1
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Denis Seiffert & Ors
v
Patrick Projects Pty Ltd
(C2014/4203 & Ors)
COMMISSIONER CLOGHAN PERTH, 14 OCTOBER 2014
Alleged dispute about any matters arising under the enterprise agreement.
[1] On 28 April 2014, the following made application to the Fair Work Commission
(Commission) to deal with a dispute in accordance with a dispute settling procedure (DSP):
Mr Denis Seiffert C2014/4203)
Mr Daniel King (C2014/4204) (Mr King)
Mr Richard Park (C2014/4205)
Mr Jason Deeney (C2014/4206)
Mr Christopher Hughes (C2014/4207)
Mr Christopher Strauss (C2014/4208)
(with the exception of Mr King, collectively the Applicants).
[2] The Applicants are in dispute with Patrick Projects Pty Ltd (Employer).
[3] The applications are made pursuant to s.739 of the Fair Work Act 2009 (FW Act).
[4] The Applicants allege that the disputes can be referred to the Commission pursuant to
the DSP contained in the Patrick Projects Pty Ltd AMC Cargo Handling Agreement
2012-2015 (Agreement).
[5] The disputes between the parties was the subject of a conference on 28 May 2014.
The disputes remain unresolved.
[6] The Employer has raised two jurisdictional questions for determination prior to the
merits of the applications being considered. The questions are:
1. Do each of the Applicants have standing to bring the applications? and
2. Are the alleged disputes able to be determined by the Commission pursuant to clause
13 of the Agreement?
[2014] FWC 7019 [Note: An appeal pursuant to s.604 (C2015/2425 and
others) was lodged against this decision - refer to Full Bench decisions
dated 16 October 2015 [[2015] FWCFB 6323] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB6323.htm
[2014] FWC 7019
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[7] The parties have agreed that the two jurisdictional questions be determined by way of
written submissions.
RELEVANT LEGISLATIVE FRAMEWORK
[8] “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.”
DO EACH OF THE APPLICANTS HAVE STANDING TO BRING THE
APPLICATIONS?
[9] The Applicants’ employment ceased for reasons of redundancy on 20 March 2014.
[10] All of the Applicants made application to the Commission on 28 April 2014, for the
Commission to deal with a dispute in accordance with the DSP in the Agreement.
[2014] FWC 7019
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[11] Due to each of the Applicants no longer being employed at the time of making the
application, the Employer’s first jurisdictional objection is that they do not have “standing” or
the ability to make the applications pursuant to the DSP in the Agreement.
[12] Part 2-4 Enterprise agreements of the FW Act commences with a “Guide”. The Guide
describes an enterprise agreement as being “made at the enterprise level and provides
terms and conditions for those national system employees to whom it applies...” (my
emphasis).
[13] In Part 2-4 of the FW Act, an employee means a national system employee and
employer means a national system employer. Section 13 of the FW Act defines a “national
system employee” as “an individual so far as he or she is employed...”
[14] There is no dispute that the Employer is a national system employer.
[15] The terms and conditions of the Agreement only apply to employees. For the
Applicants, their status as employees ceased on 20 March 2014. Consequently, from
20 March 2014, the terms and conditions of the Agreement ceased to apply to the Applicants
as they were no longer employed by a national system employer, in this case, the Employer.
[16] The symmetry between Part 2-4 of the FW Act and the Agreement is readily apparent.
The first words of the narrative of the Agreement reads, “this agreement will provide an
employment framework”1. The employment framework for the Applicants ceased on
20 March 2014. The parties bound by the Agreement are “Patrick and its employees who
are engaged to perform...”2. The simple fact is that after 20 March 2014, the Applicants
were neither employees nor engaged to perform any activity for the Employer.
[17] Clause 6 of the Agreement defines an “Employee” as “A person engaged by the
Company to carry out Cargo Handling work and who performs the functions defined in
Appendix 1 of this Agreement”. The Applicants were not engaged by the Employer - they
were disengaged on 20 March 2014. They were not carrying out any functions for the
Employer, let alone those in Appendix 1 of the Agreement.
[18] The Applicants have referred the dispute to the Commission pursuant to Clause 13 of
the Agreement.
[19] The relevant parts of Clause 13 of the Agreement are as follows:
“13. SETTLEMENT OF DISPUTES AND GRIEVANCES
13.1 The mechanism and procedures for resolving industrial disputes will include the
following:
The following procedure is to be followed in the following circumstances:
* Where there is an individual employee grievance;
1 Clause 3
2 Clause 5
[2014] FWC 7019
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* Where there is a dispute or issue concerning interpretation or application of this
Agreement or the Award; or
* Where parties to this Agreement have an issue concerning matters in the workplace,
which require resolution.
The purpose of this procedure is to ensure that disputes and grievances are resolved as
quickly as possible and as close to the source of the issue as possible.
13.2(a) The employee/s concerned will first meet and confer with their immediate
supervisor. If the employee so chooses, the employee may invite a representative,
which may include a union delegate, to be involved.
Where the employee representative is involved he/she shall be allowed the necessary
time during working hours to interview the employee(s) and the supervisor.
13.2(b) If the matter is not resolved at such a meeting the parties will arrange a further
discussions involving more senior management as appropriate. The employee, and if
the employee chooses, the employees representative, shall be allowed the necessary
time for discussion on the matter with a duly accredited union official of the union to
which the employee belongs, should the employee so wish.
The employee, and if the employee chooses, the employee's representative shall be
allowed at a place designated by the employer, a reasonable period of time to discuss
the matter with the duly accredited union official.
13.2(c) If the matter remains unresolved the employer may refer it to a more senior
level of management or to a more senior national officer within the employee
organisation.
The employee may, if the employee so chooses, invite a more senior employee
representative to be involved in the discussions.
In the event there is no agreement to refer the matter to a more senior level or it
is agreed that such a reference would not resolve the matter, the parties shall
jointly or individually refer the matter to Fair Work Australia (FWA) for
assistance in resolving the matter by mediation and/or conciliation and where the
matter in dispute remains unresolved, arbitration.
...
13.3 In order to facilitate the process
13.3(a) The party with the grievance must notify the other party at the earliest
opportunity of the problem;
13.3(b) Throughout all stages of the procedure all relevant facts must be clearly
identified and recorded;
[2014] FWC 7019
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13.3(c) Sensible time limits must be allowed for completion of the various stages of
discussion. However, the parties must co-operate to ensure that the disputes resolution
procedures are carried out as quickly as possible.
13.3(d) While the parties are attempting to resolve the matter, the parties will
continue to work in accordance with this agreement and their contracted
employment unless the employee has a reasonable concern about an imminent risk to
his or her health and safety.
Subject to relevant provisions of any State or Territory occupational health and safety
law, even if the employee has reasonable concern about an imminent risk to his or her
health and safety, the employee must not unreasonably fail to comply with a
direction by his or her employer to perform other available work that is safe and
appropriate for the employee to perform.
13.3(e) Status Quo - Whilst a matter is being progressed according to this clause, and
subject to there being no stoppage of work as a result of a matter raised under this
clause, the status quo will remain. The status quo shall be the state of affairs that
existed prior to the issue that has been put in dispute.” (my emphasis)
[20] By agreement, the parties to the Agreement have set out the means by which industrial
disputes are to be resolved.
[21] The parties to the resolution procedure are the employee and the Employer (through its
nominated representative).
[22] Where the matter remains unresolved, “the parties shall jointly or individually refer
the matter to Fair Work Australia (FWA)...” On the day the Applicants referred the matter to
the Commission (28 April 2014), they were no longer a “party” to the Agreement because,
firstly, they were no longer employees, and secondly, the Agreement was no longer applicable
and ceased to have effect from 20 March 2014.
[23] The word “the” in “the parties shall jointly or individually” in paragraph 13(2)(c) of
the Agreement, is a reference to the preceding parties identified as the Employer or
employee(s). In the circumstances of the application, while the Employer remained in
existence, the “employee” ceased to exist on the cessation of their employment.
[24] The words “will”, “may” and “is” in Clause 13 of the Agreement should be given their
ordinary meaning and “will” is a command, in contrast to “may”, which is optional. The
word “is” is in the present tense, which precludes an entity which is not the employee or the
employer making application to the Commission.
[25] Put shortly, the imperative in Clause 13 of the Agreement is that for it to be operative,
the parties be in existence and remain in existence.
[26] Part 6-2 of the FW Act Dealing with disputes, also commences with a “Guide”. The
Guide states that Part 6-2 “is about dealing with disputes between national system
employees and their employers”. Division 2 of Part 6-2 of the FW Act is concerned with
the powers of the Commission to deal with a dispute if, for the purposes of these applications,
[2014] FWC 7019
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an enterprise agreement includes a term that provides for the Commission to deal with the
dispute.
[27] Similar to Part 2-4 of the FW Act, Part 6-2 relates to national system employees and
employers. The statutory provisions which give the Commission its powers to deal with
disputes pursuant to DSPs in enterprise agreements, is underpinned by the requirement that
the dispute is between national system employers and employees.
[28] Importantly, subsection 739(6) of the FW Act enables the Commission to deal with a
dispute “only” on an “application by a party to the dispute”.
[29] I have already traversed the reasons why the Applicants are not a “party” to the
dispute, it would serve no purpose in repeating my comments. Shortly put, the Applicants
ceased being a “party” on cessation of their employment.
[30] Part 6-2 of the FW Act gives, as the Guide states, the Commission the power to deal
with disputes involving employees in its ordinary sense - not ex-employees.
[31] All the Applicants have referred to ING Administration Pty Ltd v Jajoo, Ramsin
[2006] AIRC 773. The Applicants submit that this is authority for the proposition that where
the dispute had commenced before termination of employment, the Commission has
jurisdiction to deal with an application for arbitration after the employment has ended. The
difficulty with such an expansive submission is that Clause 13 does not refer to a party who
“was an employee” or “will be an ex-employee”. In all cases, the clause refers to either “is”
in the present tense, or “the” party as being a party in existence.
[32] One example of the difficulty with the approach by the Applicants is as follows. If the
dispute commenced at Step 1 of Clause 13(2)(a) of the Agreement and the dispute remained
unresolved, it would be necessary to proceed to Step 2 before arbitration. At Step 2, “the
employee, and if the employee chooses, the employee’s representative shall be allowed at a
place designated by the employer, a reasonable period of time to discuss the matter with the
duly accredited union official” pursuant to paragraph 13(2)(b) of the Agreement. Such a term
in Clause 13 of the Agreement has no utility if a person is no longer an employee. Further,
such a clause contradicts the normal ordinary, statutory and enterprise agreement meaning of
employee.
[33] Further, I refer to the provisions of paragraphs 13.3(d) and (e) of the Agreement. In
paragraph 13.3(d) it states:
“while the parties are attempting to resolve the matter, the parties will continue to
work in accordance with this agreement and their contract of employment...”
[34] The word “while” is defined in the Australian Concise Oxford Dictionary means
“during the time that, for as long as, at the same time as”. Such a subclause presupposes or
implies that during the resolution of the dispute, the Agreement and contract of employment
remain in existence and the parties will “continue” to work in accordance with their
provisions. Obviously, the parties cannot continue with their obligation to work under the
Agreement and contract of employment, if the employment relationship has ceased.
[2014] FWC 7019
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[35] Finally, in paragraph 13.3(e) of the Agreement, the word “while” is substituted by the
word “whilst”. However, it has the same meaning. In this case, maintaining the “status quo”
which existed prior to the dispute arising is not possible. Maintaining the status quo has no
usefulness where the employment relationship has ceased.
[36] For the above reasons, I find that the Commission has no power to deal with the
applications by the Applicants. However, I now turn to the application by Mr King.
[37] Mr King was dismissed for conduct reasons on 30 April 2014.
[38] The reasons which I have set out as to why the Commission has no power to deal with
the applications by the Applicants are not applicable to Mr King, as his employment did not
cease until 30 April 2014. Mr King made application to the Commission two (2) days before
his dismissal.
[39] The Employer submits that should it fail with respect to its primary argument
regarding the Applicants, then its secondary argument, as to why the Commission has no
power to deal with the dispute, is applicable to all applications, including Mr King.
HAVE THE PROVISIONS OF CLAUSE 13 OF THE AGREEMENT BEEN
COMPLIED WITH TO GIVE THE COMMISSION THE POWER TO DEAL WITH
THE APPLICATIONS?
[40] Should I be wrong in relation to the primary jurisdictional objection, it is necessary to
determine whether the Commission has the power to deal with the applications pursuant to
Clause 13 of the Agreement. In any event, it is necessary to deal with this jurisdictional
objection concerning Mr King.
[41] The Applicants and Mr King assert in their applications that the steps which they had
taken under the DSP were as follows:
“The applicants repeatedly asked the respondent for training so that he could perform to
be best of his skills and abilities; and
The respondent continually failed to provide the applicant with any training.”
[42] All applicants attach to their application 24 training areas in which, to varying degrees,
each asserts that they have “claimed” training. In the case of Mr Strauss, he has also claimed
retraining in the same training area.
[43] The Applicants and Mr King’s Statement of Facts reads:
“Throughout his term of employment each applicant met and conferred with his
immediate supervisor regarding the dispute, referred the dispute by emails and
verbally and/or arranged for further discussions with senior management.
The respondent failed to refer the dispute to a more senior level of management, or to
a senior national officer within the respondent and in the case of Strauss the more
senior level of management or senior national officer, did not act on the dispute.
[2014] FWC 7019
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The respondent did not provide the training sought by each application in his
application.”
[44] I have not been provided with any emails or documentation to support the above
statement of facts. I have also not been provided with any dates or times of alleged verbal
discussions regarding the dispute.
[45] While each applicant, with one exception, has not set out the words with which they
have used in the dispute with the Employer, collectively the applicants are able to recall
words to the effect used by senior management representatives. The only exception is
Mr Deeney who can recall words to the effect of “well I believe you do” in response to the
alleged statement of Ms Storey that the Employer does not “owe you training”.
[46] If I assume, for the purposes of this Decision, that there was an issue regarding
training for the Applicants and Mr King, and there was a meeting with the immediate
supervisor, the Applicants had the opportunity to invite a representative, which may include a
union delegate. Should a union delegate have attended, I have not been given the name of
that person.
[47] If the issue of training remained unresolved for all applicants, in Step 2 “the parties
will arrange further discussions involving more senior management”. The responsibility is
upon the parties which includes all the applicants. I have no documentation from the
applicants which indicates that they felt the matter was unresolved and requested/demanded
that it be referred to senior management. Similar to Step 1, I do not have the name of a “duly
accredited union official” who may have attended such a Step 2 meeting.
[48] If I assume that the issue remained unresolved at Step 2, subclause 13(2)(c) of the
Agreement provides that:
“The employee may, if the employee so chooses, invite a more senior employee
representative to be involved in the discussions.”
[49] Although subclause 13(2)(c) of the Agreement is discretionary for employees, I have
no evidence from the Applicants and Mr King that they sought to apply this subclause and
invite a more senior employee representative. The reason why this provision is important is
because it is the precursor to the next step in the settlement of the issue/dispute.
[50] The next step in the resolution of an issue/dispute is:
“In the event there is no agreement to refer the matter to a more senior level or it is
agreed that such a reference would not resolve the matter, the parties shall jointly
or individually refer the matter to Fair Work Australia (FWA)...”
[51] The Commission has:
no documentation to state that there was disagreement between the parties to refer
the matter to a more senior level; or
no documentation that the parties have agreed that such a reference to a more senior
level would not resolve the matter.
[2014] FWC 7019
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[52] It is only when such a pre-condition, and those prior conditions to in Steps 1, 2 and 3,
are met, is the Commission able to hear and determine the dispute.
[53] While some gaps in documentation may be excusable, a complete absence cannot be
overlooked especially when to facilitate the process towards resolution, requires at paragraph
13.3(b) of the Agreement that:
“Throughout all stages of the procedure all relevant facts must be clearly identified and
recorded.”
[54] For this reason, I am unable to agree with the submission of all Applicants that there is
“nothing in Clause 13 requiring any formality”. In summary, I find that the provisions of
Clause 13 of the Agreement have not been complied with to give the Commission the power
to deal with the applications.
CONCLUSION
[55] The Commission has the power to arbitrate the disputes between the parties subject to
the limitation imposed in s.739 of the FW Act.
[56] For the Applicants, the Commission cannot vary the terms of Clause 13 of the
Agreement to include the provision that an ex-employee can refer a matter to the Commission
for resolution.
[57] At its broadest, subsection 739(1) of the FW Act enables the Commission to deal with
a dispute (subject to certain exceptions), if an enterprise agreement contains a term
empowering the Commission to deal with a dispute. Pursuant to s.186(6)(a) of the FW Act
the term must include a procedure that allows the Commission to deal with the dispute. If the
enterprise agreement contains a procedure, the Commission cannot exercise any powers
beyond the term of the enterprise agreement. In these applications, the Commission is
empowered to deal with the dispute after certain procedural steps have taken place. Those
procedural steps have been asserted as fact but not supported. The power of the Commission
is conditional - those conditions have not been met. Accordingly, the Commission has no
power to deal with the applications.
[58] For the Commission to have to exercise any power pursuant to paragraph 13.2(c) of
the Agreement, it is necessary that the precursor steps be complied with. If employees wish
to engage the operation of Clause 13 of the Agreement, he, she or they, must comply with its
obligations.
[59] For the above reasons, all the applications will be dismissed for want of jurisdiction.
An order to this effect is issued jointly with this Decision.
COMMISSIONER
[2014] FWC 7019
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Final written submissions:
Respondent: 16 July and 20 August 2014.
Applicant: 6 August 2014.
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