1
Fair Work Act 2009
s.739—Dispute resolution
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
v
Jemena Asset Management Pty Ltd
(C2014/5100)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 25 FEBRUARY 2015
Alleged dispute about relocation allowance arising under the enterprise agreement; whether
Commission has jurisdiction to deal with dispute under expired agreement; jurisdiction not
enlivened under current agreement; application dismissed.
Introduction
[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia (CEPU) and certain of its members employed by
Jemena Asset Management Pty Ltd (Jemena) at its Tullamarine facility are covered by
Jemena Asset Management - ETU Victorian Electricity Enterprise Agreement 2013 (Current
Agreement). The Current Agreement was approved by me on 12 June 20141 and pursuant to s
54 of the Fair Work Act 2009 (Act) commenced to operate on 19 June 2014 with a nominal
expiry date of 31 August 2016. Jemena is also covered by the Current Agreement.
[2] By application filed on 25 June 2014 the CEPU applied pursuant to s 739 of the Act
for the Fair Work Commission (Commission) to deal with a dispute in accordance with the
disputes settlement procedure contained in the Current Agreement.
[3] The dispute is about the calculation of a relocation allowance payable to certain
employees of Jemena following their relocation to Jemena’s Tullamarine facility between 5
and 12 May 2014 and is said to raise for resolution the proper construction of Appendix D of
the Current Agreement.
[4] For reasons which follow I have decided to dismiss the application because I lack
jurisdiction to deal with the dispute.
Background and context
1 See [2014] FWCA 3982
[2015] FWC 1189
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 1189
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[5] Towards the end of 2011, Jemena announced the construction of a new sub-station and
office facilities which were to be located in Tullamarine, Victoria.2 At that time Jemena
operated facilities at Broadmeadows and Sunshine. Approximately 144 of its employees
(Affected Employees) who worked at these facilities would, once construction of the
Tullamarine facility was completed, be required to relocate to that facility.3
[6] At that time the Affected Employees and Jemena were covered by the Jemena Asset
Management - ETU Victorian Electricity Enterprise Agreement 2010 (2010 Agreement). The
2010 Agreement provided for a nominal expiry date of 31 August 2013 and also covered the
CEPU. The 2010 Agreement contained an Appendix D dealing with workplace relocation
which was in terms the same as Appendix D of the Current Agreement. By operation of s
54(2)(b) and s 58 (2), the 2010 Agreement ceased to operate on 19 June 2014, the date when
the Current Agreement commenced operation. From that date the 2010 Agreement ceased to
apply to the Affected Employees and Jemena.
[7] There seems no dispute that consultation between Jemena, the Affected Employees
and the CEPU about the proposed relocation occurred and continued until shortly before the
relocation.
[8] Putting to one side discussions between Jemena and the CEPU about a relocation
allowance that occurred during bargaining, which resulted in making the Current Agreement
and to which I will later return, the dispute about calculation of and eligibility for payment of
a relocation allowance in the context of the proposed relocation to Tullamarine did not
become apparent until 29 April 2014. It seems common ground that during a meeting between
representatives of Jemena and of the CEPU on 29 April 2014 convened to discuss the
impending relocation, Jemena advised the CEPU that it had conducted an assessment of travel
times for each Affected Employees from their residence to the Tullamarine facility and had
identified the number of Affected Employees who would receive a relocation allowance
pursuant to Appendix D of the 2010 Agreement.4 During the meeting Mr Danny Timmers an
official of the CEPU, indicated that the CEPU took a different view about the application of
Appendix D of the 2010 Agreement to that taken by Jemena, with the effect that all of the
Affected Employees should be paid a relocation allowance once they relocate to the
Tullamarine facility.5
[9] Thereafter, Jemena and the CEPU engaged in further discussions and exchanged
correspondence about the disputed relocation allowance, which involved 77 of the Affected
Employees who did not receive a relocation allowance on moving to the Tullamarine facility.6
As earlier indicated the Affected Employees relocated to Jemena’s Tullamarine facility
between 5 and 12 May 2014.7
[10] The aforementioned discussions and exchanges of correspondence did not resolve the
dispute and pursuant to the dispute settling procedure in the 2010 Agreement8, the CEPU
2 Exhibit Jemena 1 at [3]
3 Ibid at [4]
4 Ibid at [18]; Exhibit CEPU 1 at [9]
5 Exhibit Jemena 1 at [19] and Exhibit CEPU 1 at [9]
6 Exhibit CEPU 1 at [11]-[17]; Exhibit Jemena 1 at [19]-[21]
7 Exhibit Jemena 1 at [26]
8 2010 Agreement cl 2
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referred the dispute to the Electrical and Communications Industry Disputes Board (Disputes
Board) on 23 May 2014.9 The dispute was dealt with by the disputes Board on 5 June 2014
but was not resolved, and as Jemena did not agree to permit the Disputes Board to arbitrate
the dispute, the disputes settling procedure under the 2010 Agreement had been exhausted.10
The 2010 Agreement only enable the Commission to deal with a dispute by way of an appeal
against a decision of the Disputes Board exercising an arbitration function and on appeal, the
Commission was empowered to conciliate and/or to arbitrate the matter.11
[11] Bargaining for a proposed agreement that became the Current Agreement began in or
around May 2013.12 During the course of that bargaining, claims for relocation allowances
made by the CEPU were discussed but not agreed. The claims were discussed by reference to
the proposed relocation of employees to the Tullamarine facility.13 No change was made to
Appendix D as it appears in the Current agreement compared to that which appeared in
Appendix D of the 2010 Agreement.
Consideration
[12] The Commission’s power to deal with disputes is not at large and is circumscribed,
relevantly by ss 738 and 739 of the Act and by the provisions of the procedure for dealing
with disputes contained of an enterprise agreement under which the dispute is being
progressed.
[13] Sections 738 and 739 provide:
738 Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term
in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes,
including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement includes a term that provides a procedure for
dealing with disputes between the employer and the employee, to the extent that the dispute is about any
matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for
dealing with disputes arising under the determination or in relation to the National Employment
Standards.
739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a
dispute.
9 Exhibit CEPU 1 at [18]; Exhibit Jemena 1 at [21];
10 Exhibit CEPU 1 at [19]; Exhibit Jemena 1 at [22]-[23]; 2010 Agreement cl 2.1.2
11 2010 Agreement clause 2.1.2, Step 5
12Exhibit Jemena 1 at [5]
13 Exhibit Jemena 1 at [8]-[13]; Exhibit CEPU 1 at [7]-[8]
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(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.
[14] The Current Agreement contains a procedure for dealing with disputes at clause 2.1 as
follows:
2.1 DISPUTE SETTLING PROCEDURE
2.1.1 Where another clause in the Agreement expressly provides for the resolution of a particular
dispute the provision in that clause shall prevail over this clause.
2.1.2 In all other cases of disputes arising over the application of the Agreement and/or the
NES, this clause shall apply.
Step 1: Any dispute will, in the first instance, be discussed between the Employee(s)
concerned and the immediate team leader I supervisor involved. The team leader I supervisor
must make a genuine attempt to resolve the matter speedily.
Step 2: If the matter cannot be resolved in Step 1, the matter will be referred to the appropriate
line manager who will attempt to resolve the matter speedily. The line manager shall first
consult with the affected Employee(s) and then, if requested by the Employee(s), consult with
the relevant Employee representative(s) when endeavouring to resolve the matter. Where
agreed between the Employee(s) or their representative and the Employer, steps 1 and 2 can be
disregarded in the interest of relevance and from step 3 onwards pursued.
Step 3: If not resolved in Step 2, the matter shall be immediately referred, for discussion,
jointly to a manager with industrial relations responsibility and the Employee, who shall be
informed that they are allowed to have a representative of their choice at such discussions.
Step 4: If the matter is still not resolved either party subject to the dispute can refer the matter
to FWC for conciliation and, should conciliation fail to resolve the dispute, arbitration. Where
a matter does progress to FWC for arbitration, it’s (sic) decision shall be binding on the
parties, subject to either party exercising any right of appeal against the decision to a Full
Bench. In conciliating or arbitrating a matter under this clause, or conducting an appeal under
this clause. FWC may (sic)
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2.1.3 Where another clause in the Agreement expressly provides for the resolution of a particular
dispute the provision in that clause shall prevail over this clause.
2.1.4 During the entire period of the dispute, from the time when the matter first arises until the time of
its resolution (at whatever stage the resolution occurs) normal work shall continue, unless the
performance of normal work would place at risk the health or safety of the Employees concerned.
2.1.5 If a dispute arises due to a change in work practices, then for the duration of the settlement period,
the Employee(s) will revert to the work practices in place prior to the dispute arising, and the Union will
not undertake any industrial action in relation to the dispute.
2.1.6 Any decision of the Board or FWC under this clause must be consistent with the requirements of
the National Code of Practice for the Construction Industry and the Implementation Guidelines for the
National Code of Practice for the Construction Industry as varied from time to time; and all applicable
legislation.
[15] It seems clear having regard to the text of s. 739(3) of the Act and clause 2.1.2 of the
Current Agreement that my capacity to deal with the application by the CEPU is limited,
relevantly, to resolving “disputes arising over the application of” the Current Agreement.
[16] The CEPU submits that the Commission’s jurisdiction is enlivened because there is a
dispute about the proper construction of Appendix D of the Current Agreement and although
the factual circumstances which first enlivened the dispute arose whilst the 2010 Agreement
was in operation, that dispute was not resolved and continues. As the terms of Appendix D in
both agreements are the same, there continues to be a dispute about the proper operation of
Appendix D of the Current Agreement, and the unresolved dispute over the entitlement of the
77 Affected Employees to a relocation allowance under Appendix D of the 2010 Agreement
may be dealt with under clause 2.1 of the Current Agreement.14 The CEPU also argued that
there was an actual entitlement under the Current Agreement to a relocation allowance arising
for the relocation of the Affected Employees that occurred between 5 and 12 May 2014.15
[17] This last submission has no foundation. The Current Agreement had not been
approved by me, let alone commenced to operate, when the relocation of the affected
employees occurred. The 2010 Agreement was in operation and applied to the Affected
Employees during that time. The Current Agreement does not operate retrospectively and
Appendix D is not expressed as having any retrospective operation to a relocation that
occurred prior to the Current Agreement commencing to operate. Such right to be paid and
any obligation to pay a relocation allowance to an Affected Employee as may arise from
relocation that occurred between 5 and 12 May 2014 may only be found in the 2010
Agreement.
[18] It also follows that disputes about entitlements under the 2010 Agreement and the
proper construction of Appendix D of that agreement, without more, cannot be said to be
disputes “arising over the application of” the Current Agreement.
[19] Jemena submitted that properly characterised, the dispute arises over the application of
the 2010 Agreement and that the factual matrix underpinning the dispute bears this out. That
dispute was dealt with in accordance with the dispute settling procedure under that 2010
Agreement and the Commission’s jurisdiction has not been enlivened pursuant to that
14 CEPU Outline of Submissions at [15]-[26] and Transcript PN373-PN402; PN447-PN474; PN608-PN648
15 Transcript PN620-PN621
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procedure. Further, by its application the CEPU was doing no more than seeking to artificially
resuscitate a dispute and to clothe the Commission with jurisdiction where none existed under
the 2010 Agreement.
[20] Jemena’s submission, is in my view manifestly correct. The CEPU application sets out
a description of the dispute in response to the question “What is the dispute about?”:
1. Members of the Applicant have been relocated from a depot in Broadmeadows (the old depot)
to a depot in Tullamarine (the new depot).
2. This relocation is a permanent relocation.
3. When the Respondent relocated these employees the terms of Appendix D of the Agreement
applied.
4. The respondent has interpreted the application of that Appendix so that an employee will only
be paid a relocation allowance if their travel time to the new depot is longer that their travel
time was to the old depot. If the travel time for an employee is the same or less to the new
depot when compared to the old depot the Respondent will not pay that employee a relocation
allowance.
5. The Applicant disputes that Respondent’s application of the clause. The Applicant’s position is
that all employees who have relocated are entitled to a minimum relocation allowance equal to
ten minutes travel time.
6. In addition to the core issues in dispute the Applicant also disputes the following manner in
which the Respondent has applied Appendix D:
a. That the relocation allowance is only for excess travel time. The Applicant’s position
being that the relocation allowance is “in compensation for all other relocation
factors”.
b. That the respondent is able to measure the travel time by using a google maps
estimation of the travel time by the quickest route for the travel in to the depot only.
The Applicant’s position is that the Respondent was obliged to reach agreement with
each employee and the Applicant about which route is the shortest between that
employee’s home and the new depot. Once that was agreed, it was then necessary to
reach agreement on the travel time to and from the new depot at the actual times that
the employee travels to and from work.
[21] Clearly the dispute is about the proper construction of Appendix D of the 2010
Agreement in its application to the relocation of the Affected Employees to Jemena’s
Tullamarine facility between 5 and 12 May 2014.
[22] As to the other arguments advanced by the CEPU and summarised at [16] above, there
is nothing in the text of the Current Agreement which suggests that disputes arising over the
application of the 2010 Agreement may be dealt with, or that such disputes once commenced
under the 2010 Agreement continue to be dealt with, under the dispute settling procedure of
the Current Agreement so as to enliven jurisdiction. Nor is there any provision suggesting an
entitlement payable under the 2010 Agreement because of events occurring during its
operation, become entitlements payable under the Current Agreement, so as to enliven
jurisdiction. The decision of the Full Bench of the AIRC in Davies v ATO16 relied upon by the
CEPU to make good its proposition that a dispute commenced under a procedure of one
agreement can be continued under the next if the dispute is not resolved when the first
16 [2008] AIRCFB 676
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agreement, ceases to operate is of no assistance. Davies turned on the terms of the agreement
which according to the Full Bench, preserved all benefits under previous instruments and
made compliance with those previous obligations, an obligation of the agreement under which
the dispute was being dealt17. Further, clause 136.4 of the agreement in Davies permitted
unresolved disputes “arising out of the application of the previous certified agreement” to be
progressed under the disputes settlement procedure of the agreement at issue.18No such
preservation provisions or any such unresolved disputes provision is to be found in the
Current Agreement.
[23] It seems to me that the decisions referred to in footnote 8 to Jemena’s outline of
submissions19, although decided in relation to agreements made under a different legislative
scheme are apposite, having regard to the limitation on power in s. 739(3) and clause 2.1.2 of
the current Agreement.
[24] As I have already observed, such rights to be paid and any obligation to pay a
relocation allowance to the Affected Employee as may arise from relocation that occurred
between 5 and 12 May 2014 may only be found in the 2010 Agreement. Such a dispute is not
one within the terms of clause 2.1 of the Current Agreement.
[25] Properly characterised, the dispute arises over the application of the 2010 Agreement,
and is consequently not a dispute that falls within the ambit of 2.1.2 of the Current
Agreement.
[26] To the extent that it is suggested that there is nevertheless a disagreement between the
CEPU and Jemena about the proper construction of Appendix D of the Current Agreement
and therefore jurisdiction is enlivened, I would nevertheless conclude that I have no
jurisdiction because there is no evidence that the steps set out in steps 1 through 3 of the
Current Agreement have been undertaken in relation to that disagreement. The steps earlier
taken related to the dispute arising under the 2010 Agreement all took place before the
Current Agreement commenced to operate.
[27] If I am wrong in that conclusion then, as a matter of discretion I would decline to
express a view about the proper construction of Appendix D of the Current Agreement absent
a factual matrix to which that appendix can properly apply, and further because this
application bears all the hallmarks of an attempt to clothe the Commission with jurisdiction in
relation to an actual dispute which does not arise over the application of the Current
Agreement.
Conclusion
[28] The application is dismissed. An order to that effect is issued separately in PR561217.
17 Ibid at [18]
18 Ibid at [19] - [22]
19 Special Minister of State v Stephenson (PR952743); Pulle v Commonwealth of Australia (2009) 190 IR 365 (at 368); and
de Jonge v Australian Broadcasting Corporation (2010) 196 IR 145 (at 148-149)
[2015] FWC 1189
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DEPUTY PRESIDENT
Appearances:
K. Reidy for the CEPU
J.Snaden for Jemena Asset Pty Ltd
Hearing details:
Melbourne.
2014
27 January.
Printed by authority of the Commonwealth Government Printer
Price code C, PR561209
WORK COMMISSION SEAL OF AR WORK AHK
