Fair Work Act 2009
s.739—Dispute resolution

Michael Taylor
v
WesTrac Pty Ltd
(C2021/7918)

Application to deal with a dispute - jurisdiction.

[1] This decision concerns an application made by Mr Michael Taylor (the Applicant) under section 739 of the Fair Work Act 2009 (Cth) (the Act). The respondent is WesTrac Pty Ltd (the Respondent).

Background

[2] The Applicant’s employment is covered by the Vehicle Repair, Service and Retail 2020 Award [MA000089] (the Award).

[3] The application is based upon the dispute settlement procedure of the Award which is prescribed in clause 37 - Dispute Resolution as follows.

“37.1 Clause 37 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.”

[4] The application says the dispute is about protection of private medical information, the right to a safe workplace including a risk assessment for what is being asked of him in relation to undergoing a medical procedure. Consultation in relation to changes in the workplace and/or the conditions of his employment.

[5] The Applicant says his employer is using coercion to make him undergo a medical procedure against his will and is using the threat of ending his employment to get compliance.

[6] The Applicant says his employer is within a group of industries and occupations which stipulates workers must be fully vaccinated to attend work. His employer has stated he is required to be vaccinated to continue with his current role.

[7] On 24 November 2021 the parties were sent a Notice of Listing for a conference to be held on 10 December 2021.

[8] Directions were also issued requiring the Applicant to file a submission explaining how this dispute ‘…arises about a matter under this award or the NES’ is as required by clause 37 of the Award for the Commission to have jurisdiction.

[9] In reply the Applicant provided a comprehensive written submission which was discussed at the conference held on 10 December 2021.

[10] The Respondent in its reply refers to the Resources Industry Worker (Restrictions on Access) Directions (No. 2) made under the Public Health Act 2016 (WA). This direction in summary requires resource industry workers as defined to not enter a rural or remote resources industry site or a remote operating centre if they have not been partially vaccinated against COVID-19 on and from 1 January 2022. The order requires a resources worker to provide evidence of their vaccination status. Employers of resource industry workers must take steps to collect and maintain records of their vaccination status and only roster on, or otherwise permits to work on site, workers who have been vaccinated.

[11] Both parties agreed the above direction under the Public Health Act 2016 (WA) applies to the Applicant.

Consideration of jurisdiction

[12] Relevantly section 738 and 739 of the Act are set out below.

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[13] In summary then section 738 of the Act allows parties to a workplace dispute to apply to the Commission to deal with the dispute if:

•  a modern award or enterprise agreement or a contract of employment or other written agreement includes a dispute resolution procedure, and

•  that dispute resolution procedure requires or allows the Commission to deal with the dispute.

[14] Section 739 of the Act provides that the Commission can only deal with a dispute in the way that the dispute resolution clause allows. The Commission must not exercise any powers until the conditions of the clause have been met.

[15] The Commission can only deal with disputes under a contract of employment or other written agreement that relate to the National Employment Standards (the NES) or a safety net contractual entitlement.

[16] The Applicant submitted that the consultation clause in Award set out below was relevant.

“35. Consultation about major workplace change

35.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

35.2 For the purposes of the discussion under clause 35.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

35.3 Clause 35.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

35.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 35.1(b).

35.5 In clause 35 significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

35.6 Where this award makes provision for alteration of any of the matters defined at clause 35.5, such alteration is taken not to have significant effect.”

[17] In my view what has occurred here is not a definite decision by the Respondent to make a change. Rather the Respondent is merely seeking to comply with its obligations under the Western Australia Government’s public health direction.

[18] In the alternative if the Respondent can be held to have made a definite decision to make a change it is not a major change “…in production, program, organisation, structure or technology…”.

[19] In either case clause 35 - Consultation about Major Workplace Change has no application to this dispute raised by the Applicant.

[20] Applying the legislative provisions, section 738 and 739, and considering the relevant award clauses in this application, it is apparent that the Award’s dispute settlement procedure in this case only deals disputes that arise about a matter either under the Award or in relation to the NES.

[21] I am satisfied that the particular dispute in this case is not a dispute that arises about a matter under the Award nor is it in relation to the NES.

[22] Consequently, the dispute settlement procedure clause in the Award does not empower the Commission to deal with this particular dispute.

[23] This application is therefore beyond jurisdiction and must be dismissed for that reason.

Printed by authority of the Commonwealth Government Printer

<PR736711>