Fair Work Act 2009
s.739—Dispute resolution

Jonathan Dugald Mitchell
v
University of Tasmania
(C2022/1761)

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

Introduction

[1] On 15 March 2022, Mr Jonathan Dugald Mitchell (Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) notifying a dispute to the Fair Work Commission (the Commission). The Respondent to the application is University of Tasmania (Respondent). This matter involves an application to determine a dispute in accordance with a dispute resolution procedure.

[2] The Applicant was engaged by the Respondent and covered by the University of Tasmania Staff Agreement 2017 – 2021 (the Agreement). The Applicant seeks an interim order pursuant to s.589 of the Act for the Respondent to reinstate the Applicant’s employment and restore to the Applicant all benefits to which he would have been entitled if he had continued to be employed in the intervening period. The Respondent objects to the interim order sought and objects to the Commission dealing with the matter on the basis that there is no jurisdiction to do so.

[3] The matter was listed for conference on 18 March 2022 and was subsequently listed for hearing on 21 March 2022. On 21 March 2022, the Applicant filed “Procedural Submissions”. In those submissions, the Applicant sought an “immediate order forbidding the Respondent from taking any action which may exacerbate the dispute until the resolution of the matter by arbitration.” During the hearing on 21 March 2022, I made an ex-tempore decision declining to make the order sought. 1 I also set directions for the filing of material in relation to the interim order sought as well as the jurisdiction of the Commission to determine the dispute. The matter was listed for further hearing on 12 April 2022.

[4] This decision deals with the jurisdictional objection advanced by the Respondent and the application for an interim order sought by the Applicant in the terms set out in paragraph [2] above.

Background

[5] As stated above, the application was made on 15 March 2022. The matter was listed for conference on 18 March 2022 and was subsequently listed for hearing on 21 March 2022. During the conference on 18 March 2022, the Respondent claimed that the Applicant had already been dismissed. The Applicant denied that he had been dismissed. Shortly after the conference on 18 March 2022, the Respondent sent a letter to the Applicant which made it clear that his employment had been terminated.

[6] After the hearing on 21 March 2022, directions were set, and the matter was listed for further hearing on 12 April 2022. Evidence as to when the Applicant was terminated was the subject of evidence at the further hearing on 12 April 2022. The uncontested evidence of the Applicant is that:

“On 15 March 2022 my supervisor Mr G Rickards told me via a Teams meeting that I was to receive a letter via email either that day or the next stating that the University’s intention was to terminate my employment. I asked him if he was firing me. He said no but that I’d receive a letter stating so. I referred to the fact that I’d received a curtesy (sic) call by Linda Swinton on 23 February 2021 advising that I was to receive a show cause letter on that or the next day so this was the same but I said I’d wait for the letter as I couldn’t act without it. He said I should take the rest of the day off.

On 15 March 2022 my solicitor sent an email stating that I was referring my dispute with the University to the FWC as I had already indicated I would and it would imprudent to terminate me in the light of this fact.

…

On 16 March 2022 my supervisor G Rickards rang me and asked if I’d received the letter. I said no and after expressing his frustration we discussed if I was to attend meetings or do other work that day. He said I’d receive a call from the handyman and I could discuss jobs in the lab with him, which I did. I continued to work otherwise from home but also inform people that I was now to receive a letter sacking me.

On 18 March 2022 I received an email from J Bye with a letter attached stating that the University considered I’d been verbally fired on the 15 March 2022 disputing my claim otherwise but regardless this letter was confirming my firing now and that I would be paid to 18 March 2022.” 2

(emphasis added)

[7] The full text of the letter of termination sent to the Applicant on 18 March 2022 is reproduced below:

“Given that you have decided not to sufficiently vaccinate against COVID-19, the University has determined to terminate your employment due to an inability to perform the inherent requirements of your role relating to accessing the University premises, attending University operated programs, or undertaking other University business.

You were advised of this termination on 15 March 2022 and the termination of your employment took effect at that time.

To ensure that you are aware of the matters that were considered leading to this decision, I provide the following background to address the important issues.

On 23 February 2022, you were issued with notification that your employment was under review and as part of this review you had the opportunity to provide any additional information you consider relevant for the University to consider prior to determining any outcomes.

In that letter we addressed issues you raised regarding a purported dispute relating to the consultative provisions of the Staff Agreement. We also advised you that we could not accommodate your proposal for alternative working arrangements. Furthermore, the University maintained that the requirement to comply with the COVID-19 Safety Procedure is a lawful and reasonable direction.

In an interim email response on 24 February, you queried the rejection of your proposal for alternative working arrangements, in part noting that an “expectation that you be available on campus to assist teaching staff while they present classes” is not part of your job description. You also queried the University’s position on your contention that there is a dispute.

To be clear, the University considers your dispute to be as to the application of the Procedure to your ongoing employment. This not a dispute capable of being resolved through the Staff Agreement. In the circumstances, the University considers the current process to have been the appropriate one to deal with the impact of your non-vaccination on your ongoing employment. You were also provided with a summary of the Risk analysis and a copy of the University’s COVID19 Procedure.

Your comprehensive written response of 4 March 2022 provided much information. In particular, your concerns regarding the University’s consultation process and its COVID-19 response, the safety and effectiveness of the COVID-19 vaccine, the University’s rejection of your alternative working arrangements and your request for an exemption to the University’s vaccine mandate based on the fact that you’re in New South Wales are noted.

We also note that you say your concerns are real and that your decision to not be vaccinated to this time has not been taken lightly. Further, you are concerned about the financial impact of loss of employment.

Whilst noting your response, the University is comfortable with its processes and with the policy position adopted concerning the COVID-19 vaccine mandate generally and specifically in relation to your personal circumstances.

The University acknowledges that you have been able to work from home in the past, however this is not a sustainable arrangement. A colleague has increased his working hours to accommodate your absence. They are unable to complete all tasks that you would complete should you be on campus. Whilst you can undertake some duties from home, there is an element of double handling, equipment is not being prepared as is should be and this places a strain on other employees and ultimately a physical presence on campus is required.

As outlined above, the University needed your presence on campus to assist in preparing equipment and to alleviate the reactionary service provision created, in part, by your flexible work arrangement.

Finally, the University has rejected your request for an exemption. In accordance with the COVID-19 Safety Procedure, an exemption can only be provided on medical grounds, religious belief or the inability to obtain a vaccination appointment.

Vaccination remains one of the most effective measures for minimising the risk of serious illness or death from COVID-19, which remains a credible possibility with continuing cases in NSW and Tasmania.

In relation to the termination of your employment you will receive a payment in lieu of notice, which is equivalent to the National Employment Standard. In your case this is a payment of 4 weeks’ pay in addition to your outstanding leave entitlements.

Further, there is an additional payment equivalent to 3 days’ pay. Whilst the University maintains your employment terminated on 15 March 2022, you have disputed this and initiated an application to the Fair Work Commission on the basis you are an employee. If the University is wrong as to your employment already having been terminated (which is denied), this letter also serves to end your employment. In these circumstances the University will continue to object that there is any jurisdiction for FWC to determine the dispute. The University acknowledges you have unfair dismissal rights which you have also threatened subject to compliance with time limits.

The University will contact you regarding arrangements to return any University property that may be in your possession and confirm alternative contact details as you will no longer have access to University IT systems effective immediately.

We would encourage you to apply for any future positions if you decide to become vaccinated.

As previously offered, if you require any additional support during this time, please do not hesitate to contact our new Employment Assistance Program provider, Converge International. You can contact Converge on 1300 687 327, or via email at [email protected].

If you have already accessed support through Newport Wildman and wish to continue to use their service they will be available for a 10 week transition period and may be contacted on 1800 650 204, or via their website (http://www.newportwildman.com.au).

Yours sincerely

Jill Bye
Chief People Officer”

[8] The Applicant was not cross examined on his evidence and there is no reason not to accept it. Accordingly, I am satisfied that the Applicant was informed by Mr Geoff Rickards that the Respondent was intending to terminate his employment, but that the termination of his employment did not take effect until 18 March 2022, when he received the letter from the Respondent. 3

Submissions

The Respondent’s submissions

[9] Given the key issue is the jurisdictional objection advanced by the Respondent, it is convenient to set out the Respondent’s submissions first. The Respondent filed submissions in this matter which are outlined below.

[10] In its submissions, the Respondent contends that the Commission has no jurisdiction to deal with the Applicant’s s.739 dispute application on two bases:

(a) the dispute, when properly characterised as a dispute about the application of the University COVID Safe Procedure (Procedure) to the Applicant’s employment, is not a dispute capable of being determined by the dispute resolution procedure of clause 15 of the Agreement; and

(b) the Applicant is an ex-employee and, therefore, is unable to continue to utilise the dispute resolution procedure in the Agreement. 4

[11] The Respondent submits that even if the dispute is characterised as one where the Commission has jurisdiction, the only characterisation capable of giving the Commission jurisdiction would be a dispute over whether clause 12 of the Agreement, being consultation requirements, was complied with. Though it is contended the dispute has “evolved” past this, the Respondent submits that this could result only in orders requiring the Respondent take some future step(s) to meet its consultation obligations as the Commission does not have the power to order reinstatement on a s.739 application. 5

[12] Even if the Commission has jurisdiction to determine the dispute properly characterised, and the dispute survives termination of employment, the Respondent submits that these incidental powers would be of no utility for the Applicant as he is no longer employed and the Commission should refuse to exercise its discretion to arbitrate any dispute. 6 Furthermore, that the Commission does not have the power to order interim reinstatement under s.589 of the Act as that section is not “unlimited” but, rather, is a procedural section and is not an “independent source of power”.7

What is the proper characterisation of the dispute?

[13] The Respondent stresses the importance of the proper characterisation of the dispute and refers to the decision in Kim Davis; David Cantrick-Brooks; Michael Turner v The University of Newcastle (The University of Newcastle) where Deputy President Saunders summarised the relevant legal principles. 8 The Respondent submits that having regard to the Applicant’s Outline of Submissions, the Form F10 and the relevant background, the proper characterisation of the dispute can be posed as the following question:

“Was the direction for the Applicant to comply with the Procedure a lawful and reasonable direction?” 9

[14] The Respondent highlights that the relief sought by the Applicant in the Form F10 and their submissions “casts light on” the correct characterisation of the dispute. The relief sought in the Form F10 is as follows:

“The Applicant seeks that the following question be arbitrated by the Commission:

1. ‘Whether the direction as set out in attachment 1 to the application filed by the applicant in proceedings xxx is a lawful and reasonable direction in respect to employees at the University of Tasmania who are covered by the Enterprise Agreement AE501224.’

The applicant also seeks the following interim order:

2. ‘Until the determination of the Commission by arbitration of dispute XXX, it is ordered that the University of Tasmania take no steps to dismiss, discipline or otherwise prejudice the employment of the applicant.’”

[15] The Respondent refers to the following submission made by the Applicant:

“The end-result sought is a finding that the direction to mandate vaccination is not a lawful and reasonable direction due to a failure to consult as required by clause 12, and for the arbitrator to liaise with the parties to ensure that proper consultation is carried out before the direction is re-made.”

[16] The Respondent submits that the Applicant’s internal communications with the Respondent and the timing of those communications reveal that his dispute is about the application of the Procedure to him and his opposition to that on several bases, with consultation merely being a part of that. 10

[17] The Respondent submits that the dispute is not about the application of the consultation provisions in clause 12 of the Agreement given the Applicant’s material does not:

(a) particularise the failure to comply with the consultation provision of the Agreement;

(b) propose steps that needed to have occurred in consultation, and did not; and

(c) propose steps that should be required as a resolution. 11

Is the dispute, properly characterised, one which may be dealt with under the dispute resolution clause in the Agreement?

[18] Citing, David Markham v Ensign Drilling Australia T/A Ensign Energy Services (Ensign), the Respondent states that once the true nature of the dispute is determined, the Commission must look at whether the relevant dispute resolution procedure allows the Commission to deal with a dispute of that nature:

“(i)n order to invoke the dispute settlement procedure, the dispute must be of a kind that is capable of being dealt with by the dispute settlement procedure” 12

[19] The Respondent also states that Deputy President Saunders summarised the relevant legal principles in The University of Newcastle as follows:

“A dispute cannot “arise … regarding the interpretation, application or operation of any provision of this Agreement” within the meaning of clause 75.0 of the Enterprise Agreement unless the dispute has a relationship with the provisions of the Enterprise Agreement itself. The nature of the relationship which is necessary to meet the test may be in issue in particular cases.

As to the requirement that the dispute be linked in the requisite way to the “interpretation, application or operation of any provision of this Agreement”:

(a) interpretation concerns the construction of a provision;

(b) application may involve considering whether past actions and conduct of parties to a dispute accords with the provision of the enterprise agreement. In other words, has the provision been applied according to its terms? Application may also mean to make use of, implement or apply a provision of an enterprise agreement, such as a dispute as to whether a particular employee should be classified under one or another category in an enterprise agreement; and

(c) operation concerns consideration of the process or manner of operating of a provision.” 13

[20] The Respondent outlines the dispute resolution procedure at clause 15 of the Agreement, and states that under clause 15.1 of the Agreement, the dispute must apply to a dispute about the application of the terms of the Agreement. The Respondent states that:

“The Applicant does not identify any provision of the Agreement which is in dispute as to whether that provision has been applied according to its terms in relation to the reasonableness of the vaccination requirements under the Procedure. The Applicant only refers to clause 12 of the Agreement.” 14

[21] The Respondent submits that clause 12 of the Agreement only deals with consultation in relation to ‘significant change’ as defined. In relation to clause 12, the Respondent submits that:

“Clause 12 does not provide for a right to dispute any decisions which may follow consultation. The application of the Procedure to the Applicant’s employment (on the assumption it constituted a significant change) would be an example of this.”

[22] Following the submission that clause 12 is not applicable, the Respondent submits that:

“There is no provision in the Agreement from which there could be a dispute as to how the reasonableness of the Procedure requiring the Applicant to be sufficiently vaccinated accords with that provision. In fact, clause 7(a) of the Agreement explicitly excludes the Procedure from forming part of the Agreement:

‘Other than as it (sic) outlined at clause 7(b) below, University policies, procedures and guidelines do not form part of this Agreement. This Agreement shall prevail to the extent of any inconsistency between a University policy, procedure or guideline and this Agreement (emphasis added).’” 15

[23] The Respondent submits that:

“A dispute over the terms of the Procedure or the reasonableness of the Procedure (including any direction under it), cannot be said to be a dispute over the application of the Agreement, whether or not the Procedure was subject to consultation under the Agreement.

… if the Commission accepts the above, it is not necessary to consider the matter any further as the Commission does not have jurisdiction to determine a dispute that does not fall within the ambit of the relevant dispute resolution procedure.”  16

[24] Noting that the Applicant refers to Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (Mt Arthur Coal), 17 the Respondent distinguishes this matter from that case, stating that the dispute resolution procedure in the relevant agreement in that matter is wider than clause 15 of the Agreement in this matter. In particular, the wide scope of the dispute resolution procedure in that matter extends to “any matters… arising in the course of employment”, which is contrasted to clause 15 of the Agreement being the “the application of the terms of” the Agreement which does not capture a dispute about the application of the Procedure to the Applicant’s employment. The Respondent contends that the nature of this dispute does not fall within the ambit of clause 15 such that the Commission does not have jurisdiction and the application should be dismissed. 18

Should the Commission exercise its discretion to determine the dispute?

[25] The Respondent states that if the Commission considers that it does have jurisdiction to determine the dispute, it should decline to exercise its discretion to do so on the basis that it has no power to order any relief which would be of utility to the Applicant, given he is a former employee. 19

[26] The Respondent submits that the Commission is vested with a discretion whether to proceed with determining a dispute under private arbitration. This is clear from the use of the term “may” in both s.739(4) of the Act and, for this matter, in clause 15.5(b). Within this discretion the Commission may “… exercise incidental powers including the power to dismiss an application or to refrain from arbitrating the matter”. 20 As outlined by the Full Bench in Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd (North Goonyella), when exercising that discretion or those incidental powers:

‘(t)he Commission’s powers under s.739 to deal with disputes derive, in the case of an enterprise agreement, from the terms of the disputes resolution procedure contained in the enterprise agreement. The Commission may deal with a dispute only on application by a party to the dispute (s.739(6)), is prohibited from exercising any powers limited by the dispute resolution procedure (s.739(3)), may arbitrate only if the agreed disputes resolution procedure permits it to do so (s.739(4)), and must not make a decision that is inconsistent with the FW Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)).” 21

[27] The Respondent submits that if the Commission finds that it has jurisdiction to determine the dispute, it could only do so by determining the true nature of the dispute was about compliance with the consultation obligations under clause 12 of the Agreement. However, the Respondent submits that in this matter, where there is a former employee where any useful relief relies on reinstatement, it is appropriate for the Commission to consider and determine, as a preliminary matter, whether there is any utility in exercising its discretion to determine the dispute. The power to reinstate the employee would have to be derived from s.739 or the Agreement itself, and the Respondent submits that no such power exists. 22

[28] The Respondent submits that while express authority for reinstatement is found in other sections of the Act, no such express authority can be found in s.739, therefore the Commission cannot order reinstatement as it would be inconsistent with the Act. Furthermore, reinstatement is not a power which is incidental to the dispute when characterised about one over consultation. The Respondent submits that reinstatement goes far beyond such incidental powers and would not result “…in settlement of the dispute”, 23 only orders relating to specific actions for further consultation would do so.24 The Respondent cites the decision in AMWU v Simplot Australia Pty (Simplot 2016) Limited where Commissioner Roberts stated that:

“… (t)he complete range of relief is not available under s739, particularly reinstatement and back payment of wages”. 25

[29] The Respondent submits that this is consistent with the decision in Deakin University v Rametta (Deakin University) where the Full Bench:

“(a) upheld the original decision that Deakin University did not comply with, among other things, consultation provisions;

(b) but quashed the order of $30,000 compensation and a written apology on the basis that such an order “… was not reasonably incidental to the application of the Agreement to which the disputes related.” 26

[30] The Respondent distinguishes s.532(1)(a) of the Act from s.739, stating that while there is an express proscription on ordering reinstatement in s.532(2)(a) of the Act, it has a much narrower focus and operates to expressly limit the very broad powers conferred on the Commission under s.532(1) for where there has been a failure to notify or consult registered employee associations about dismissals. The Respondent further states that:

“The proscription is also a logical and balanced outcome to enable the public interest to be maintained and the intention of the requirement to consult preserved without placing undue hardship on employers by reinstating employees that have just been dismissed.”

[31] The Respondent states that there is no such requirement for a proscription in s.739 because it is evident that all the Commission’s power from that section is derived either from the Act itself, which has very specific situations where reinstatement is authorised, or from the dispute resolution procedure in the enterprise agreement. 27The Respondent submits that given there is no power under the Act to order reinstatement, the only source of power would be the Agreement, and no such express power exists. The Respondent submits that no such power could exist within the Agreement, as it would be about a matter between an ex-employee and an employer and therefore would not be a permitted matter as required by s.172, meaning the provision would have no effect.28 In these circumstances, there is no power to order any relief which would be of any utility to the Applicant as a former employee. The Respondent submits that this is consistent with the decision of Deputy President Booth in Ensign where an application was made by a former employee for the Commission to determine a dispute over an entitlement under an enterprise agreement where there was no provision for that entitlement to be paid in lieu. In that matter the Deputy President concluded:

“Had I decided that the Commission did have jurisdiction I would have decided against exercising my discretion to deal with the dispute because it lacks utility. This is because even if Ensign should have provided Mr Markham with Field Service Leave whilst he was engaged in the Adelaide office, the issue would need to have been determined whilst he was an employee. This is because the issue could only be resolved in his favour by providing him with paid time off work. There is no provision in the Agreement for payment in lieu in relation to Field Service Leave.” 29

Does the Commission have jurisdiction given the Applicant is a former employee?

[32] The Respondent submits that the authorities regarding whether the Commission has jurisdiction to determine the dispute of a former employee appear to split, primarily from the decisions of ING Administration Pty Ltd v Jajoo, Ramsin (Jajoo) 30 and North Goonyella.31 In Jajoo, the Full Bench of the AIRC determined that s.170LW of the Workplace Relations Act 1996 allowed Mr Jajoo to progress his dispute even though he was no longer an employee. This was subsequently followed in Deakin University and Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Kentz).32 In North Goonyella, in determining that the dispute did not survive the termination of employment, the Full Bench distinguished Jajoo on the basis that:

(a) the relevant employee in North Goonyella had not attempted to engage the procedures contained in clause 41 prior to the termination of his employment;

(b) the clause itself referred to ‘employees’, which was interpreted to be restrictive to current employees;

(c) the enterprise agreement was expressed to only bind current, not former, employees; and

(d) the disputes clause provided for work to continue while the dispute was determined, which could only occur if the person was a current employee. 33

[33] The Respondent cites the decision in King and Ors v Patrick Projects Pty Ltd (King), where the Full Bench stated as follows:

“An application for the Commission to deal with a dispute in accordance with a dispute settlement procedure of an Enterprise Agreement pursuant to s739 of the Act can only be heard when the applicants are employed. This is an uncontroversial jurisdictional point supported by manifold authorities and the express provisions of the Act.”  34

[34] The Respondent states that this general statement is supported by the recent decision of Ms Manchula Vendrig v Ausgrid Pty Ltd (Ausgrid) where the Full Bench stated as follows:

“Even if we had considered that the Deputy President had reached the wrong conclusion, we would not have quashed the decision, because there would be no utility in doing so. As we have mentioned, Ms Vendrig is no longer employed by Ausgrid, and the 2018 Agreement no longer applies to her (see s 52 of the Act). An enterprise agreement does not give a person an entitlement unless the agreement applies to the person (see s 51(2)). Ms Vendrig is no longer able to invoke or use the dispute resolution procedure in the 2018 Agreement. By parity of reasoning with the decision of the Full Bench in Simplot v AMWU, 5 we consider that we would have no power to rehear Ms Vendrig’s application under s 739. Moreover, there cannot be a dispute over the application of the 2018 Agreement in respect of a person who is not an employee covered by the agreement. This is not a case where, for example, a union has brought an application on behalf of an employee who has since been dismissed, but the issue in question remains in dispute between the union and the company. The matter concerns the claim of a former employee of the company concerning her own particular circumstances during a period when she used to be employed. Accordingly, there could be no utility in quashing the decision, because there would be no proper basis for the Full Bench to rehear Ms Vendrig’s application or to remit it to another member for redetermination.” 35

(emphasis added by the Respondent)

[35] The Respondent states that this suggests that, as a general principle, the Commission does not have power to determine a dispute of a former employee. The Respondent acknowledges as identified by Senior Deputy President Hamburger in Michael Pearce v Aurizon Operations Limited (Aurizon), this creates a tension between the decisions of Jajoo and North Goonyella, where the former considered that ‘employee’ could encompass a former employee whereas the latter considered that “… ‘employee’ on its ordinary meaning and without qualification is entirely inapt to refer to a former employee”. 36 However, having regard to the above, the Respondent submits that the correct legal framework is that arrived at by the Full Bench in King and Ausgrid. Namely, that a former employee cannot have a dispute determined where they are relying on the relevant dispute resolution procedure in an enterprise agreement that no longer applies to them. Therefore, the Commission has no jurisdiction to hear the Applicant’s dispute.37

[36] In the alternative that an analysis of the dispute resolution procedure is required, the Respondent submits the correct interpretation requires an analysis of, first, whether the internal dispute resolution procedure was followed and, if so, whether the dispute resolution procedure allows the dispute to survive the termination of employment. The Respondent concedes that clause 15.5(a) of the Agreement provides a wide scope for the internal dispute resolution procedure to not be complied with and external dispute resolution to still, potentially, be available. In the circumstances, the Respondent concedes that the internal dispute resolution procedure was followed (although continues to deny that there was a valid dispute).

[37] The Respondent submits that three textual considerations support the finding that only a current employee may refer a dispute to the Commission for arbitration under clause 15.5 of the Agreement. The first being clause 3.1 of the Agreement, which states that the Agreement covers and applies to “Employees employed by the University of Tasmania” (before setting out irrelevant exceptions). The language used is clear and denotes that the person must be currently “employed” for the Agreement, including the dispute resolution procedure, to cover and apply to them. Second, the definition of employee under clause 5.1, which is which is defined in present terms as “… a person employed by the University and covered by this Agreement” (emphasis added). The Respondent submits that this is supported by the Full Bench in North Goonyella who indicated that “… the word ‘employee’ on its ordinary meaning and without qualification is entirely inapt to refer to a former employee”. 38 Third, this carries through to clause 15 itself, which states “…procedures shall apply to any dispute raised by an Employee, Union or the University…”, indicating that the person raising the dispute cannot, consistent with the definitions and ordinary meaning above, be a former employee.39

[38] The Respondent acknowledges, as canvassed in North Goonyella and Jajoo, that the word ‘party’ or ‘parties to the dispute’ can be considered as extending the reach of the dispute resolution procedure to provide power for a former employee to continue a dispute post termination. However, the Respondent submits that the wording of the dispute resolution procedure in this matter can be distinguished from North Goonyella and Jajoo such that that interpretation is not appropriate. 40 The Respondent submits that:

“…the use of ‘parties to the dispute’ in the current matter is a collective term used to avoid having to repeat the definition of those parties outlined within clause 15.1, being the University, Employees and the Unions.

Thus, ‘parties to the dispute’ should be interpreted to mean those three parties, which, therefore, precludes a former employee from referring the matter to the Commission for arbitration.

This is supported by a wider analysis of the dispute resolution procedure, which only uses the phrase ‘the University, Employees and the Unions’ once at the beginning and uses those terms individually where necessary but, otherwise, uses the collective phrase ‘parties to the dispute’, including when describing the internal procedures. This is distinguishable from North Goonyella and Jajoo above, which use specific terms which change throughout the steps of the procedure.

Therefore, the Respondent submits that ‘parties to the dispute’ within clause 15.1 of the Agreement should be interpreted to be a collective noun referring to the University, Employees and the Unions which, relevantly, precludes the Commission from determining the Applicant’s dispute, given it did not ‘survive’ the termination of his employment.” 41

Application for interim reinstatement

[39] The Respondent submits the Commission has no power to order reinstatement on a s.739 matter before it and, in any event, s.589 is not an “independent source of power”. 42 Moreover, s.589 appears “… in subdivision B of Division 3 of Part 5-1 of the Act which deals with the conduct of matters before the Commission. These provisions are procedural in nature in the sense that they facilitate the effective and efficient exercise of the Commission’s substantive powers. They are not remedial or beneficial provisions in the sense contended by the (Applicant)”.43 The Respondent states that this procedural section of the Act cannot be used to support remedial or beneficial orders, especially those in the nature of reinstatement. Moreover, to do so in circumstances where reinstatement is sought as final relief would be absurd.

[40] In the alternative that the Commission considers it does have the power to order interim reinstatement (which is denied), the Respondent submits an order should not be entertained unless the Commission determined now (and not as part of any final hearing), it had power to order reinstatement as part of any final relief in determining the dispute.

The Applicant’s submissions

[41] The Applicant filed submissions in this matter which are outlined below.

The issue in dispute

[42] The Applicant submits that the issue in dispute is whether the Respondent complied with its consultation obligations under the Agreement. Disagreeing with the Respondent’s characterisation of the dispute, the Applicant further stresses in its reply that the dispute relates solely to the Respondent’s failure to comply with its consultation obligations, and that the factual background demonstrates this. 44 The Applicant submits that if the Commission finds that the Respondent has not done so, or has not adequately done so, then it will inevitably follow that the direction issued on 9 December 2021 was not lawful and reasonable.

[43] In response to the Respondent’s assertion that “a dispute over the terms of the Procedure… cannot be said to be a dispute over the application of the Agreement, whether or not the Procedure was subject to consultation under the Agreement”, the Applicant submits that the Respondent’s proposal to implement the Procedure was a “significant change” which enlivened clause 12, and that accordingly it does not matter whether the “significant change” is eventually embodied in a policy or procedure or not. 45

[44] In its reply, the Applicant disagrees that the dispute has evolved past whether clause 12 of the Agreement has been complied with, and states that the Respondent has exacerbated the dispute by terminating the Applicant’s employment only on the basis that the Applicant failed to comply with the direction in relation to which the Applicant claims is not a lawful and reasonable direction. 46

[45] The Applicant also refers to the Respondent’s contention that the Applicant proceeds on the basis that consultation was inadequate, and is asking the Commission to determine whether, based on that assumption, the direction is not a lawful and reasonable direction. Furthermore, that the Applicant does not state how clause 12.2(c) was incorrectly applied or seek any relief consistent with this. The Applicant states that this contention is not correct, and that a finding by the Commission that consultation was inadequate will lead to a finding that the direction to vaccinate was not a lawful and reasonable direction. 47

[46] The Applicant cites the Full Bench decision in Mt Arthur Coal, where the Full Bench found as follows:

“We agree with ACCI that a range of factors will bear on whether a direction is reasonable. As we have mentioned, the reasonableness of a direction is a question of fact having regard to all the circumstances, which may include whether or not the employer has complied with any relevant consultation obligations.”. 48

[47] The Applicant reiterates in its reply that in Mt Arthur Coal, the Full Bench found that the direction to vaccinate was prima facie lawful and reasonable, but nevertheless the lack of proper consultation had the effect of rendering it not lawful and reasonable. 49

[48] The Applicant states that the words “any relevant consultation obligations” are significant because in that case the consultation obligations under both the Work Health and Safety Act 2011 (NSW) and the relevant enterprise agreement were in issue. The Applicant submits that the effect of the Full Bench decision is that a failure to comply with a consultation obligation under an enterprise agreement (or to adequately comply with same) will render the original decision unreasonable, and therefore employees are not required to follow it. 50 The Applicant then further refers to the decision in Mt Arthur Coal for a more detailed explanation of this proposition by the Full Bench:

“Whether a particular direction is reasonable is not to be determined in a vacuum, it requires consideration of all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship. 51 In NSW, this would include consideration of obligations in the WHS Act, which governs employment relationships in that jurisdiction. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis.52 The assessment will include, but not be determined by, whether there is a logical and understandable basis for the direction.”53

(emphasis added by the Applicant)

[49] The Applicant submits that the direction by the employer in Mt Arthur Coal had the same legal basis as the direction by the Respondent in this case:

“Absent a public health order or an express term in a contract of employment or industrial instrument, the basis for an employee to be vaccinated as a condition of entry to work premises must derive from the implied contractual term that employees obey the lawful and reasonable directions of their employer.” 54

[50] The Applicant summarises the findings of the Full Bench in Mt Arthur Coal as follows:

“On the facts in the Mt Arthur case, the full bench found that the direction to mandate 100% vaccination at the work site was prima facie lawful and reasonable, however the finding that the respondent had not adequately complied with consultation requirements under the WHS Act rendered it unreasonable, and could not stand.

Having so found, the full bench did not consider it necessary to reach a concluded decision on whether the respondent had also failed to comply with its obligations under the clause in the relevant EA. It opined that it probably would not have so concluded due to the EA consultation clause being in different terms to the WHS obligation (and different to the EA clause in this case) as it permitted consultation after the final decision had been made. Nevertheless, the point still stands that this is a matter for the arbitrator to consider at a hearing and make findings of fact as to whether the particular consultation obligation has been complied with or adequately complied with.” 55

[51] The Applicant submits that should the Commission find that the Respondent did not adequately carry out its obligations under the consultation clause in the Agreement, a similar course should be followed to that in Mt Arthur Coal where the relevant Member engaged with both parties to assist them in ensuring that consultation was carried out correctly, so that the original decision could be re-made, this time lawfully and reasonably. 56 The Applicant reiterates in its reply submissions that the relief sought by the Applicant is consistent with the characterisation of the dispute as one over the Respondent’s failure to adequately consult pursuant to clause 12 of the Agreement, and that a finding that consultation was not adequate would lead to a finding that the direction to vaccinate was not lawful or reasonable. In turn, this will require that further action be taken to implement adequate consultation, and then for the direction to be re-made.57

The dispute settlement procedure and the discretion to arbitrate

[52] The Applicant refers to sub-clause 15.5 of the Agreement, which states as follows:

“(a) Should the dispute not be resolved by the processes referred to in clause 15.4 (Internal dispute resolution) above, or if any party to the dispute refuses to engage in the processes referred to in those clauses, the dispute may be referred to the FWC by any party to the dispute.

(b) The FWC may resolve the dispute by conciliation in the first instance, and by arbitration if conciliation fails to resolve the dispute. The parties to the dispute will implement any arbitrated decision of the FWC.”

[53] The Applicant submits that s.739(4) of the Act confirms that such a clause gives the Commission a discretion whether to conciliate, arbitrate, or choose not to arbitrate, the dispute and that such a discretion must be exercised according to law. 58 The Applicant submits that should the Commission not arbitrate the dispute, then the dispute must be determined by a Court.

[54] The Applicant refers to ss.576(2)(a) - (aa) of the Act, and states that the functions of the Commission as outlined in those sections strongly imply that the Commission should attempt to resolve such disputes itself wherever possible, unless there are clear and specific reasons why that is not appropriate. The Applicant refers to s.577 of the Act which outlines the manner in which the Commission must perform its functions and exercise its powers, and states that it is in the Respondent’s interest that the dispute be dealt by the Commission quickly, informally and in a way that promotes harmonious relationships, rather than in the slow and adversarial atmosphere of a Court hearing. Furthermore, the Applicant submits that the Respondent is at risk of significant civil penalties should the matter go to a Court. The Applicant notes the way that the Full Bench directed the Member to deal with the dispute in Mt Arthur Coal was very cost and time effective, and that there are no contrary indications that the Commission should not arbitrate this dispute.  59

[55] The Applicant states that the Respondent contends that it was able to prevent the dispute going any further and avoid the need for it to comply with the provisions of clause 15 of the Agreement by terminating the Applicant’s employment. However, this is not supported by the wording of the Agreement itself which requires that a person be an employee in order to raise a dispute, but not for the person to refer an unresolved dispute to the Commission – rather it requires merely that the person referring be a party to an existing dispute. Furthermore, that the suggestion that the termination of an employee would have any effect on the employee’s capacity to engage in the dispute resolution procedure is not evident in any precedent or example, including Mt Arthur Coal or Nazih Beydoun & Ors v Northern Health & Ors (Nazih). 60 The Applicant states that this is compounded by the fact that the sole basis given by the Respondent for terminating the Applicant’s employment on 18 March 2022 was failure to comply with the very direction, the reasonableness of which is impugned in this dispute.61

[56] The Applicant contends that while the Respondent refers to s.52, it does not explain how it supports their argument. The Applicant states that s.52 relevantly states that an enterprise agreement applies to a person who is an employee if it “covers” an employee, and section 53 says that it covers an employee if it is expressed to cover them. The Applicant states that the Respondent’s argument that an enterprise agreement does not apply to a person who is not an employee is incorrect in principle, as it would mean that in any case where an employee raises a dispute about whether a consultation requirement has been complied with (whether under enterprise agreement or legislation) the employer need merely sack the employee and the dispute (and the Commission’s jurisdiction) would vanish, due to that unilateral act by the employer. 62 The Applicant also states that the Respondent’s contention that “a dispute as to the application of [the] Procedure is not a dispute relating to the terms of the Staff Agreement...” is misconceived as the dispute is over whether the Respondent has complied or adequately complied with its consultation obligations under clause 12 of the Agreement. It is thus a dispute as to the application of the terms of the Agreement.

[57] The Applicant states that the Respondent’s argument that this must be dealt with as an unfair dismissal dispute under the Act is an attempt to avoid the Respondent’s compliance with its consultation obligations under the Agreement being subject to any scrutiny.

[58] In its reply submissions, the Applicant again refers to the Respondent’s contention that the Commission has no jurisdiction because the Applicant is an ex-employee and cites a range of authorities to rebut this:

“A full bench of the Australian Industrial Relations Commission held in Jajoo that the Commission continues to have jurisdiction to resolve a dispute, despite the applicant no longer being employed, so long as the Applicant was employed at the time he initiated the dispute. If this view prevails, then it does not matter when the Applicant’s employment was terminated, since on any view it occurred at least a month after he initiated the dispute by raising it.

…

A series of later full bench decisions of the AIRC, Fair Work Australia and the Fair Work Commission have approved and followed Jajoo.” 63

[59] Regarding the Respondent’s submission that the phrase “parties to the dispute” should be interpreted as a collective noun referring to the University, Employees and the Unions, the Applicant submitted in reply:

“Such an interpretation runs directly counter to decisions of the full bench in Broadspectrum at [54] and in Jajoo, also at [54]. The Respondent cites no authorities in support of this interpretation, nor do any of those cited in the Respondent’s previous paragraphs support it.” 64

Submissions on application for interim orders

[60] The Applicant seeks interim orders pursuant to s.589 of the Act requiring:

(a) the Respondent to reinstate the Applicant’s employment; and

(b) the Applicant to restore to the Applicant all benefits to which it would have been entitled if it had continued to be employed in the intervening period. 65

[61] The Applicant seeks the orders to preserve the status quo pending hearing of the substantive proceedings. The Applicant refers to the High Court decision in Australian Broadcasting Corp v O'Neill for the relevant principles of whether such an application should be considered, including the existence of a “prima facie case”. 66

[62] In relation to the consideration of whether the inconvenience or injury which the Applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the Respondent would suffer if an injunction were granted, the Applicant outlines some factors which can be summarised as follows:

•  That the only basis for the Respondent terminating the Applicant’s employment was the Applicant’s failure to comply with the direction to vaccinate, the validity of which is in issue.

•  The Respondent argued that the termination of the Applicant’s employment removes the Commission’s jurisdiction to hear the dispute. This argument was raised before the Applicant’s employment was terminated. and indicates that one of the reasons for termination was an impermissible attempt to prevent the Commission having jurisdiction. The Applicant also submits that the reason was unlawful, being as a result of the exercise of a workplace right.

•  An undertaking to preserve the status quo in this matter would have prevented the Applicant from making the application for interim orders, as the Applicant’s job would have been preserved pending the final hearing of the matter.

•  In terms of balance of convenience, the Respondent has nothing to fear from the maintenance of the status quo as the Applicant can work from home, and the Respondent acknowledges that he is a good worker.

•  This case can be distinguished from the application for interim orders in Nazih. 67

[63] The Applicant states that the balance of convenience is clearly in favour of the Commission making an interim order to preserve the status quo, and that has the same practical effect as the undertaking proffered by the respondent employer in Mt Arthur Coal. 68

[64] In relation to the Respondent’s submission that the Commission does not have the power to order reinstatement on a s.739 application, the Applicant submits that:

“…an order for reinstatement is an appropriate incidental order to be made in the particular circumstances of this case, if the arbitrator at the final hearing finds that the Respondent did not engage in adequate consultation before making the Direction. The reason for this is that the dismissal of the Applicant was based upon failure to obey the Direction itself, which will have been found to be not lawful and reasonable.” 69

[65] The Applicant further submitted that the Respondent’s adoptions of the Full Bench decisions in King and Ausgrid were incorrect as follows: 70

“(a) The full bench in King approved a decision by the Commissioner that the Commission retains jurisdiction to resolve a dispute involving a former employee, so long as he was an employee at the time he lodged the application.

(b) The statement of the full bench in Ausgrid is inconsistent with decisions of full benches in Jajoo, Telstra, Deakin University, Kentz, Broadspectrum and Goonyella, nor does it appear that those decisions were cited to the bench in Ausgrid. The Applicant respectfully submits that it should not be followed.”

[66] In relation to the Respondent’s submission that reinstatement would not be a power which is incidental to the dispute when characterised about one over consultation, the Applicant submits that on the particular facts of this case, an incidental order for reinstatement of the Applicant would result in settlement of the dispute, since it is an essential requirement in order to conduct proper consultation, which must be done before making a direction, and before taking any action against employees who fail to obey the direction. 71

[67] The Applicant refers to Simplot 2016 and states that:

“…on the facts of that case, reinstatement would not have been available in the s739 application, because (unlike in the instant case) the basis for termination was not at issue in that application.

…

The Applicant’s position in the instant case is that reinstatement is an appropriate incidental order to make at the final hearing, because if the Applicant is successful there, the lawfulness and reasonableness of the direction which was the only basis for termination will have been overturned.” 72

[68] In its reply, the Applicant refers to the Respondent’s argument that there is “no power to order any relief would be of any utility to the Applicant as a former employee”, and states that:

“…if the arbitrator finds that the Respondent did not adequately consult as required by clause 12, then two findings must follow: (a) that the direction was therefore not lawful and reasonable, and (b) that any actions based solely on the lawfulness and reasonableness of the direction must be void. Therefore, the appropriate incidental orders to make are to reinstate the Applicant’s employment (as his dismissal had no basis) and to order that proper consultation be carried out.” 73

[69] The Applicant cites the Respondent’s assertion that:

“the Commission does not have the power to order interim reinstatement under s589 of the Act, as that section is not ‘unlimited’ but, rather, is a procedural section and is not an “independent source of power” There is no serious question to be tried and the balance of convenience does not favour the Applicant such that the Commission should decline to exercise its discretion (if such power is found) to order interim reinstatement.” 74

[70] In response, the Applicant outlines the basis on which interim orders to preserve the status quo are made in s.739 applications, and refers to the decision of Deputy President Saunders regarding the interim order in Mt Arthur Coal which it claims to be of particular relevance in this case:

“There are, however, serious questions as to whether (a) Mt Arthur complied with its consultation obligations before implementing the Site Access Requirement and (b) the Site Access Requirement is tailored to, and was formulated having regard to, the particular circumstances of the Mine and the Employees who work on it. These questions involve disputed facts. It is not appropriate in this interlocutory application to either decide or forecast the likely decision on those issues. In light of these considerations, I am satisfied that the applicants have established a prima facie case on the question of whether the Site Access Requirement was a reasonable direction.” 75

[71] The Applicant states that in Mt Arthur Coal, Deputy President Saunders refused to grant the interim order requested. However, it submits that his reasons for doing so were based on factors that are different in the instant case, namely, each of the factors which pushed the balance of convenience against the applicant in Mt Arthur Coal is either neutral or pushes in favour of the Applicant in the instant case. 76

[72] The Applicant concludes that:

“The fact that the Respondent has terminated the Applicant’s employment in an attempt to invalidate the Commission’s jurisdiction only supports the Applicant’s application for an interim order requiring the Respondent to reinstate his employment in order to preserve the status quo pending hearing of the dispute.

The Applicant therefore submits that the Respondent’s arguments provide no reason why the FWC lacks jurisdiction in this matter.” 77

Consideration

[73] The Applicant made submissions during the hearing that there were two distinct issues before the Commission:

“The first is, logically, the respondent's contention that the Commission has no jurisdiction, or no longer any jurisdiction, to hear the matter.  Only if that is found against the respondent will it then fall to deal with the second matter, which is the applicant's seeking an interim order in the nature of an injunction to reinstate his employment in order to restore the status quo pending the final hearing of the matter by arbitration.” 78

[74] I agree with the Applicant that they are the issues to be determined. As to the first issue, I find that there is not the necessary jurisdiction to hear and determine the application. There are a number of reasons that is so.

[75] The first and primary reason stems from the fact that the Applicant is no longer employed as of 18 March 2022, and therefore is no longer covered by the Agreement and the Agreement no longer applies to him by parity of the reasoning in Simplot Australia Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (Simplot). 79 The matter in Simplot was concerned with jurisdiction in circumstances where an agreement had ceased to operate by virtue of s.54 and s.55 of the Act where a later agreement had been made. However, the key elements of the Full Bench’s consideration of that matter are equally applicable here.

[76] Firstly, sections 52 and 53 of the Act set out when an enterprise agreement covers and applies to an employer, employee or employee organisation. In this matter, the Agreement clearly continues to operate and cover and apply to the employees, UTAS, and the employee organisations covered (NTEU and others). However, the Agreement no longer covers or applies to the Applicant as he is no longer an employee. The Agreement did cover and apply to him up until the time his termination took effect on 18 March 2022. Up until that time, the matter was clearly within the jurisdiction of the Commission to determine. The Full Bench stated in Simplot:

“The framework of the Act, and in particular the machinery provisions relating to enterprise agreements found in Part 2-1, recognise coverage, application and operation of enterprise agreements. It also recognises that obligations are not imposed on a person and entitlements are not given to a person by an enterprise agreement unless the agreement applies to the person.” 80

[77] There are no obligations or entitlements imposed on or given to the Applicant by the Agreement as it does not apply to him.

[78] Secondly, the legislature chose not, in respect to s.739, to include anything about the power for the Commission to continue to deal with a dispute in respect to an agreement that no longer applies to a person. 81

[79] Thirdly, as said earlier, s.51(2) does not give a person an entitlement under an enterprise agreement unless it applies to that person. The Agreement does not apply to the Applicant as he is no longer an employee. Therefore, the Applicant has no right to ask the Commission to continue to hear or determine a dispute that no longer applies to him. The Full Bench stated in Simplot:

“The role of the Commission in determining a dispute pursuant to a dispute settlement procedure in an enterprise agreement is one of private arbitration and the Commission’s powers depend on the agreement of the parties. 82 If the source of that agreement is an inoperative enterprise agreement which can no longer impose obligations or confer rights on the parties to a dispute, a party cannot rely on its inoperative dispute settlement term as conferring jurisdiction on the Commission to arbitrate the dispute. It follows that if the enterprise agreement has ceased to operate the source of the Commission’s powers as private arbitrator cease to exist.”83

[80] While this consideration was in respect of an inoperative agreement, it remains relevant to considering the source of power to arbitrate here. In this case, the Agreement has not ceased to operate and remains a source of power to arbitrate disputes in respect to the parties who are covered by it, and that it applies to. The Applicant is not in that category.

[81] Fourthly, the Applicant does not have an accrued right to continue to have the matter determined in circumstances where the Agreement, and its dispute resolution procedure, no longer applies to him. Again, in Simplot, while the consideration of the notion of “accrued right” there pertained to an agreement that had ceased to operate, the situation does not differ is respect to an Agreement that still operates, but no longer applies to the Applicant. The exercise of power of private arbitration is not an exercise of power in the past. The exercise of the power is in the present. 84 At the present time, there is no power to conduct a private arbitration.

[82] In Simplot the Full Bench noted the following:

“It is not necessary for us to consider the extent to which our decision in this appeal has implications for the Commission’s case law that has recognised the authority of the Commission to continue to deal with an application of an employee under s 739 after their employment under the agreement has ceased. The Commission’s jurisdiction in such cases will depend on the terms of the enterprise agreement. In many cases, there may be an enduring interpretative dispute about the operation of a provision in the agreement which will survive the dismissal of individual employees, particularly where the application is brought by a union and the agreement confers rights on the union to raise a dispute and have it arbitrated by the Commission.” 85

[83] In this case, the dispute resolution procedure is in the following terms:

“15. DISPUTE RESOLUTION PROCEDURE

15.1 Application of this clause

The University, Employees and the Unions have an interest in the proper application of this Agreement. These procedures shall apply to any dispute raised by an Employee, Union or the University regarding:

(a) The application of the terms of this Agreement; or

(b) The National Employment Standards (other than a dispute about whether the University had reasonable business grounds under Section 65(5) or 76(4) of the Act).

15.2 Representation

Any Employee involved in a dispute raised in accordance with this clause (clause 15 –

Dispute Resolution Procedure) is entitled to be represented by their Union or by another representative at any or all stages of this procedure.

15.3 Requirements during a dispute

Until the procedures described in clauses 15.4 (Internal dispute resolution) have been completed:

(a) Work shall continue in the normal manner;

(b) Management shall not change work, staffing or the organisation of work if that is the subject of a dispute, nor will any party to the dispute take any other action likely to exacerbate the dispute;

(c) The dispute shall not be referred to the FWC by any party to the dispute until the internal dispute resolution process (clause 15.4) has been completed; and

(d) The Parties will make every attempt to avoid disruption to the University’s normal business operations and work processes.

15.4 Internal dispute resolution

(a) In the first instance, the parties to the dispute shall discuss the dispute and attempt, in good faith, to reach agreement or otherwise resolve the dispute. A dispute in relation to an individual Employee will, in the first instance, involve a discussion between the Employee and/or their representative and the Employee’s Supervisor, or where this is not appropriate, with Human Resources. This internal dispute resolution step must be completed within 10 working days of the party initiating the dispute advising the other party / parties of the dispute.

(b) Where a discussion has occurred in accordance with clause 15.4(a) above and the dispute is not resolved, the dispute will be referred to the Executive Director, Human Resources. This internal dispute resolution step must be completed within 10 working days of referral to the Executive Director, Human Resources. The following requirements shall apply:

(i) The Executive Director, Human Resources (or nominee) will convene a meeting with the Employee(s) concerned and relevant managers of the University to discuss and seek resolution of the dispute.

(ii) Any resolution may be in the form of a written agreement, subject, if necessary, to ratification by the parties to the dispute.

15.5 Reference to the Fair Work Commission (“FWC”) for external dispute resolution

(a) Should the dispute not be resolved by the processes referred to in clause 15.4 (Internal dispute resolution) above, or if any party to the dispute refuses to engage in the processes referred to in those clauses, the dispute may be referred to the FWC by any party to the dispute.

(b) The FWC may resolve the dispute by conciliation in the first instance, and by arbitration if conciliation fails to resolve the dispute. The parties to the dispute will implement any arbitrated decision of the FWC.

15.6 Alternative dispute resolution procedure

Nothing in this clause prevents the parties to a dispute from agreeing to refer an unresolved dispute to a person or body other than the FWC for resolution, in which case the parties agree to be bound by any recommendation to resolve the dispute made by the agreed person or body.”

[84] It is apparent from the terms of the dispute resolution in the Agreement that the procedures apply to any dispute (regarding the matters in 15.1(a) and (b)) raised by an employee. Thereafter, the dispute resolution procedure refers sometimes to a party to the dispute and at other points to employee. It would seem uncontroversial that where the dispute resolution procedure refers to a party to the dispute, a party would include an employee. This interpretation finds support from clause 3 of the Agreement:

“3. PARTIES

3.1 Coverage generally

This Agreement covers and applies to:

(a) The University of Tasmania;

(b) Employees employed by the University of Tasmania, with the exception of:

(i) Employees employed as Farm Operatives or Trainee Farm Operatives at the University’s research farms; and

(ii) Employees appointed to management positions graded higher than the relevant Salary scale contained in the Schedules to this Agreement.

(c) The NTEU, CPSU and HACSU are Parties to this Agreement

…”

[85] The power of private arbitration is dealt with in clause 15.5(b). Assuming in this case that the dispute was referred to the Commission in a manner consistent with the dispute resolution procedure by the (then) employee as a party to the dispute, the difficulty for the Applicant arises from the operation of clause 15.5(b) which provides for the parties to the dispute to implement any arbitrated decision of the Commission. The Applicant is no longer an employee and therefore no longer a party and cannot be part of the implementation of a decision of the Commission. This stands in distinction to the position of a Union covered by an agreement who may have brought an application on behalf of a dismissed employee, as the agreement in this matter confers rights on the union to access the dispute resolution process, including arbitration, in its own right. In any event, for the reasons set out earlier, the Applicant is not able to continue to utilise the dispute resolution procedure as the Agreement does not apply to him and he no longer has that entitlement.

[86] I note that Simplot was cited with approval by the Full Bench in Ausgrid in circumstances where, at the time of the appeal, the applicant was no longer an employee.

[87] For the foregoing reasons, I am not satisfied that there is jurisdiction to arbitrate this dispute.

The proper characterisation of the dispute

[88] Irrespective of my determination that there is no jurisdiction to determine the dispute for the reasons set out above, I also agree with the submissions of the Respondent that the dispute that has been brought to the Commission, properly characterised, is a dispute about whether the Respondent’s requirement for the Applicant to comply with the Procedure was a lawful and reasonable direction and that such a dispute is beyond the reach of the dispute resolution procedure in the Agreement.

[89] Relevantly, the scope of the dispute resolution procedure is to allow for the settlement of disputes regarding the application of the terms of the Agreement. This gives rise to the question as to whether the dispute before me, properly characterised, is a dispute about the application of the terms of the Agreement, or a dispute about something else.

[90] Deputy President Saunders considered an analogous term in a dispute resolution procedure that provided for resolution of disputes about the application of any provision of the agreement in University of Newcastle:

“A dispute cannot “arise … regarding the interpretation, application or operation of any provision of this Agreement” within the meaning of clause 75.0 of the Enterprise Agreement unless the dispute has a relationship with the provisions of the Enterprise Agreement itself. 86.The nature of the relationship which is necessary to meet the test may be in issue in particular cases.87

As to the requirement that the dispute be linked in the requisite way to the “interpretation, application or operation of any provision of this Agreement”:

(a) interpretation concerns the construction of a provision; 88

(b) application may involve considering whether past actions and conduct of parties to a dispute accords with the provision of the enterprise agreement. 89 In other words, has the provision been applied according to its terms? Application may also mean to make use of, implement or apply a provision of an enterprise agreement, such as a dispute as to whether a particular employee should be classified under one or another category in an enterprise agreement;90 and

(c) operation concerns consideration of the process or manner of operating of a provision. 91”92

[91] Noting that there is no contention that this matter involves a dispute about the NES, for which there is a power to settle disputes in the dispute resolution procedure, then for there to be jurisdiction the dispute must be regarding the application of the terms of the Agreement.

[92] The starting point of this dispute was regarding the consultation obligations in the Agreement and the claim of the Applicant that these were not properly applied. 93 An arbitration that sought to resolve a question as to whether the Respondent properly applied the steps in the consultation provision in the Agreement in the lead up to implementing the Procedure would certainly be within jurisdiction.

[93] However, it is apparent that the dispute has evolved beyond that point. The Applicant seeks the Commission deal with the dispute by arbitration and “[t]he end result sought is a finding that the direction to mandate vaccination in not a lawful and reasonable direction due to a failure to consult as required by clause 12, and for the arbitrator to liaise with the parties to ensure that proper consultation is carried out before the direction is re made…”. 94 This is a case where the relief sought casts light on the true nature of the dispute.95

[94] As said by the Respondent, under clause 15.1 of the Agreement the dispute must apply to a dispute about the application of the terms of the Agreement. The Respondent states that the Applicant does not identify any provision of the Agreement which is in dispute as to whether that provision has been applied according to its terms in relation to the lawfulness and reasonableness of the vaccination requirements under the Procedure. The Applicant only refers to clause 12 of the Agreement (the consultation clause). 96

[95] The dispute properly characterised is a dispute about whether the Procedure and its requirement for vaccination is a lawful and reasonable direction, a dispute that does not fall within the ambit of the dispute resolution procedure, and is therefore outside the jurisdiction of the Commission to determine. Indeed, the terms of the Agreement make clear that University Policy, Procedure and Guidelines do not form part of the Agreement.

[96] There is no jurisdiction to arbitrate the dispute, properly characterised, as it is not a dispute about the application of the terms of the Agreement.

Is it appropriate to exercise discretion to determine the dispute about the consultation provision?

[97] It is not contested that there is a discretion to arbitrate in this matter given the terms of the dispute resolution procedure make clear that the Commission “may” arbitrate. While a dispute about the proper application of the consultation provision is within the scope of the dispute resolution procedure to resolve, as it relates to the application of the Agreement, there is no utility in conducting an arbitration about that matter in circumstances where an outcome that would be most favourable to the Applicant would involve orders for the Respondent to take further steps to consult in respect to the implementation of the Procedure, such as additional meetings, the provision of further information in writing, and so on. There is no utility in such an outcome as the Applicant is no longer employed.

[98] As I have determined there is no jurisdiction to deal with the dispute, it is not necessary to determine other matters in contention.

[99] I would however make some observations. Firstly, the Applicant seeks reinstatement on an interim basis, pending arbitration of the dispute, relying on the powers in s.589 of the Act which the Applicant describes as “an unlimited power”. I agree with the submissions of the Respondent to the effect that s.589 is a provision that facilitates the Commission in the effective and efficient exercise of the Commission’s substantive power. It is not the be used to support remedial or beneficial orders related to reinstatement particularly in circumstances where, as here, reinstatement is sought as a final relief. As was observed by the full bench in Ms Virginia Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another:

“…we are not persuaded that s.589 should be characterised as a remedial or beneficial provision, such that it should be construed in a manner which gives the fullest relief to an intended beneficiary – in this case, Ms Wills. Section 589 is in subdivision B of Division 3 of Part 5–1 of the FW Act which deals with the conduct of matters before the Commission. These provisions are procedural in nature in the sense that they facilitate the effective and efficient exercise of the Commission’s substantive powers. They are not remedial or beneficial provisions in the sense contended by the Appellant.” 97

[100] What is sought is not an order to maintain the status quo. Rather, it is an order to reinstate the Applicant.

[101] I note that the Applicant has made submissions to the effect that the Commission should deal with this dispute because it is obligated to operate quickly, informally and avoid unnecessary technicalities and proceed in a manner that is fair and just and is more efficient than a Court in that respect. While I have sympathy for that view, as was said by the Full Bench in Simplot:

“[T]he question of whether a private arbitration provision in a commercial contract continues to apply after the termination of the contract depends on whether the parties have, by the language of their contract, manifested an intention for the right to private arbitration to survive the termination of the contract. In contrast and regardless of the intention of the makers of an enterprise agreement, the Act does not permit a person to continue to exercise rights under a dispute settlement procedure (or any other rights) under an enterprise agreement after the agreement has ceased to operate. The cessation of operation of the agreement means those rights no longer exist. 98

[102] I also note that the Applicant agreed that the remedies sought are available under Part 3-2 of the Act, particularly reinstatement of the employee and orders for lost pay if the dismissal was found to be unfair. However, the decision to not pursue an unfair dismissal application appears to have been made on the basis that it, “…would not provide for consultation to take place, as it should have originally.” 99

[103] Finally, I note that the dispute resolution procedure contains what is in effect a status quo provision. 100 It is certainly arguable that the Respondent has not complied with that provision to the extent that they took steps to dismiss the Applicant, and actually dismissed him after he notified the employer on 15 February 2022 that he was raising a dispute as to alleged noncompliance with clause 12 of the Agreement. The Respondent’s approach to the matter was to claim the introduction of the Procedure was not a significant change and that the time for challenging the decision on the basis of a lack of consultation had passed. While the Respondent may have held that view, that does not absolve them of the requirement to comply with the status quo provisions in the dispute resolution procedure.

Conclusion

[104] For the foregoing reasons, I have determined that the Commission has no authority to deal with the dispute brought to the Commission under s.739 and clause 15 of the Agreement. The application is therefore dismissed.

COMMISSIONER

Appearances:

M Mitchell for the Applicant.

R Collison for the Respondent.

Hearing details:

2022.
Melbourne (Microsoft Teams):
21 March

 1   Transcript at PN62 – PN68.

 2   Applicant’s Witness Statement at [34]-[37].

 3   See JM-29 and JM-30.

 4   Respondent’s Outline of Submissions at [1].

 5   Ibid at [2]-[3].

 6   Respondent’s Outline of Submissions at [4]; David Markham v Ensign Drilling Australia T/A Ensign Energy Services [2017] FWC 4058 at [20] (Ensign).

 7   Respondent’s Outline of Submissions at [5]; Leanne Mayson v Mylan Health Pty Ltd and others [2020] FWC 1404 at [17] (Mayson), quoted with approval by the Full Bench in Ms Virginia Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another [2020] FWCFB 4514 at [34] (Wills).

 8   Respondent’s Outline of Submissions at [25]-[26]; Kim Davis; David Cantrick-Brooks; Michael Turner v The University of Newcastle [2019] FWC 2282 at [13] – [14] (The University of Newcastle).

 9   Respondent’s Outline of Submissions at [27]-[28].

 10   Ibid at [31]-[32].

 11   Ibid at [34] -35].

 12   Ensign at [46].

 13   The University of Newcastle at [19]-[20].

 14   Respondent’s Outline of Submissions at [40]-[41].

 15   Ibid at [43]-[44].

 16   Ibid at [45]-[46].

 17   [2021] FWCFB 6059.

 18   Respondent’s Outline of Submissions at [47]-[50].

 19   Ibid at [51]; See Ensign, particularly at [20].

 20   Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd [2016] FWC 8360 at [23] (North Goonyella 2016).

 21   Respondent’s Outline of Submissions at [54]; Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch v North Goonyella Coal Mines Pty Ltd [2015] FWCFB 5619 at [34] (North Goonyella).

 22   Respondent’s Outline of Submissions at [55]-[60].

 23   Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FWC 2062 at [52].

 24   Respondent’s Outline of Submissions at [61]-[65].

 25   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Simplot Australia Pty Limited [2016] FWC 991 at [32] (Simplot 2016).

 26   Respondent’s Outline of Submissions at [67]; Deakin University v Rametta [2010] FWAFB 4387 at [43]-[46] (Deakin University).

 27   Respondent’s Outline of Submissions at [68]-[70].

 28   Fair Work Act 2009 (Cth) s.253(1)(a); see also Glen Eden Thoroughbreds Pty Ltd t/as Ray White Shailer Park re Ray White Shailer Park Enterprise Agreement 2009 [2010] FWA 7217 at [40]-[41].

 29   Ibid at [71]-[75].

 30   [2006] AIRC 773 (PR974301).

 31   [2015] FWC 1138.

 32   [2016] FWCFB 2019.

 33   Respondent’s Outline of Submissions at [76]-[81].

 34   [2015] FWCFB 6323 at [43].

 35   [2021] FWCFB 370 at [40].

 36   Michael Pearce v Aurizon Operations Limited [2017] FWC 4734 (Aurizon).

 37   Respondent’s Outline of Submissions at [85]-[91].

 38   North Goonyella at [37].

 39   Respondent’s Outline of Submissions at [95]-[99].

 40   Respondent’s Outline of Submissions at [100]-[101].

 41   Ibid at [105]-[108].

 42   Mayson at [17], quoted with approval by the Full Bench in Wills at [34].

 43   Wills at [53].

 44   Applicant’s Submissions in Reply at [2.1]-[2.3].

 45   Ibid at [6.1].

 46   Ibid at [2.4].

 47   Ibid at [2.6].

 48   [2021] FWCFB 6059 at [95].

 49   Applicant’s Submissions in Reply at [2.5(b)].

 50   Applicant’s Outline of Submissions at [6]-[8].

 51   R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday & Sullivan (1938) 60 CLR 601 at [622] (Dixon J).

 52   McManus v Scott-Charlson (1996) 70 FCR 16 at 30 (Finn J).

 53   [2021] FWCFB 6059 at [96].

 54   Ibid at [258].

 55   Applicant’s Outline of Submissions at [10].

 56   Applicant’s Outline of Submissions at [12].

 57   Applicant’s Submissions in Reply at [2.5(g)].

 58   Applicant’s Outline of Submissions at [13]-[14].

 59   Ibid at [14]-[19].

•   60   Applicant’s Outline of Submissions at [31]-[34]; [2021] FWC 6341.

 61   Applicant’s Outline of Submissions at [35].

 62   Ibid at [36]-[37].

 63   Applicant’s Submissions in Reply at [3.1]-[3.5].

 64   Applicant’s Submissions in Reply at [6.3].

 65   Applicant’s Outline of Submissions at [21]-[22].

 66   [2006] HCA 46 at [65].

•   67   [2021] FWC 6341.

 68   Applicant’s Outline of Submissions at [23]-[30].

 69   Applicant’s Submissions in Reply at [4.3].

 70   Ibid at [6.2].

 71   Ibid at [4.8].

 72   Ibid at [4.10] and [6.4].

 73   Ibid at [4.11].

 74   Ibid at [5.1].

 75   Ibid at [5.7].

 76   Ibid at [5.9]-[5.10].

 77   Applicant’s Outline of Submissions at [42]-[43].

 78   Transcript at PN125.

 79   Simplot Australia Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) [2020] FWCFB 5054 (Simplot).

 80   Ibid at [19].

 81   Ibid at [20].

 82   AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [32] and [35]

 83   Simplot at [23].

 84   Simplot at [25].

 85   Simplot at [34].

 86   Australian Municipal, Administrative, Clerical and Services Union v Automated Meter Reading Services PR922053 at [73]-[74]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [29]-[31]

 87   Alcoa of Australia Pty Ltd v Amalgamated Engineering Union (1965) 7 FLR 180 at 183.

 88   University of Western Sydney v Fletcher [2009] AIRCFB 368 (UWS v Fletcher) at [23].

 89   UWS v Fletcher at [24]

 90   Australian Municipal, Administrative, Clerical and Services Union v Automated Meter Reading Services PR922053 at [136].

 91   UWS v Fletcher at [25].

 92   The University of Newcastle at [19]-[20].

 93   [2021] FWCFB 6059.

 94   Applicant’s Outline of Submissions at [4].

 95   The University of Newcastle at [14]-[15].

 96   Respondent’s Outline of Submissions at [40]-[41].

 97   Ms Virginia Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another [2020] FWCFB 4514 at [53].

 98   Simplot at [24].

 99   Transcript at PN216.

 100   University of Tasmania Staff Agreement 2017 – 2021 at clause 15.3.

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