1
Fair Work Act 2009
s.739—Dispute resolution
Helmut Ponczek
v
Serco Australia Pty Ltd
(C2013/1633)
COMMISSIONER BISSETT MELBOURNE, 15 JANUARY 2014
Alleged dispute regarding payment in relation to travel time.
[1] On 15 October 2013 Mr Helmut Ponczek (the Applicant) made an application for the
Fair Work Commission (the Commission) to deal with an industrial dispute in accordance
with the provisions of the Serco Immigration Services Agreement 2011 (the 2011 Agreement).
The Applicant is employed by Serco Australia Pty Ltd (the Respondent).
[2] The matter in dispute relates to the payment of excess travelling and fares the
Applicant says are due to him for the period 19 May 2011 to 8 September 2011 (the relevant
period) when he was working on Christmas Island.
[3] The Respondent has raised a number of jurisdictional objections to the Commission
dealing with the dispute.
[4] This decision deals with the jurisdictional objections only.
[5] In making submissions with respect to the jurisdictional objections each party has
indicated its agreement that the Commission decide the jurisdictional matters on the basis of
the written submissions filed by the parties in accordance with the directions of the
Commission.
Terms of the Agreement
[6] The relevant clauses from the 2011 Agreement, as raised by the Respondent and as are
relevant to the matters to be determined state:
2. Scope & application
(a) ...
(b) This Agreement operates to the exclusion of any Federal or State award(s),
other certified, lodged or registered workplace agreements.
[2014] FWC 246
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 246
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45. Grievance and disputes resolution procedure
(a) In the event that any grievance or dispute arises, including disputes about the
National Employment Standards or matters in this Agreement, every effort
shall be made by the parties to resolve the grievance or dispute at the
workplace level in accordance with the process set out in this clause.
(b) The aggrieved employee/employees must discuss the issue with their
immediate supervisor in an attempt to resolve the matter at the workplace.
(c) If such discussions do not resolve the matter, then discussions are to be held
between the employee or employees concerned and more senior levels of
management as appropriate. At and from this stage, a party to the dispute may
appoint another person, organisation or association to accompany or represent
them in relation to the dispute.
(d) If the dispute or grievance is unable to be resolved at the workplace, and all
agreed steps for resolving it have been taken, the matter may be referred by
either party to Fair Work Australia for resolution by mediation and/or
conciliation and, where the matter in dispute remains unresolved, arbitration, If
arbitration is necessary, the FWA may exercise the procedural powers in
relation to hearings, witnesses, evidence and submissions which are necessary
to make the arbitration effective.
(e) It is a term of this Agreement that while the dispute settlement procedure is
being conducted work shall continue normally unless an employee has a
sustainable concern about an imminent risk to his or her health or safety.
Subject to the concern about safety, the employee must comply with lawful
and reasonable directions given by the company to perform other available
work, whether at the same location or another location, that is appropriate for
the employee to perform.
(f) To allow for the orderly resolution of grievances and disputes, the parties are
committed to avoiding stoppages of work, lockouts or any other bans or
limitations on the performance of work while the processes of discussion,
negotiation, conciliation and arbitration are being followed.
[7] The 2011 Agreement was approved on 20 January 2012 and, in accordance s.186 of
the Fair Work Act 2009 (the Act), operated from 27 January 2012.
[8] It is apparent therefore that the 2011 Agreement was not in operation and therefore did
not cover the Applicant during the relevant period.
[9] The agreement in operation prior to the 2011 Agreement is the Serco Immigration
Detention Centre Agreement 2009 (the 2009 Agreement).
[10] The applicant made an earlier application to the Commission to deal with the subject
matter of this dispute. That application was dismissed by Lee C in Helmut Ponczek v Serco
Group Pty Ltd1 (Ponczek) essentially because, on the day of the hearing, the Applicant’s
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representative sought to substantially alter his application to rely on an additional clause of
the 2009 Agreement. Such an alteration meant that the disputes settling procedure had not
been complied with and, for this reason, the Commission did not have jurisdiction.
Submissions
Serco
[11] The Respondent submits that the application (the Form F10) invites the Commission
to exercise its arbitral powers pursuant to the 2011 Agreement in order to resolve a matter that
goes to facts and circumstances that existed in relation to the 2009 Agreement.
[12] The Respondent raises four key jurisdictional objections which, it says, limits the
Commission’s powers to deal with the subject matter of the dispute.
[13] Firstly, the Respondent submits that the Commission’s power to arbitrate is found in
subclause 45(d) of the 2011 Agreement but that the 2011 Agreement does not give the
Commission power to arbitrate any rights that may or may not exist prior to the operative date
of the 2011 Agreement. Further, it says, ss.576(1), 576(2) and 186(6) of the Act require the
Commission to exercise power ‘in conjunction with, subject to and limited by an agreed
dispute resolution procedure in the 2011 Agreement.’ It is the disputes resolution clause in the
2011 Agreement, it submits, that both authorises and limits the Commission to make decisions
about the legal rights and responsibilities of the parties.
[14] Second, the Applicant submits that power to arbitrate the dispute is further confined by
the scope of the 2011 Agreement and cannot go beyond that scope of the 2011 Agreement.
[15] The Respondent submits that the subclause 2(b) of the 2011 Agreement (set out above)
‘limits the agreement to matters under the agreement and to no other agreement.’ It contends
that because the scope clause specifies that the 2011 Agreement operates to the exclusion of
any award or workplace agreement, any provision arising under the 2009 Agreement is
excluded from the scope of the 2011 Agreement and therefore cannot be dealt with under
clause 45.
[16] Third, the Respondent submits that the Applicant’s right to raise matters in respect of
the 2009 Agreement are extinguished.
[17] The Respondent says that the Commission has no jurisdiction because the Applicant’s
rights have been extinguished because the 2009 Agreement has ‘expired’. The Applicant
therefore cannot invoke the dispute settling procedures of the 2009 Agreement to resolve the
dispute.2 As the 2009 Agreement has ceased to operate the power to arbitrate pursuant to that
agreement no longer exists.3
[18] The Respondent also submits that the relevant time to consider the dispute arising
under the 2009 Agreement must be at the time the 2009 Agreement was in operation.
[19] Fourth, the Respondent says that the dispute is not sufficiently clear to be able to be
dealt with by the dispute setting procedure.4 The Respondent says that the Form F10 indicates
the dispute is founded on clause 19. However, clause 19 of the 2009 Agreement includes
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subclause 19(d)(v) and Lee C found in Ponczek that there was no dispute involving subclause
19(d)(v).
[20] In this case the Respondent also says that the application (Form F10) is not clear as:
1. Some of the provisions of clause 19 of the 2009 Agreement bear no relation to
excess travel, for example subclauses 19(a) Meal Allowance, 19(b) District
Allowance etc; and
2. Some of the provisions of clause 19 cannot be reasonably connected to a
monetary demand; and
3. Because of those matters in 1 and 2 the dispute cannot be settled in its entirety
in conciliation and therefore cannot be subject to arbitration. Clause 19 deals
with different and unrelated matters and, according to the decision in Ponczek
subclause 19(ii) is different to subclause 19(v) and cannot be relied on in the
alternative.
Helmut Ponczek
[21] The Applicant submits that s.595 of the Act provides power for the Commission to
deal with disputes. Section 595(3) specifically states:
(3) The FWC may deal with a dispute by arbitration (including by making any orders
it considers appropriate) only if the FWC is expressly authorised to do so under or in
accordance with another provision of this Act.
[22] The Applicant submits that clause 45 of the 2011 Agreement provides that
authorisation. The process set out in clause 45 is applicable ‘in the event that any grievance or
dispute arises, including disputes about the National Employment Standards or matters in this
Agreement’.
[23] The Applicant submits that subclause 45(a) is clear in that any dispute or grievance
may be dealt with under it. It submits that the Respondent’s submission that the clause is
limited to matters arising under the 2011 Agreement is untenable.
[24] The Applicant further submits that the Respondent misconstrues the application of
subclause 2(b) of the 2011 Agreement. The Applicant says that subclause 2(b) does no more
than give effect to s.58 of the Act which provides that only one enterprise agreement can
apply to an employee at a particular time. It does not operate to negate the rights of employees
covered by the 2011 Agreement under any previous agreement including the 2009 Agreement.
The Applicant submits that subclause 2(b) does not operate to limit the Applicant’s right to
initiate disputes but instead operates to ensure ‘no duplication, contradiction or confusion of
the rights and obligations of the parties’5 to an agreement at any one time.
[25] The Applicant says that in the decision in Ponczek Lee C dismissed the application on
the basis that the Applicant, having relied on subclause 19(d)(v) up until the day of the
hearing, changed his position on the day of the hearing. The Commissioner found it unfair to
the Respondent to allow the substantive matter to be heard in such circumstances. The basis
of this application however varies from that considered in Ponczek in that the Applicant has
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not relied on a particular paragraph in subclause 19(d) but rather has specified subclause 19(d)
to ground the dispute.
[26] The Applicant submits that subclause 45(a) of the 2011 Agreement defines a dispute
‘very broadly’. Subclause 45(a) does not require a dispute to be identified by reference to a
clause or part of a clause of an enterprise agreement nor does it prevent the initiation of a
dispute about a factual scenario without reference to a clause in the agreement.
[27] The Applicant says that the powers of the Commission to arbitrate are limited only by
the terms of the Agreement. Clause 45 of the 2011 Agreement provides no limitation such as
those advanced by the Respondent.
[28] The Applicant submits that on 27 June 2013 he emailed his grievance to his supervisor
in accordance with subclause 45(b) of the 2011 Agreement. From this point the dispute has
been escalated in accordance with the provisions of the 2011 Agreement to the Detention
Centre Manager and Senior Industrial Officer of United Voice. The matter was then escalated
to the Employee Relations Manager of the Respondent who replied by denying the
Applicant’s claim. A dispute notification was then filed with the Commission.
[29] The Applicant says that the dispute was initially framed such that it related to the
payment of excess travelling time and subclause 19(d) of the 2011 Agreement. To this end the
Applicant submits that the dispute was not clouded and there was clearly room for the parties
to resolve the matter in dispute. In any event the Applicant submits that, from the time the
matter was initially raised in October 2011, it has always clearly been about the payment of
excess travel time during the period in question.
[30] The Applicant submits that the Commission should exercise its power under s.577 of
the Act in light of the time and effort expended so far by him in pursuing his claim. The
Applicant further submits that the Commission would be relying on unnecessary technicalities
if it dismissed the application on the grounds of some contrast between paragraph 4 of the
Form F10 (the originating application) and previous communication of the Respondent. If the
Commission did find such a difference to be an obstacle in arbitrating the matter the
Applicant seeks leave to amend his application so that it reflects that the dispute relates to:
1. The application and interpretation of subclause 19(d) of the 2009 Agreement;
and
2. The payment of excess travelling time during the relevant period.
Consideration
[31] The Form F10 lodged by the Applicant on 15 October 2013 contains the following
information:
1. The dispute is referred to the Commission pursuant to the dispute settling
procedure in the 2011 Agreement.
2. The clause to which the dispute relates is the application of clause 19 of the
2009 Agreement with particular attention drawn to subclause 19(d) Excess
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traveling (sic) and fares, in particular to sub-subclauses (sic) 19(d)(ii) and
19(d)(v).
[32] The relief sought by the Applicant is that the Commission should conciliate and, if that
fails, arbitrate the dispute.
[33] It can be surmised from the Form F10 that the Applicant believes he is entitled to a
payment of $2,027.70 and, by this application, seeks to have this resolved.
[34] The remainder of the dispute notification sets out in some more detail the history of
the dispute.
[35] The application therefore does seek that the Commission exercise its arbitral powers
under the 2011 Agreement to resolve a dispute with respect to the payment of excess
travelling time and fares arising from the operation of the 2009 Agreement during the relevant
period.
[36] Subclause 45(a) of the 2011 Agreement states that
In the event that any grievance or dispute arises including disputes about the National
Employment Standards or matters in this Agreement
then the procedure in the clause will be utilised to resolve the dispute.
[37] There is nothing in this clause that operates to limit those matters that may be raised
under the clause. The use of the word ‘including’ after ‘any grievance or dispute’ makes clear
that the dispute or grievance can be about matters broader than those encapsulated by the NES
or the content of the 2011 Agreement.
[38] Clause 45 of the 2011 Agreement, and in particular subclause 45(a), is clear on its
face. Whilst the Respondent says that the clause must be interpreted in context, the purpose in
doing so is not to find some basis on which to read down a clause that is found by a party to
be inconvenient in its expression or to change the meaning of a provision that is clear.
[39] In Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd6 (Lion Nathan) Weinberg J
found:
To determine the objective intention of the parties regard must be had, of course, to
the words in the document themselves, but regard should also be had to all of the
surrounding circumstances which were known to the contracting parties at the time the
document was created including the underlying purpose and object of the commercial
transaction.7
[40] The surrounding circumstances, including the rest of the 2011 Agreement and the Act
were known to the parties at the time clause 45 was finalised and agreed to. If it had been the
intent of the parties to limit the reach of the dispute setting procedures of the agreement such
that it should only apply to matters arising under the NES or in the Agreement itself it would
be expected that the words of the clause would say so. They do not. The words are
purposefully broad. There is no basis to read down the clause as sought by the Respondent to
exclude the words ‘including disputes’ from the clause.
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[41] While it may be contended by the Respondent that the scope of dispute settling
procedures allowed for under the Act and the provisions of s.58 of the Act may be in conflict
it seems to me that these two provisions can sit comfortably together through the structure and
breadth the parties choose to give to the dispute settling procedure of the agreement freely
reached between them.
[42] In the Private Arbitration Case8 the High Court held that:
The parties to an industrial situation are free to agree between themselves as to the
terms on which they will conduct their affairs. Their agreement has effect according to
the general law. If their agreement is certified, it also has effect as an award. To the
extent that an agreement provides in a manner that exceeds what is permitted either by
the Constitution or by the legislation which gives the agreement effect as an award, it
cannot operate with that effect. But the underlying agreement remains and the validity
of that agreement depends on the general law, not the legislative provisions which give
it effect as an award.9
[43] Whilst the terminology of the legislation has changed with respect to awards and
certified agreements the relationship between the dispute resolution procedure and the
legislation remains.
[44] I therefore find that clause 45 of the 2011 Agreement allows me to arbitrate on any
dispute or grievance properly raised in accordance with the procedures in clause 45.
[45] The Respondent raises a novel argument that subclause 2(b) to the 2011 Agreement
operates to limit the plain words of clause 45.
[46] I agree with the submissions of the Applicant on this matter that subclause 2(b) does
no more than reflect s.58 of the Act and make clear that the 2011 Agreement excludes the
operation of any award or other agreement that might otherwise apply to the employees.
[47] Even without the inclusion of subclause 2(b) in the 2011 Agreement, s.58 of the Act
operates to ensure that only one enterprise agreement applies to employees at any one time. If
the Respondent was correct in its assertion that subclause 2(b) operates so that a dispute can
only be raised with respect to the operation of the 2011 Agreement it would have to be
concluded that s.58 of the Act would have the same effect.
[48] I do not consider this a logical conclusion of the inclusion of subclause 2(b) in the
2011 Agreement. I am content that subclause 2(b) does no more than make clear that the 2011
Agreement applies to the exclusion of awards and previous agreements consistent with s.58 of
the Act. Subclause 2(b) does not operate to limit the clear intention of clause 45 of the
Agreement.
[49] To use subclause 2(b) to attempt to narrow the meaning of clause 45 when there is no
evidence that this was ever the intention of the parties is not a proper exercise of interpreting
the intention of the 2011 Agreement.
[50] In Boral Resources v Transport Workers’ Union of Australia10 the Full Bench of the
Commission considered the provisions of the Act and what limitation, if any, these may
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impose on a disputes settling procedure in an Agreement. After considering ss.172, 186, 595,
738 and 739 of the Act the Full Bench concluded that:
[15] Section 738(b), on the plain meaning of its words, contemplates that an enterprise
agreement may contain a term that provides a procedure for dealing with disputes that
goes beyond the requirements of s.186(6). This is unambiguously suggested by the
explication that commences with the word “including”. We think that this is a
conclusive indication that the Parliament intended s.186(6) to operate only as a
minimum requirement and not as a restriction on the inclusion of dispute resolution
procedures that, although, within the ambit of “permitted matters” as specified in
s.172, have an operation outside the categories specified in s.186(6)(i) and (ii).
[16] This construction is supported by a consideration of the objects of the FW Act, in
particular, the object s.3(e) which refers to “enabling fairness and representation at
work by ... providing accessible and effective procedures to resolve grievances and
disputes ...”. It is a matter of common experience that disputes can arise between an
employer and employees bound by an enterprise agreement that manifestly pertain to
the employment relationship but are about matters that are not dealt with, or otherwise
regulated in the enterprise agreement, typically because the circumstances giving rise
to the dispute were not contemplated at the time the agreement was made. The
construction advanced by Boral would leave such disputes without any mechanism by
which they could be addressed by denying parties to a proposed agreement the option
of including a term in their agreement that allows Fair Work Australia to resolve such
disputes by whatever means therein agreed.
[17] Any doubt that the construction we have adopted is correct is removed by the
Explanatory Memorandum which states:
2733. Modern awards and enterprise agreements must include a term providing
a procedure for settling disputes about matters arising under the modern award
or enterprise agreement (as the case may be) and in relation to the NES (these
requirements are set out in clause 146 for modern awards and in clause 186 for
enterprise agreements). A modern award or enterprise agreement may also
provide a procedure for settling other disputes at a workplace. This Division
[Div 2 of Part 6-2 - “Dealing with Disputes”] will also apply to those matters.
(underline emphasis added)
[51] I agree with the conclusion of the Full Bench and adopt this reasoning in relation to
the matter before me.
[52] I therefore conclude that there is no impediment in Act (including s.58) to the dispute
settling procedure providing for the Commission to arbitrate on disputes that go beyond
matters arising under the 2011 Agreement and the NES.
[53] The Applicant does not seek to have the dispute arbitrated pursuant to the 2009
Agreement. If he did then there may be a valid jurisdiction objection as there is clear authority
for the finding that once an agreement ceases to apply then the Commission no longer has
jurisdiction to exercise arbitration under that agreement.11
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[54] As set out above, the relief sought by the Applicant is that the Commission should
conciliate and, if that is not successful in settling the matter, arbitrate the matter in dispute.
[55] The Applicant has, since the time he first raised the issue with his management, sought
the payment of excess travelling time for the period of time he was temporarily stationed at
Christmas Island. The Respondent cannot argue that it is not aware of the details of the claim.
[56] I am satisfied that the Applicant has clearly articulated the matter in dispute between
himself and the Respondent and that this matter goes to the payment of excess travelling time
and fares due to him for the period 19 May to 8 September 2011.
[57] The entitlement to the allowance is founded in the 2009 Agreement which covered the
Applicant during the relevant period.
[58] Section 739 of the Act provides:
739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the
FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about
whether an employer had reasonable business grounds under subsection 65(5) or
76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise
agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC
to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term
of an enterprise agreement that has the same (or substantially the same) effect as
subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by
the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may
arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by
making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent
with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the
dispute.
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[59] It is clear from this section that the Commission must not exercise any powers limited
by clause 45 of the 2011 Agreement and that any decision made must not be inconsistent with
the Act or the 2011 Agreement.
[60] I have found above that I have power under clause 45 of the Agreement to deal with a
dispute that goes beyond the application of the 2011 Agreement and the NES.
[61] The 2011 Agreement provides for the payment of various allowances associated with
travelling and working away from the normal place of work.
[62] I am satisfied that the matter in dispute can be resolved by a decision that is not
inconsistent with the Act or the 2011 Agreement.
[63] The Respondent complains that the Applicant has not clearly articulated the matter in
dispute such that it is capable of resolution by conciliation. It says that the dispute must be
clear either in the Form F10 or at the time the dispute was raised so that the Respondent is
able to clearly deal with the matter.
[64] The evidence relevant to this matter has been provided by both the Applicant and by
Mr Graham of the Respondent.
[65] The Applicant, in an email dated 27 June 2013 to Rajnder Malhotra, makes it clear
that the matter in dispute relates to ‘the non-payment of excess travel time that occurred
during [Mr Ponczek’s] secondment on Christmas Island between 19th May 2011 and 8th
September 2011.’12 This articulation of the dispute is repeated in correspondence from Mr
Iannis Patin of United Voice to Ms Denise Alexander of the Respondent13 and again in a letter
from Dr Paul Sutton of United Voice to Mr Graham of the Respondent.14
[66] I further note that in the letter from Dr Sutton he says:
Having been involved in previous discussions in relation to the substantive matters in
the dispute and having cross-examined Mr Ponczek during the course of the hearing of
Fair Work Australia (sic) matter C2012/4555, we understand you to be aware that Mr
Ponczek’s claim is based on the operation of clause 19(d) of the Serco Immigration
Detention Centres Agreement 2009 (previous Agreement).
We understand the key matters in dispute to be:
a). Whilst on the secondment in question how much time it took Mr Ponczek to
commute to and from work; and
b). Which, if any, sub-clause(s) of clause 19(d) of the previous Agreement
applied to Mr Ponczek at that time.
[67] In a reply to Dr Sutton, Mr Graham does not reply to the central issue claimed by the
Applicant but indicates that he considers it is not possible to review the claims dealt with in
C2012/4555 and that an attempt to return to that matter is an abuse of process and that he does
not consider the Applicant’s claims, as framed, capable of arbitration under clause 45 of the
2011 Agreement.
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[68] I am satisfied that in raising matter C2012/4555 Dr Sutton was not seeking to re-
agitate (and does not seek to re-agitate) that matter but rather sought to do no more than
highlight that the matters in dispute are the same as those raised in C2012/4555 and as Mr
Graham was involved in that matter he should therefore be able to understand the detail of the
claim.
[69] Such a contextualisation cannot be overly criticised, particularly as this dispute flows
from the jurisdiction dismissal of C2012/4555.
[70] The Respondent says that the Applicant asserts in his application that the dispute
relates to clause 19 of the 2009 Agreement. However many parts of clause 19 do not relate to
excess travel time with some relating to meal allowance, district allowance and so on.
[71] In his correspondence to the Respondent on 27 June 2013 the Applicant makes clear
that his dispute goes to the ‘non-payment of excess travel time’. This was reiterated in further
correspondence between United Voice (for the Applicant) and the Respondent.
[72] In his Form F10 the Applicant discloses the following as the clause to which the
dispute relates:
The dispute relates to the application of clause 19 of the Serco Immigration Detention
Centres Agreement 2009 (‘the 2009 Agreement’). We draw the Commission’s
attention to subclause 19(d) Excess traveling (sic) and fares, in particular to sub-
subclauses (sic) 19(d)(ii) and 19(d)(v).
[73] It is unclear where or how this creates the confusion that the Respondent claims. The
subject matter of the dispute was clearly articulated in the correspondence to the Respondent
from 27 June 2013 onwards and its reference to the 2009 Agreement is firmly established by
the Applicant to relate to subclauses 19(d)(ii) and 19(d)(v). Each of these paragraphs deals
with the payment of travel time and excess travel time. I would note however that should the
Applicant seek to rely on some other part of clause 19 or raise matters that do not go to the
payment of excess travel time and fares, jurisdictional matters not unlike those raised in the
decision in Ponczek may arise again.
[74] There is, in my view, based on a plain reading of the correspondence from and on
behalf of the Applicant and the Form F10, a clear articulation of the claim of the Applicant.
That representatives of the Respondent chose not to respond directly the claim made or seek
clarification of it cannot be used by it now to argue that the claim was not clearly articulated.
[75] For these reasons I dismiss the jurisdiction objections of the Respondent.
The matter in dispute
[76] I am satisfied that the matter in dispute is the non-payment of excess travel time to the
Applicant that occurred during his secondment to Christmas Island between 19 May 2011 and
8 September 2011. The dispute arises pursuant to clause 19 of the 2009 Agreement and in
particular subclause 19(d)(ii) and 19(d)(v).
[77] The matter in dispute is a matter which can be dealt with in accordance with clause 45
of the 2011 Agreement.
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[78] I am satisfied that the matter in dispute has been properly dealt with in accordance
with clause 45 of the 2011 Agreement. It has been subject to conciliation before the
Commission. The process to date has not resolved the issue.
Directions
[79] The Applicant, in his written submissions on the jurisdictional matter, has proposed
directions for the disposition of the substantive application.
[80] The Respondent is directed to file any response to those proposed directions or
propose alternative directions within seven days of the issue of this decision.
[81] Final directions will be issued in due course.
COMMISSIONER
Final written submissions:
Applicant, 13 December 2013.
Respondent, 29 November 2013.
1 [2013] FWC 3773
2 de Jonge v Australian Broadcasting Corporation (2010) 196 IR 145.
3 Stephenson v Senator the Honourable Eric Abetz AIRC 28 October 2004 [PR 952743].
4 Ponzcek at [44]-[46].
5 Applicant’s Submission [21].
6 (2006) 156 FCR 1.
7 (2006) 156 FCR 1, 50, [251] per Lander J.
8 [2001] HCA 16.
9 Ibid [34].
10 [2010] FWAFB 8437.
11 See Stephenson v Senator the Honourable Eric Abetz AIRC 28 October 2004 (Acton SDP, Ives DP, Richards C) PR952743
12 See attachment CG1 to statement of Colin Graham.
13 See attachment CG1 to statement of Colin Graham.
14 See attachment CG4 to the statement of Colin Graham.
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NORK OMMISSION OF FAIR WORK F THE SEAL
