1
Fair Work Act 2009
s.739—Dispute resolution
The Australian Workers’ Union
v
Barminco Pty Ltd
(C2013/4891)
Mining industry
COMMISSIONER LEE MELBOURNE, 3 APRIL 2014
Application to deal with a dispute - alleged dispute concerning redundancy entitlements
under the Barminco (Tasmania) Enterprise Agreement 2012.
[1] On 25 June 2013, The Australian Workers’ Union (the Applicant) notified a dispute
with Barminco Pty Ltd (the Respondent) to the Fair Work Commission (the Commission)
pursuant to the dispute settlement procedure contained in clause 7 of the Barminco
(Tasmania) Enterprise Agreement 20121 (the Agreement).
[2] The application lodged stated that the dispute related to clauses 7 “Dispute Resolution
Procedure”, 11 “Termination of employment” and 24 “Redundancy” of the Agreement.
Background to the dispute and the Proceedings thus far
[3] In May 2013, the operator of the Roseberry Mine in Roseberry, Tasmania, announced
that the existing underground mining contractor, the Respondent, was unsuccessful with its
tender application for a new contract to commence from 1 July 2013. This raised the prospect
of possible redundancy for approximately 120 of the Respondent’s employees.
[4] The Respondent offered alternative employment at another site to a number of
employees and that employment was accepted by a significant number of those employees.
Other employees resigned their employment.
[5] On 25 June 2013, the Applicant lodged an application with the Commission to deal
with a dispute with the Respondent. That application related to a number of employees whose
circumstances subsequent to the tender process remained a matter of dispute.
[6] The dispute was listed for conciliation by Commissioner Deegan on 28 June 2013.
[2014] FWC 1954
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 1954
2
[7] On 12 July 2013, the Applicant wrote to the Associate for Commissioner Deegan
indicating the following:
“The union corresponds with you regarding the abovementioned matter. The
circumstances of a number of the employees affected by this dispute have now been
resolved. However, there are a number of employees the union believes are redundant.
The company does not share the unions view. Accordingly, the union requests the
matter be relisted for conference/programming.”
[8] The matter was subsequently allocated to me.
[9] I listed the matter for conference on 1 August 2013 and again on 30 August 2013. The
Australian Mines and Metals Association (AMMA) was granted permission to appear for the
Respondent.
[10] Subsequent to the conference on 30 August 2013, I issued a Statement and Directions
document which included the following:
“It has been agreed by the parties that, subject to a preliminary determination by the
Commission that there is jurisdiction to do so, the question to be determined by the
Commission to resolve the dispute is as follows;
“Were any or all of the following groups of named employees; [A], [B] and
[C]2 offered an acceptable alternative position within the meaning of clause
24.1(c) of the Barminco (Tasmania) Enterprise Agreement 2012 (the
Agreement) at the time of the cessation of the Barminco contract at the
Roseberry Mine?”
If the answer to the foregoing question is Yes, it is agreed by the parties that the
relevant group/s of employees are not entitled to a redundancy payment under the
terms of the Agreement.
Conversely, if the answer to the question is No, it is agreed by the parties that the
relevant group/s of employees are entitled to a redundancy payment in accordance
with the terms of clauses 24.3 and 24.4 of the Agreement.
Jurisdiction
Barminco has raised a single jurisdictional objection to the question as framed above
being determined by the Commission.
That objection is based on the operation of clause 7.2 of the Agreement which is in the
following terms;
“7.2 In the event of any dispute arising as to the interpretation of this
Agreement or any dispute (excluding matters concerning the termination of
employment) pertaining to the employment relationship the following
procedure shall apply.
[2014] FWC 1954
3
7.3 Procedure
(a) When a grievance arises the matter shall in the first instance be
discussed between the employee/s and the Immediate Supervisor. If the
matter remains unresolved:-
(b) It may be referred for discussion between the employee/s and
the Project Manager. If the matter remains unresolved:-
(c) It may be referred for discussion between the employee/s and
the Company’s nominated offsite senior manager.
(d) If the matter cannot be resolved directly between the parties to
the dispute, or if it is not practicable for steps (a) and (b) to be
completed because of the nature of the dispute , either of the parties to
the dispute may refer the matter to senior representatives of the
company and state officials of the AWU for discussions.
(e) If the matter remains unresolved:-
(f) Either party may refer the issue to FWA for conciliation.
(g) If conciliation is unable to resolve the matter, the Union or the
Company may request FWA to arbitrate the matter.
(h) Subject to the rights of appeal, the Parties shall be bound by the
decision of the arbitrator. Any appeal will be by way of review rather
than by re-hearing.
(i) At the stage of the process referred to in (b) above and
thereafter an employee may be represented by the Union or another
employee.”
The parties agree that there are no other jurisdictional barriers to the matter being
determined.
It has been agreed between the parties that the jurisdictional objection will be dealt
with as a preliminary matter before directions are set for determination of the
substantive question. The jurisdictional question to be determined is as follows:
“Does clause 7.2 prevent the Commission from being able to determine the
question above?”
[11] The first part of this decision deals with the jurisdictional objection raised by the
Respondent.
[12] I note that the Respondent, notwithstanding their agreement on 30 August 2013 that
there were no other jurisdictional issues, raised a further jurisdictional impediment in written
[2014] FWC 1954
4
submissions. The further submission, “...is that ex employees cannot seek to continue to avail
themselves of clause 7 given they have initiated their own termination...”.3 I will deal with the
further submission in the second part of this decision.
[13] Finally, I note that the Statement and Directions document provided that either party
could request a hearing in the matter. Neither party has requested that there be a hearing prior
to the nominated date in my Statement and Directions or subsequently. Accordingly, I will
determine the matter based on the written submissions received.
The law to be applied
[14] This decision requires a consideration of the correct approach to the construction of
the terms of an enterprise agreement. I canvassed the key authorities in my decision in
National Union of Workers v Warehouse Solutions Pty Ltd4 and for convenience I will in
large measure reproduce them here.
[15] The general approach to the construction of enterprise agreements was considered in
the Full Bench decision of the Commission, Cape Australia Holdings Pty Ltd T/A Total
Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union5,. The Full
Bench stated that;
“[7] As to the general approach to the construction of enterprise agreements the
observations of French J, as he then was, in City of Wanneroo v Australian Municipal,
Administrative, Clerical and Services Union (Wanneroo) are apposite:
“[53] The construction of an award, like that of a statute, begins with
a consideration of the ordinary meaning of its words. As with the task
of statutory construction regard must be paid to the context and purpose
of the provision or expression being construed. Context may appear
from the text of the instrument taken as a whole, its arrangement and
the place in it of the provision under construction. It is not confined to
the words of the relevant Act or instrument surrounding the expression
to be construed. It may extend to ‘...the entire document of which it is a
part or to other documents with which there is an association’. It may
also include ‘....ideas that gave rise to an expression in a document from
which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR
511 at 518 (Burchett J); Australian Municipal, Clerical and Services
union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345
(Marshall J).”
[8] While his Honour’s observations were made in the context of interpreting an
award the same principles apply to the interpretation of enterprise agreements. For
example, similar observations were made by their Honours Gummow, Hayne and
Heydon JJ in Amcor v CFMEU:
“Clause 55.1.1 must be read in context. It is necessary, therefore, to
have regard not only to the text of cl 55.1.1, but also to a number of
other matters: first, the other provisions made by cl 55; secondly, the
[2014] FWC 1954
5
text and operation of the Agreement both as a whole and by reference to
other particular provisions made by it; and, thirdly, the legislative
background against which the Agreement was made and in which it was
to operate.”
[9] The fact that the instrument being construed is an enterprise agreement is itself
an important contextual consideration. As French J observed in Wanneroo, at
paragraph [57]:
“It is of course necessary, in the construction of an award, to remember,
as a contextual consideration, that it is an award under consideration. Its
words must not be interpreted in a vacuum divorced from industrial
realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and
cases there cited. There is a long tradition of generous construction over
a strictly literal approach where industrial awards are concerned - see eg
Geo A Bond and Co. Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at
503-504 (Street J). It may be that this means no more than that courts
and tribunals will not make too much of infelicitous expression in the
drafting of an award nor be astute to discern absurdity or illogicality or
apparent inconsistencies. But while fractured and illogical prose may be
met by a generous and liberal approach to construction, I repeat what I
said in City of Wanneroo v Holmes (at 380):
“Awards, whether made by consent or otherwise, should make
sense according to the basic conventions of the English
language. They bind the parties on pain of pecuniary
penalties.””6 [Footnotes omitted]
[16] The case at hand involves the possible consideration of extrinsic material. It is
therefore important to consider the admissibility of such material and whether or not it is
necessary to find ambiguity in the relevant instrument before it is admissible.
[17] In Watson v ACT Department of Disability Housing and Community Services7, a
decision of Vice President Lawler, it was held that;
“[15] In summary, the general principles governing the construction of contracts laid
down by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New
South Wales apply to the construction of industrial agreements. However, consistent
with the approach in Kucks and Short v FW Hercus Pty Ltd, an industrial agreement
must always be construed in context: the context of particular provisions within the
agreement as a whole and the context in which the agreement was made including any
relevant statutory or historical context. Extrinsic evidence as to the context in which
the agreement was made, including the statutory and historical context, will be
admissible to demonstrate the existence of ambiguity and or to resolve ambiguity.”8
[Footnotes omitted]
[18] This approach was favourably referred to by the Full Bench in The Australian
Workers’ Union v Co-operative Bulk Handling Limited9 where it was stated that;
[2014] FWC 1954
6
“[14] The extract from Watson and the approach of Logan, J, inform the manner in
which we approach the test of construing the agreement and leads to the conclusion
that regard must be had to extrinsic material in order that the meaning of the clause in
question may properly be understood.”10
[19] This approach was consistent with the approach adopted by his Honour Marshall J in
Australian Municipal, Administrative, Clerical and Services Union v The Treasurer (Cth) and
others11 where it was stated that;
“There is no sound reason why recourse to probative extrinsic material by the Court
should be conditional on identification of an ambiguity. Further, there is no sound
reason why use of extrinsic material should be limited to identifying the mischief
sought to be addressed by the award, as distinct from construing the meaning of the
award itself. But the debate is rather academic. I regard myself bound by the approach
of Burchett J in Short v Hercus, Drummond J having agreed with his Honour’s
approach on the issue of award interpretation and the use of extrinsic material.”12
[20] The following section of the decision of Burchett J in Short v FW Hercus Pty Ltd13 is
relevant to a consideration of where a word or expression may be considered to be
ambiguous, what it may mean.
“The context of an expression may thus be much more than the words that are its
immediate neighbours. Context may extend to the entire document of which it is a
part, or to other documents with which there is an association. Context may also
include, in some cases, ideas that gave rise to an expression in a document from which
it has been taken. When the expression was transplanted, it may have brought with it
some of the soil in which it once grew, retaining a special strength and colour in its
new environment. There is no inherent necessity to read it as uprooted and stripped of
every trace of its former significance, standing bare in alien ground. True, sometimes
it does stand as if alone. But that should not be just assumed, in the case of an
expression with a known source, without looking at its creation, understanding its
original meaning, and then seeing how it has been used.”14
[21] In my view, there is considerable authority to support an approach that allows for the
admissibility of extrinsic material even in circumstances where ambiguity is not present.
However such an approach does not allow a departure from the principles as they apply to the
reliance on extrinsic material in Short v FW Hercus Pty Ltd15. As described above, Marshall J
in Australian Municipal, Administrative, Clerical and Services Union v The Treasurer (Cth)
and others16 makes clear he is bound by those principles.
[22] Nor does recourse to extrinsic material allow a departure from the principles applying
to construction as set out in Cape Australia Holdings Pty Ltd T/A Total Corrosion Control Pty
Ltd v Construction, Forestry, Mining and Energy Union17 already set out.
[23] I will apply these principles as relevant in this determination.
[2014] FWC 1954
7
[24] The legal position on the powers of the Fair Work Commission to arbitrate disputes
generally is as follows.
[25] Sub-sections 595(1) and (3) of the Fair Work Act 2009 (the Act) provide that:
“595 FWC’s power to deal with disputes
(1) The FWC may deal with a dispute only if the FWC is expressly authorised to
do so under or in accordance with another provision in this Act.
…
(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.”
[26] The Commission is empowered to deal with disputes through the operation of Division
2 of Part 6-2 of the Act, specifically sections 738 and 739. Relevantly, section 738 provides
that:
“738 Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with
disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for
dealing with disputes, including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement includes a term that
provides a procedure for dealing with disputes between the employer and the
employee, to the extent that the dispute is about any matters in relation to the
National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that
provides a procedure for dealing with disputes arising under the determination
or in relation to the National Employment Standards.”
[27] Section 739(3) provides that:
“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.
...
[2014] FWC 1954
8
(3) In dealing with a dispute the FWC must not exercise any powers limited by the
term.”
[28] The specific dispute settling procedure in the relevant agreement needs to be
considered in terms of the relevant law.
[29] The Agreement in this matter (which is a single enterprise agreement made in
accordance with section 172 of the Act) includes a term that provides for a procedure for
dealing with disputes at clause 7. Sub-clause 7.2 provides that:
“7.2 In the event of any dispute arising as to the interpretation of this Agreement or
any dispute (excluding matters concerning the termination of employment) pertaining
to the employment relationship the following procedure shall apply.”
[30] Sub-clauses 7.3 (e) (f) and (g) of the Agreement provide that:
“(e) If the matter remains unresolved:
(f) Either party may refer the issue to FWA for conciliation.
(g) If conciliation is unable to resolve the matter the union or the company may
request FWA to arbitrate the matter.”
The first jurisdictional question
Submissions of the Respondent
[31] As already set out, this decision deals with the jurisdictional objection of the
Respondent. The Respondent’s objection relates to clause 7.2 of the Agreement and turns on
the construction of that clause. The preferred construction put by the Respondent is as
follows:
“AMMA submits that Cls 7.2 of the Agreement allows all maters [sic] relating to the
interpretation of this Agreement and matters pertaining to the employment relationship
to be properly concluded in accordance with Cls7 but this clause contains a specific
exclusion in relation to matters “concerning the termination of employment” and as
such this jurisdictionally constrains the AWU and employees from pursuing any issue
related to termination of employment including redundancy.
...
There is a clear and unequivocal reference to termination in the Redundancy clause
and it is not open for the AWU to argue that the exclusion is not meant to cover
redundancy situations.
In summary the agreement does not distinguish as to the various modes of termination
and given that the circumstances of the dispute relate to a purported redundancy this is
[2014] FWC 1954
9
a “matter concerning the termination of employment” and as such FWC is
jurisdictionally constrained to further dealing with the matter.
AMMA seeks that the matter be dismissed.”18
[32] Essentially the argument of the Respondent is that, as section 739(3) of the Act
provides that in dealing with the dispute the Commission must not exercise any powers
limited by the term, the bracketed words contained in clause 7.2 act as such a limitation
meaning that this particular dispute cannot be dealt with by arbitration.
Submissions of the Applicant
[33] The Applicant made submissions in reply to the Respondent. The Applicant’s
submissions relate firstly to the way in which it is contended the terms of clause 7.2 should be
constructed more generally and secondly, their preferred construction of the words in brackets
“excluding matters concerning the termination of employment”
[34] As to the first submission, the Applicant contends that on its proper construction
clause 7.2 of the Agreement provides for two separate and distinct types of disputes to be
resolved through the dispute resolution procedure, namely:
“Any dispute arising as to the interpretation of this agreement or any dispute
(excluding matters concerning the termination of employment) pertaining to the
employment relationship.” (my emphasis added)
[35] The Applicant draws particular attention to the word “or” as “clearly separating those
two distinct types of dispute”. Following that approach, it is submitted that “[t]he first
category relates to matters which have as their source a provision contained within the
Enterprise Agreement. The second category relates to disputes which have as their source
matters which are not specifically provided for in a term of the enterprise agreement”.19
[36] In that context, the Applicant contends that the bracketed words, while operating as an
exclusion to the powers to be exercised, only operate in respect of the second category of
disputes, and not the first. Therefore, as the subject matter of the dispute relates to whether or
not certain employees have been offered an acceptable alternative position within the meaning
of clause 24.1(c) of the Agreement, the Applicant submits that it is clearly a dispute in the
first category rather than the second category, and therefore the exclusion of matters relating
to termination of employment does not apply.
[37] As to the second submission, the Applicant urges in that considering the meaning of
the term “(excluding matters concerning the termination of employment)” that I should follow
the approach taken by Madgwick J in Kucks v CSR Ltd20 and Kirby J in Amcor v
Construction, Forestry, Mining and Energy Union21.
[38] Against the background of those cases, the Applicant makes submissions as to the
proper construction of the Agreement as a whole. The Applicant points to clause 11 of the
Agreement, headed “Termination of Employment” which deals with notice period, summary
dismissal and resignation. The Applicant points out that Redundancy is dealt with in a
[2014] FWC 1954
10
separate section of the Agreement at clause 24. This, the Applicant contends reinforces the
submission of the Applicant that it was never in the contemplation of the parties whom
framed the Agreement that the expression “excluding matters concerning the termination of
employment” would be extended to include matters related to redundancy entitlement
disputes.
[39] The Applicant also points to the following words at the conclusion of clause 24.1(c);
“In the event that the company is not persuaded by the circumstances of the person, the
Commission will determine the matter by conciliation, or failing resolution,
arbitration.”
[40] The Applicant submits that such provision plainly shows that the parties had turned
their minds to the issue of any dispute regarding the operation of clause 24.1(c) and clearly
and expressly intended that such disputes would be resolved by the Commission by
conciliation or arbitration. Further, the Applicant submits that when clause 11 and clause
24.1(c) are read in conjunction with the exclusion in clause 7.2, that the interpretation
advanced by the Applicant is to be preferred when the Agreement is read as a whole.
[41] In submissions in reply, the AMMA on behalf of the Respondent appear to imply that
the words above relate to the matters in sub clause 24.1(c) (iv) only and not to the totality of
clause 24.1(c).
[42] The balance of the Applicant’s submissions relate to what I regard as extrinsic
material raised in the statement of Mr. Robert Flanagan which was submitted in addition to
the submissions of the Applicant. I note that the Respondent contends that the statement
made by Mr. Flanagan is unsworn and “...is not tested by way of cross examination and can
largely be dismissed as it is no more than his personal recollections and views.” The statement
largely relates to Mr. Flanagans recollections of the history of the grievance procedure in
antecedent agreements applying to the Respondent. While there has been no cross
examination of Mr. Flanagan, I note that the Respondent did not exercise their right to request
a hearing in order to do so. It is odd in the circumstances to complain that the evidence of Mr.
Flanagan has not been tested. Irrespective, I have placed no reliance on the witness statement
submitted by Mr. Flanagan.
[43] The Applicant also referred me to the decision of Commissioner Bissett in The
Australian Workers’ Union v Barminco Pty Ltd22in support of their preferred construction. I
note that in reply, the Respondent submits that the circumstances of the arbitration before
Commissioner Bissett are not relevant to these proceedings.
[44] It is not clear from the submissions how the decision of Commissioner Bissett, which
dealt with an earlier agreement with a differently worded dispute settlement clause, relates to
the matter I am to determine here. I agree with the Respondent that the decision of
Commissioner Bissett is of no assistance in determining this matter.
[2014] FWC 1954
11
Consideration
Does clause 7.2 prevent the Commission from being able to determine the
question posed?
[45] The starting point for consideration is the ordinary meaning of the words in the
Agreement. The Applicant submits that the proper construction of the clause is that it
provides for two separate categories of disputes to be determined. The first category relates to
disputes arising as to the interpretation of the Agreement. The second category relates to any
dispute pertaining to the employment relationship.
[46] A key consideration is the use of the word “or” between the two categories of dispute.
The word “or” is described in the Macquarie Dictionary as;
“a particle used:
1. to connect words, phrases or clauses representing alternative terms: to be or not to
be.
2. to connect alternative terms for the same thing, or different ways of expressing the
same concept: the Hawaiian or Sandwich Islands.”23
[47] The publication “Statutory Interpretation in Australia” notes in its discussion of the
words “and” and “or” that;
“In ordinary speech the word “and” is used conjunctively and the word “or
“disjunctively.”
[48] However, it is also noted that “”...one quite often finds arguments being put to the
courts that items connected by word “and” should be treated as alternatives and that items
connected with “or” should be treated as cumulative. In some instances these arguments have
been successful”.24
[49] It has not been suggested by either party that the word “or” should be given anything
other than its ordinary meaning in this case. I am of the view that the ordinary meaning of the
words in the clause allows for the clause to be read in the manner contended for the by the
Applicant. That is, as the word “or” is used as disjunctive in the ordinary way, it is connecting
phrases representing alternative terms.
[50] The alternatives terms in this case are to allow for the dispute settlement procedure to
deal with disputes over interpretation of the Agreement or disputes pertaining to the
employment relationship. As the bracketed words form part of the second and alternative
category of disputes, the ordinary meaning of the words suggests that the limitation that the
words clearly impose is upon that second category of disputes only. That is, the words operate
to constrain the power to deal with disputes pertaining to the employment relationship. The
words do not have application to the first category of disputes.
[2014] FWC 1954
12
[51] At this point it is convenient to deal with the submission of the Respondent that, as a
general proposition when constructing the terms of an Agreement, the specific prevails over
the general. The Respondent is correct on this point. However, the ordinary meaning of the
words in the clause provide that the specific limitation of the bracketed words clearly prevails
over and constrains the general power to settle the second category of disputes. It does not
operate as a specific limitation over the general power to settle disputes in the first category.
[52] Of course, regard must not only be had to the text of the clause in question but also
regard must be had to the context and purpose of the provision. Considering the Agreement as
a whole, one can see that the provisions that deal with redundancy can be found in clause 24
which is headed “Redundancy”. It is in this clause that one finds sub clause 24.1(c)
“Alternative Employment”, which contains the clause that is the source of the dispute that the
Applicant seeks to have arbitrated.
[53] Clause 11 is headed “Termination of Employment” and is set out quite separately from
the clause on redundancy. The fact that the section “Termination of Employment” is set out
quite separately from the provisions pertaining to redundancy when the Agreement is
considered as a whole, does not lend any support to the contention of the Respondent that
clause 7.2 of the Agreement restricts the Commission from arbitrating the substantive matter
in dispute.
[54] A further contextual consideration is that relating to the words found at the bottom of
sub clause 24.1(c) itself. At the conclusion to the four sub paragraphs of 24.1(c), the
following words appear:
“In the event that the company is not persuaded by the circumstances of the person, the
Commission will determine the matter by conciliation or failing resolution, arbitration”
[55] The submission in reply from the Respondent that this provision “...relates specifically
only to circumstances which relate to a specific employee and whether they are able to
transfer to an alternate site” suggests that the power of the Commission to conciliate and
arbitrate conferred by these words is limited to the matters in the sub-clause 24.1(c) (iv) only
and not to clause 24.1(c) generally. There is no supporting argument from the Respondent for
this particular construction of the clause.
[56] The Applicant’s submissions imply that the power to conciliate and arbitrate conferred
in this provision applies to the totality of clause 24.1(c) but they also assert this claim without
supporting argument for this construction.
[57] Having considered the ordinary meaning of the words, and their place in clause
24.1(c) I have formed the view that the construction of the Respondent is to be preferred.
There is a specific reference to “the person” in this clause. “Person” is used in sub clause
24.1(c) (iv) only. In contrast, the balance of clause 24.1(c) refers to employees. The word
“circumstances” has a stronger association with the factors referred to in 24.1(c) (iv) such as
“personal impact” and “personal experience” than with the matters dealt with in sub clauses
24.1(c) (i) (ii) and (iii). Thirdly, while it is a separate paragraph, the words appear to form
part of 24.1(c) (iv), rather than operate as an separate provision.
[2014] FWC 1954
13
[58] However, whilst I prefer the construction of the Respondent on this part of the
Agreement, the fact that the Agreement seeks to provide an express power to resolve disputes
over a component of the redundancy provision is a further contextual consideration that
supports a determination that the proper construction of clause 7.2 is that it does not operate
so as to exclude determination of the question framed above from power.
[59] While redundancy is clearly one means of termination of employment, and as the
Respondent points out, the word “termination” is used in clause 24, this is does not of itself
overcome the correct approach to constructing the terms in dispute, beginning with the
ordinary meaning of the words combined with the broader contextual consideration outlined
above.
[60] Having regard to the above reasoning, I have determined that the answer to the
jurisdictional question framed, “Does clause 7.2 prevent the Commission from being able to
determine the question above?” is no. The first jurisdictional objection is dismissed.
The second jurisdictional objection.
[61] The basis of the Respondent’s second jurisdictional objection is as follows:
“AMMA seeks the leave of FWC to extend the scope of the jurisdictional argument to
include whether an employee can continue to progress a dispute under a dispute
settlement process after their employment has been terminated. AMMA submits that it
is fair and reasonable the FWC extends the scope of this jurisdictional argument as it is
a further legal issue which is required to be determined and this issue cannot simply be
ignored given that the FWC must have a legal basis for determining the matter by way
of arbitration”.
[62] AMMA for the Respondent does not concede by putting this jurisdictional argument
that employees in this case have been made redundant as the Respondent has consistently put
to the Applicant that the employees in this instance have not been made redundant by the
Respondent but rather employees by their own actions in resigning or failing to respond to the
offers of reasonable alternative employment have terminated their own employment.
[63] AMMA for the Respondent submits that once employees have initiated their own
termination either by resignation or failing to respond to an offer of reasonable alternative
employment that this action effectively prevents employees having the matter arbitrated in
accordance with clause 7.3 (g) of the Agreement.
[64] In support of this submission the Respondent relies on the decision of Senior Deputy
President Drake in Jajoo v ING Administration Pty Ltd25 and the subsequent appeal of that
decision.26
[65] The submission of the Respondent is summarised as follows:
“...in summary given employees have effectively initiated their own termination by not
responding to the offer by Barminco for reasonable alternative employment then it is
[2014] FWC 1954
14
not valid for those ex employees to proceed to have their dispute determined by
arbitration in accordance with clause 7.3 (g).”
[66] The Applicant opposes leave being granted to the Respondent to argue the additional
jurisdictional point. However, the Applicant contemplated that the Commission may indeed
grant leave and chose to make submissions in response to the additional jurisdictional
argument raised by the Respondent.
[67] The Applicant submits that the proposition advanced by the Respondent that
employees by their own actions terminated their employment is fundamentally flawed. The
Applicant submits that having regard to the terms of clause 24.1 (a), that the facts support the
Applicant’s contention that the employees at the centre of this dispute were made redundant
and as such it cannot be contended by the Respondent that such employees by their own
action terminated their employment.
[68] The Applicant further submits that, “whether or not the offer by Barminco of an
alternative position was an offer that constituted “acceptable alternative employment” is a
proposition contested” by the Applicant in these proceedings and is yet to be determined by
the Commission. In such circumstances, the Applicant argues that the Respondent cannot rely
upon the contention that employees terminated their own employment to support its own
argument.
Consideration
[69] The Commission should be satisfied the requisite jurisdiction exists to exercise arbitral
power. In that context, since the Respondent has raised a second challenge to the ability of the
Commission to exercise power it is necessary for me to consider the challenge raised. I agree
that it cannot be ignored.
[70] As discussed above, the submissions of the Respondent on this point relied
particularly on the decision of Senior Deputy President Drake in Jajoo v ING Administration
Pty Ltd27 and the subsequent appeal, ING Administration Pty Ltd v Jajoo28.
[71] The majority on appeal found that;
“...an employee who had commenced to deal with a grievance or dispute while
employed is not precluded, in our view, from continuing to progress that matter if it
remains unresolved, notwithstanding that in the interim period they may have ceased
to be employed by the employer.”29
[72] The Full Bench continued that;
”In reaching this conclusion, we acknowledge that parties to agreements are entirely
free to draft disputes procedures in any number of different ways. Agreements may
limit rights to resolve matters under disputes procedures to persons who are currently
employees and many agreements may properly be construed in doing so. In the
circumstances of this case, we believe that the agreement empowers the commission to
determine the dispute notwithstanding that prior to the matter being resolved (and prior
[2014] FWC 1954
15
to Mr Juju referring the dispute to the commission) his employment was terminated by
ING.”30
[73] What the Full Bench makes clear in the above passage is that a determination of
whether or not a dispute procedure is limited to dealing with only current employees or not
depends on the terms of that clause. The reference by the Respondent to part of the decision
of Senior Deputy President Drake at first instance that “I am not persuaded that, once an
entitlement to access the DRP arises, that it can be unilaterally terminated by the termination
of the relevant employees employment. I accept that the resignation of an employee may, in
some circumstances, bring that to an end”31 (emphasis added) is not authority for a general
position that employees once terminated are unable to proceed to have disputes resolved by
arbitration. Rather, the decision of Her Honour and the subsequent appeal provide authority
for the proposition that whether or not former employees can continue to have their dispute
determined pursuant to a dispute settlement procedure turns on the wording of that the
particular dispute procedure in question as well as the timing of the termination of the
employees and its relationship to any requirement to take particular steps under the terms of
the dispute settlement procedure prior to arbitral power being exercised. In the circumstances
of ING Administration Pty Ltd v Jajoo, the majority of the Full Bench found that former
employees could access the dispute settlement procedure.
[74] The correct approach then is to consider the particular circumstances of this matter, in
particular the timing of the dispute as it pertains to these employees and its relationship to this
particular dispute settling procedure. In this respect, the Respondent concedes that “...this
argument really comes down to when the matter was raised.”
[75] The relevant facts in this matter are as follows. The dispute was notified to the
Commission on 25 June 2013. In the dispute notice, the Applicant stated, “The union has and
the company have held discussion (sic) regarding the Loss of Contract at Rosebery and its
consequence for employees on 3 occasions those being Tuesday 11June 2013, Thursday 20
June 2013, Tuesday 25 June 2013”. A conference was convened by Commissioner Deegan on
28 June 2013. The Respondent asserts that the employee’s employment was terminated “... in
accordance with the terms of letters from Barminco dated 9 July 2013”. For the purposes of
this jurisdictional decision only I have assumed that claim to be factually correct.
[76] The dispute resolution procedure in the Agreement is at clause 7 and it provides as
follows:
“7. DISPUTE REOLUTION PROCEDURE
7.1 It is the intent of the parties to endeavour to resolve all grievances at the site
level.
7.2 In the event of any dispute arising as to the interpretation of this Agreement or
any dispute (excluding matters concerning the termination of employment) pertaining
to the employment relationship the following procedures shall apply.
7.3 Procedure
[2014] FWC 1954
16
(a) When a grievance arises the matter shall in the first instance be
discussed between the employee/s and the immediate Supervisor. If the matter
remains unresolved:-
(b) It may be referred for discussion between the employee/s and the
Project Manager. If the matter remains unresolved:-
(c) It may be referred for discussion between the employee/s and the
Company’s nominated offsite senior manager.
(d) If the matter cannot be resolved directly between the parties to the
dispute, or if it is not practicable for steps (a) and (b) to be completed because
of the nature of the dispute either of the parties to the dispute may refer the
matter to senior representatives of the company and state officials of the AWU
for discussions.
(e) If the matter remains unresolved:-
(f) Either party may refer the issue to FWA for conciliation.
(g) If conciliation is unable to resolve the matter the Union or the
Company may request FWA to arbitrate the matter.
(h) Subject to rights to appeal, the Parties shall be bound by the decision of
the arbitrator. Any appeal will be by way of review rather than by re-hearing.”
[77] There was no suggestion from either party that the dispute settlement procedures were
not complied with. In any case, 7.3(d) provides a capacity for matters not resolved directly
between the parties to the dispute or where steps (a) and (b) are not practicable because of the
nature of the dispute, for the parties to the dispute to refer the matter to senior representatives
of the company and state officials of the AWU for discussions. There is no doubt that in the
circumstances of this case, the parties had appropriately reached step (d). Having reached that
point, either party could refer the matter for conciliation and if unsuccessful, arbitration.
There is nothing within the terms of the dispute settlement procedure that suggest that given
the timing of the notification (which preceded the assumed cessation of employment of 9 July
2013) that, consistent with the approach of majority in ING Administration Pty Ltd v Jajoo,
that the employees cannot continue to access the dispute procedure.
[78] The Respondent claims that employees have effectively initiated their own termination
by not responding to the offer from the Respondent for reasonable alternative employment. I
have not made any finding on this point as I agree with the Applicant’s submission that the
circumstances surrounding the cessation of employment of the employees and its relationship
to clause 24 “Acceptable Alternative Employment” is in fact the proposition contested in
these proceedings, and is yet to be determined. In any case and as already stated, for the
purposes of determining the second jurisdictional point I have assumed that the employees at
the centre of this dispute, who claim they have been made redundant, are no longer employees
of the Respondent and were no longer employees as at 9 July 2013.
[2014] FWC 1954
17
[79] It follows from the reasoning above that I do not accept the second jurisdictional
objection advanced by the Respondent and it is dismissed.
Conclusion
[80] I am satisfied that the Commission has the necessary jurisdiction to determine the
answer to the following question:
“Were any or all of the following groups of named employees; [A], [B] and [C]32
offered an acceptable alternative position within the meaning of clause 24.1(c) of the
Barminco (Tasmania) Enterprise Agreement 2012 (the Agreement) at the time of the
cessation of the Barminco contract at the Roseberry Mine?”
[81] If the answer to the foregoing question is Yes, it is agreed by the parties that the
relevant group/s of employees are not entitled to a redundancy payment under the terms of the
Agreement.
[82] Conversely, if the answer to the question is No, it is agreed by the parties that the
relevant group/s of employees are entitled to a redundancy payment in accordance with the
terms of clauses 24.3 and 24.4 of the Agreement.
[83] The matter will be listed for Mention Hearing by telephone to set further
programming.
COMMISSIONER
Final written submissions:
Applicant, 23 December 2013
Respondent, 21 November 2013, Submission in reply, 3 January 2014
Printed by authority of the Commonwealth Government Printer
Price code C, AE400363 PR548913
1 AE400363
OF THE FA WORK COMMISSION THE SEA
[2014] FWC 1954
18
2 Category A: Requirement for period of standby does not constitute reasonable alternative employment. Catergory B:
Excess travel time and standby does not constitute reasonable alternative employment. Category C: Personal impact
based on personal experience of connection with history at the alternative site, does not constitute alternative
employment.
3 Submissions “Jurisdictional Argument AMMA (C2013/4891)” filed by the Australian Mines and Metals Association, 21
November 2014, page 1
4 PR537358
5 [2012] FWAFB 3994
6 Cape Australia Holdings Pty Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union
[2012] FWAFB 3994, [7] - [9]
7 [2008] AIRC 291
8 Watson v ACT Department of Disability Housing and Community Services, [2008] AIRC 291, [15]
9 [2010] FWAFB 4801
10 The Australian Workers’ Union v Co-operative Bulk Handling Limited, [2010] FWAFB 4801, [14]
11 (1998) 80 IR 345
12 Australian Municipal, Administrative, Clerical and Services Union v The Treasurer (Cth) and others, (1998) 80 IR 345 at
347
13 (1993) 40 FCR 511
14 Short v FW Hercus Pty Limited (1993) 40 FCR 511 at 518
15 (1993) 40 FCR 511
16 (1998) 80 IR 345
17 [2012] FWAFB 3994
18 Submissions “Jurisdictional Argument AMMA (C2013/4891)” filed by the Australian Mines and Metals Association, 21
November 2014, pages 3 and 4
19 Outline of Applicant’s Submissions, filed 23 December 2013, page 4
20 (1996) 66 IR 182
21 (2005) 222 CLR 241
22 [2010] FWA 9781
23 Susan Butler (ed), Macquarie Concise Dictionary (Macquarie Dictionary Publishers, 5th ed, 2010)
24 D C Pearce and R S Geddes, Statutory Interpretation in Australia (Reed International Books Australia Pty Limited trading
as Lexis Nexus, 7th ed, 2011) 51
25 PR973602
26 ING Administration Pty Ltd v Jajoo PR974301
27 PR973602
28 PR974301
29 ING Administration Pty Ltd v Jajoo PR974301, [58]
30 ING Administration Pty Ltd v Jajoo PR974301, [59]
31 Jayjoo v ING Administration Pty Ltd, PR973602, [16],
32 Category A: Requirement for period of standby does not constitute reasonable alternative employment. Catergory B:
Excess travel time and standby does not constitute reasonable alternative employment. Category C: Personal impact
based on personal experience of connection with history at the alternative site, does not constitute alternative
employment.
