1
Fair Work Act 2009
s.739—Dispute resolution
The Association of Professional Engineers, Scientists and Managers,
Australia
v
Jemena Asset Management Pty Ltd
(C2013/200)
COMMISSIONER BISSETT MELBOURNE, 21 AUGUST 2013
Alleged dispute concerning Clause 10 Introduction of Change and Technology and Clause 15
Redundancy of the Agreement.
[1] The Association of Professional Engineers, Scientists and Managers, Australia
(APESMA) has made an application for the Commission to deal with a dispute pursuant to
the Jemena Asset Management Agreement (Vic) 2009 (the JAM Agreement).
[2] The dispute was notified to the Commission on 11 February 2013.
[3] In essence it appears that the dispute goes to matters associated with the work
allocated to APESMA member Mr Doug Hardy, and the implications this has as to the
enterprise agreement that applies to Mr Hardy.
[4] Mr Hardy works for Jemena Asset Management Pty Ltd (Jemena).
[5] Prior to dealing with the merits of the matter in dispute Jemena raise two jurisdictional
objections to the matter being dealt with. It is appropriate that these objections be dealt with in
the first instance.
The JAM Agreement ceased to apply and operate with respect to Hardy on 22 February
2013
[6] Jemena submit that on 22 February 2013 the JAM Agreement ceased to apply and
operate with respect to Mr Hardy because, on that date, the ZNX Victorian Staff Enterprise
Agreement 2012 (the Zinfra Agreement) commenced to operate and that agreement applies to
Mr Hardy’s employment.
[7] Mr Hardy was covered by the JAM Agreement. The Zinfra Agreement came into
operation on 22 February 2013. The Zinfra Agreement, at clause 2 states that it applies to
ZNX and JAM (the employers) and ZNX employees engaged in roles outlined in the
classification structure in Schedule A.
[2013] FWC 5617
DECISION
E AUSTRALIA FairWork Commission
[2013] FWC 5617
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[8] Clause 3 of the Zinfra Agreement defines ‘ZNX employee’s (sic)’ to ‘mean employees
engaged in line with the scope of the agreement in the ZNX organisation structure.’
[9] JAM submits that Mr Hardy falls within the scope of the Zinfra Agreement by
definition.
[10] Jemena submits that, as a consequence of Mr Hardy being covered by the Zinfra
Agreement on and from 22 February 2013, the Commission ceased to have jurisdiction to
deal with the dispute under the JAM Agreement. Jemena rely on Senator the Honourable Eric
Abetz v Stephenson1(Stephenson), Pulle v Commonwealth of Australia2(Pulle) and de Jong v
Australian Broadcasting Corporation3(de Jong) in support of its contention.
[11] APESMA submits that Mr Hardy is not covered by the Zinfra Agreement and hence
the jurisdictional objection of Jemena has no substance.
Consideration
[12] The JAM Agreement came into operation on and from 25 January 2010. Its nominal
expiry date is 31 December 2011.4
[13] The Zinfra Agreement came into operation on 22 February 2013 with a nominal
expiry date of 1 July 2014.5
Does the Zinfra Agreement apply to Mr Hardy?
[14] The Zinfra Agreement states, in respect of coverage:
2. APPLICATION AND COVERAGE OF THIS AGREEMENT
2.1 This Agreement covers and applies to:
a) ZNX & JAM
b) ZNX employees engaged in Victoria in accordance with the roles
outlined in the classification structure in Schedule A
together, ‘Parties’.
[15] Clause 3 of the Zinfra Agreement contains a number of definitions including the
following:
3. DEFINITIONS
Jemena Asset Management
(JAM)
shall mean Jemena Asset Management Pty Ltd
ABN 53 086 013 461
ZNX ZNX Pty Ltd (ZNX) ABN 82 073 613 733
ZNX (2) Pty Ltd (ZNX2) ABN 52 104 352 650
ZNX Employee’s (sic) Shall mean employees engaged in line with the
scope of the agreement in the ZNX organisation
structure
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[16] Mr Hardy is employed by Jemena Asset Management. This is the same company as is
covered by the Zinfra Agreement (see definition above). I am therefore satisfied that the
company Mr Hardy is employed by is covered by the Zinfra Agreement.
[17] Mr Hardy is employed as an Electrical Protection and Control Design Engineer.6
[18] The classification structure relevant to coverage of the Zinfra Agreement is in
Schedule A to the Agreement. That classification structure includes the following:
Professional specialists Class 1 (P2)
An employee engaged at this level will have achieved the skills/ knowledge and
qualifications of the graduate engineering levels. A professional employee at this level
performs duties requiring the application of mature knowledge. The employee is an
experienced professional who plans and conducts work without detailed supervision
but with guidance on unusual features of work and who is usually engaged on more
responsible assignments.
An employee may plan, direct, co-ordinate and supervise the work of other
professional or technical employees.
A specialist employee at this level works independently as a specialist and or a senior
member of a project team, exercising limited managerial responsibility where they are
accountable for output.
...
• Protection and Control Design Engineer
An employee technically qualified to provide the protection and control design
with the planning, coordination and management of material, human and
capital resources and under guidance to resolve complex engineering
assignments from concept through to design implementation, entailing
technical specifications and detailed planning, and provide technical
engineering advice to key stakeholders across multiple departments as
required.
[19] Absent any submissions to the contrary by APESMA I accept the submissions of
Jemena that Mr Hardy performs duties and work in accordance with the classification
structure in Schedule A to the Zinfra Agreement.
[20] A ZNX employee, as used in the coverage clause of the Zinfra Agreement, is one
‘engaged in line with the scope of the agreement in the ZNX organisation structure.’
[21] In this instance Mr Hardy is engaged in line with the scope of the Zinfra Agreement.
[22] The question remains as to whether or not he is ‘in the ZNX organisation structure.’
[23] The evidence of Mr Antoniou, a Team Leader with Jemena, is that around 2008 there
was a restructure of the work groups within which Mr Hardy worked. This occurred at the
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time groups moved from Collins Street and Moorabbin to Clayton. These separate work
groups had previously worked for Jemena (on the Jemena Electrical Network (JEN)) or for
Alinta (on the United Energy Network). These employees were divided between ‘primary
protection and control’ group and a ‘secondary’ group with each group working across both
JEN and United Energy assets within the primary or secondary work. Mr Hardy worked in the
secondary group. He was generally allocated work on the JEN assets as this was his area of
knowledge (having come from the Jemena side of the business). Mr Antoniou was his
supervisor at this time.7 In 2011 there was a further restructure which resulted in the
formation of two groups – one to look after exclusively JEN assets and the other to look after
United Energy and third party assets. Mr Hardy was allocated to the design team looking after
United Energy and third party assets.8 At this time Mr Antoniou ceased supervising Mr Hardy
as Mr Antoniou supervised those employees working on JEN assets.
[24] The evidence of Mr Colin Harrison, Manager Southern Engineering for Zinfra, is that
the 2011 reorganisation was undertaken in preparation for the separation of the Jemena and
Zinfra businesses.9 Mr Harrison’s evidence is that Mr Hardy was allocated to the United
Energy team.10 Following this reorganisation employees working on the JEN assets were
relocated to Mt Waverly. Mr Hardy remained at the Clayton site.
[25] On the basis of this evidence I conclude that Mr Hardy did, following the
organisational change of 2011, work in the ‘ZNX organisation structure’ as he was allocated
to work primarily on United Energy assets. It is the case that Mr Hardy remains employed by
Jemena Asset Management.11 Mr Hardy is not employed by Zinfra and there is no claim that
he is (although it appears that Zinfra have taken over responsibility for the provision of, for
example, HR services for Mr Hardy).
[26] I accept that Mr Hardy was aware of the impending separation of the Jemena and
Zinfra work.12 While it was not a matter of argument before me it is not clear that it was fully
apparent to employees affected by the reorganisation such as Mr Hardy what the real and
practical effect of the changes over the period 2011 and 2012 would be.
[27] I am, however, satisfied and find that Mr Hardy is working in the ‘ZNX organisation
structure’ (noting that this does not affect who actually employs him).
[28] I therefore find that Mr Hardy is employed by JAM (which is an employer covered by
the Zinfra Agreement and to which the Agreement applies), he is a ZNX employee (as
defined by the Zinfra Agreement) and he is engaged in Victoria in accordance with the roles
in the classification structure in Schedule A to the Zinfra Agreement. I am therefore satisfied
that Mr Hardy is covered by the Zinfra Agreement and it applies to him and his employment.
Can Mr Hardy pursue a dispute under the JAM Agreement?
[29] In Stephenson the Full Bench determined that it was not possible to arbitrate under the
dispute settling provisions of an enterprise agreement unless that agreement existed. In that
case the enterprise agreement under which the dispute had been notified had been replaced by
a new agreement and the later agreement made it explicit that the previous agreement was
excluded from operation.
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[30] The Full Bench in Stephenson concluded that:
...if a certified agreement empowering the Commission to settle disputes over the
application of the agreement ceases to operate because of the provision of s.170LX of
the Act, then the Commission no longer has jurisdiction to exercise that private
arbitration power in the agreement.13
[31] The relevant principle to be drawn from Stephenson is that the Commission’s
jurisdiction to deal with a dispute over the application of an agreement is a jurisdiction that
must be conferred by the agreement itself and any limits imposed by the Act.
[32] Section 170LX in the Workplace Relations Act 1996, as applied at the time of the
decision in Stephenson, states:
170LX When a certified agreement is in operation
(1) A certified agreement comes into operation when it is certified and, subject to
this section, remains in operation at all times afterwards.
(2) The agreement ceases to be in operation if:
(a) its nominal expiry date has passed; and
(b) it is replaced by another certified agreement.
[33] Section 58 of the FW Act states:
58 Only one enterprise agreement can apply to an employee
Only one enterprise agreement can apply to an employee
(1) Only one enterprise agreement can apply to an employee at a particular time.
General rule—later agreement does not apply until earlier agreement passes its
nominal expiry date
(2) If:
(a) an enterprise agreement (the earlier agreement) applies to an employee in
relation to particular employment; and
(b) another enterprise agreement (the later agreement) that covers the
employee in relation to the same employment comes into operation; and
(c) subsection (3) (which deals with a single-enterprise agreement replacing a
multi-enterprise agreement) does not apply;
then:
(d) if the earlier agreement has not passed its nominal expiry date:
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(i) the later agreement cannot apply to the employee in relation to that
employment until the earlier agreement passes its nominal expiry date;
and
(ii) the earlier agreement ceases to apply to the employee in relation to
that employment when the earlier agreement passes its nominal expiry
date, and can never so apply again; or
(e) if the earlier agreement has passed its nominal expiry date—the earlier
agreement ceases to apply to the employee when the later agreement comes
into operation, and can never so apply again.
[34] Section 58(2)(e) of the FW Act has the same effect as 170LX(2)(b). That is, once an
agreement which has passed its nominal expiry date is replaced, the old agreement ceases to
operate (or, in the new parlance, the old agreement ceases to apply and can never apply
again).
[35] In this case the earlier agreement (the JAM Agreement) had passed its nominal expiry
date at the time the later agreement (the Zinfra Agreement) came into operation. By virtue of
s.58(2)(e) the JAM Agreement ceased to apply to Mr Hardy at the time the Zinfra Agreement
came into operation and can never apply again.
[36] Section 51 of the FW Act states:
51 The significance of an enterprise agreement applying to a person
(1) An enterprise agreement does not impose obligations on a person, and a person
does not contravene a term of an enterprise agreement, unless the agreement applies to
the person.
(2) An enterprise agreement does not give a person an entitlement unless the
agreement applies to the person.
[37] Once the JAM Agreement ceased to apply to Mr Hardy any entitlements available to
Mr Hardy pursuant to that agreement ceased to exist.
[38] There is nothing discernible in the FW Act that suggests any general savings provision
with respect to an application made pursuant to a dispute settling procedure once the
agreement that contains that procedure ceases to apply. In this respect the general limits in the
FW Act have not changed from those in existence in the Workplace Relations Act 1996. As
such, the principles in Stephenson remain apposite.
[39] There is no savings provision in the Zinfra Agreement such that a dispute raised under
the JAM Agreement can continue to be prosecuted once the JAM Agreement ceased to apply.
[40] Absent any saving provision in the Zinfra Agreement and taking into account the
limits in the FW Act, on the basis of the authority in Stephenson, the JAM Agreement cannot
continue to apply to Mr Hardy such that the dispute settling procedure under the JAM
agreement could be invoked with respect to matters arising under the JAM Agreement.
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[41] This conclusion is further supported by the decisions of the Commission in Pulle and
de Jong. No submissions to the contrary were put to me by APESMA.
Conclusion
[42] On this basis I must find that the Commission has no jurisdiction to deal with the
dispute.
[43] Having reached this conclusion with respect to the first jurisdictional matter raised by
Jemena there is no call to consider the further jurisdiction objection.
[44] Having reached the conclusion that jurisdiction does not exist there is nothing to
warrant the consideration of the merits of the case put by APESMA. I make no finding as to
those merits.
[45] I appreciate that this conclusion may not satisfy Mr Hardy. He is strongly of the view
that he cannot be ‘allocated’ to Zinfra nor that he could be required to work on Zinfra assets.
It seems to me that these matters flow from organisational decisions taken by Jemena a
number of years ago and from the scope of the Zinfra Agreement. It was, perhaps, at the time
the Zinfra Agreement was negotiated (which I understand Mr Hardy participated in) and
during the approval process for that Agreement that issues associated with the scope of the
Zinfra Agreement should have been, and was best, addressed. It is too late, once the
Agreement has been approved, to cavil with the express scope of the Agreement.
[46] In these circumstances the application made by APESMA to have the Commission
deal with a dispute pursuant to the dispute settling procedure of the JAM Agreement is
dismissed.
COMMISSIONER
Appearances:
Baulch, J for the Applicant.
Follett, M of counsel for the Respondent.
Hearing details:
2013.
Melbourne;
31 July.
1 AIRC PR952743.
2 (2009) 190 IR 365, [14].
3 (2010) 196 IR 145, [16].
4 Jemena Asset Management Agreement (Vic) 2009 [2010] FWAA 214.
5 ZNX Victorian Staff Enterprise Agreement 2012 [2013] FWCA 1103.
NORK OMMISSION OF FAIR WORK F THE SEAL
[2013] FWC 5617
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6 Exhibit APESMA 2, attachment DWH1.
7 Transcript PN576-87.
8 Transcript PN590-2.
9 Exhibit JAM4, paragraph 13.
10 Exhibit JAM 4, paragraph 13.
11 See, for example, Exhibit APESMA2, attachment DWH6.
12 Exhibit JAM4, paragraphs 16-22.
13 AIRC PR952743 [49].
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