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Fair Work Act 2009
s.739—Dispute resolution
Michael Taylor
v
WesTrac Pty Ltd
(C2021/7918)
COMMISSIONER WILLIAMS PERTH, 13 DECEMBER 2021
Application to deal with a dispute - jurisdiction.
[1] This decision concerns an application made by Mr Michael Taylor (the Applicant) under
section 739 of the Fair Work Act 2009 (Cth) (the Act). The respondent is WesTrac Pty Ltd (the
Respondent).
Background
[2] The Applicant’s employment is covered by the Vehicle Repair, Service and Retail 2020
Award [MA000089] (the Award).
[3] The application is based upon the dispute settlement procedure of the Award which is
prescribed in clause 37 - Dispute Resolution as follows.
“37.1 Clause 37 sets out the procedures to be followed if a dispute arises about a matter
under this award or in relation to the NES.”
[4] The application says the dispute is about protection of private medical information, the
right to a safe workplace including a risk assessment for what is being asked of him in relation
to undergoing a medical procedure. Consultation in relation to changes in the workplace and/or
the conditions of his employment.
[5] The Applicant says his employer is using coercion to make him undergo a medical
procedure against his will and is using the threat of ending his employment to get compliance.
[6] The Applicant says his employer is within a group of industries and occupations which
stipulates workers must be fully vaccinated to attend work. His employer has stated he is
required to be vaccinated to continue with his current role.
[7] On 24 November 2021 the parties were sent a Notice of Listing for a conference to be
held on 10 December 2021.
[2021] FWC 6595
DECISION
AUSTRALIA FairWork Commission
[2021] FWC 6595
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[8] Directions were also issued requiring the Applicant to file a submission explaining how
this dispute ‘…arises about a matter under this award or the NES’ is as required by clause 37
of the Award for the Commission to have jurisdiction.
[9] In reply the Applicant provided a comprehensive written submission which was
discussed at the conference held on 10 December 2021.
[10] The Respondent in its reply refers to the Resources Industry Worker (Restrictions on
Access) Directions (No. 2) made under the Public Health Act 2016 (WA). This direction in
summary requires resource industry workers as defined to not enter a rural or remote resources
industry site or a remote operating centre if they have not been partially vaccinated against
COVID-19 on and from 1 January 2022. The order requires a resources worker to provide
evidence of their vaccination status. Employers of resource industry workers must take steps to
collect and maintain records of their vaccination status and only roster on, or otherwise permits
to work on site, workers who have been vaccinated.
[11] Both parties agreed the above direction under the Public Health Act 2016 (WA) applies
to the Applicant.
Consideration of jurisdiction
[12] Relevantly section 738 and 739 of the Act are set out below.
“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.
[2021] FWC 6595
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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.”
[13] In summary then section 738 of the Act allows parties to a workplace dispute to apply
to the Commission to deal with the dispute if:
a modern award or enterprise agreement or a contract of employment or other written
agreement includes a dispute resolution procedure, and
that dispute resolution procedure requires or allows the Commission to deal with the
dispute.
[14] Section 739 of the Act provides that the Commission can only deal with a dispute in the
way that the dispute resolution clause allows. The Commission must not exercise any powers
until the conditions of the clause have been met.
[15] The Commission can only deal with disputes under a contract of employment or other
written agreement that relate to the National Employment Standards (the NES) or a safety net
contractual entitlement.
[16] The Applicant submitted that the consultation clause in Award set out below was
relevant.
[2021] FWC 6595
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“35. Consultation about major workplace change
35.1 If an employer makes a definite decision to make major changes in production,
program, organisation, structure or technology that are likely to have significant effects
on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and
their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on
employees; and
(c) commence discussions as soon as practicable after a definite decision has
been made.
35.2 For the purposes of the discussion under clause 35.1(b), the employer must give in
writing to the affected employees and their representatives (if any) all relevant
information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
35.3 Clause 35.2 does not require an employer to disclose any confidential information
if its disclosure would be contrary to the employer’s interests.
35.4 The employer must promptly consider any matters raised by the employees or their
representatives about the changes in the course of the discussion under clause 35.1(b).
35.5 In clause 35 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s
workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
[2021] FWC 6595
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(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or
locations; or
(g) job restructuring.
35.6 Where this award makes provision for alteration of any of the matters defined at
clause 35.5, such alteration is taken not to have significant effect.”
[17] In my view what has occurred here is not a definite decision by the Respondent to make
a change. Rather the Respondent is merely seeking to comply with its obligations under the
Western Australia Government’s public health direction.
[18] In the alternative if the Respondent can be held to have made a definite decision to make
a change it is not a major change “…in production, program, organisation, structure or
technology…”.
[19] In either case clause 35 - Consultation about Major Workplace Change has no
application to this dispute raised by the Applicant.
[20] Applying the legislative provisions, section 738 and 739, and considering the relevant
award clauses in this application, it is apparent that the Award’s dispute settlement procedure
in this case only deals disputes that arise about a matter either under the Award or in relation to
the NES.
[21] I am satisfied that the particular dispute in this case is not a dispute that arises about a
matter under the Award nor is it in relation to the NES.
[22] Consequently, the dispute settlement procedure clause in the Award does not empower
the Commission to deal with this particular dispute.
[23] This application is therefore beyond jurisdiction and must be dismissed for that reason.
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PR736711
THE FAIR WORK OMMISSION COMMISE CAL THE S
