DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union
v
BIS Industries Limited
(C2020/8140)

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Whether a dismissed employee can continue a dispute under a dispute settlement procedure in an enterprise agreement – Whether the Commission has jurisdiction to deal with a dispute under a dispute settlement term in a superseded agreement – Finding that the Commission cannot continue to deal with the dispute where the agreement containing the disputed term no longer operates and the replacement agreement does not contain the same term – Application dismissed.

Background

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applies under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the Dispute Settlement Procedure in clause 8 of the Bis Industries Moranbah North Enterprise Agreement 2013 (the 2013 Agreement). The Respondent in this matter is BIS Industries Limited (BIS/the Company). Bis is contracted to provide services at the Coal Handling Preparation Plant at the Moranbah North Mine Site.

[2] The dispute relates to a decision by BIS to terminate the employment of Mr James Simpson, a member of the CFMMEU, on the ground of redundancy. The termination of Mr Simpson’s employment took effect on 1 October 2020. The CFMMEU contends that in terminating Mr Simpson’s employment on this ground, BIS did not follow a procedure in clause 16.4 of the 2013 Agreement dealing with mandatory redundancies. The CFMMEU seeks that the Commission arbitrate the dispute as provided in the Dispute Resolution Procedure in clause 8 of the 2013 Agreement and make Orders requiring that Mr Simpson be reinstated to his former employment and compensated for lost wages.

[3] BIS objected to the Commission arbitrating the dispute on jurisdictional grounds concerning compliance with the Dispute Settlement Procedure in the 2013 Agreement, the timing of the notification of the dispute to the Commission and whether the Commission has power to order reinstatement in dispute resolution proceedings. Directions were issued for filing of materials on which the parties intended to rely to enable the jurisdictional objections raised by BIS to be determined.

[4] After the parties filed their material, I became aware that the 2013 Agreement had ceased to operate by virtue of being replaced by the BIS Moranbah North Enterprise Agreement 2020 (the 2020 Agreement) which commenced operation on 23 December 2020. I also ascertained that the 2020 Agreement does not contain the clause upon which the dispute centres – clause 16.4 of the 2013 Agreement – and nor does the 2020 Agreement appear to contain any equivalent term. The approval of the 2020 Agreement was not raised or foreshadowed by either party in their submissions which were filed in the Commission in November 2020, approximately one month before the 2020 Agreement was approved.

[5] Upon becoming aware of the approval of the 2020 Agreement, and that it did not contain the term subject of the present dispute, I corresponded with the parties raising an additional jurisdictional issue of the kind identified by a Full Bench of the Commission in Simplot Australia Pty Ltd v Australian Manufacturing Workers Union (Simplot). 1 In that case, the Full Bench held that the Commission does not have jurisdiction to deal with a dispute when the agreement which provides the source of power to deal with the dispute ceases to operate. The Full Bench in Simplot also made some observations about the authority of the Commission to deal with an application under s. 739 of the Act by an employee after their employment under the agreement has ceased. The parties were provided with a further opportunity to make submissions about the effect of that decision in light of the 2013 Agreement ceasing to operate.

[6] The following persons provided witness statements on behalf of BIS:

•  Ms Kira Kirvan, Human Resources Business Partner BIS; 2 and

•  Mr Jim Wilson, Site Manager at the Moranbah North Coal Mine. 3

[7] The following persons provided witness statements on behalf of the CFMMEU:

•  Mr James Simpson, former Operator at the Coal Handling Preparation Plant at the Moranbah North Mine; 4 and

•  Mr Mitch Hughes, Queensland District Senior Vice President of the CFMMEU, and representative of members employed by BIS. 5

[8] The parties also filed an agreed statement of facts and jurisdictional questions and sought that the Commission determine the matter on the material filed without the need for a hearing. Neither party sought to be heard on the additional jurisdictional issue arising as a result of the 2013 Agreement ceasing to operate. Accordingly, I have determined all issues in dispute on the basis of the material filed.

Agreed statement of facts

[9] The statement of facts agreed by the parties and which outlines the relevant background to the dispute is as follows:

“1. On 28 September 2020, the respondent provided correspondence to all employees in relation to potential redundancies at the Moranbah North mine

2. On 29 September 2020, Mr Jim Wilson contacted Mr James Simpson to confirm that his employment was to be made redundant.

3. Mr Wilson provided email correspondence to Mr James Simpson containing Mr Simpson’s notice of redundancy, draft package summary and a BSS dealing with change document.

4. On 1 October 2020, Mr Wilson attempted to contact Mr Simpson at or about 10:15 am regarding possible options for redeployment.

5. At or about 11:57am Mr Mitch Hughes, CFMMEU Vice President, sent email correspondence to Mr Wilson on behalf of its member, Mr James Simpson. The email stated “In accordance with clause 16.4c) James is placing this matter into dispute as per clause 8.”

6. At or about 12:15pm Mr Wilson texted Mr Simpson about rescheduling the prior redundancy meeting. Mr Simpson responded with a text referring Mr Wilson to the CFMMEU about his redundancy and the email of 11:57am.

7. At or about 2:24pm Mr Wilson emailed Mr Simpson indicating that his employment was made redundant and attaching correspondence confirming this.

8. At or about 2:29pm Mr Wilson emailed a response to Mr Hughes.

9. Between 5 October 2020 and 13 October 2020 6 emails were exchanged between the applicant and the respondent regarding the redundancy of Mr Simpson.

10. On or about 1 November 2020, the applicant filed a dispute in the Fair Work Commission in relation to the redundancy of Mr James Simpson.”

[10] The jurisdictional objections raised by BIS were framed as propositions which the Commission was requested to arbitrate upon by agreeing or disagreeing as follows:

“1. Non-compliance with the dispute resolution procedure:

a. the CFMMEU has failed to comply with the dispute resolution clause in the Enterprise Agreement, prior to lodging this dispute with the Fair Work Commission, namely the dispute never got past stage 1 of the DSP clause

b. further, the employee did not properly raise a dispute during his employment, the actual nature of the dispute was not identified by the CFMMEU until 8 October, post termination;

2. The Fair Work Commission has no jurisdiction to order reinstatement in dispute resolution proceedings.”

[11] For reasons which will become apparent, the more relevant question is the question posited by me to the parties as to whether the Commission has jurisdiction to deal with the dispute in circumstances where the 2013 Agreement has expired and the 2020 Agreement does not contain an equivalent provision to clause 16.4 of the 2013 Agreement on which the dispute centres.

The Commission’s power to deal with disputes

[12] Legislative provisions concerning the jurisdiction of the Commission to deal with a dispute pursuant to dispute settlement procedures in enterprise agreements are found in s.595 and s.739 of the Act. Section 595 states:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following (a) by mediation or conciliation (b) by making a recommendation or expressing an opinion.

(2) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(3) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(4) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section”

[13] Section 739 provides that:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(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 Commission’s powers to deal with disputes derive, in the case of an enterprise agreement, from the terms of the dispute settlement procedure contained in the enterprise agreement. As a Full Bench of the Commission observed in CFMEU v North Goonyella Coal Mines Pty Ltd 6 the Commission may deal with a dispute only on application of a party to the dispute (s.739(6)); is prohibited from exercising any powers limited by the dispute settlement procedure (s.739(3)); may arbitrate only if the agreed dispute settlement procedure permits it to do so (s.739(4)); and must not make a decision that is inconsistent with the Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)).

[15] To the extent that the Act and the terms of a dispute settlement procedure in an enterprise agreement authorise the Commission to make decisions as to the legal rights and liabilities of the parties to an agreement, it authorises the Commission to exercise a power of private arbitration. 7 It is well established that, depending on the terms of a dispute settlement procedure in an enterprise agreement, a former employee can continue to have a dispute dealt with, consistent with the terms of the particular dispute settlement procedure, provided that the employee has initiated the dispute before the termination of his or her employment.8

Relevant provisions of the 2013 Agreement

[16] The 2013 Agreement was approved by a decision of the Commission on 6 February 2014. 9 It commenced operation on 13 February 2014, and had a nominal expiry date of 30 June 2016. As previously noted the Agreement has been replaced by the 2020 Agreement which was approved by the Commission on 16 December 2020 and commenced operation on 23 December 2020. The CFMMEU is covered by the 2013 Agreement and the 2020 Agreement.

[17] Clause 8 of the 2013 Agreement sets out the Dispute Settlement Procedure, as follows:

“8.1 If a dispute relates to:

a) A matter arising out of the interpretation or application of this agreement; or

b) The National Employment Standards;

This term sets out procedures to settle the dispute. Other issues such as those arising in the course of employment, may be dealt with under this procedure by mutual agreement.

8.2 An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.

8.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or manager.

8.4 If the matter is not resolved at such a meeting, by the parties arranging further discussions involving more senior levels of management, and where requested, a representative of the employees choice (as appropriate).

8.5 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission or, by agreement of both parties, an agreed arbitrator or mediator, to conciliate on the matter. This stage of the dispute resolution can occur by mediation, conciliation, expressing an opinion or making a recommendation.

8.6 Where the above steps have been exhausted, the Fair Work Commission may then:

a) Arbitrate the dispute; and

b) Make a determination that is binding on the parties.

8.7 While the parties are trying to resolve the dispute using the procedures in this term:

a) The parties will cooperate to ensure that the dispute resolution procedure is carried out as quickly as is reasonably possible.

b) An employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

c) An employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:

(i) The work is not safe; or

(ii) Applicable occupational health and safety legislation would not permit the work to be performed; or

(iii) The work is not appropriate for the employee to perform; or

(iv) There are other reasonable grounds for the employee to refuse to comply with the direction.

8.8 The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this term.”

[18] Clause 16 deals with redundancy and relevantly provides:

“16 REDUNDANCY

16.1 Where the Company has made a definite decision that it no longer requires a task or tasks to be performed and it is not due to the ordinary and customary turnover of labour, and where the decision may result in the termination of employment of a permanent employee/s, the Company will hold discussions with the employee/s directly affected.

16.2 Discussions shall take place as soon as practicable after a definite decision has been made and shall address reasons for the proposed terminations, measures to avoid or minimise terminations, numbers of employees affected, the time frames involved and any measures available to mitigate the effects on the employees concerned.

…

16.4 Mandatory Redundancies

Should mandatory redundancies become necessary the determination of redundancies will be resolved by considering the following criteria:

(a) In order to ensure continuous and effective operations the necessary skills and competencies required to accommodate the ongoing tasks and client services will be assessed.

(b) Formal written warnings received by employees with regard to their attendance, breaches of Company policy or other disciplinary matters will be taken into consideration when determining the employees to be nominated for redundancy.

(c) After all relevant employees have been assessed according to the above criteria length of service may be applied to differentiate between employees of equal merit.

(d) Employee selection for redundancy will not be on the basis of any attribute prohibited by law.

(e) Where any disagreement arises over the selection of redundancies the matter will be dealt with through the Dispute Resolution Procedure. …”

EVIDENCE

[19] Mr Jim Wilson, Site Manager at the Moranbah North Coal Mine, gave evidence that before commencing his position in June 2020, there was a methane gas explosion at Anglo American’s Grosvenor Mine in central Queensland which seriously injured five workers. In August 2020, Anglo American advised that operations at that site would not recommence until 2021.

[20] Anglo American had also faced reduced sales volumes as a result of the COVID – 19 Pandemic, which caused major disruptions to the thermal and metallurgical coal markets which resulted in a downturn in production. Mr Wilson said that since commencing in his position, he and Mr Drew Sergeant, General Manager – Mining Services – North East had been working closely with Anglo American and their leadership team to understand the extent of the impact that these matters would have to BIS’s services and to mitigate against the impact it may have on employees.

[21] Mr Wilson said that while steps were taken to ensure work was available for all employees, the continued reduction in production meant that BIS needed to realign its structure to meet the reduced scope of services. Ms Kira Kirvan, Human Resource Business Partner at BIS, said that in late August 2020, she was made aware that due to the ongoing closure of the Grosvenor Mine and the impact of the Covid-19 pandemic, there was to be a change to BIS’s scope of services which would result in a number of positions being made redundant. She was advised by Ms Carina Graham, Human Resources Manager, and Mr Jim Wilson, Site Manager – Moranbah North, that a selection matrix had been completed regarding all operators.

[22] Ms Kirvan’s evidence is that the matrix took into consideration clause 16.4 of the Agreement, and no irrelevant or impermissible criteria were included. Mr Wilson said that as he was relatively new to the site, in allocating scores to each employee he consulted with the Operations Managers on site to ensure the scores allocated were fair and reasonable.

[23] Ms Kirvan said that after Mr Wilson had provided his ratings for each employee, she then participated in a verification process with Mr Wilson and Mr Sergeant, where each score was considered and discussed in detail. Ms Kirvan said a review was undertaken to ensure a consistent and appropriate application of ratings. A consultation process began on 7 September 2020 with the employees at the Moranbah North site. It had been identified that two employees would be made redundant and a small number of employees would change crews to balance crew sizes and ensure coverage.

[24] Ms Kirvan said the relevant redundancies took effect on 11 September 2020, and in mid-September 2020, Mr Wilson advised that additional redundancies were required, on instruction from the client regarding further reduction in work scope.

[25] Regarding these further redundancies, Ms Kirvan detailed the selection criteria mapped to clause 16.4 of the Agreement. Ms Kirvan’s evidence is that the scoring range was between 67% and 94%, and the lowest scoring employees were then identified for redundancy. Ms Kirvan noted that Mr Simpson’s score against the matrix was 68%.

[26] Regarding Mr Simpson’s redundancy, consultation began on 28 September 2020. Mr Wilson said that on that date, he commenced the consultation process by reading a memo to the employees on site, and emailing a copy to all employees, notifying that:

a) The closure of the Grosvenor mine and the continued impact of COVID-19 on the coal market, was impacting on the scope of [BIS’s] services at Moranbah North;

b) That a further 4 positions would need to be made redundant and some roles would need to shift to day shift only;

c) There may be a need for further redundancies.

[27] Mr Wilson’s evidence is that after issuing the memo, further discussions were held and it was confirmed that only 2 positions were required to be made redundant. Mr Simpson’s evidence is that while he was aware of the initial two redundancies, he did not recall hearing anything further about redundancies until around 28 September when he received an email from BIS about further redundancies. Mr Simpson said that the day after receiving this correspondence, he missed a number of calls from Mr Wilson including a text requesting a meeting to discuss the correspondence. Mr Simpson said he called Mr Wilson back, and Mr Wilson told Mr Simpson that he had been “retrenched”.

[28] Mr Wilson’s evidence is he met with Mr Simpson at 2.15pm on 29 September with Ms Kirvan also in attendance. Mr Wilson said he advised Mr Simpson at this meeting that:

a) the company had been working with Anglo American in relation to the services required on site moving forward, given the current market conditions and downturn in work.

b) A skills matrix assessment had been undertaken to determine the people who were best and most appropriately skilled to carry out the work moving forward based on the revised scope of work.

c) As a result of this change in scope, his position has been identified as no longer required effective 1 October 2020.

d) Bis had been working to identify whether there were any suitable alternative positions available for him, however, at that point in time no such position had been identified. This would continue to be reviewed over the forthcoming days.

e) If he wished to provide feedback regarding this change, this consultation process was the opportunity for him to do so.

[29] Mr Simpson confirmed that he recalled statements to this effect being made by Mr Wilson. Mr Wilson said that Mr Simpson asked why he was selected and wanted to know his score and stated his belief that he had been engaged for longer than others. Mr Wilson advised that the selection criteria included a broad range of criteria and was not just based on qualifications. Mr Wilson also advised that length of service was not a determining factor, unless people had scored the same. Mr Wilson explained that the criteria included tickets and qualifications, approach to safety, relationship with customers, team work and cultural fit, self-sufficiency, discipline and attendance. Mr Simpson was advised that those employees with the lowest scores had been identified for redundancy in accordance with the Agreement.

[30] Mr Wilson also said that Mr Simpson wanted to know the specifics of his scores relative to others, and Ms Kirvan advised Mr Simpson that Mr Wilson had discussed the skills matrix assessment, and that this was aligned to the requirements of the Agreement. Ms Kirvan noted that people were close in score and while nobody was scored low, some employees were rated slightly lower than others and for privacy reasons the scores of other employees could not be discussed or provided.

[31] Mr Simpson’s evidence is that he did ask for evidence of his scores and where he sat on the ranking to make him redundant, however Mr Wilson responded to the effect that Mr Simpson had not met the criteria and specifics could not be provided.

[32] Ms Kirvan’s said that towards the end of this meeting, it appeared to her that Mr Simpson had accepted that his role was redundant and his concern was that the meeting was being conducted over the phone rather than face to face. Mr Wilson’s evidence was also that Mr Simpson was clearly agitated at the end of the phone meeting and said words to the effect of: “okay my role is redundant, but the way you are doing this isn’t right. You should have spoken to me man to man”. Mr Simpson confirmed that he made this statement. He said that he was upset that employees who had previously been made redundant were offered in-person meetings, and he only received a call on his days off. Mr Simpson believed this was unprofessional and it upset him.

[33] Ms Kirvan also said stated that Mr Simpson was advised that any opportunities for redeployment would continue to be reviewed and was also asked to review the BIS career site to determine if there were any roles he might be interested in. It was also explained to Mr Simpson that he could, by 4.00pm on Wednesday 30 September, put forward anything further he wished BIS to take into consideration regarding the redundancy.

[34] Ms Kirvan’s evidence is that the discussion with Mr Simpson was robust, and he asked a number of questions which were responded to with appropriate clarity and detail. Ms Kirvan also said that the categories of selection criteria were explained to Mr Simpson and it was confirmed that he had no further questions before the call was concluded.

[35] Mr Wilson said that at 4.06pm on 29 September 2020 he sent an email to Mr Simpson with his notice of redundancy and his redundancy pay estimate. Mr Simpson confirmed that he received this correspondence and noted the correspondence included a request for a further meeting on 1 October 2020.

[36] Mr Simpson said that he contacted Mr Hughes of the CFMMEU later on 29 September 2020 regarding the Company’s decision to make him redundant. Mr Simpson was upset as he believed he had more skills than other employees, and he had not been told what criteria had been used for the selection. Mr Hughes requested copies of the relevant documentation and informed Mr Simpson that he would review these and get back to Mr Simpson. Mr Simpson said he provided this documentation the next day.

[37] Mr Hughes confirmed that he reviewed the documentation and the Agreement, including clause 16.4 and the dispute resolution procedure, which he believed would be the quickest method for addressing the issue of Mr Simpson’s termination and challenging the decision. Mr Simpson recalled speaking to Mr Hughes again on 1 October 2020, and his evidence is that Mr Hughes said words to the effect that he would contact the Company and place the issue of his redundancy into dispute in line with the Agreement, and that he would take up the issue on Mr Simpson’s behalf. Mr Simpson’s evidence is that following this conversation, he believed Mr Hughes would take up the matter on his behalf and the meeting with the Company on 1 October 2020 would not take place.

[38] Ms Kirvan said she did not receive an email or telephone call from Mr Simpson regarding the consultation or redundancy process prior to the 1 October 2020 meeting. Mr Wilson also said that he did not receive any further queries, requests for information, or feedback from Mr Simpson by the deadline of 30 September 2020 or by the 1 October 2020 meeting. Ms Kirvan noted that on the morning of 1 October 2020, she confirmed with Mr Wilson that no other suitable redeployment opportunities had presented for Mr Simpson.

[39] At 10.15am, Ms Kirvan and Mr Wilson attempted to contact Mr Simpson, however Mr Simpson did not answer his telephone. Mr Wilson left a voice message requesting a return call. Mr Wilson called Mr Simpson again at 11.16 am and when Mr Simpson did not answer, Mr Wilson left another voice message.

[40] At 12.15pm on 1 October 2020, Mr Wilson sent a text message asking if Mr Simpson would be free at 2.00 pm to discuss the redundancy. Mr Wilson said that at 12.22pm, he received a reply text message from Mr Simpson telling Mr Wilson to speak with Mr Hughes from the CFMMEU. At 2.00 pm, Ms Kirvan and Mr Wilson again attempted to contact Mr Simpson, but he did not answer. As they had been unable to reach Mr Simpson, Mr Wilson sent an email to Mr Simpson at 2.24 pm confirming that no suitable redeployment opportunities had arisen and accordingly his employment was terminated with effect from 1 October 2020, due to redundancy.

[41] The email included an offer that Mr Simpson could arrange a time convenient to him, for a further discussion about the redundancy. Mr Simpson’s employment ended on 1 October 2020, and he was paid his entitlements including payment in lieu of notice – comprising 2 weeks’ salary in lieu of notice, 4 weeks’ salary as redundancy pay, and his accrued leave entitlements.

[42] Mr Simpson said that later on 1 October 2020 he was copied into an email from Mr Hughes to Mr Wilson stating that Mr Simpson wished to place the issue of his selection for redundancy into dispute. Mr Simpson said that at or around this time, he noticed the missed calls from Mr Wilson and a text message requesting a meeting. Mr Simpson confirmed Mr Wilson’s evidence that he had responded stating that Mr Wilson should speak with Mr Hughes who was now representing him in this matter.

[43] Mr Simpson said that despite this correspondence, he received the email from Mr Wilson confirming that his employment had been made redundant. Mr Simpson also said at no time prior to his termination was he informed of the criteria used to select him for redundancy. He said he requested this information at the meeting of 28 September 2020, but it was not provided.

[44] Mr Wilson’s evidence confirmed that on 1 October 2020 at 11.57am, he received an email from Mr Hughes of the CFMMEU, regarding Mr Simpson’s redundancy. He said this email was broad in nature and did not provide any specifics of Mr Hughes’ concerns. The email which was tendered by Mr Wilson was in the following terms:

“I am contacting you on behalf of CFMMEU member, James Simpson. The CFMMEU represents James in relation to this issue.

James was recently notified that he will be made redundant. In accordance with clause 16.4(c) James is placing this matter in dispute as per clause 8. As a matter of urgency we seek agreement from the Company to bypass the steps of the Disputes Procedure and meet in accordance with clause 8.4 in an attempt to resolve this matter.

We request that no action to terminate James’ employment be taken until this matter is resolved and that he be allowed to continue to perform his role as required by clause 8.7 of the Disputes Procedure.

We look forward to your reply as a matter of urgency.” 10

[45] Mr Hughes’ evidence is that in this correspondence, he informed Mr Wilson that the Union represented Mr Simpson and that the Union on his behalf were placing the decision to terminate Mr Simpson’s employment via forced redundancy into dispute, in accordance with the dispute resolution process in the 2013 Agreement. Mr Wilson’s evidence is because he is working at an operational site, he is not always in front of his computer and accordingly there can be delays in reviewing and responding to emails. Before responding to Mr Hughes’ email Mr Wilson sought assistance from the Human Resources and Employee Relations team at BIS. Mr Wilson did not confirm when he read the email from Mr Hughes.

[46] Mr Wilson said that he responded to Mr Hughes’ email at 2.29 pm on 1 October 2020, explaining the process that had occurred to date. That response was in the following terms:

“…Mr Simpson was provided with notice about his potential redundancy on 29 September 2020. The workforce was also advised in relation to operational requirements and in early September and again in late September.

We were scheduled to meet with Mr Simpson at 10.15 this morning to which he had agreed to. Mr Simpson has not answered or returned our call. An additional offer to meet with Mr Simpson at 2.00 pm today was also made. Mr Simpson was asked to provide any feedback in relation to the redundancy by 4.00 pm on Wednesday 30 September to which he did not provide feedback.

Your email was received today, past the requested time for feedback and close to two hours after the scheduled meeting with Mr Simpson.

With regard to Mr Simpson’s employment, unfortunately Mr Simpson’s rose was required to be made redundant. No other alternative suitable roles could be identified for Mr Simpson to be placed in to. Mr Simpson has been notified of this in writing. An offer was also made to Mr Simpson that he may schedule another time if he does wish to meet to discuss further.” 11

[47] Mr Hughes said that Mr Wilson’s reply did not address the issues put forward regarding meeting and discussing the dispute and stated that Mr Simpson’s employment was now terminated. On 5 October 2020, Mr Hughes sent another email to Mr Wilson, again requesting a meeting in accordance with clause 8.4 of the 2013 Agreement. Mr Hughes stated his concerns that the process undertaken was hasty, and he believed the matter had not properly been discussed or explained to Mr Simpson.

[48] Mr Wilson responded on 6 October 2020 at 8.51am, noting the process was fair and confirming that the redundancy had already taken effect. Mr Hughes said that this reply failed to provide any clarity or acknowledgement of the dispute or any offer to meet. Mr Hughes sent further correspondence to Mr Wilson on 7 October 2020, again seeking a meeting. Mr Hughes said that the reply came from Ms Lucy Booth, Senior Employee Relations Advisor for Bis, who requested further information about the previous correspondence.

[49] On 8 October 2020 Mr Hughes sent a reply to Ms Booth with an outline of the dispute that had been raised with the Company prior to the termination of Mr Simpson’s employment. Mr Hughes set out the obligations the Company had with respect to forced redundancies, consultation and the dispute process. Mr Hughes sought to have Mr Simpson’s employment reinstated so that the dispute process could take place and that the company meet and discuss the dispute in accordance with clause 8.4 of the Disputes Resolution Procedure. Mr Hughes said he was getting frustrated with the lack of information and acknowledgment of the dispute by the Company, so he sought to escalate the dispute by outlining potential contraventions of the Agreement and to reserve the rights of Mr Simpson and the Union with respect to them.

[50] Mr Wilson said he was aware that Mr Hughes sent an email to Ms Booth on 8 October 2020, which he said was the first time the CFMMEU’s concerns were provided to BIS in detail allowing the Company to understand the issues that formed the dispute. Ms Booth provided a response on 13 October 2020, noting the selection criteria used, that Mr Simpson was one of the lowest scoring employees in the second round of redundancies, and that the selection criteria had been explained to Mr Simpson on a number of occasions. Mr Hughes’ evidence is that this reply provided limited information regarding the redundancy process, as well as a denial of any contravention by the company. He said however, he did not believe the correspondence from the Company contained any acknowledgement of the dispute or the requests to meet and discuss the dispute.

[51] Mr Wilson’s evidence is that after 7 October 2020, he heard nothing from Mr Hughes or Mr Simpson, and had a request been made he would have referred the matter to Mr Sargeant to allow him to discuss the matter with Mr Hughes. Mr Hughes said that as a result of Ms Booth’s correspondence of 13 October 2020, he saw little point in responding as BIS’s position seemed clear in that it would not engage with the Union or Mr Simpson under the Dispute Resolution Procedure. Mr Hughes therefore filed an application in the Commission seeking that the dispute be dealt with.

[52] Mr Wilson said that he was genuinely surprised to receive notification of the dispute application filed with the Commission, as no further correspondence had been received from the CFMMEU and he considered the matter had been resolved. Mr Wilson also said that he was surprised that Mr Simpson had not filed an unfair dismissal or general protections application.

Submissions

BIS

[53] BIS filed initial submissions on 6 November 2020, and supplementary submissions on 18 November 2020. In its submissions BIS reiterated the evidence of its witnesses about the reasons for the redundancies, the fairness of the process that had been followed to select Mr Simpson and that Mr Simpson, along with other employees had been consulted about the redundancies and the selection process.

[54] BIS submitted that as part of the consultation process, Mr Simpson was advised of reasons for the redundancy and given an opportunity to provide alternative suggestions on how redundancy could be avoided or the impact mitigated. BIS said that while the Mr Simpson could have spoken with the CFMMEU at all times on or after 28 September 2020, it did not appear this occurred until 1 October 2020 on the day Mr Simpson was to meet with BIS to confirm the outcome of the redundancy process.
[55] BIS submitted that it had no obligation to consult with the CFMMEU about any redundancies under clauses 16.1 or 16.2 of the Agreement and that the involvement of the Union in any process is limited to a support person. Mr Simpson did not elect to bring a support person or otherwise ask to delay or defer the planned meetings to allow a support person to attend.

[56] BIS referred to s.786 of the Act, which provides for the Commission to make orders if it is satisfied that an employer has failed to consult a registered employee organisation in circumstances where a decision has been made to terminate 15 or more employees. It confirmed that in the circumstances of this matter, only two roles were made redundant, with a further two roles having been made redundant earlier in the month. Therefore, there is no enlivenment of s.786 and no requirement for BIS to consult with the CFMMEU about the redundancies. It said further there was no obligation to consult with the CFMMEU about the selection criteria used or ratings provided to employees.

[57] BIS submitted that the reduction of 2 employees, being 5% of the workforce, is not likely to be a “major change” and therefore the CFMMEU’s only possible role in the relevant change would be that of a support person should they have been requested to attend by an affected employee. BIS also submitted that even if any obligation to consult had arisen, it had been satisfied in the circumstances of this case. The Company had notified the affected employees of the proposed redundancies and discussed the effects with them, being that the employment of two employees would be terminated. It said that any measures to avert or mitigate the changes were discussed, and all matters were put to writing to the employees.

[58] BIS further submitted that the Agreement and Act do not provide timeframes in which these discussions are to occur, and it is determined by what is reasonable in the circumstances. If Mr Simpson had required more time, it was open to him to ask for it and no such requests were made. In the initial consultation meeting, Mr Simpson was able to advance his concerns and ask questions, and the evidence before the Commission does not demonstrate any inability for him to ask questions. BIS contended that if the CFMMEU held genuine concerns about a failure to consult, it should have filed an unfair dismissal application on Mr Simpson’s behalf, disputing the termination as a non-genuine redundancy.

[59] In relation to its objection on the basis that Mr Simpson is no longer employed, BIS submitted that there is no jurisdiction for the Commission to deal with a dispute under a Dispute Resolution clause of an agreement, where the dispute is initiated after an employee is no longer employed. 12 A former employee can continue to have a dispute dealt with, consistent with a dispute resolution process, only where the employee initiated the dispute prior to the termination of their employment.

[60] BIS contends that Mr Simpson did not attend the pre-arranged meeting regarding finalisation of the redundancy process, nor did he return calls made to him on the basis of Mr Simpson’s view that the CFMMEU was planning to send an email disputing the redundancy. An email from the CFMMEU Was received at 11.57 am on 1 October 2020, almost two hours after the termination meeting was set to occur.

[61] BIS contends that the dispute has not genuinely been brought prior to the ending of Mr Simpson’s employment, and this was done to delay or prevent the termination from occurring. BIS submits that if the Commission finds that the CFMMEU brought the dispute while Mr Simpson was an employee, the application lodged on 5 November 2020 relates to a new dispute rather than the continuation of the previous dispute which BIS contends was resolved on 13 October 2020. In this regard, BIS submits that the correspondence exchanged with the CFMMEU concluded with Ms Booth sending the correspondence of 13 October 2020 to Mr Hughes, which among other things outlined the selection criteria used for selecting Mr Simpson for redundancy, and that these matters had been explained to Mr Simpson, who was no longer an employee of BIS. BIS submits that the CFMMEU provided no response and did not seek to agitate the matter further, and therefore it was considered resolved at that time.

[62] BIS also submits that it is unrealistic for Mr Simpson and the CFMMEU to continue to press a claim to the effect that Mr Simpson should not have been made redundant on 1 October 2020, when:

a) The matter was effectively ended on 13 October 2020 when no response was received from the CFMMEU;

b) There is nothing before the commission which indicates that as at 13 October 2020, the CFMMEU or Mr Simpson, felt that the matter was unresolved and requested/demanded that it be referred to senior management or that additional steps would be taken;

c) There had been no agitation of the claim between 13 October 2020 and 5 November 2020;

d) Mr Simpson on his own or with the support of the CFMMEU did not bring an Unfair Dismissal or General Protections claim on or before 22 October 2020. If Mr Simpson was genuinely seeking reinstatement, or had concerns about the process followed, he should have availed himself to one of these applications; and

e) There is then a hiatus of almost five (5) weeks from the date of termination and over three (3) weeks from the last communication with the CFMMEU, where nothing has been agitated by the CFMMEU or Mr Simpson about his alleged ongoing dispute with his former employer. It is BIS’ position that a five week delay in making an application when employment had already ended, does not demonstrate a genuine attempt on the part of the CFMMEU or Mr Simpson to progress a dispute. Particularly when there were other avenues available to him.

[63] BIS therefore considered that the matter was “closed” and the dispute brought is a new claim, which neither the CFMMEU nor Mr Simpson have standing to bring, as Mr Simpson is no longer an employee and no longer has rights under the Agreement.

[64] In relation to its objection on the basis of failure by the CFMMEU to follow the Dispute Resolution Procedure in the Agreement, BIS noted that clause 8.4 of the Agreement, provides that:

“If the matter is not resolved at such a meeting, by the parties arranging further discussions involving more senior levels of management, and where requested, a representative of the employee’s choice (as appropriate).”

[65] BIS submits that at no time had the CFMMEU sought to escalate the dispute past the workplace level, being “Step 1” of the Dispute Resolution Procedure and further, the CFMMEU has not sought to apply clause 8.4 as above. BIS submits that clause 8.4 is the precursor to the next step in the settlement of a dispute at clause 8.5 which allows for the Commission to mediate, conciliate or otherwise express an opinion or make a recommendation regarding the dispute.

[66] BIS referred to the decision in The Australian Workers’ Union v MC Labour Services Pty Ltd, 13 where the Full Bench upheld a decision of Commissioner McKinnon that the dispute resolution term in an agreement set pre-conditions for the capacity of the Commission to deal with a dispute and, in the circumstances, where those pre-conditions were not met the Commission did not have a discretionary power to deal with the dispute.

[67] In its supplementary submissions, BIS rejected any assertion by the CFMMEU that BIS refused to accept the dispute and refused to meet with the Union about the dispute. BIS said there is no requirement in Step 1 of the dispute resolution clause which requires the parties to meet. The relevant discussion can occur in a number of ways, and not necessarily face to face.

[68] BIS referred to the decision in LCR Mining Group Pty Ltd v Construction, Foresty, Mining and Energy Union, 14 where a Full Bench of the Commission held that a breach of good faith bargaining obligations did not arise where an employer insisted on conducting agreement negotiations by teleconference rather than face to face meetings. It said that while Step 1 had not been met, even where Step 2 had been invoked, in light of the COVID – 19 pandemic, any further meeting or discussion would likely have occurred via telephone or other technology.

[69] The Company said that it had not ignored the Union’s correspondence regarding the dispute, and the material before the Commission shows that between 1 October and 13 October 2020, various emails were exchanged between Mr Wilson and Mr Hughes. These emails do not contain any refusal to accept the dispute or engage in discussions about it. The Company’s position is that in the initial emails, it was unclear what the CFMMEU was disputing and it was not until Mr Hughes’ email of 8 October 2020 that the dispute was clearly articulated in a way that BIS could respond to.

[70] BIS submits that a response was provided to the CFMMEU’s concerns on 13 October 2020, and if the CFMMEU was not satisfied with this response, the onus was on the Union to seek escalation of the dispute in accordance with clause 8.4 of the Agreement. The CFMMEU took no steps to indicate that it considered the matter unresolved. BIS also submits that the pre-conditions for escalating a dispute to the Commission had not been met, and therefore the Commission does not have a discretionary power to deal with the dispute before it.

[71] BIS further submits that the Commission does not have power to order reinstatement under a dispute application. It said that while the CFMMEU has referred to the decision in CFMEU v Thiess Pty Ltd, 15 no finding was made in that case as to whether a person could be reinstated and this was not canvassed in that decision. BIS also points to s.739(5) of the Act which provides that the Commission must not make a decision that is inconsistent with the Act, or a fair work instrument that applies to the parties.

[72] BIS submitted that a decision to reinstate Mr Simpson under s.739 of the Act would be inconsistent with the limited powers contained in the Act regarding reinstatement. It noted that the Commission’s powers for reinstatement are contained in the dismissal sections being s.390 for unfair dismissals, and s.369 for general protections dismissal applications. It said that any order for reinstatement under a s.739 application would be “tantamount to a circumvention of the express powers provided in section 390 and 369” and would amount to an exercise of a “judicial power” rather than an “arbitral power” as provided for in s.739 of the Act.

[73] BIS also refers to the decision in Australian Licenced Aircraft Engineers Association, The v Forstaff Avalon Pty Limited, 16 where Deputy President Booth stated, regarding an application under s. 739:

“[134] The second order seeks the reinstatement of all employees made compulsorily redundant since 11 February 2013. The evidence is that by around 6 May 2013 230 employees had been retrenched. Leaving aside any jurisdictional consideration if I were to reinstate some of these employees, it could only be to allow for the process of consultation to take place that the ALAEA says ought to have occurred. I have already concluded that Forstaff met the minimum standards required of clause 3 - Consultative Arrangements of the Agreement. I have also concluded that shortcomings in the provision of information by Forstaff compromised the quality of consultation. However I cannot conclude that the provision of the information sought but not supplied concerning classifications and start dates would make a material difference to the number of retrenchments or the individuals chosen because the choice was based on the formula of first on, last off that is supported by the ALAEA. Consequently, I see no utility in reinstating the retrenched employees. Further, reinstating employees in circumstances such as this could give rise to major disruption to the business of Forstaff, undermine the security of the remaining employees and give rise to personal hardship in circumstances where employees have been paid redundancy pay and possibly already applied it to their personal commitments. Therefore, I decline to make the second order sought by the ALAEA.” (BIS’s emphasis)

[74] Further, BIS cites the decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation, 17 where Deputy President Colman stated:

“[54] In this last connection, I have some reservations as to whether an agreement to abide by a recommendation of the Commission is tantamount to a conferral on the Commission of a power to arbitrate. I note the conclusion of Commissioner Hampton that a process leading to a binding recommendation would constitute arbitration for the purposes of s.739(4). I agree that the effect of a recommendation might be similar to arbitration for the purposes of this section, in the sense that it would be authorised by the parties and compatible with s.739. My concern is rather that a ‘recommendation’ connotes a statement to the effect that a particular course ought to be followed; that something should occur. As noted above, clause 19 is not to be read as duplicating the board of reference process in the RRR Agreement; accordingly, a recommendation could not in my view be sought from the Commission as to whether a retrenched employee should be reinstated, which is what the union seeks in its s.739 application.” (BIS’s emphasis)

[75] In response to the further issue raised by me in relation to the effect of the commencement of the 2020 Agreement, BIS made the following submissions:

•  The 2020 Agreement does not contain a savings or transitional clause that allows the disputes under the 2013 Agreement to continue and as correctly determined by the Full Bench in Simplot as the 2013 Agreement is no longer in operation, there is no authority for the Commission to determine the dispute, in addition to the Commission not having jurisdiction on the other bases outlined by BIS in its submissions;

•  The application for approval of the 2020 Agreement was made on 18 November 2020 and was served on the CFMMEU by the Company on that date;

•  In the intervening period between Mr Simpson being made redundant on 1 October 2020 and the lodgement of the 2020 Agreement in the Commission, the CFMMEU had an opportunity to include transitional clauses to enable disputes to be continued and did not do so;

•  The CFMMEU filed a Form F18 raising no objections to the approval of the 2020 Agreement and did not seek the inclusion of any other provisions; and

•  There is no inherent unfairness to Mr Simpson because the 2020 Agreement extinguishes his dispute and any prejudice or unfairness arises because of the decision by the CFMMEU and/or Mr Simpson not to lodge the dispute earlier to make an application for an unfair dismissal remedy or for the Commission to deal with a general protections dispute.

CFMMEU

[76] The CFMMEU’s position is that the Company’s jurisdictional objections lack merit, and the Applicant was within its rights in lodging the dispute with the Company, and when it was unable to resolve the dispute directly with the Company, to proceed with filing a dispute application in the Commission and seeking an arbitrated outcome. The CFMMEU submitted that the Commission has jurisdiction to deal with the matter and to make orders that Mr Simpson be reinstated to his role at the Moranbah North mine.

[77] The CFMMEU limited its submissions to address BIS’s jurisdictional objections and did not address the substantive dispute about the redundancy process and consultative matters.
The CFMMEU rejected the Company’s submission that the CFMMEU, on behalf of Mr Simpson, failed to follow the dispute process and complete the prerequisite steps for bringing the dispute in the Commission. The CFMMEU submitted that it sought on multiple occasions to engage with the Company about the dispute, before ‘resorting’ to making the application in the Commission. It says that the Company did not engage and work towards an outcome to the dispute initiated, and instead sought to “frustrate and ignore” the CFMMEU’s attempts at dispute resolution. It submitted that this is evidence on the correspondence between the parties.

[78] As to the dispute resolution steps outlined at clauses 8.3 – 8.6 of the Agreement, the CFMMEU states that the dispute was initiated and raised by the first email from Mr Hughes to Mr Wilson, which said:

“James is placing this matter in dispute as per clause 8. As a matter of urgency, we seek agreement from the Company to bypass steps of the Disputes Procedure and meet in accordance with clause 8.4 in an attempt to resolve the matter”.

[79] The CFMMEU submitted that this email also articulated the basis for the dispute, being the redundancy of Mr Simpson, as well as the clause under which the dispute had arisen, clause 16.4(e). The CFMMEU also submitted that Mr Wilson’s response, after the termination of Mr Simpson’s employment, failed to acknowledge the dispute raised by the Union and provided no response regarding the request to meet pursuant to clause 8.4 of the dispute process. The CFMMEU contended that Mr Wilson’s response could be taken as actively rejecting the existence of a dispute between the parties.

[80] Mr Hughes sent further correspondence on 5 October 2020, requesting a response to the original email, and Mr Wilson again refused to acknowledge there was a live dispute between the parties and that an offer to meet would be arranged. Mr Hughes again sent correspondence on 7 October 2020, stating Mr Simpson and the Union’s desire to meet in accordance with the dispute resolution procedure, and foreshadowed an application to the Commission if such a meeting was not organised.

[81] The CFMMEU said that further to clarification sought by Ms Booth, Mr Hughes sent correspondence of 8 October 2020 which stated:

“therefore, again, we would request that the company follow its obligations under the current enterprise agreement and (a) confirmation that the company agrees to the request to have the dispute escalated to clause 8.4 of the disputes procedure; (b) arrange a suitable time for the parties to meet and discuss the dispute and (c) reinstate Mr Simpson’s employment during this process”.

[82] Ms Booth’s response of 13 October 2020 provided no answer to these requests by the Union. In response to the Company’s submission that the parties did not get past Step 1 of the dispute procedure, and that it did not ignore any request to escalate a dispute, the CFMMEU said that while this is correct, the CFMMEU contends that the dispute was not accepted by the Company and it therefore could not be resolved. The CFMMEU contends that the responsibility for the dispute not progressing does not lie with the Union or Mr Simpson, but rather was due to the Company not accepting the dispute and arranging a meeting as requested by the Union.

[83] The CFMMEU contended that the correspondence demonstrates three attempts on the part of the Union to meet in accordance with clause 8.4 of the Agreement, and none of the Company’s emails contain any acknowledgment of this request or any response to this request to meet. The CFMMEU acknowledged that the Company did provide reply correspondence, however it submitted the Company’s replies contained “little substance about the matters in dispute” and failed to address Mr Simpson and the Union’s initial concerns.

[84] The CFMMEU submitted that this is not a matter in which the Company sought to arrange a meeting and the Union did not agree and instead sought to escalate the dispute to the Commission, but rather that the Company failed to acknowledge there was any dispute and the sought to ensure that the dispute procedure could not be initiated. The CFMMEU submitted that the Company’s “obstinance” in not agreeing to meet left the Union with no alternative but to file a dispute application in the Commission.

[85] The CFMMEU reiterated that Mr Hughes’ email of 7 October 2020 states the Union would file an application with the Commission if a meeting was not arranged, therefore the Company was on notice of the Union’s desire to progress the dispute. This intention was also reflected in the further correspondence of 8 October 2020.

[86] The CFMMEU submits that the Company’s criticism that the Union was not clear about the nature of the dispute is without merit. From the first email, the Union identified the member on whose behalf it was initiating the dispute, the nature of the dispute relating to redundancy and noted the clause under which the dispute was raised, being clause 16.4(e). The CFMMEU said that clause 16.4(e) is explicit in outlining the scope for any disputation, and states:

“(e) where any disagreement arises over the selection of redundancies the matter will be dealt with through the Dispute Resolution Procedure”.

[87] Therefore, it is not open for the Company to allege that it was unaware of the nature of the dispute. The CFMMEU submits that at that stage, it was not necessary for Mr Simpson to articulate the basis for his disagreement in order for the dispute to be initiated under the procedure and that these matters would have been the subject of the meeting that Mr Simpson and the Union were seeking to organise.

[88] While the Company has also criticised the Union’s actions by alleging that it did not seek to escalate the dispute to a senior manager, the CFMMEU submits that this is incorrect and in two emails it had sought that the Company acknowledge and hear the dispute in accordance with clause 8.4 of the Agreement. However, the Company did not acknowledge this request. In this regard the CFMMEU referred to clause 8.7 of the Agreement which states:

“8.7 While the parties are trying to resolve the dispute using the procedure in this term:

a) The parties will cooperate to ensure that the dispute resolution procedure is carried out as quickly as is reasonably possible.”

[89] It said that the Company’s responses were not cooperative and did nothing to ensure that the dispute raised by Mr Simpson was carried out as quickly as reasonably possible. The CFMMEU submitted instead, the Company sought to impede and frustrate the process including by terminating Mr Simpson’s employment within two hours of receiving notification of the dispute, and its continued failure to acknowledge the dispute or repeated requests to hold a meeting.

[90] The CFMMEU submitted that it took all reasonable steps to progress the dispute, and reiterated that due to the actions of BIS it was left with no alternative but to lodge a dispute with the Commission. Further, by frustrating the process, it was not now open to BIS to submit that because the dispute procedure was not met, that the Commission has no jurisdiction to determine the dispute. If this was accepted, it would leave employers open to refusing to acknowledge employee’s rights under an agreement or modern award to place matters into dispute and for them to be dealt with by the Commission under s.739(1) of the Act. The CFMMEU contended that if an employer seeks to frustrate the process, the employee and their representative must have the ability to escalate the matter to the Commission to deal with the dispute.

[91] The CFMMEU does not agree with the Company’s submission that it properly exercised its obligations under clause 16 of the Agreement regarding the selection criteria for the redundancies. The CFMMEU’s position is that if clause 16 had been properly complied with, Mr Simpson would not have been selected for forced redundancy.

[92] The CFMMEU asserted that it properly initiated a dispute about Mr Simpson being selected for redundancy, prior to the termination of his employment and sought to have the redundancy process halted in order for the dispute to be heard. BIS failed to suspend its process and subsequently terminated Mr Simpson’s employment before the dispute could be heard.

[93] On this basis, orders from the Commission to rectify the error by BIS in selecting Mr Simpson for forced redundancy are sought. The CFMMEU seeks that these orders provide for reinstatement of Mr Simpson to his employment and a performance of the assessment again, in accordance with the Company’s obligations under the Agreement.

[94] As to the Commission’s powers to reinstate an employee as an outcome from a dispute lodged under a dispute resolution process, the CFMMEU submits that it would be a proper exercise of the Commission’s powers to reinstate Mr Simpson if it is found that the Company’s criteria of assessment for redundancy was improperly formed under the requirements of clause 16 of the Agreement. However, this is a matter to be dealt with after the Commission determines jurisdiction to deal with the dispute. In this regard, the CFMMEU referred to the decision in CFMEU v Thiess Pty Ltd, 18 where it was stated:

“[58] Accordingly, Mr Lever is able to pursue the dispute under that procedure subsequent to the termination of his employment. Issues relating to the length of any delay and the practicality of any outcome that Mr Lever may achieve, are matters relevant to the exercise of any discretion under the procedure and not to the issue of whether the Commission has jurisdiction to deal with the dispute”. (CFMMEU’s emphasis)

[95] The CFMMEU submits therefore, that the Commission has determined that issues over practicality of what may be achieved in a dispute are not relevant to any argument over the Commission’s ability to deal with a dispute. It submitted the Company has incorrectly characterised its argument in this regard, and that if the Company seeks to raise an argument over the practicality of any outcome the Commission may order, such concerns do not relate to any objections regarding the Commission’s ability to deal with the dispute. The Commission should properly consider such objections after it has determined whether or not it has the power to deal with the dispute.

[96] The CFMMEU submitted in the alternative, if the Commission seeks to deal with the issue of practicality of reinstatement under s.739 of the Act, the Commission should have regard to s.739(4) which is a wide ranging power to arbitrate, that is only limited by the dispute resolution term, and by any inconsistency with another term of the Act. The CFMMEU submitted that in accordance with this section, there is nothing preventing the Commission from exercising its power in a manner that results in an order to reinstate an employee, provided it is not limited by the Agreement or another section in the Act.

[97] The CFMMEU submitted that clause 8.6 of the Agreement gives the Commission the power to arbitrate in accordance with s.739 of the Act, and the clause does not limit the Commission’s power to arbitrate. It said that on consideration of clause 16.4(c) and the specific referral about the selection of employees for forced redundancy to the dispute procedure, it is arguable that the parties to the Agreement envisioned any dispute about redundancy would be subject to an arbitrated outcome in the Commission. It submitted that given the consequences that follow being selected to be made redundant, being termination of employment, a dispute would “likely” result in the reinstatement of employees.

[98] As to any suggestion that reinstatement of an employee would be inconsistent with s.390 and s.369 of the Act, the CFMMEU submitted that BIS has not provided any authority for this proposition. The CFMMEU submitted that the Commission’s powers to reinstate an employee under the power of arbitration is not inconsistent with its powers under s.390 and s.369. While s.390 and s.369 offer the ability to make orders similar to those sought under the present s.739 application, this does not make them inconsistent as there is no contradiction between the sections, rather they are different sections affording the Commission the same scope for orders that can be made.

[99] The CFMMEU noted that where an employee’s employment is terminated, they may elect, depending on the circumstances, to make an unfair dismissal or general protection application and seek reinstatement under s.390 or s.369. It submitted there is no difference between that scenario and the current application, but for the ability for Mr Simpson in this instance to progress his dispute under the dispute procedure and seek reinstatement and wages under s.739.

[100] The CFMMEU submitted that even if the Commission finds that its powers of arbitration under s.739 and the dispute resolution clause do not extend to orders of reinstatement, this limitation on the Commission’s powers does not prevent the Commission from nonetheless dealing with the dispute as submitted by the Company. The CFMMEU submits that such a decision will only impact on any outcome the Commission can grant in dealing with the dispute.

[101] The CFMMEU also submitted that the Company’s contention that the Commission cannot exercise its power under s.739 for reinstatement as this would involve the exercise of judicial power is an incorrect interpretation of the use of the power of arbitration. In this regard the CFMMEU referred to the High Court decision in CFMEU v AIRC, 19 where it was held that:

“where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator’s powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrators award is not binding of its own force. Rather its effect, if any, depends on the law which operates with respect to it.”

[102] The CFMMEU submitted that in this matter, a dispute has been brought under s.739 seeking an arbitrated outcome and orders pursuant to s.739. The dispute has been brought in relation to clause 16.4(e) of the Agreement which refers back to the dispute resolution procedure under the Agreement, and therefore the CFMMEU is seeking that the Commission exercise powers afforded to it under the Agreement via the dispute resolution procedure and s.739 of the Act. This is an exercise of the power of arbitration and not judicial power.

[103] According to the CFMMEU the dispute was raised before Mr Simpson’s employment was terminated. The Company notified Mr Simpson that he had been selected for redundancy on 28 September 2020, and arranged a further meeting for 1 October via phone, at 10:15. The CFMMEU submitted that at 11.57am on 1 October 2020, it notified the Company of the dispute via email and requested that Mr Simpson’s employment not be terminated until the dispute was resolved.

[104] The CFMMEU said that the Company attempted to contact Mr Simpson around 12.00 pm on 1 October 2020, and Mr Simpson referred them to the Union. At 2.24pm that day the Company sent an email terminating Mr Simpson’s employment, and at 2.29pm the Company replied to the Union’s dispute notification.

[105] The CFMMEU’s position is that at the time of its first email initiating the dispute, Mr Simpson was still an employee of BIS and therefore BIS was aware of the dispute at the time it terminated Mr Simpson’s employment. As the dispute was enlivened prior to the termination occurring, the Commission had jurisdiction to deal with the dispute.

[106] As to the substantive dispute, the CFMMEU noted that the Company has outlined its selection criteria for determining whose employment would be made redundant under clause 16.4. However the Company has provided no detail about Mr Simpson’s score under this criteria except that he scored 68%. The CFMMEU said that in light of the lack of evidence regarding this score and its meaning, it did not provide further submissions in relation to the substantive issue of the dispute and sought to file further submissions, after the Company’s jurisdictional objections had been determined by the Commission.

[107] In response to the further jurisdictional issue raised by the Commission, the CFMMEU submitted that the Full Bench Decision in Simplot left open the matter of disputes where the employee has ceased employment and the relevant enterprise agreement permitted the continuation of a dispute. The CFMMEU maintains that the Commission does have power to deal with disputes raised by employees whose positions have been made redundant and are no longer covered by the agreement depending on the terms of the agreement.

[108] The CFMMEU contends that in the present case the 2013 Agreement conferred the ability for employees and the Union as a party covered by the Agreement to dispute the redundancy process under clause 16.4. The Dispute Resolution Procedure in the 2013 Agreement also confers power on the Commission to arbitrate disputes including any dispute about the redundancy process. It is this process that the CFMMEU is seeking to have arbitrated on behalf of its member.

[109] The CFMMEU also cited the Decision in CFMMEU v North Goonyella Coal Mines Pty Ltd 20 which set out the general principles in relation to disputes initiated under an enterprise agreement which is replaced by another agreement, before the dispute is resolved. Those principles included that where a dispute is initiated under an agreement that is replaced by a later agreement while the dispute is on foot, the Commission will not have power to deal with the dispute unless the successor agreement has a savings clause or a dispute settlement term that empowers the Commission to settle a dispute about matters that are not confined to the application or terms of the that agreement.

[110] In the present case, the CFMMEU accepts that the 2020 Agreement contains no similar redundancy clause to clause 16.4 of the 2013 Agreement. The CFMMEU also accepts that the dispute settlement term in the 2020 Agreement is confined to the terms of the 2020 Agreement and the National Employment Standards. However the CFMMEU submits that the following chronology is significant:

•  19 June 2020: The 2020 Agreement was made by employees;

•  23 June 2020: The application for approval of the 2020 Agreement was filed in the Commission;

•  1 October 2020: The Applicant sought to initiate a dispute on behalf of Mr Simpson regarding the impending decision to terminate his employment and Mr Simpson’s employment was terminated on that date;

•  5 November 2020: The Applicant filed an F10 Application with the Commission seeking to have the dispute dealt with under the dispute procedure in the 2013 Agreement;

•  10 November 2020: A conciliation conference was held in relation to a jurisdictional objection raised by the Respondent;

•  3 December 2020: the parties agreed on a statement of facts and for the Respondent’s jurisdictional objection to be determined on the papers; and

•  23 December 2020: the 2020 Agreement commenced operation.

[111] The CFMMEU submits that the fact that the 2020 Agreement was made in June 2020 and was filed in the Commission for approval at that time, meant that the Union could not seek to alter or amend the 2020 Agreement when the redundancy dispute arose in October 2020. The CFMMEU also submits that it provided all material for the jurisdictional matter prior to the 2020 Agreement coming into operation and that the 2020 Agreement has never covered Mr Simpson. Having regard to these matters the CFMMEU further submits that:

“Given the inability to amend the 2020 Agreement and the distinct lack of connection between Mr Simpson and the 2020 Agreement there is an inherent unfairness that the operation of the 2020 Agreement could extinguish the ability for [Mr Simpson] to continue with the dispute about his redundancy process. It is submitted that this unfairness is further exacerbated by the delay in dealing with the substantive dispute following the Respondent asserting their jurisdictional objection to the dispute.”

[112] While making no adverse comments on the right of, or motivation for, BIS to raise jurisdictional objections to the application, the CFMMEU submitted that the effect of the objections to the dispute was that Mr Simpson was denied the ability to have the substantive matters in dispute conciliated or arbitrated prior to the approval and operation of the 2020 Agreement.

CONSIDERATION

Whether the CFMMEU complied with the Dispute Settlement Procedure

[113] The first proposition posed by the parties concerns whether the CFMMEU complied with the Dispute Settlement Procedure in clause 8 of the Agreement. The principles to be applied in interpreting enterprise agreements were most recently set out by the Full Court of the Federal Court in WorkPac Pty Ltd v Skene 21 as follows (citations omitted):

“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. … The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities … rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. … To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.” 22

[114] In relation to the construction of dispute settlement procedures in enterprise agreements, Colvin J in Maersk Crewing Australia Pty Ltd v Construction, Forestry, Mining, Maritime, Mining and Energy Union (No 2) (Maersk) 23 observed that the principles involved require consideration to be given to the practical character of an enterprise agreement and the circumstances of employment within the industry to which it applies and that (citations omitted):

“The terms of a procedure for resolving disputes should not themselves be construed in a manner that turns them into an instrument for generating disputes as to whether the procedure itself has been followed. Such provisions must be construed having regard to their evident purpose as providing a mechanism by which to encourage discussion and resolution. They should be interpreted ‘practically and with an eye to common sense’ having regard to the context in which they will be applied so that they can be implemented ‘in a clear way on a day-to-day basis at work sites’.”  24

[115] In that case (as in the present case) his Honour observed that the dispute settlement term expanded the definition of a dispute to include a matter arising under the enterprise agreement. His Honour also observed that the scope of a matter is determined by the nature of its factual and legal subject, not the fact of a claim or dispute and that the use of the term “matter” expands the operation of the clause to “embrace the field of the controversy that may be indicated by a question, claim or request.” 25

[116] The starting point for the Dispute Settlement Procedure in the 2013 Agreement is that there must be a dispute about a matter arising under the Agreement or in relation to the NES. A dispute about a matter arising in the course of employment may also be dealt with under the procedure, provided that there is consent from both parties. The Procedure provides for two steps before a dispute can be notified to the Commission. Firstly, the parties to the dispute “must try to resolve the dispute at the workplace level by discussions between the employee or employees concerned and relevant supervisors and/or manager”. Secondly, if the matter is not resolved at such meeting, the matter is to be further discussed between more senior levels of management and where requested, a representative of the employee’s choice. It should be noted that the Dispute Settlement Procedure allows employees to appoint a representative prior to the first discussions about the dispute.

[117] While the first step in clause 8.3 is expressed in mandatory terms, the second step in clause 8.4, involving more senior levels of management, is not expressed in this way. In order to commence the Procedure there must be an attempt to resolve a dispute at the workplace level between the employee concerned (and his or her representative) and relevant supervisors and/or manager. It is implicit that the dispute must be articulated in a manner that will enable the required discussions to occur. While Mr Simpson was unhappy with the way in which he was informed that he had been selected for redundancy, there is no indication that a dispute about a matter arising under the Agreement or in the course of employment was articulated in a manner that would have enabled it to be discussed, prior to the email sent by Mr Hughes at 11.57 am on 1 October 2020. That email implicitly acknowledges that the first step in the process has not been followed by requesting “as a matter of urgency” that the Company agree to bypass the earlier step in clause 8.3 and meet in accordance with clause 8.4 of the Dispute Settlement Procedure. The Company did not agree to bypass the earlier stage.

[118] However, it could be argued that technically the Union’s email correspondence of 1 October 2020 did invoke Step 1 of the Dispute Settlement Procedure given that Mr Wilson is the relevant manager and Step 1 provides for discussions with a manager. As the Company stated in its submission in the present case, during the COVID – 19 Pandemic, discussions may occur other than by face-to-face meeting, including by email. The email from Mr Hughes sent at 11.57 am on 1 October 2020 contained sufficient detail to engage the Dispute Settlement Procedure and identified the nature of the dispute consistent with the requirements of the clause.

[119] The email stated that Mr Simpson was recently notified that he will be made redundant and that in accordance with clause 16.4(c) of the Agreement, Mr Simpson is placing this matter in dispute as per clause 8. There was sufficient particularity for BIS to understand that the dispute was about clause 16.4 of the 2013 Agreement which deals with selection for mandatory redundancy and that the Union wished to have the dispute dealt with as provided in the Dispute Settlement Procedure in clause 8 of the 2013 Agreement. The email also identified the field of the controversy – that Mr Smith objected to his selection for redundancy.

[120] Having invoked the Dispute Settlement Procedure, the second step involved the parties “arranging” further discussions involving more senior levels of management. In my view, Mr Hughes, by his email of 1 October 2020 and subsequent emails, attempted to arrange discussions with management of BIS to attempt to resolve the matter. It is apparent that BIS did not engage with those attempts. The responses sent by the Company to Mr Hughes did not engage with his request.

[121] As previously noted, in the email sent at 11.57 am on 1 October 2020, the CFMMEU requested that BIS agree to escalate the dispute to Step 2 in clause 8.4 bypassing Step 1. BIS did not engage with this request – and neither refused nor agreed to it – but rather continued to engage in correspondence with the CFMMEU which simply asserted the basis upon which Mr Simpson was selected for redundancy. That correspondence was non-responsive to the CFMMEU’s email initiating the dispute.

[122] To accept the Company’s argument that the dispute did not get past Step 1 of the Dispute Settlement Procedure, would involve accepting that a dispute could be prevented from being escalated by BIS simply not responding to requests for meetings or responding in a manner that does not engage with the request. Such an interpretation would not be practical in the environment in which the Procedure operates. Having attempted to arrange a meeting with no success, the CFMMEU was entitled to notify the dispute to the Commission in accordance with Step 3. Accordingly, I do not accept the assertion made by BIS that the dispute did not get past Step 1 of the Dispute Resolution Procedure.

[123] I also do not accept the Company’s contention that Mr Simpson did not properly raise a dispute during his employment. Mr Simpson had been informed that his employment would end on 1 October 2020. There is no evidence about the time at which Mr Simpson’s ordinary hours on that day ended or whether Mr Simpson was at work on that day. It is also the case that the email notifying Mr Simpson that his employment would end on 1 October 2020 was sent after the CFMMEU’s email placing the matter of his selection for redundancy and the proposed termination of his employment into dispute. Mr Simpson’s employment ended after the CFMMEU sent the email at 11.57 am placing the matter of his selection for redundancy in dispute and that the dispute was properly raised while Mr Simpson was employed. Accordingly, I am satisfied and find that the Dispute Settlement Procedure under the 2013 Agreement was engaged before Mr Simpson’s employment ended.

Jurisdiction to order reinstatement in dispute resolution proceedings

[124] I turn now to consider the objection advanced by BIS on the ground that the Fair Work Commission has no jurisdiction to order reinstatement in dispute resolution proceedings. I do not accept that this is a universally applicable proposition and whether it is correct, will depend on the circumstances of a given case and the dispute settlement term in question. I am also of the view that this argument conflates the dispute with the outcome sought. In short, the fact that a party in a s. 739 dispute may be seeking an outcome that is outside the jurisdiction of the Commission, is not a bar to the Commission dealing with the dispute.

[125] The objective of a dispute settlement procedure in an enterprise agreement is to provide a process to resolve disputes quickly and efficiently. Applications are often made at short notice and in the face of time constraints and in the context of an evolving situation at the workplace where the dispute exists. There is no requirement that applications to the Commission seeking that a dispute be dealt with are precisely pleaded or that remedies sought are fully articulated. Generally, dispute resolution processes provide for conciliation before arbitration and in the conciliation process issues in dispute and outcomes sought may be refined and articulated differently to the manner in which they are set out in the originating application.

[126] Provided that the dispute as it evolves, is within the field of controversy or the scope of the matter raised in the first stage of the process, it will generally be capable of being progressed. While there may be dispute resolution procedures which require a dispute or the remedy sought by a disputing party to be articulated in a certain way the Procedure in the present case does not contain such a requirement.

[127] I do not accept that the Commission lacks jurisdiction to deal with the dispute on the basis that reinstatement of Mr Simpson is sought. If that remedy is not permitted by the FW Act or the terms of the Dispute Resolution Process, that is matter that should be argued as part of the arbitration of the dispute and not as a barrier to the dispute being notified to the Commission. Accordingly, neither of the issues raised by BIS are of themselves jurisdictional bars to the Commission dealing with the dispute in relation to Mr Simpson’s selection for redundancy.

Whether the dispute can continue after the 2013 Agreement ceased to operate

[128] In Simplot a Full Bench of the Commission determined that the Commission has no jurisdiction to deal with a dispute under a dispute settlement procedure in an enterprise agreement that has ceased to operate. The facts in that case were that the dispute as notified to the Commission concerned the Company’s refusal to convert two casual employees to permanent positions under an enterprise agreement (the earlier agreement). The dispute did not resolve at conciliation and the applicant union sought to have the dispute arbitrated. After the union notified the Commission that it wished to have the dispute arbitrated, the enterprise agreement ceased to operate because it was replaced by another enterprise agreement (the later agreement).

[129] At first instance, a Member of the Commission decided that the two employees concerned had an accrued right under the earlier agreement to have the dispute arbitrated, on the basis that such right existed because of the absence of clear words in the later agreement extinguishing it. Overturning that Decision on appeal, the Full Bench held that the FW Act does not permit a person to continue to exercise rights under a dispute settlement procedure (or any other rights under an enterprise agreement) after the agreement has ceased to operate because the cessation of the operation of the agreement means those rights no longer exist. The Full Bench contrasted this situation with legal rights that have vested or accrued under an enterprise agreement while it is in operation which can be sued on in a court for a six year period as provided in s. 544 of the Act. Further, the Full Bench held that the fact that arbitration is sought under a dispute resolution procedure in an enterprise agreement before the agreement ceases to operate, does not make any legal difference.

[130] The Full Bench in Simplot went on to state that:

[36] We would point out that the parties were free to preserve the earlier dispute, or its further resolution, through the 2018 Agreement. Furthermore, the parties made the 2014 Agreement within the framework of the Act and are assumed to understand the provisions of the Act that give effect to their agreement. Enterprise agreements have a maximum four year nominal life. They may be terminated by agreement before the nominal expiry date by vote. They may be terminated after this time on application. They may be varied. They may be replaced by, or incorporated into, later agreements. Enterprise agreements are not forever, and neither are their disputes procedures. The scheme of the Act is not one which rationally supports the contention that there is an accrued right of dispute resolution under the terms of an inoperative enterprise agreement. If the employees concerned contend that Simplot breached the 2014 Agreement, they may bring proceedings in a court for contravention of s 50 of the Act, because 544 allows them to do so.

[37] The Commission’s authority to determine a dispute under an enterprise agreement is determined by the Act and the terms of the relevant agreement. The Commission only has the authority conferred on it by statute. It must do what it is required to do, and it can only do what it is allowed to do. It has no inherent jurisdiction. Invocations of policy and fairness cannot create jurisdiction where none exists.

[131] The Full Bench in Simplot did not deal with the question of whether the Commission can deal with an application under s. 739 of the Act made by an employee who has been dismissed noting that:

“The Commission’s jurisdiction in such cases will depend upon the terms of the enterprise agreement. In many cases, there may be an enduring interpretative dispute about the operation of a provision in the agreement which will survive the dismissal of individual employees, particularly where the application is brought by a union and the agreement confers rights on the union to raise a dispute and have it arbitrated by the Commission.” 26

[132] The Full Bench in Simplot did not rule out the possibility that an enterprise agreement may contain a savings or transitional provision preserving rights of employees who have commenced disputes under agreements which become inoperative while the dispute is on foot. In this regard, the Full Bench observed that the parties were free to preserve the earlier dispute or its further resolution through the later agreement. 27 On the basis of the analysis in Simplot, a savings or transitional provision would need to be contained in a current, rather than an inoperative, enterprise agreement.

[133] The central point in Simplot is that at the time the Commission exercises power to deal with a dispute under a dispute settlement term in an enterprise agreement, the source of the power must be found in an agreement that is in operation, regardless of when the dispute arose. Simplot is not authority for the proposition that the Commission can never continue to deal with a dispute which arose under an agreement that has ceased to operate before the Commission has exercised power in relation to the dispute.

[134] It is often the case that an enterprise agreement that supersedes an earlier agreement has the same dispute settlement term and a range of other identical terms to those which were previously found in the inoperative agreement. If a dispute arose in relation to a term in an enterprise agreement, while that agreement was in operation and was progressing through the steps in the dispute settlement procedure, that dispute may continue under a later agreement if that later agreement contains the same (or a similar) dispute resolution term and the same (or a similar) disputed provision. To overcome the issue that arose in Simplot an applicant in such a dispute could seek to amend the application so that a remedy is sought under the dispute settlement term in the later agreement, or absent stipulated time frames for each step of the dispute settlement procedure, commence the dispute again by invoking the dispute resolution term in the later agreement.

[135] This scenario was discussed by Colvin J in Maersk as follows (citations omitted):

“For Maersk it was submitted that the matters relied upon by the Union could not meet step one because the EA came into operation on 24 May 2018. Therefore, so it was submitted, the procedure required under the EA had to commence after that date because the dispute taken to the FWC concerned rights under the EA, not the earlier enterprise agreement that it superseded. Reliance was placed upon a series of decisions culminating in the views expressed in Simplot…. In Simplot a Full Bench of the FWC found that the Commission has no jurisdiction to deal with a dispute under a disputes procedure in an enterprise agreement that has ceased to operate: at [18]. It is not necessary for present purposes to consider whether that conclusion is correct. Assuming it to be so, it does not address the issue at hand.

In the present case, factual events occurred before the EA came into operation. Those factual events included the taking of steps in relation to a matter that arose under the previous enterprise agreement and continued to be a matter that was germane under the EA when it replaced the previous enterprise agreement. The question is whether, when the EA requires that step one be taken, that it requires that step to be taken, in fact, during the currency of the operation of the EA. The EA itself imposes no such requirement in terms.

There is no common law principle that a contract cannot in any circumstances have retrospective effect: … So, the whole of a contract may govern the activities of the parties before the contract was concluded if so expressed. In this instance, the question is not contractual, it is statutory. Further, it does not concern whether the EA as a whole might be given retrospective effect, but rather whether events that occurred before the EA was given statutory effect may have significance for the way the EA operates, once it takes effect.

It may be expected that, in the ordinary course, the terms of a dispute that had arisen under a previous enterprise agreement might be resolved as part of the negotiation and statutory approval of the new EA. However, it is also possible that the parties may treat an issue that remains in dispute as a matter to be resolved by an adjudication to be made as to the meaning and application of the ongoing terms of the EA. Where, as here, the same issue arises under both enterprise agreements and the issue is ongoing at the time that the parties enter into the new enterprise agreement, no purpose would be served by requiring the parties to go back to square one. It is so impractical and unreasonable that it is a construction that should only be reached if the language admitted of no other possibility, particularly when regard is had to the evident purpose of the dispute resolution mechanism in efficiently and fairly resolving disputes as to matters governed by the enterprise agreements.

Here, the Union did not claim that the FWC should deal with a dispute under the former enterprise agreement. Rather, it sought to have a dispute as to a matter arising under the EA resolved during the currency of the EA. As a matter of fact it was an issue that was raised and unresolved before the parties entered into the EA. In those circumstances, in my view, the requirement for step one to be met could be satisfied by matters that occurred before the EA came into operation, provided the matter was one which concerned an aspect governed by the EA when it came into operate effect. In short, the requirements of cl 10 of the EA may be met by steps that were taken before it came into operation.” 28

[136] The issue for the applicant in Simplot was that it sought arbitration by the Commission under a dispute resolution procedure in an agreement that was inoperative at the relevant point, so that there was no source of power to arbitrate the dispute. There is no indication in Simplot either in the appeal or at first instance, that the applicant argued that the dispute could continue under the later agreement and that the dispute settlement term in the later agreement was the source of power for the Commission to arbitrate the dispute. There is also no indication in the Decision that the dispute settlement terms in the two agreements were identical or that it was argued that the steps in the procedure under the earlier agreement were steps for the purposes of the procedure in the later agreement. Neither is it clear whether the disputed term relating to casual conversion was found in both the earlier and the later agreement. In such circumstances it is arguable that an enduring interpretative dispute could survive an expired enterprise agreement and continue under a replacement agreement. It is also arguable that the same dispute could be re-initiated under the later agreement if the relevant clauses were the same or similar.

[137] However, in the circumstances of the present case, the dispute relates to an alleged failure on the part of BIS to comply with clause 16.4 of the 2013 Agreement which relates to selection for redundancy. The 2013 Agreement is no longer in operation, having been replaced by the 2020 Agreement. Clause 16.4 is not found in the 2020 Agreement and there is no equivalent or even similar term. Accordingly, any rights that Mr Simpson had to pursue a dispute in relation to the application of clause 16.4 of the 2013 Agreement under the Dispute Settlement Procedure in that Agreement, were lost when the 2013 Agreement ceased to operate. It is not relevant that there may have been a delay between the 2020 Agreement being approved by a ballot of employees and lodged with the Commission. If this was the case, it cannot establish jurisdiction for the Commission to deal with a dispute where none exists.

[138] Even if the dispute settlement terms in both Agreements allowed a dispute commenced under the 2013 Agreement to continue under the 2020 Agreement, this would not be of assistance to Mr Simpson in circumstances where the 2020 Agreement does not include the term upon which he relies as a basis for his claim. If Mr Simpson wishes to pursue rights which he alleges accrued under clause 16.4 of the 2013 Agreement, he may do so by making application to a court.

Conclusion

[139] The Commission has no jurisdiction to deal with a dispute in relation to the application of clause 16.4 of the inoperative 2013 Agreement under the Dispute Settlement Procedure in that Agreement. For these reasons, the application in C2020/8140 must be dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Matter determined on the basis of written submissions.

Printed by authority of the Commonwealth Government Printer

<PR729033>

 1   [2020] FWCFB 5054.

 2   Witness Statement of Kira Kirvan filed on behalf of the Respondent dated 17 November 2020.

 3   Witness Statement of Jim Wilson filed on behalf of the Respondent dated 18 November 2020.

 4   Witness Statement of James Simpson dated 19 November 2020.

 5   Witness Statement of Mitch Hughes dated 19 November 2020.

 6   [2015] FWCFB 5619.

 7   Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (‘Private Arbitration Case’) (2000) 203 CLR 645 [31] – [35].

 8   CFMEU v North Goonyella Coal Mines Pty Ltd [2015] FWCFB 5619; ING Administration Pty Ltd v Jajoo PR974301.

 9   [2014] FWCA 933.

 10   Annexure 3 to Submissions of BIS dated

 11   Ibid.

 12   BIS cited ING Administration Pty Ltd v Jajoo PR974301, Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2007] AIRCFB 374 and Deakin University v Rametta [2010] FWAFB 4387.

 13   [2017] FWCFB 5032 at 40.

 14   [2016] FWCFB 400.

 15   [2016] FWC 5089.

 16   [201] FWC 4639.

 17   [2018] FWC 1108.

 18   [2016] FWC 5089.

 19   (2001) 203 CLR 645, at [31].

 20   [2016] FWC 830.

 21   [2018] FCAFC 131, 264 FCR 536.

 22   [2018] FCAFC 131; (2018) 264 FCR 536 at 580 [197]. This approach has been applied by the Federal Court (including numerous Full Courts) subsequently.

 23   [2020] FCA 1694.

 24   Ibid at para 86.

 25   Ibid at para 89.

 26   [2020] FWCFB [34].

 27   Ibid at [36].

 28   Maersk Crewing Australia Pty Ltd v Construction, Forestry, Mining, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694 at paras 106 to 110.