with utility (i.e. whether I can make any useful orders in light of the limitations imposed by s 739).

[15] It is clear that, at the date the application was made the Commission had jurisdiction to deal with and determine the matter. The question is whether by virtue of the approval of and commencement of the 2018 Agreement the Commission lost its jurisdiction to deal with the matter on the basis that its jurisdiction was extinguished.

[16] There are two ways of looking at the matter. The first is consistent with Stephenson. Relevantly Stephenson said 7

“ [39] The grounds of appeal advanced by the Minister raise issues going to the Commission’s jurisdiction and powers in respect of procedures for preventing and settling disputes in a certified agreement, when the certified agreement has ceased to operate because of the provisions of s.170LX of the Act. Given those issues, in our opinion the matter is of such importance that in the public interest leave to appeal should be granted. Accordingly, we grant leave to appeal.

[40] The Commission’s jurisdiction and powers in respect of procedures for preventing and settling disputes in a certified agreement were considered by Vice President Lawler in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation. 8 His Honour said:

“[32] As the High Court in the Private Arbitration Case [Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission, (2000) 203 CLR 645] has reminded us, s.89(b) of the Act is a source of jurisdiction and authorises the Commission to discharge ‘such... functions as are conferred on the Commission by this or any other Act.’ One of the functions conferred on the Commission by the Act is the consideration, in connection with an application for the certification of an agreement made under Part VIB of the Act, of whether or not to approve (pursuant to the power in s.170LW or one of its predecessors) the dispute settlement procedures in the agreement empowering the Commission to ‘settle disputes over the application of the agreement’.

[33] It follows that the source of the Commission’s jurisdiction when it deals with a dispute notified under a dispute settlement procedure in a certified agreement approved under s.170LW or one of its predecessors is:

(i) Section 89(b) of the Act in combination with an approval pursuant to s.170LW (or its relevant predecessor)

‘in conjunction with’ [Private Arbitration Case at [32]]

(ii) the agreement of the parties that empowers the Commission to settle disputes.

[34] Each of these sources give rise to limitations on the Commission’s jurisdiction to exercise powers when dealing with a dispute notified under a dispute settlement procedure in a certified agreement approved under s.170LW or one of its predecessors. Respectively, those limitations are:

(i) the limitation in s.170LW that the Commission can only approve dispute settlement procedures in a certified agreement empowering the Commission to settle ‘disputes over the application of the agreement’; and

(ii) any express or implied limitation arising from the terms of the agreement of the parties.

Other constraints on the Commission’s jurisdiction to exercise power may arise from other provisions of the Act that apply according to their terms ...

Possible sources of power

[35] Following the Private Arbitration Case it is now well settled that the power exercised by the Commission when it arbitrates a dispute notified under a dispute settling procedure in a certified agreement (previously approved under s.170LW or one of its predecessors) is a power of private arbitration [Private Arbitration Case at [32]] conferred on the Commission by the agreement of the parties in circumstances where s.89(b) of the Act ‘authorises the Commission to exercise those functions that it derives from [s.170LW and its predecessors]’ [Private Arbitration Case at [6]].”

[41] With respect, we concur with the views of his Honour as set out above.

[42] Further, we think s.170LX of the Act is another constraint or limitation on the Commission’s jurisdiction to exercise the private arbitration power arising from the procedures in a certified agreement for preventing and settling disputes.

[43] We have come to that view for the following reasons.

[44] Section 170LW of the Act, which Vice President Lawler refers to as a source of the Commission’s jurisdiction to exercise the private arbitration powers in a certified agreement, is as follows:

“Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:

(a) to settle disputes over the application of the agreement;

(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes.” (Underlining added)

[45] The wording of section s.170LW of the Act makes it clear that the Commission’s jurisdiction to exercise the private arbitration power given to it by the disputes prevention and settlement procedure in an agreement is dependent on the agreement being a certified agreement.

[46] An agreement which authorises the Commission to exercise such a power of private arbitration cannot operate with that effect unless it is a certified agreement.

[47] As the High Court pointed out in Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission (the Private Arbitration Case): 9

“To the extent that s.170MH of the IR Act operates in conjunction with an agreed dispute resolution procedure to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the Commission to exercise a power of private arbitration. And procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation to prevent that situation from developing into an industrial dispute are clearly procedures for maintaining that agreement. Parliament may legislate to authorise the Commission to participate in procedures of that kind. Accordingly, s.170MH of the IR Act is valid.

Although it is by no means clear, it may be assumed, for present purposes, that cll 21 and 22 are designed to ensure more than the maintenance of the Agreement. That, however, does not have the consequence that those clauses are wholly invalid. Nor does it follow that they are wholly invalid because they extend beyond what is authorises by s.170MH of the IR Act.

The parties to an industrial situation are free to agree between themselves as to the terms on which they will conduct their affairs. Their agreement has effect according to the general law. If their agreement is certified, it also has effect as an award. To the extent that an agreement provides in a manner that exceeds what is permitted either by the Constitution or by the legislation which gives the agreement effect as an award, it cannot operate with that effect. But the underlying agreement remains and the validity of that agreement depends on the general law, not the legislative provisions which give it effect as an award.” 10 (Underlining added)

[48] Section 170MH of the Industrial Relations Act 1988 (Cth) (the IR Act) was, so far as is relevant, in similar terms to s.170LW of the Act and clauses 21 and 22 of the Gordonstone Mine UMW Enterprise Agreement 1995 11 (the Gordonstone Agreement) were procedures for the resolution of safety and industrial issues, with clause 22 providing for the parties to the Gordonstone Agreement agreeing to abide by any decision determined by the Commission relating to a dispute at Gordonstone Mine.

[49] A corollary of our conclusions about the effect of ss.170LW and LX of the Act is that if a certified agreement empowering the Commission to settle disputes over the application of the agreement ceases to operate because of the provisions of s.170LX of the Act, then the Commission no longer has jurisdiction to exercise that private arbitration power in the agreement.

[50] From 20 August 2003, therefore, when the 2001 Agreement ceased to operate because its nominal expiry date of 28 October 2002 had passed and it was replaced by the 2003 Agreement, the Commission no longer had jurisdiction to exercise the private arbitration power in clause 65 of the 2001 Agreement.”

[17] It can be seen that it was determined that there must be a certified agreement empowering the Commission to deal with the dispute. Importantly because the dispute was commenced under a particular certified agreement, and therefore a particular DSP (which is of course a private arbitration clause) that particular certified agreement must continue to apply otherwise the private arbitration clause under which the dispute was commenced no longer exists. Once the certified agreement no longer exists the private arbitration clause under which the dispute was commenced also no longer exists. In that way jurisdiction is lost because there is no longer a private agreement to arbitrate.

[18] The other way the matter can be considered is in accordance with TransGrid. That is, on the basis of extinguishing rights commenced under a statutory instrument which no longer applies. That is sometimes referred to as accrued rights.

[19] In TransGrid Deputy President Sams said the following:

[89] At the time APESMA made the application, it (and Mr Tuszynski for that matter), were both parties to the 2013 Agreement, which was operative. APESMA had standing to make the application and the Commission was then seized with jurisdiction to ‘deal with the dispute’ (s 739(6)). I agree with Ms Saunders that this section does not necessarily provide support for the proposition that a person who had standing when they made a s 739 application, subsequently loses it once the agreement ceases to operate pursuant to s 54. For that to be so,it seems to me that the word’operative’ must be read into s 738(b).

[90] Sections51 and 54 of the FW Act give some limited assistance to determining whether ‘operative’ ought to be properly read into s 738(5).That said, they do highlight some practical issues and provide context. Pursuant to s 51 of the FW Act, an enterprise agreement does not impose obligations, nor does it give a person any entitlements, unless the agreement applies to them. Pursuant to s 54(2)(b), an enterprise agreement ceases to operate once a ‘later agreement’ comes into operation which replaces the ‘earlier agreement’. There are obvious practical issues in respect to arbitrating a dispute in respect to a matter arising under an enterprise agreement, even where it has been properly made at the time of lodgement, if the enterprise agreement ceases to apply to the employee and the employer in the period between lodgement and determination. Here, if the Commission arbitrates the dispute under the 2013 Agreement, I doubt whether that decision would impose any obligations on the parties, given the 2013 Agreement ceased to apply to them on 30 May 2018. That said, the relevant terms of the 2013 and 2016 Agreements are unchanged. It would be unusual, for a model employer such as TransGrid, to ignore a determination of the Commission on the basis that the determination may not be binding. While potentially impractical, I think that particular matter is a question of law which is unnecessary for the Commission to determine in the present context.

[91] As his Honour Flick J cited in JJ Richards ‘it is a strong thing to read into an Act of Parliament words which are not there, and in the absence of a clear necessity it is a wrong thing to do’. In my view, the term ‘enterprise agreement’, as it appears consistently throughout the Act, in particular s 738(b), cannot be read as including the prefatory word, ‘operative’. The corollary of this proposition is that there is no limitation on the Commission’s powers to arbitrate a dispute under a DSP in an enterprise agreement, provided the application was properly made in the sense that it applied to the applicant at the time it was lodged, even where the enterprise agreement ceased to operate, in the context of it being replaced or terminated, as the case may be. I consider the ratio in Stephenson v Abetz is therefore not bindingon me.

[92] I agree with Ms Saunders that earlier single member decisions, (including my own in Launders), that Stephenson v Abetz was followed. However, in those cases the parties were unrepresented. Here, the submissions of experienced legal representatives on this complex issue have been detailed and comprehensive and in Ms Saunders’ case, persuasive.

[93] Although I have found that the principles in Stephenson v Abetz do not apply to this dispute, I intend to make some further observations about Stephenson v Abetz as to whether it was correctly decided.

[94] It seems to me that the beneficial purpose of the provisions under Part 6-2 `could not possibly be intended to extinguish rights commenced under a statutorily created instrument which no longer applies. I agree with what Lawler VP said in Grabovsky when his Honour said:

[51] The period of Mrs Grabovsky’s employment by the Respondent prior to 2011 was covered by predecessor enterprise agreements, including enterprise agreements made under theWorkplace Relations Act 1996.

[52] The decision of the Full Bench of the AIRC inStephenson v Abetz(28 October 2014, PR952743) is authority for the proposition that when an workplace agreement made underWorkplace Relations Act 1996was replaced by a subsequent agreement made under that Act, the earlier agreement ceases to operate such that the Commission has no jurisdiction to deal with a dispute arising under the earlier agreement. As a single member of the Commission I consider myself bound to follow decisions of a Full Bench of the Commission or its predecessors that is properly applicable in the instant case unless that decision is per incuriam- a decision that overlooks obviously applicable statutory provisions or earlier applicable and of a Court binding the Full Bench.

[53] With great respect to the Full Bench that decided Stephenson, its reasoning overlooks fundamental principles established by binding decisions of the courts, including the High Court, in relation to the operation of arbitration provisions in contracts. On every working day in this country there are commercial arbitrations being conducted pursuant to arbitration clauses in contracts that have been terminated for breach. Although the contract comes to an end in the sense that it cannot give rise to new obligations or liabilities, the operation of an arbitration clause survives the termination of the contract. The decision in Stephenson takes no account of that fundamental feature of the general law of contract and the numerous binding authorities that establish it.

[54] Moreover, the interpretation adopted by the Full Bench in Stephenson has the effect of extinguishing accrued rights. Applied rigorously, the decision in Stephenson would oblige the Commission to refuse to continue dealing with a dispute properly notified pursuant to a dispute resolution procedure. It is a fundamental principle of statutory construction that the parliament is presumed, when enacting legislation, not to deprive people or citizens of their accrued rights other than by express words. In the case of Commonwealth legislation there is the further consideration of the operation ofs.51(xxxi)of the Constitution. These matters were not considered by the Full Bench in Stephenson when it construed s.170LX of the then Workplace Relations Act 1996.

[55] I find that I do have jurisdiction to deal with the present dispute under each of the succession of enterprise agreements that applied to Mrs Grabovsky and the Respondent during the whole period of her employment. However, there is no suggestion that the classification description for Care Service Employee Grade 2 has changed over that succession of agreements and, accordingly, the reasoning set out above in relation to the current Agreement is equally applicable in relation to the dispute to the extent that it arises under any of the predecessor agreements.

See also: Esberv Commonwealth (1992) CLR 430.

[95] In addition, with respect to the Full Bench in Stephenson v Abetz, I find compelling, as I think did VP Lawler, the views of Deegan C in her decision which was successfully appealed in Stephenson v Abetz. At paras [55]-[57], the Commissioner said:

[55] In my view the words” ceases to be in operation” in s170LX do not operate so as to remove all rights parties to an agreement may have under an agreement which has been terminated or replaced by another agreement. The words in question do no more than provide that an agreement does not continue to determines [sic] the rights and obligations of those parties covered by it when a new Agreement commences to govern the employment conditions. The superseded agreement continues to provide the rights and obligations of the parties to the Agreement in respect of that period for which it was in operation.

[56] If the legislature had intended that the termination of an agreement would have the effect of completely extinguishing all rights employees or employers may have had as a consequence of the agreement, in my view, a more explicit statement to this effect would be required. I do not accept the argument that the parties would need to provide for such situations in the terms of the new agreement. In my view such provisions would be necessary only if the legislation explicitly removed all rights and liabilities under terminated agreements. In such circumstances the parties would be aware that such a consequence flowed from the making of a new agreement and would be alerted to the need for savings provisions.

[57] I accept the arguments put by the applicant and the CPSU that to find otherwise would lead to absurd results and would enable an employer to deny an employee rights merely by delaying a settlement of a dispute until a new agreement was certified.

[96] It is also of note that underpayment claims according to an industrial instrument, including an enterprise agreement, do not evaporate simply because the industrial instrument is no longer in operation. In other words, an enterprise agreement replaced, or terminated, continues to have a statutory existence and practical utility beyond its operative period. To my mind, this is a clear pointer that Stephenson v Abetz, with respect, may have been wrongly decided.

[97] In my view, there is no reason – let alone a cogent one – why an employee’s right to pursue a dispute under a DSP in an enterprise agreement which is no longer in operation, is extinguished. While I accept the present context is not entirely analogous, this seems entirely consistent with the preservation of DSP rights after an employee is no longer employed, provided the dispute was commenced prior to the termination of employment; see: ING v Jajoo and Deakin University.”

[20] In my view the correct approach is that of TransGrid. I agree that clear words are required to remove rights which have accrued, so that if the right to have the dispute heard and determined when it was validly commenced is to be extinguished clear words are required to achieve that result.

[21] It seems of me that s 58 of the Act is the relevant provision. It clearly provides that only one enterprise agreement can apply to an employee at a particular time. It is clear that at the commencement of this matter only one agreement did apply. Only one now applies being the 2018 Agreement. However, the particular time in s 58 is the time of the commencement of the proceedings in the Commission. This dispute is to be determined on the basis of the material which was available at the time the proceedings commenced. In this case only one agreement applies namely the 2014 Agreement. There is nothing in the terms of the 2018 Agreement which provides that the agreement between the parties to deal with the matter under the 2014 DSP was revoked or otherwise extinguished.

[22] What then of s 58(e) which provides that the 2014 Agreement ceases to apply to the employee when the 2018 Agreement came into operation. In so far as the employees are concerned their employment relationship on and from 10 December 2018 was and is governed by the 2018 Agreement. However, the dispute before the commission which deals with matters entirely in the past is governed by the 2014 Agreement. I do not see anything in s 58 which prevents an old agreement from applying to an employee’s employment which predates the commencement of the new agreement. For example, the 2018 Agreement does not have retrospective effect. Accordingly, the 2014 Agreement has some relevance to an employee’s employment, albeit that it must relate to matters prior to the commencement of the new agreement.

Outcome

[23] I determine that I have jurisdiction to further hear the matter.

[24] However, while I have jurisdiction to further hear the matter there are limits on what can be done. As the Respondent has pointed out s 739(5) of the Act may be a significant impediment to the Applicant successfully obtaining any relief. There may also be matters arising from the terms of the 2018 Agreement which would inform whether in the exercise of any discretion an order should be made. The Respondent pointed to some of those matters but I do not reach any view regarding the matter. It would however be prudent for the parties to consider whether there is any utility in the matter proceeding further.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR720269>

 1   Dated 12 February 2019, paragraphs 21 - 23

 2   Ibid paragraphs 27 - 29

 3   [2004] AIRC 1059 PR952743

 4   AMWU v Simplot [2015] FWC 6914; BlueScope Steel v AWU, AMWU and CEPU [2018] FWCFB 856; CFMEU v North Goonyella Coal Mines [2016] FWC 8630

 5   [2018] FWC 6335

 6   Applicants Further Submissions dated 8 April 2019

 7   Paragraphs 39 - 50

 8   PR933892, 2 July 2003 per Lawler VP.

 9   (2001) 203 CLR 645.

 10   Ibid at 658.

 11   G0551 [Doc N5884], 21 October 1996 per Hodder C.