The attached document replaces the document previously issued with the above code on 15 May 2015.
1. At paragraph 50, a space has been inserted between ‘clause4.1’ and this has also been corrected to read ‘clause 41’
2. At paragraph 60, a space has been inserted between ‘clause36.9’ so it now reads ‘clause 36.9’
3. At paragraph 61, second line, the word ‘have’ has been amended to ‘has’
4. At paragraph 76, a space has been inserted between ‘clause2.2’ so it now reads ‘clause 2.2’
Lauren Thomas
Relief Associate to Commissioner Lewin
Dated 17 June 2015.
[2015] FWC 1138 [Note: An appeal pursuant to s.604 (C2015/4231) was lodged against this decision - refer to Full Bench decision dated 30 October 2015 [[2015] FWCFB 5619] for result of appeal.] |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Mining and Energy Union
v
North Goonyella Coal Mines Pty Ltd
(C2013/1697, C2013/5463)
COMMISSIONER LEWIN |
MELBOURNE, 15 MAY 2015 |
Alleged dispute about matters arising under an enterprise agreement — application for the Fair Work Commission to deal with a dispute — selection of employees for redundancy — dispute resolution procedure — jurisdiction — whether the Fair Work Commission may deal with the dispute — representation of employees — employees making application not employed at the time application for the Commission to deal with dispute made — scope of dispute settlement procedures of enterprise agreement — who may commence dispute settlement procedure — interests of persons in employment under the Agreement in the Commission dealing with the application — standing of organisation covered by enterprise agreement to commence a dispute resolution procedure under enterprise agreement — no jurisdiction for the Commission to deal with the application — application by former employees dismissed — earlier application to be heard.
[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has made an application to Fair Work Australia, matter number C2013/1697 (the application). For reasons which do not need to be explained, a reference to Fair Work Australia is to be taken as a reference to the Fair Work Commission (Commission) for present purposes. 1 The application is made under s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute said to arise under the terms of the North Goonyella Underground Mine Collective Enterprise Agreement 2012 (the Agreement), to which the dispute settlement procedures of the Agreement are said to apply. The Agreement applies to the employment of persons employed by North Goonyella Coal Mines Pty Ltd (North Goonyella), at an underground coal mine in the Bowen Basin in North Queensland.
[2] The application was made on 25 October 2013.
[3] The subject matter of the application concerns the termination of the employment of a number of employees of North Goonyella for reasons of redundancy, between 27 and 29 August 2013 (the redundant employees).
[4] The circumstances of the termination of the employment of the redundant employees, disputation and litigation about those circumstances, including consultation, selection for redundancy, and breaches of the Act and the Agreement in 2013, have a long and highly contentious history between the employees of North Goonyella, their representatives and the employer.
[5] A reading of the decision of the Federal Court of Australia (the Court) in Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd [2013] FCA 1444 is informative of some of the background to the application. For reasons associated with the course of proceedings before the Court, the application has been in abeyance for some time and was not allocated to me until late 2014.
[6] I conducted a conference in relation to the application in Brisbane on 5 November 2014. At that conference North Goonyella foreshadowed jurisdictional objections to the Commission dealing with the application. The parties agreed at the conference that the jurisdictional objections should be dealt with on the papers. Consequently, the Commission issued directions to the parties on 5 November 2014 for the filing of submissions in relation to the jurisdictional objections. Those submissions were filed as follows: North Goonyella filed and served on the CFMEU on 12 November 2014, the CFMEU filed and served on North Goonyella on 22 November 2014, submissions in reply were filed by North Goonyella and served on the CFMEU on 26 November 2014. The Commission was ready to decide the jurisdictional objection on the papers filed as agreed at the Conference in Brisbane on 5 November 2014 in early 2015.
[7] There was some prevarication on the part of the CFMEU in relation to the procedure agreed at the Conference held in Brisbane on 5 November 2014. In the submissions filed on 26 November 2014, the CFMEU sought a further hearing to support their response to the objections of North Goonyella. 2 A Mention Hearing was conducted on 25 March 2015, at which the Commission advised of its readiness to issue a decision on the material before it.
[8] At the Mention Hearing on 25 Marach 2015, the CFMEU sought to, and were directed, to file and serve a witness statement in support of their response to the objections of North Goonyella. The CFMEU filed and served the Witness Statement of Luke Adam Ludlow on 7 April 2015 in response to North Goonyella’s objections. 3 North Goonyella filed and served submissions in relation to this witness statement on 20 April 2015.
[9] On 6 May 2015, the CFMEU sought to file a Second Statement of Luke Adam Ludlow. The Commission admitted the second witness statement at a hearing held on 8 May 2015, 4 where oral submissions were made in respect of the witness statements of Mr Ludlow and North Goonyella’s jurisdictional objections. The Commission then reserved its decision.
[10] In addition to the application, there have been other proceedings before the Commission constituted of Deputy President Asbury in relation to an earlier application for the Commission to deal with a dispute brought by the CFMEU under s.739 of the Act. The earlier application was filed with the Commission on 6 August 2013 (C2013/5463) and also concerned the redundancy situation at North Goonyella in mid-2013, although prior to the termination of the employment of the redundant employees. That application was the subject of conciliation by Deputy President Asbury on 8 August 2013. The earlier application resulted in the Deputy President issuing a recommendation in relation to that dispute on 9 August 2013, in accordance with the dispute resolution clause of the Agreement. It is informative to set out Deputy President Asbury’s recommendation:
“[4] The Commission Recommends that:
1. The Timetable for Redundancy Process and Consultation be implemented;
2. The parties meet in Mackay early in the week commencing Monday 12 August, for the purpose of discussing specific matters raised by the CFMEU with respect to:
3. The parties continue to meet over the course of the Timetable to discuss matters about which consultation is required under the terms of the Agreement; and
4. For the purposes of those meetings:
[11] A copy of the Timetable (“Timeframe”) for Redundancy Process and Consultation is attached to this decision as Appendix A.
[12] North Goonyella submits that the dispute the subject of the earlier application has been settled and for this reason is beyond jurisdiction.
[13] As already observed the application concerns disputed terminations of employment which occurred before the filing of the application with the Commission. Whereas the dispute subject to the earlier application concerned North Goonyella’s application of the terms of clause 38 Redundancy of the Agreement leading up to and prior to the decision to make a number of the employees of North Goonyella redundant in August 2013, including the redundant employees who are referred to in the application.
[14] At the centre of the jurisdictional objection is the filing of the application after the termination of the employment of those redundant employees.
[15] The issues raised by the jurisdictional objections of North Goonyella have some complexity and touch upon the proper construction of the statutory scheme for the making and approval of enterprise agreements under the Act and the settlement of disputes under the relevant terms of such agreements, amongst other things.
[16] The Act requires that for an enterprise agreement to gain statutory force approval under the provisions of Subdivision B of Division 4 of Part 2-4 of the Act is required. For approval of an enterprise agreement, the enterprise agreement must include a term for the settlement of disputes. The relevant provision is set out in s.186(6) of the Act as follows:
“Requirement for a term about settling disputes
(6) The FWC must be satisfied that the agreement includes a term:
(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:
(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and
(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.
Note 1: The FWC or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).
Note 2: However, 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).”
[17] The Commission’s jurisdiction to deal with a dispute of the kind said to exist in the application is subject to the following provisions of the Act, which appear in Subdivision B — Dealing with disputes in, Part 6 - 2 — Dealing with disputes.
[18] Section 738 states:
“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);
(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.”
[19] Section 739 states:
“(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.”
[20] The Agreement provides for a dispute settlement procedure, as follows:
“41. DISPUTE RESOLUTION PROCEDURE
41.1 In the event of any dispute arising as to the interpretation or application of this Agreement, including matters in relation to the NES and disputes that are expressly authorised to be dealt with under this clause by another term of the Agreement, the following procedure will apply.
41.2 The employee may choose to be represented at any stage in this procedure by a representative/s of their choosing.
STEP 1: The matter will in the first instance be discussed between the employee/s and the immediate supervisor involved. The supervisor and the employee shall make every reasonable effort to resolve the matter between themselves. An agreed time limit will allow the immediate supervisor to investigate the grievance and respond. If an agreement is reached it shall be recorded in writing.
STEP 2: If the matter remains unresolved, it will be referred for discussion between the employee and/or the employee’s representative/s at the Mine or CHPP and the relevant Department Manager or their representative.
STEP 3: If the matter remains unresolved, it will be referred for discussion between the employee and/or the employee’s representative/s and senior Company representatives.
STEP 4: If the matter remains unresolved, it will be referred to FWA for conciliation and, if the dispute remains unresolved, arbitration. In exercising its powers under this clause FWA may exercise all powers and functions incidental or associated with the exercise of conciliation or arbitration.
41.3 By agreement between the respective representatives, any or all of the above steps may be bypassed in the interest of speedy resolution of the dispute. Either party may make an application to FWA for a determination that steps 1 to 3 be bypassed and the matter proceed directly to conciliation and or arbitration. Such determination will be by reference to what is fair as between the parties and the extent of any prejudice to a party that will be caused unless those steps are bypassed and on the basis that ordinarily the steps should only be bypassed where a failure to do so will sound [sic] in material prejudice to the Company or affected employees.
41.4 While the steps are being followed, work will proceed in accordance with the reasonable and lawful directions of the Company and in accordance with the employees’ skills, competence, and training and safe work practices.”
[21] In the application, the CFMEU applied for a determination that the matter proceed to conciliation and/or arbitration in accordance with clause 41.3 of the Agreement. Thus the application is for the Commission to deal with the application by determining that the subject of the application will be dealt with by the Commission, by conciliation or arbitration, in accordance with the terms of STEP 4 of clause 41 of the Agreement. However, it is also submitted by the CFMEU that North Goonyella participated in the early steps of the dispute settlement procedures of the Agreement in relation to the subject matter of the application in late 2013. 5
[22] A central issue raised before me is whether the CFMEU is competent to act to make the application. North Goonyella submits that only an employee whose employment is covered by the Agreement and/or their representative may raise a dispute in accordance with the relevant provisions of the dispute settlement procedure in clause 41 of the Agreement. Thus, North Goonyella submits, there is no valid application before the Commission under the relevant provisions of the dispute settlement procedure of the Agreement, as in the circumstances it cannot be said to have been made by a representative of an employee(s).
[23] The CFMEU submits that:
[24] For the purposes of this decision, on the material before me, further to submissions by the CFMEU regarding its representative authority, 6 I proceed on the basis that the CFMEU is an authorised representative of persons seeking to access the dispute settlement procedure of the Agreement, as contemplated by clause 41.2 of the Agreement, by making the application, those persons are:
[25] I also generally accept that, for the purposes of the application, the CFMEU acts as a representative of persons currently employed by North Goonyella who may not have been employed in July and August 2013.
[26] At the mention of the application on 25 March 2015, North Goonyella conceded that facts concerning the CFMEU’s representative status need not be proved. 7
[27] Notwithstanding all of the above, North Goonyella submits the persons who the CFMEU relevantly represents and who are in fact the subject of the application (the redundant employees) were not employees at the time of the making of the application. North Goonyella submits that only employees of North Goonyella and not former employees may access the dispute settlement procedure of the Agreement. North Goonyella submits that the application concerns the redundant employees, who are correctly described as former employees.
[28] North Goonyella submits that anything it may have done in relation to the subject matter of the dispute, whether described as conforming to the early steps of the dispute settlement procedure or otherwise cannot create jurisdiction and power for the Commission to deal with the application beyond the express and limiting terms of clause 41 of the Agreement.
[29] In the case of ING Administration Pty Ltd v Jajoo, Ramsin (PR974301) 8 (ING) the Full Bench of the Australian Industrial Relations Commission (AIRC) determined that where a dispute settlement procedure prescribed by an agreement certified under the WR Act 1996 was commenced concerning a matter in relation to an employee or employees in employment, whose employment was subsequently terminated, the application of the relevant dispute settlement procedures under the certified agreement remained available to such persons, notwithstanding the termination of the employment relationship. However, the decision of the Full Bench observed that if a person who was a former employee sought to initiate a dispute resolution procedure under a certified agreement after the termination of the person’s employment, rather than before the termination of the employment, the employee may not have access to the dispute resolution procedure set out in such an agreement.
[30] The following extract from that decision addresses this point:
“[53] It may be that a former employee cannot initiate a dispute under the clause after his or her employment has ceased. The notion of an employee raising the matter with the immediate manager or supervisor in the first instance tells against the existence of jurisdiction in such a case.”
[31] If this reasoning is applicable and the application relates to persons who were employees of North Goonyella at the time of the application, the application may be dealt with by the Commission in accordance with the dispute settlement procedure of the Agreement. This is uncontested.
[32] On the other hand, if the application relates to and is made by former employees or their representatives the decision in ING suggests that the application may not be able to be dealt with by the Commission as former employees may not be able to initiate the dispute provisions of the Agreement. In my view, this will depend upon construction of the dispute settlement term of the Agreement, which will be discussed further below.
[33] In Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2007] AIRCFB 374 [PR977023] (Telstra), the Full Bench of the AIRC followed the approach taken in ING. It is informative of the approach of the Full Bench of the AIRC to the issue under consideration to extract the following:
“[11] The first preliminary issue is whether the Commissioner had jurisdiction to deal with the matter before him. The second is whether the Commissioner’s determination is appealable in any event.
[12] The first issue arises in the following way. At the time the Commissioner came to deal with the matter the four employees in question had been retrenched and had ceased to be Telstra employees. For that reason Telstra submitted that there was no dispute to which cl.17 of the Agreement could apply at the relevant time. It can be seen that the main contention underlying this submission is that the Commission’s power under s.134H provisions is limited to disputes between employers and persons who are in employment. If that contention is correct termination of employment would bring proceedings under such provisions to an end.
[13] The same issue arose recently in the case of ING Administration Pty Ltd v Jajoo. While in that case the dispute resolution procedure had been approved pursuant to the terms of s.170LW of the Workplace Relations Act 1996 (pre-reform), the position under s134H is not relevantly different. The Full Bench decided by majority that a dispute which had been raised by an employee pursuant to a dispute resolution provision in a certified agreement did not cease to be such a dispute by reason of the termination of the employee’s employment before the dispute had been finally dealt with by the Commission. In these proceedings neither party sought to persuade us that ING Administration was wrongly decided, although Telstra put a formal submission to that effect. In the circumstances it is appropriate that we follow the decision in ING Administration which is a relevant and recent Full Bench authority. We should add that there is nothing in cl.17 of the Agreement to indicate that the parties intended that in circumstances such as the present the operation of the clause ought be contingent on the employees concerned remaining in employment.”
(footnotes omitted)
[34] In the case of Deakin University v S Rametta [2010] FWAFB 4387, the issue under consideration, likewise with those in ING and Telstra, arose under the provisions of the WR Act 1996, but was decided by Fair Work Australia (FWA), as provided for in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. It is informative to refer to the following extract from that decision:
“[32] Deakin University submits that, to the extent there were disputes between Ms Rametta and Deakin University over the application of the Agreement, the disputes ceased when Ms Rametta’s employment ceased with Deakin University on 5 June 2009. The majority of a Full Bench in ING Administration Pty Ltd v Jajoo decided that cessation of employment did not bring proceedings before the Commission pursuant to a dispute resolution procedure in a certified agreement to an end. That decision was followed in Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
[33] Deakin University suggested that these decisions are distinguishable on the basis that they concerned redundancy provisions in certified agreements. They maintained that some disputes over the application of agreements do not survive termination of employment. In this regard, they referred to disputes over the application of terms of an agreement that cannot practically and logically apply to a former employee. They submitted that, in so far as the disputes before the Commissioner concerned the alleged unsatisfactory performance of Ms Rametta and Deakin University’s non-observance of the process in clause 18 of the Agreement and/or the consultation provisions in clause 70 of the Agreement, the disputes ceased for all practical purposes with the cessation of Ms Rametta’s employment by Deakin University on 5 June 2009.
[34] We are not persuaded the principle contained in the decisions in the ING Administration case or the Telstra case is dependent on the nature of the term of the Agreement in dispute as suggested by Deakin University. Accordingly, in light of these decisions, we are not persuaded the Commissioner erred in failing to conclude there was no dispute capable of being conciliated and/or arbitrated before her from the date of the cessation of Ms Rametta’s employment by Deakin University. We consider, for the reasons earlier given, that there were disputes over the application of clauses 18 and 70 of the Agreement capable of being conciliated and/or arbitrated notwithstanding the fact that Ms Rametta’s employment with Deakin University ceased on 5 June 2009.”
(footnotes omitted)
[35] In this case it is appropriate to note some of the particulars of the statutory context in which the Full Bench decisions of the AIRC and FWA referred to above were decided under the provisions of the WR Act 1996. At the centre of the consideration of the tribunals was s.170LW of the WR Act 1996 and s.134H of the Industrial Relations Act 1988 (Cth) (IR Act), which were considered to be to the same effect, whereas the relevant statutory provisions applicable to the application before me are set out in ss 738 and 739 of the Act, as shown above.
[36] The essential difference in the statutory contexts is that s.170LW of the WR Act 1996 and s.134H of the IR Act respectively, dealt with the jurisdiction and power of the AIRC in relation to procedures for settling disputes “between the employer and employees” under the terms of collective agreements certified by the AIRC and limited the power of the relevant tribunal to settle such disputes to, disputes “over the application of the certified agreement”. Whereas, s.186(6) of the Act requires that an enterprise agreement include a term providing a procedure to settle disputes and a term for the settlement of disputes “arising under the enterprise agreement” and in relation to the National Employment Standards (the NES). These provisions of the Act can be considered mandatory minimum provisions in relation to the settlement of disputes to be provided for by an enterprise agreement made under the Act, rather than statutory limitations on the role of the Commission in relation to such disputes.
[37] The parties to an enterprise agreement made under the Act may choose to prescribe a procedure for settling disputes that goes beyond the requirements of s.186(6). 9 Notably, the statutory limitations of the kind contained in s.170LW of the WR Act 1996 and s.134H of the IR Act, whereby the AIRC could only deal with disputes between employees and an employer and only in relation to disputes over the application of a certified agreement, do not form part of the current legislative scheme in relation to the settlement of disputes provided for by enterprise agreements.
[38] The CFMEU describes the subject matter of the dispute in the application as follows:
“4. What is the dispute about?
1. The manner in which the Company applied clause 38 of the North Goonyella Underground Mine Collective Enterprise Agreement 2012 (the Agreement) in relation to the redundancies effected between 27 August to 29 August 2013.
In selecting employees to be made redundant the Company has not correctly applied the selection criteria requirements contained in the Agreement.
The selection criteria applied was inconsistent with the Agreement and irrelevant considerations were taken into account in selecting employees for redundancy.
2. Specifically, the dispute is in relation to the formulation of the selection process and/or its application.”
[39] North Goonyella submit that the proper characterisation of the dispute is limited to the actions of North Goonyella in relation to the termination of the employees referred to in sub paragraph 1 of the answer to Question 4 in the Form of the application.
[40] The CFMEU answers North Goonyella’s submission concerning the proper characterisation of the dispute is so limited and the submission that the persons whose employment was terminated between 27 and 29 August 2013 (the former employees) and/or their representative may not access the dispute settlement procedure of the Agreement because they were not employees when the application was made as follows.
[41] The CFMEU submits that, in addition to the former employees, persons employed at the time when the application was made to the Commission and who are still employed by North Goonyella are persons in relation to whom the application is made, whom the CFMEU represents.
[42] The CFMEU submits that those persons who were employed by North Goonyella at the time of the redundancies and who remain in employment have an ongoing interest in the application of the terms of the Agreement. The relevant interests of the remaining employees, the CFMEU submits, concern the proper application of the terms of clause 38 of the Agreement in relation to the selection of employees in a redundancy situation. In this respect, the CFMEU submits that those remaining employees and any other employees of North Goonyella covered by the Agreement may be affected by the application of such terms in a future redundancy situation.
[43] The general proposition that persons employed by North Goonyella whose employment is covered by the terms of the Agreement have ongoing interests in the proper application of the terms of the Agreement, including its redundancy provisions, is unexceptional. However, deployed in the manner of the CFMEU’s submissions, it is not adequate, in my view, to ground a finding that the application to access the dispute settlement procedures of the Agreement is one that may be dealt with by the Commission as sought.
[44] It requires little reflection to observe that if the elementary interest of a person in employment in the proper application of the terms of an enterprise agreement covering that employment is enough to create a justiciable controversy about an employer’s past application of the terms of that enterprise agreement, the relevant observation in the decision in ING and the reasoning of decisions which have confirmed that observation would be wrong.
[45] An example is readily available. Consider an employee who has been employed by an employer under the terms of an enterprise agreement whose employment has been terminated. Some 12 months later the former employee seeks to dispute the amount of payment made at the termination of the employment before the Commission, through the dispute settlement procedures of an enterprise agreement, on the basis that the terms of the enterprise agreement were not properly applied to calculate payment due at the termination of the employment.
[46] Following the observation in ING, and the subsequent decisions referred to above, the former employee is unable to access the relevant dispute settlement procedure of the Agreement if the dispute settlement procedure applies to disputes concerning employees and the relevant employer.
[47] On the CFMEU’s submission, the interests of remaining employees of the employer in the proper application of the enterprise agreement would allow the dispute brought by the former employee to be dealt with under the dispute settlement procedures of the relevant enterprise agreement.
[48] On the CFMEU’s submission, employees who were in the employment of North Goonyella at the time that the former employees were made redundant in late August 2013 who remain employed by North Goonyella (and persons employed since, one would think) have an interest in the proper application of the terms of clause 38 the Agreement. For this reason the subject matter of the application, so the submission goes, may be dealt with pursuant to the provisions of s.738 and s.739 of the Act, in accordance with the terms of the dispute settlement procedure. By this means, the observation in ING, and the other decisions referred to above, is overcome in relation to the application.
[49] On the CFMEU’s submission in this respect, the relevant “employees” for the purposes of the application (who it represents), and for the purposes of clause 41 of the Agreement, include those persons identified earlier who remain in the employment of North Goonyella.
[50] I consider this answer to the apparent obstacle to the application arising from the decisions in ING, Telstra and Deakin University to be wrong and reject it accordingly. I do so because, in my view, the express terms of the dispute settlement procedure prescribed by clause 41 of the Agreement evidently apply to the settlement of disputes between persons who are in employment — employees — when access to the dispute settlement procedure commences. Persons who were once employees (former employees) who did not seek to access the dispute settlement procedure in relation to a dispute whilst in employment do not have standing to apply to the Commission to deal with a dispute in accordance with the dispute settlement procedures prescribed by the Agreement. I explain my reasons for this conclusion below, having regard to the characterisation of the dispute and the operation of clause 41 of the Agreement.
[51] I consider that the proper characterisation of the dispute to which the application refers does not concern the future application of the redundancy provisions of clause 38 of the Agreement, as submitted by the CFMEU. Rather, the controversy which comprises the subject matter of the application is the particulars of the application of the redundancy provisions of the Agreement to the persons whose employment was terminated between 27 and 29 August 2013, whom the CFMEU represents for the purposes of the application to the Commission. That is, former employees of North Goonyella whose employment was terminated in late August 2013 in a redundancy situation.
[52] In order to understand the scope of the dispute settlement procedure of the Agreement, it is necessary to look at the terms of clause 41.1 and discern from the words of the Agreement the intended scope of the dispute settlement procedure. The words of clause 41.2 identify the type of disputes to which the dispute settlement procedure will apply, the scope of the procedures and the persons who may commence and invoke such procedures and the process to be followed to settle a dispute.
[53] Those words identify the limits of the subject matter of any such disputes expressly, as being, “as to the interpretation or application of this Agreement, including matters in relation to the NES and disputes that are expressly authorised to be dealt with under this clause by another term of the Agreement”. There is no doubt that the application of the terms of clause 38 Redundancy of the Agreement is within the scope of the subject matter to which clause 41 of the Agreement applies.
[54] However, the express terms of the dispute settlement procedure, read as a whole, strongly suggest that an employee (who may be represented) or the employer will be the persons the subject of, and the procedural interlocutors in relation to, any dispute to which the dispute settlement procedure prescribed by clause 41 applies. That is to say, the persons who may have access to the dispute settlement procedure of the Agreement are those persons identified in clause 41 or another term of the Agreement. It is telling that the dispute settlement procedure is to be commenced by an employee, who may be represented for that purpose. In my view it is such a person(s) or their representative(s) who may make an application to the Commission for a dispute of the requisite kind to be dealt with by conciliation or arbitration.
[55] Consistent with the observations in ING and the other decisions referred to above, and in accordance with the terms of the dispute settlement procedure of the Agreement, once the dispute settlement procedure is commenced by a person to whom it applies, relevantly, an employee or their representative, the procedures set out in clause 41 will have application to the dispute. Moreover, the procedures as such will not lapse in the event the person’s employment is terminated during the prescribed process. This is because when the procedures are commenced the person on whose part the procedure has commenced has a right under the Agreement to have the whole of the procedure, as specified by the terms of the Agreement, completed.
[56] In relation to the standing of former employees to access the dispute resolution procedure of the Agreement, the CFMEU draws attention to the provisions of clause 39 — Recruitment of the Agreement, in particular clause 39.6, which states:
“39.6 To remove any doubt as to the jurisdiction of FWA to deal with a dispute in relation to whether the Company has met its obligations under this clause (and without intending otherwise to affect, one way or the other, the proper construction of this Agreement), in relation to such a dispute, a former employee is deemed to be an employee for the purposes of the dispute resolution procedure.”
[57] Clause 39 provides for preference in the re-employment of employees whose employment was terminated by North Goonyella by reason of redundancy. The terms of clause 39 are attached as Appendix B of this decision.
[58] The CFMEU submits as follows:
“Clause 39 is an immediate neighbour to clause 38.5(e). It provides a further contextual indicator that the framers of that new paragraph, introduced in the 2012 Enterprise Agreement, intended the reference to “any dispute about a selection process” could cover former employees.”
[59] I am not persuaded that this submission is correct. I consider that clause 39.6 should be understood as a special provision of the Agreement necessary to give efficacy to the intention of clause 39 as a whole. Moreover, on my reading of clause 39.6, it is clear from the bracketed words that the particular provision which allows a former employee to have access to the dispute settlement procedure of clause 41 in relation to a dispute about the application of the provisions of clause 39 is not to be construed as affecting any other term of the Agreement. Hence, in my view, it cannot be that clause 41 should be read as containing a meaning indicated by or imported from clause 39 — Recruitment, except in relation to a dispute about the application of clause 39.
[60] Indeed, the perceived necessity of the provisions of clause 39.6 for the purposes of clause 39 and clause 41 suggests that without those provisions a former employee would not be able to obtain access to the dispute settlement procedures prescribed by clause 41. This may have been considered by the Agreement makers to compromise the effect of clause 39. In my view, it is this eventuality which clause 36.9 is specifically directed to cure.
[61] The CFMEU also submit that the following provision of clause 38, Redundancy, of the Agreement has the effect of providing to a person whose employment is terminated because of a redundancy situation (a former employee) access to the dispute settlement procedures of the Agreement. Clause 38.5(e) of the Agreement is in the following terms:
“In the event of any dispute about a selection process the Disputes Clause under Sect 42 shall apply.” 10
[62] I am not persuaded that this submission is correct. The words themselves are conditioned by the terms of clause 41. There is nothing in the express terms of clause 38.5(e) which has the effect of varying the procedure prescribed by clause 41 so as to include a right to a person who is a former employee to make an application of the kind before me. It might be considered that this conclusion sits at odds with that reached above in relation to the effect of clause 39. However, a selection process in a redundancy situation will occur prior to the termination of an employee’s employment. In such circumstances the dispute settlement procedure may be commenced and will not lapse before completion of the prescribed procedures in the event of the termination of a person’s employment. Whereas the whole purpose and application of clause 39 concerns only persons who are former employees when the right prescribed by clause 39 arises.
[63] As with my observations concerning clause 39, in my view, in order to extend the operation of the dispute settlement procedure of clause 41 to disputes about the proper application of clause 38, between former employees and North Goonyella, it would be necessary for a like power to that of clause 39.6 of the Agreement to be an express part of clause 38. There is no such like term. I therefore reject this submission.
[64] The CFMEU also submit that, independently of their representation of the redundant employees referred to in paragraph 1 of the answer to Question 4 in the Form of the application, and the existing or remaining employees of North Goonyella, the organisation has standing to make the application to the Commission in its own right.
[65] As previously observed, there is a difference of some substance between the relevant statutory provisions of the Act and those of the former Workplace Relations Act, including that; under the previous legislation registered organisations were identified as potential parties to certain certified agreements made under the relevant provisions of that Act, in their own right. 11 The CFMEU is an employee organisation covered by the terms of the Agreement in accordance with s.183 of the Act. There is a material difference in the legal status of employee organisations in relation to enterprise agreements made under the Act, which is evident from the change to the relevant statutory framework from that which applied previously.
[66] Section 183 is as follows:
“183 Entitlement of an employee organisation to have an enterprise agreement cover it
(1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give the FWC a written notice stating that the organisation wants the enterprise agreement to cover it.
(2) The notice must be given to the FWC, and a copy given to each employer covered by the enterprise agreement, before the FWC approves the agreement.
Note: The FWC must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)).”
[67] Clause 2 of the Agreement outlines the parties to whom the Agreement applies as follows:
“2.1 This Agreement is binding on:
a) the Company; and
b) employees of the Company employed at the North Goonyella Underground Mine (Mine) and the North Goonyella Mine Coal Handling and Preparation Plant (CHPP) who are engaged in the classes of work contained in Schedule A of the Black Coal Mining Industry Award 2010.
2.2 The Union was the bargaining representative of employees covered by the Agreement. The Agreement will cover the Union if the Union applies to FWA to be covered by the Agreement and FWA approves such application.”
[68] Paragraph 2 of the decision approving the Agreement states:
“The Construction, Forestry, Mining and Energy Union, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.”
[69] It is therefore appropriate to consider whether the above provisions of the Act and the instrument of the approval of the Agreement confer a standing upon the CFMEU to bring the application by right as an employee organisation that is covered by the Agreement, rather than as a representative of employees whose employment is covered by the terms of the Agreement.
[70] I consider that the correct approach is to decide the question by reference to the dispute settlement procedure of the Agreement, as set out in clause 41 of the Agreement. On this approach, the specific terms of the dispute settlement procedure agreed for the making and approval of the Agreement become the source of all aspects of potential for the Commission to deal with a dispute arising under its terms as sought by the application.
[71] In this respect, as has already been observed, dispute settlement procedures of an enterprise agreement can describe any dispute about matters pertaining to employment which may be dealt with under such procedures. For example, such dispute settlement procedures may expressly include reference to disputes between employees and their supervisors. The disputes which may be settled may be expressly confined to disputes arising under an enterprise agreement, as described in s.186(6) of the Act. On the other hand, the relevant disputes may include disputes concerning the relationship between an employer and an employee organisation that will be covered by the Agreement (viz s.172(1)(b) of the Act). This could include the terms of such a relationship in respect of procedures for the settlement of disputes.
[72] Such terms may confer mutual rights, duties and obligations in relation to the settlement of disputes, including a role in the initiation of dispute settlement procedures and when such dispute settlement procedures may be instigated by an employee, employer or an employee organisation covered by the agreement. It would seem that this may also include reference to the ability of a former employee to bring a dispute in accordance with the dispute settlement procedures of an enterprise agreement, as has been done in clause 39 of the Agreement, parties may be presumed to be aware of this particular aspect of the Agreement.
[73] In fact, dispute settlement procedures in enterprise agreements approved by the Commission can and often do go further than the minimum requirements prescribed by s.186(6) the Act, for example, to include any dispute arising out of the “employment” or “employment relationship” of persons whose employment is covered by an enterprise agreement.
[74] These possibilities indicate that the decision of persons who make enterprise agreements to fashion their own mutually acceptable dispute settlement procedures and the scope of such procedures (provided such procedures include the minimum statutory requirements in s.186(6) of the Act) will be the source of any role or function of the employees, former employees, the employer or a relevant employee organisation, as well as the role of the Commission, in relation to the application of the dispute settlement term of an enterprise agreement, pursuant to s.738(b) and s.739 of the Act.
[75] For these reasons, in my view, the expression and evident intention of the makers of the Agreement as manifest in the words of the text of clause 41 of the Agreement should be considered to be the description of the disputes to which the procedures therein apply and how those procedures apply, including how such procedures operate and who may commence or engage such procedures.
[76] It is informative to digress to note that, given the CFMEU is an employee organisation covered by the Agreement as contemplated by clause 2.2 of the Agreement, it would seem that there would be no statutory obstacle to the terms of a dispute settlement procedure of the Agreement ascribing roles and functions to the CFMEU for the purposes of the dispute settlement procedure prescribed by clause 41, in relation to persons who are members of the CFMEU, including former employees.
[77] Clearly, the Agreement before me does not feature any broader considerations than disputes between employees and North Goonyella. Rather, in my view, what was agreed by the parties who made the Agreement was that disputes involving persons whose employment is covered by the Agreement and who are employees, when the dispute is submitted for settlement in accordance with the provisions of clause 41 of the Agreement, may be represented by a person of their choosing, including the CFMEU. It follows that any application made by the CFMEU to access the dispute settlement clause of the Agreement is only competent to the extent that it is made as a representative of persons who are employees of North Goonyella and who wish to submit a justiciable controversy within the scope of the provisions of clause 41.1 affecting them for settlement in accordance with the Agreement.
[78] Accordingly, I find that the the jurisdiction of the Commission to deal with a dispute under s.739 of the Act, by reason of s.738(b) of the Act, is derived from the terms of the dispute settlement procedure of the Agreement. Any role of the CFMEU as an organisation in relation to such dispute resolution procedures must emanate from the express terms of the Agreement. Those terms do not envisage the CFMEU as able to access the dispute settlement procedures of the Agreement, except as a representative of an employee or employees. I therefore conclude that the CFMEU does not have standing to make the application by right as an organisation covered by the Agreement.
[79] In this decision, I determine that the application made on 25 October 2013 to the Commission, in matter number C2013/1697, is not an application with which the Commission can deal under s.739 of the Act as sought, because it has been made after the termination of the employment with North Goonyella of the persons on whose behalf it is relevantly raised (now former employees). The application is not made by persons to whom the provisions of clause 41 of the Agreement apply, that is, employees. I reject the submission that the application is raised by existing employees of North Goonyella in relation to the future application of clause 38 of the Agreement.
[80] I have not, however, hereby determined that the Commission may no longer deal with the application with file number C2013/5463, made on 6 August 2013. That was made when the persons the subject of the application in C2013/1697 were employees of North Goonyella.
[81] Whether or not there is jurisdiction and power to deal with the dispute the subject of that application or any residue of that dispute is a question in respect of which I propose to conduct a further hearing.
[82] North Goonyella’s submissions distinguish the dispute the subject of the earlier application from the application in C2013/1697. North Goonyella submits that the dispute the subject matter of the earlier application was resolved by Deputy President Asbury as a result of the conciliation conducted on 8 August 2013 and the recommendations made in relation to that dispute, on 9 August 2013. Further, description of the dispute the subject of the earlier application by Deputy President Asbury as “the consultation dispute” and a description of the application by the Deputy President as relating to “the selection dispute” is relied upon by North Goonyella as a distinction between the two disputes.
[83] The recommendations made by Deputy President Asbury in relation to the dispute subject to the earlier application, made under Step 4 of the dispute settlement procedure of the Agreement, refer to and recommend the application of “selection criteria as discussed with and agreed by the CFMEU on or about 29 July 2013 to all possible involuntary redundancies”. (see Appendix A - Friday 23 August 2013)
[84] It seems clear that the scope of the dispute before Deputy President Asbury included reference to selection criteria for the redundancies of late August 2013 and identified discussions which led to an agreed set of such criteria which formed part of the Deputy President’s recommendation. If that recommendation was adopted by North Goonyella and applied in accordance with the content of the discussions held on or about 29 July 2013 (as referred to in the document annexed to the recommendation titled “Timeframe for Redundancy Process and Consultation”) that would indicate settlement of that aspect of the dispute subject of the earlier application in accordance with Step 4 of the dispute settlement procedure in the Agreement.
[85] If it should be established that the agreed selection procedure, as referred to by Deputy President Asbury as part of the application of the dispute settlement procedure, and recommended by Deputy President Asbury, was not applied it may be that the subject matter which formed part of the dispute subject of the earlier application concerning selection for redundancy remains unresolved by the Deputy President’s recommendation. If so, it may be that there is an unresolved aspect of the dispute subject to the earlier application dealt with by Deputy President Asbury, which remains to be dealt with in accordance with the steps prescribed by clause 41, including further involvement of the Commission.
[86] The CFMEU contend that the relevant part of Deputy President Asbury’s recommendation identified above was not adopted by North Goonyella. Rather, it is submitted by the CFMEU that North Goonyella applied selection criteria contrary to the terms of the approach that was discussed on or around 29 July 2013 between the parties and recommended as settlement of the dispute subject of the earlier application by Deputy President Asbury, on 9 August 2013.
[87] Clearly there is a significant issue of disputed fact in relation to the settlement or otherwise of the dispute the subject of the earlier application. North Goonyella and the CFMEU agreed that the Commission should not determine the jurisdictional objections before it on the basis of disputed facts.
[88] If there is any residue of the dispute dealt with by Deputy President Asbury, the characterisation thereof will be conditioned by the particulars of what the dispute submitted to Deputy President Asbury was comprised of and the extent to which the recommendation made by Deputy President Asbury was adopted or not adopted. Any such characterisation would likely be qualified by the details of the discussions and agreement referred to in the recommendation of Deputy President Asbury, when compared with the actions of North Goonyella when selecting employees for redundancy in August 2013. The application in C2013/1697 describes a general dispute about the application of the terms of the Agreement to the selection of certain former employees in the redundancy situation, which developed at North Goonyella in late August 2013, without regard for such qualifications or particulars as were the subject of the discussions on or about 29 July 2013 and which form part of the Deputy President’s recommendation.
[89] North Goonyella submit that Deputy President Asbury’s decision to close the file concerning the earlier dispute, concluded the Commission dealing with that dispute. That was an administrative action taken on the basis of the Deputy President’s recommendation, referred to above, in contemplation of the settlement of the dispute the subject of the earlier application in accordance with the terms of that recommendation. It cannot be construed, of itself, as settlement of that dispute.
[90] The application in C2013/1697 is dismissed. The application in C2013/5463 will be listed for further hearing.
COMMISSIONER
Appearances:
Mr B Docking of Counsel for the Construction, Forestry, Mining and Energy Union
Mr D Williams of Minter Ellison for North Goonyella Coal Mines Pty Ltd
Final submissions:
8 May 2015
Appendix A:
Appendix B:
1 Fair Work Amendment Act 2012 (Cth), s.3
2 Construction, Forestry, Mining and Energy Union, ‘Applicant’s Outline in Opposition to Two Jurisdictional Objections’, Submission in Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd, C2013/1697, 22 November 2014
3 Exhibit LAL1
4 Exhibit LAL2
5 Exhibit LAL2
6 Construction, Forestry, Mining and Energy Union, ‘Applicant’s Submissions in Relation to the Respondent’s Jurisdictional Objection’, Submission in Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd, C2013/1697, p 3-6
7 Transcript of Proceedings, Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd (Fair Work Commission, C2013/1697, Commissioner Lewin, 25 March 2015) PN82
8 Appeal by ING Administration P/L against decision of Drake SDP of 9 August 2006 [PR973602] – Re: Jajoo, Watson VP, Acton SDP, Cargill C, 4 December 2006
9 Boral Resources v Transport Workers’ Union of Australia [2010] FWAFB 8437 at [13]-[19]
10 North Goonyella Underground Mine Collective Enterprise Agreement 2012, Clause 38.5(e)
11 Workplace Relations Act 1996 (Cth), ss 170LI and 170LJ
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