| [2022] FWC 1640 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Scott Nigel Tracey
v
BP Refinery (Kwinana) Pty Ltd
(C2020/8999)
DEPUTY PRESIDENT BINET |
PERTH, 19 JULY 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
[1] On 15 December 2020, Mr Scott Tracey (Mr Tracey) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 739 of Fair Work Act 2009 (Cth) (FW Act) to deal with a dispute with BP Refinery (Kwinana) Pty Ltd (BP) in accordance with the dispute resolution procedure contained in clause 16 of the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Employees Workplace Determination 2020 (Determination).
[2] On 7 January 2021, BP filed a response to the Application raising a jurisdictional objection to the Application namely that the dispute identified by Mr Tracey is not a dispute for the purposes of the dispute resolution procedure contained in clause 16 of the Determination.
[3] On 19 January 2021, the parties attended a conciliation conference before me with a view to resolving the dispute. The Application was not able to be resolved at the conference and Mr Tracey requested that the Application be referred for arbitration.
[4] Directions for the filing of materials in advance of a hearing to determine the jurisdictional objection were issued to the parties on 16 February 2021. In accordance with those directions on 4 March 2021, BP filed submissions in support of its jurisdictional objection to the Application.
[5] On 11 March 2021, Mr Tracey filed what he described as an “Application for Summary Judgment in the Jurisdictional Proceedings” (Summary Judgement Application). On 25 March 2021, BP filed their submissions in response to Summary Judgement Application. On 1 June 2021, the parties were advised that the Summary Judgement Application was declined, and directions were issued to the parties for the filing of further materials in relation to the jurisdictional objection.
[6] On 14 June 2021 and 22 June 2021, Mr Tracey and BP respectively filed further submissions in relation to the jurisdictional objection. BP’s submissions raised an additional jurisdictional objection, namely that the Determination no longer applied to Mr Tracey because Mr Tracey was no longer employed by BP. Mr Tracey was then granted leave to file further materials in relation to the additional jurisdictional objection which he did so on 1 July 2021.
[7] Mr Tracey requested that the parties have the opportunity to also file materials in relation to the merit of the Application. On 9 August 2021, directions were issued for the parties to file materials in relation to the merits of the Application. On 26 August 2021 and 3 September 2021, Mr Tracey and BP respectively filed their materials in relation to the merits of the Application. Mr Tracey sought and was granted leave to file further submissions in reply on or before 15 September 2021.
[8] The parties subsequently made a number of interlocutory applications which required determination prior to the substantive hearing.
[9] The Application was eventually listed for hearing in Perth on 20 October 2021 and 21 October 2021 (Hearing).
[10] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.1
[11] BP sought permission to be represented at the Hearing.
[12] Having considered the submissions of the parties, leave was granted to BP to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
[13] At the Hearing Mr Tracey appeared on his own behalf and Mr Ronan Boothman of Corrs Chambers Westgarth and Ms Heather Millar of counsel appeared on behalf of BP.
[14] Mr Tracey provided written and oral evidence on his own behalf. Ms Taya Hill (Ms Hill) and Mr Paul Mace (Mr Mace) provided written and oral evidence on behalf of BP. Ms Hill is the People Relations Director, Asia Pacific. Mr Paul Mace is a Safety and Operational Learning Specialist/Competence Assurance Refining.
[15] The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties in relation to the jurisdictional objections which was admitted at the Hearing as an exhibit (DCB1).
[16] The parties also jointly prepared and filed a digital court book containing the evidence and submissions of the parties in relation to the merit of the Application which was admitted at the Hearing as an exhibit (DCB2).
[17] Mr Tracey was granted an extension to file his closing submissions. Final written submissions were filed by Mr Tracey on 2 February 2022. Final written submissions were filed by BP on 23 February 2022. Mr Tracey filed further submissions in reply on 7 March 2022.
[18] On 8 June 2022 a Full Bench issued a decision in Construction, Forestry, Maritime, Mining and Energy Union v Falcon Mining [2022] FWCFB 93 which considered the decision in Simplot v Australian Manufactures Workers’ Union [2020] FWCFB 5054 . The parties were invited to file further submissions in light of this decision. The parties both filed those submissions on 5 July 2022.
[19] In reaching my decision I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
[20] Kwinana Oil Refinery was built on the shore of Cockburn Sound in Kwinana, Western Australia in 1955 by the Anglo-Iranian Oil Company. At its peak it was the largest oil refinery in Australia.
[21] Mr Tracey commenced employment with BP at the Refinery on 16 January 2012 in an Operations classification. 2 For the duration of his employment with BP his employment has been covered by a succession of enterprise agreements.
[22] In June 2017 the Australian Workers Union (AWU) and BP began negotiations for an agreement to replace then prevailing enterprise agreement, the BP Refinery (Kwinana) Pty Limited & AWU Operations & Laboratory Employees Agreement 2014 (2014 Agreement). 3
[23] The parties to the 2014 Agreement were:
a. BP;
b. the AWU; and
c. employees engaged at the Refinery by BP in Operations or Laboratory classifications (Employees).
[24] Bargaining for a replacement agreement stalled. In May 2018 BP and the AWU commenced interest based bargaining facilitated by the FWC.
[25] In or around October 2018 Mr Tracey was nominated for promotion from the classification of Operations Technician Level 5 (OT5) to the classification of Control Technician (CT1A) and scheduled to work his first training shift as a supernumerary CT on 8 January 2019.
[26] In October 2018 the interest based bargaining also broke down and the AWU applied to the FWC for a protected action ballot order. The protected action ballot order was granted and the Employees commenced protected industrial action in December 2018.
[27] On 31 October 2018, Mr Tracey was suspended from work on full pay (at his OT rate) because of suspected misconduct. 4
[28] On 4 January 2019, satisfied that the industrial action would cause significant damage to the Western Australian economy 5, the FWC made an order6 pursuant to section 424(1) of the FW Act to terminate the protected industrial action (Termination Order). The issuing of the Termination Order triggered the arbitration of the outstanding bargaining issues by a Full Bench of the FWC (Workplace Determination Proceedings).
[29] On 18 January 2019 Mr Tracey was dismissed from his employment with BP for serious misconduct. 7
[30] Mr Tracey subsequently lodged an application for an unfair dismissal remedy. In a decision issued on 2 September 2019, Mr Tracey’s dismissal was found to be not unfair and his application for an unfair dismissal remedy was dismissed.8 Mr Tracey appealed this decision.
[31] In a decision issued on 28 February 2020, a Full Bench of the FWC granted Mr Tracey permission to appeal, upheld his appeal, and ordered his reinstatement within 14 days of the date of the decision.9 The Full Bench directed further submissions to be filed concerning any order for compensation for Mr Tracey’s lost earnings from the date of his dismissal to the date of his reinstatement. BP applied for judicial review of the Full Bench decision, and consent arrangements for the stay of the reinstatement order were entered into. In a decision issued on 22 May 2020 the Full Court of the Federal Court dismissed BP’s application for judicial review.10
[32] Mr Tracey’s reinstatement took effect on 3 June 2020. 11 Initially BP indicated that he would employed in the classification of CT1 upon reinstatement. However, BP subsequently informed Mr Tracey that they had made an error and that upon reinstatement he would be employed in the classification of OT5.12
[33] The same day, a separate Full Bench of the FWC issued its arbitral decision in the Workplace Determination Proceedings, and published a draft determination to give effect to its decision.
[34] On 16 June 2020, the Determination was published and took effect. 13
[35] On 7 June 2020, Mr Tracey informed BP that he wished to raise a dispute pursuant to the dispute resolution procedure contained in clause 23 of the 2014 Agreement. A meeting was arranged between BP and Mr Tracey for Mr Tracey to discuss the dispute. At that meeting held on 18 June 2020 Mr Tracey explained that his dispute or grievance was that BP should have paid him at the applicable rate for a CT1A during the period he was stood down and since his reinstatement.14
[36] At the meeting, and on 3 July 2020 in writing, BP informed Mr Tracey that: 15
a. It did not believe that his dispute arose under the 2014 Agreement or the Determination.
b. It did not agree that Mr Tracey had been appointed a CT1A and therefore BP did not believe that he was entitled to be paid at the rate of CT1A. However, BP indicated that the issue would be considered by the Full Bench of the FWC when it determined the compensation to be awarded as a consequence of its finding that he had been unfairly dismissed and that BP would abide by any ruling of the FWC.
[37] Mr Tracey concedes that at that time he told BP that: “This issue does not relate to the current WD and it does not need to.” 16
[38] On 7 July 2020 Mr Tracey lodged an application for the FWC to deal with his dispute that BP failed to appoint him to, and pay him at the rate of, CT1A pursuant to the dispute resolution procedure contained in clause 23 of the 2014 Agreement (First Application). 17 On 29 July 2020 BP filed a response to the First Application. On 31 August 2020 Mr Tracey filed an amended application.18
[39] On 31 July 2020 the parties participated in a conference before me to endeavour to resolve the First Application. 19
[40] On 10 August 2020, a Full Bench of the FWC issued their decision in the matter of C2019/5845 in respect to the quantum of back pay BP was required to pay to Mr Tracey as a consequence of his reinstatement. 20 In relation to the classification in which Mr Tracey should be reinstated and consequently the rate of pay at which he should be compensated the Full Bench stated at [27] that:
There is a dispute about the classification and rate of pay which would have applied to Mr Tracey if he had not been dismissed. We are satisfied that BP had made a decision, prior to Mr Tracey’s suspension on 31 October 2018, that he would be promoted to the classification of CT1A effective from 19 November 2018. However it does not therefore follow that Mr Tracey should be compensated at the rate of pay for the CT1A classification. In the first decision, while we determined that there was no valid reason for Mr Tracey’s dismissal and that his dismissal was unfair, we also found that Mr Tracey misconducted himself by using a work computer to show the video to another employee during working hours. While this misconduct was not sufficiently serious to merit dismissal, a reasonable and lawful disciplinary response might have included the revocation of Mr Tracey’s promotion to the CT1A classification. Accordingly, we will assess compensation by reference to Mr Tracey’s pre-existing classification of OT5.”
[41] Mr Tracey did not appeal this decision. Instead, he continued to press a dispute under the dispute resolution procedure to be appointed to the position of CTA and paid from the date of his stand down at the rate of CT1A.
[42] On 22 September 2020 a Full Bench of the FWC handed down the decision in Simplot Australia Pty Ltd v Amalgamated Metal Workers Union 21 (Simplot Case). In the Simplot Case a Full Bench of the FWC found that the FWC has no jurisdiction to deal with a dispute under a disputes procedure in an enterprise agreement that has ceased to operate.22
[43] On 25 September 2020 Mr Tracey notified his supervisor that he wished to raise the dispute which he ventilated in the First Application as a dispute pursuant to the dispute resolution procedure contained in clause 16 of the Determination. Mr Tracey stated as follows: 23
“To be clear, I am not raising a new dispute per so, I am just trying to ensure that I have followed the correct steps in the current DSP should I have to dismiss my old dispute and refile a new one in the FWC.”
[44] In the same correspondence Mr Tracey described the previous dispute as follows: 24
“In accepting the Federal Court Consent Stay Order on 13 March 2020, there was an agreement made between myself and BP that I would accept payment at the OT5 rate on the condition that I could challenge that classification after I was reinstated. I did challenge this upon reinstatement on 18 June 2020; and BP gave an undertaking on numerous occasions that if the Full Bench in my unfair dismissal matter agreed that I had been appointed to the position of CTlA, then BP would abide by that decision. The Full Bench did agreed that I had been appointed to the position of CTlA, but BP failed to them re-grade me to a CTlA.”
[45] On 30 October 2020, BP announced that it would be shutting down the Refinery and converting it into an import terminal. This decision would ultimately lead to the loss of 600 jobs including that of Mr Tracey.
[46] On 3 December 2020, the parties attended a jurisdictional hearing in respect of the First Application. At this hearing Mr Tracey discontinued the First Application and indicated that he would pursue the subject matter of that dispute via the dispute resolution procedure contained in the Determination.
[47] On 4 December 2020 Mr Tracey informed Ms Hill that he wished to ‘re-agitate my dispute’ pursuant to the dispute resolution procedure contained in the Determination. 25
[48] On 11 December 2020, BP replied to Mr Tracey’s email indicating that they did not consider the matter a dispute for the purposes of the Determination and that they had no intention of meeting to discuss the dispute. 26
[49] On 15 December 2020 Mr Tracey filed the Application seeking that the FWC deal with the dispute. In the Form F10 at question 2.1 Mr Tracey described the dispute as: 27
a. A failure by BP to regrade him to and remunerate him at the CT1A classification from:
i. 19 November 2018 after he was informed by his supervisor that he would be nominated for appointment for CT1A classification;
ii. 3 June 2020 when he was informed by BP that when he returned to work in accordance with the reinstatement ordered by the Full Bench it would be at the CT1A classification, or
iii. 10 August 2020 when the Full found that BP had made a decision, prior to Mr Tracey’s suspension on 31 October 2018, that he would be promoted to the classification of CT1A effective from 19 November 2018.
b. A failure by BP to genuinely attempt to resolve or settle his dispute when he raised it on 18 June 2020.
[50] On 7 January 2021 BP filed a response to the Application raising a jurisdictional objection to the Application namely that the dispute identified by Mr Tracey was not a dispute for the purposes of the dispute resolution procedure contained in clause 16 of the Determination.
[51] On 19 January 2021 the parties attended a conciliation conference before me with a view to resolving the dispute. The Application was not able to be resolved at the conference and Mr Tracey requested that the Application be referred for arbitration. 28
[52] Mr Tracey was subsequently granted leave to amend his Form F10 (Amended F10). In the Amended F10 filed on 22 January 2021 he described the dispute as follows: 29
“Broadly put, this dispute concerns:
a. BP’s failure to re-grade and remunerate me as per the relevant agreements after I had progressed from OT5 to the CT1A as per the relevant agreements;
b. BP’s revocation of my CT1A position after I had been reinstated by BP at the CT1A position on 3 June 2020; and
c. BP’s failure to genuinely attempt to resolve or settle my dispute as raised, when I agitated it at a workplace level in June and December of 2020.”
[53] In the Application Mr Tracey seeks the following relief: 30
“I am seeking the Commission to determine the following questions:
On a proper construction of the Agreement:
1. Was/am I entitled to be paid at the CT1A rate?
2. If the answer to the above question is yes, from what date was I entitled to be paid at the CT1A rate?
3. If it is BP’s position that my CT1A position was rescinded due to misconduct, was that revocation fair and reasonable with respect to BP’s Code of Conduct, policies, and their treatment of other employees in similar circumstances?
4. If the answer to the above question is yes, and in light of the fact that my employment was inappropriately terminated, and all my payments and entitlements were paid out at termination at the OT5 rate:
a. When would that revocation have taken place? and
b. Was I entitled to have my payments and entitlements paid out at termination at the CT1A rate?
5. Does the Dispute Settlement clause at clause 16 of the 2020 Workplace Determination, require BP to make a genuine attempt to resolve or settle any dispute as raised under it?
6. If the answer to the above question is yes, did BP make a genuine attempt to resolve or settle my dispute as raised when I agitated it at a workplace level in June and December of 2020.
7. Any other question concerning this matter that the Commission member deems relevant.”
[54] Directions for the filing of materials in advance of a hearing to determine the jurisdictional objection were issued to the parties on 16 February 2021. In accordance with those directions on 4 March 2021 BP filed submissions in support of its jurisdictional objection to the Application.
[55] On 11 March 2021 Mr Tracey filed the Summary Judgement Application. On 25 March 2021, BP filed their submissions in response to Summary Judgement Application.
[56] On 1 April 2021, Mr Tracey was made redundant, along with the majority of the Operations employees. His redundancy and unused leave entitlements were calculated and paid out at the OT5 rate. 31
[57] On 1 June 2021 the parties were advised that the Dismissal Application was declined and directions were issued to the parties for the filing of materials in relation to the Jurisdictional Objections.
[58] On 14 June 2021 and 22 June 2021 Mr Tracey and BP respectively filed further submissions in relation to the jurisdictional objection. BP’s submissions raised an additional jurisdictional objection, namely that the Determination no longer applied to Mr Tracey because Mr Tracey was no longer employed by BP. Mr Tracey was then granted leave to file further materials in relation to the additional jurisdictional objection which he did so on 1 July 2021.
[59] Mr Tracey requested that the parties have the opportunity to also file materials in relation to the merit of the Application. On 26 August 2021 and 2 September 2021 Mr Tracey and BP filed respectively filed their materials in relation to the merits of the Application. Mr Tracey sought and was granted leave to file further submissions in reply on or before 15 September 2021.
[60] The parties subsequently made a number of interlocutory applications which required determination prior to the substantive hearing.
[61] The Application was eventually listed for hearing in Perth on 20 October 2021 and 21 October 2021 (Hearing).
[62] The power of the FWC to deal with disputes is set out in section 595 of the FW Act. Section 595 provides that the FWC may only deal with a dispute if it is expressly authorised to do so under, or in accordance with, a provision of the FW Act.
[63] The Application was made pursuant to section 739 of the FW Act.
[64] Section 739 of the FW Act provides as follows:
“s.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.”
[65] Section 738 of the FW Act provides that Division 2 of Part 6-2 which includes section 739, applies to an enterprise agreement if the enterprise agreement includes a term that provides a procedure for dealing with disputes.
[66] Section 279 of the FW Act provides that, with some limited exceptions, the FW Act applies to a workplace determination as if it were an enterprise agreement.
[67] The Determination contains a dispute resolution procedure of the nature contemplated by section 738 in clause 16. Clause 16 provides as follows:
“16. DISPUTE RESOLUTION PROCEDURE
(a) If a dispute or grievance arises in relation to the operation of this Determination or a matter concerning the NES, until the matter is determined, work must continue in accordance with this Determination and the FW Act; and an Employee must not unreasonably fail to comply given by the Company about performing work, that is safe and appropriate for the Employee to perform.
(b) The following procedure will apply:
i. The matter shall first be discussed by the Employee and the supervisor. If no resolution within 48 hours, then;
ii. The matter shall then be discussed between the Employee, the Employee’s representative and the line manager and supervisor if appropriate;
iii. If no resolution within five (5) working days either party can refer the issue to the Branch Manager and/or the HR Representative. Some issues may require advancing to this stage without the above constraints;
iv. If the matter is still not settled, it may be referred to the FWC, for mediation or conciliation. If the matter is not resolved at conciliation/mediation, then it may be referred by either party to arbitration. Any arbitrated decision shall be final and shall be accepted by the parties, subject to the rights of the parties under the FW Act.”
[68] BP submit that the FWC does not have jurisdiction to determine the Application because: 32
a. The issues relating to Mr Tracey’s classification identified in the Application are not a dispute for the purposes of the Determination.
b. An alleged failure to ‘genuinely attempt to resolve or settle a dispute does not give rise to a dispute about the operation of the Determination if the alleged dispute is not a dispute for the purposes of the Determination.
c. An allegation that BP has failed to act in accordance with the Determination, is an allegation of a contravention of the Determination. When dealing with a dispute under section 739 of the FW Act, it is not within the jurisdiction of the FWC to determine whether there has been a contravention of the Determination.
d. Mr Tracey is no longer employed by BP and therefore the Determination no longer applies to him and there is no utility in determining the Application.
[69] Section 51 of the FW Act provides that an enterprise agreement and (by virtue of section 279 of the FW Act) a workplace determination:
a. does not impose obligations on a person unless it applies to them; and
b. does not give a person an entitlement unless it applies to them.
[70] Relevantly section 51 of the FW Act provides that a person does not contravene a term of an enterprise agreement (and by virtue of section 279 of the FW Act a workplace determination) unless it applies to them.
[71] Section 52 of the FW Act provides that an enterprise agreement or a workplace determination applies to an employee, employer or employee organisation if:
a. the enterprise agreement or workplace determination is in operation;
b. the enterprise agreement or workplace determination covers the employee, employer or employee organisation;
c. no other provision of the FW Act provides, or has the effect, that the agreement does not apply to the employee, employer or employee organisation.
[72] A workplace determination operates from the day on which it is made. 33
[73] Clause 16 of the Determination empowers the FWC to deal with a dispute or grievance in relation to the ‘operation’ of the Determination or a matter concerning the National Employment Standards’ (NES).
[74] Section 739(3) provides that in dealing with a dispute, the FWC must not exercise any powers limited by the relevant dispute resolution procedure.
[75] Clause 16 of the Determination imposes a jurisdictional limitation on the exercise of the FWC’s powers to deal with a dispute. Pursuant to the clause 16 of the Determination the FWC is only authorised to deal with disputes or grievances in relation to the operation of the Determination or a matter concerning the NES. Mr Tracey has confirmed that the Dispute is not a matter concerning the NES.
[76] Clause 16 of the Determination can be contrasted with dispute resolution clauses in other enterprise agreements approved by the FWC which, for example, may authorise the FWC to deal with all grievances and disputes arising about ‘other employment matters’, beyond those relating to the relevant enterprise agreement and the NES. 34
[77] I am not satisfied that the dispute, as described by Mr Tracey, raises issues with respect to the operation of the Determination and/or which arose during the period of operation of the Determination which require determination.
[78] Mr Tracey affirmed many times in correspondence with BP that the dispute the subject of the Application is the ‘re-agitation’ of the First Application.35 The First Application was brought about the operation of the 2014 Agreement when the 2014 Agreement was in operation.
[79] The Application and Mr Tracey’s submissions specifically identify as issues for determination in this Application the interpretation and/or application of the 2014 Agreement and other policies and procedures without identifying any connection with the Determination. See for example Mr Tracey’s submissions with respect to merit filed on 25 August 2021 seek the determination of inter alia the following questions:
“Q - If it is the Respondent’s position that the Applicant was appointed to the CT1A classification, but this was rescinded due to misconduct, was that revocation fair and reasonable with respect to the 2014 Agreement, BP’s Code of Conduct, policies, procedures, and their treatment of other employees in similar circumstances?”
…
Was the Respondents revocation of the Applicant’s Training Plan and his ability to progress to the CT1A classification after the announcement that the Kwinana refinery would shut down, fair and reasonable taking into account the Respondent’s treatment of other employees in similar circumstances?
[80] There is no dispute between the parties that the Determination provides that an employee appointed to a the CT1A classification is required to be paid at the CT1A rate.
[81] In truth the dispute agitated by Mr Tracey is whether in fact he was appointed to the CT1A classification. The dates on which he says that occurred are: 36
a. 19 November 2018 (when he says he was scheduled to commence training for the role of CT1A);
b. 3 June 2020 (when he was reinstated); or
c. 10 August 2020 (when the Full Bench handed down its decision in relation to back pay).
[82] The Determination did not commence operation until 16 June 2020. The prevailing industrial instrument on 19 November 2018 and 3 June 2020 was the 2014 Agreement. Whether an appointment occurred on those dates can not be a dispute about the operation of the Determination. A matter which Mr Tracey previously conceded to BP. 37
[83] The finding of the Full Bench on 10 August 2020 was that BP had made a decision, prior to Mr Tracey’s suspension on 31 October 2018, that he would be promoted to the classification of CT1A effective from 19 November 2018. Whether an appointment occurred prior to his suspension on 31 October 2018 can not be a dispute about the operation of the Determination given at that time of the prevailing industrial instrument was the 2014 Agreement.
[84] It is important to note that the Full Bench made no finding of fact that Mr Tracey had been promoted to the position of CT1A. Rather the Full Bench found that a decision had been made to promote him. The Full Bench also indicated that BP would have been entitled to revoke that appointment if it occurred. Relevantly the Full Bench went on to assess compensation at the CT5 rate. 38 In effect what Mr Tracey seeks to do with both the First Application and this Application is to set aside the decision of the Full Bench without appealing the decision of the Full Bench.
[85] While factually the alleged refusal to further discuss Mr Tracey’s dispute occurred after the commencement of the Determination, if the substantive dispute did not arise under the Determination there can be no obligation to resolve or settle the dispute under the Determination. In any event a failure to comply with the dispute resolution clause in the Determination is not a dispute about the operation of the Determination rather it is matter which is properly pursued as a breach of the Determination.
[86] Pursuant to section 58(2)(e) of the FW Act, from 16 June 2020 when the Determination came into operation, the 2014 Agreement ceased to operate. The 2014 Agreement is an agreement that applied in the past and no longer applies to anyone. The Application was made after the 2014 Agreement ceased to operate.
[87] The Full Bench in Simplot Australia Pty Ltd v AMWU (Simplot Case) 39 held that the FWC has no jurisdiction to deal with a dispute which arises under the disputes procedure of an enterprise agreement (or by implication a workplace determination) that has ceased to operate.40
[88] The Simplot Case involved an application by a union for the FWC to deal with a dispute pursuant to an agreement which was in operation at the time the application was made but had been replaced by a new agreement before the FWC handed down its decision in relation to the dispute.
[89] In reaching its conclusion the Full Bench pointed out that the framework of the FW Act, and in particular the machinery provisions relating to enterprise agreements found in Part 2-1, recognises that obligations are not imposed on a person and entitlements are not given to a person by an enterprise agreement unless the agreement applies to the person. The Full Bench also noted that pursuant to section 52 of the FW Act an agreement can only apply to person when it is in operation. 41
[90] The decision in the Simplot Case was considered by a differently constituted Full Bench in Construction, Forestry, Maritime, Mining and Energy Union & Ors v Falcon Mining Pty Ltd [2022] FWCFB 93 (Falcon Mining Case). The Full Bench in the Falcon Mining Case held that the FWC did have the power to arbitrate a dispute arising under an enterprise agreement which had been replaced if the agreement was still in operation at the time the application was made to the FWC. I note the comment of the Full Bench at [83]:
“We finish with the observation that it is obviously unfortunate that there have been conflicting or inconsistent Commission decisions about the issue the subject of this appeal. An appropriate legislative amendment to clarify the position would be desirable.”
[91] The suggestion that legislative amendment is necessary leaves open the possibility that notwithstanding its undesirable implications that the interpretation of the relevant statutory provisions adopted by the Full Bench in the Simplot Case may in fact be open on the legislation as currently drafted.
[92] Whether or not the Simplot Case was correctly decided having considered the submissions of the parties I agree with BP that the Falcon Case is not determinative of this Application. In the Falcon Case the Full Bench held that the FWC had the power to arbitrate a dispute arising under an enterprise agreement which had been replaced if the agreement was still in operation at the time the application was made. That is not the situation in this case.
[93] The 2014 Agreement was not in operation when Mr Tracey made the Application.
[94] In any event Mr Tracey has made clear in the application form originating the Application and throughout his voluminous submissions that the Application is a dispute about the Determination not the 2014 Agreement.
[95] Absent a savings provision, a dispute arising under an enterprise agreement that has ceased to operate, cannot simply be switched to a dispute under an operative agreement. The cessation of the operation of the earlier agreement means that any rights arising under that agreement no longer exist. The only relevance of the inoperative agreement is that employees could sue for breach of that agreement because section 544 of the FW Act expressly allows them to do so.
[96] The Determination has no clause preserving disputes arising under the 2014 Agreement. 42
[97] Further, the provisions concerning classification descriptions and progression/appointment to classification levels under the Determination are not the same as under the 2014 Agreement. Clause 31 of the Determination contains a different classification description for CT1 and CT1A, importantly including in the description of a CT1/CT1A that the employee ‘has commenced training towards a CT2 position in the refinery’. This further highlights the inappropriateness of applying the terms of the 2020 Workplace Determination to alleged facts occurring before the Determination commenced operation.
[98] Even if the 2014 Agreement was still in operation, I am not satisfied that the dispute is genuinely about the operation of the 2014 Agreement. This is no more clearly apparent than in Mr Tracey’s own witness evidence in which he states that: 43
“There was never any dispute that there was no paperwork stating that I was a CT1A or that BP was responsible for appointing personnel to CT positions, the matter to be investigated was whether BP had already appointed me to the CT1A classification but had failed to complete or submit any relevant paperwork.”
[99] The dispute which exists between the parties is not with respect to the operation of either the 2014 Agreement or the Determination. There is no dispute that a person employed in the CT1A classification is entitled to be paid at the CT1A rate of pay. The dispute initially was a dispute as to fact. Was Mr Tracey appointed to the CTA classification? How such appointment was made at the relevant time was governed by BP policy not by the 2014 Agreement. Following his dismissal and subsequent reinstatement
[100] It was not necessary for the Full Bench in the Simplot Case to consider the extent to which its decision had implications for the authority of the FWC to continue to deal with an application of an employee under section 739 of the FW Act after their employment under the agreement has ceased. However, the Full Bench in the Simplot Case commented in obiter that the FWC’s jurisdiction in such cases will depend on the terms of the enterprise agreement and that: 44
“… 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.”
[101] The question of whether the FWC has the authority to continue to deal with the application of an employee pursuant to section 739 of the FW Act after their employment under the relevant agreement has ceased was considered by a Full Bench of FWC in Vendrig v Ausgrid Pty Ltd (Ausgrid Case). 45
[102] In the Ausgrid Case the applicant lodged her application on the last day of her employment. The Full Bench held that as the agreement pursuant to which the application was made no longer applied to her as a consequence of section 52 of the FW Act she was no longer able to invoke or use the dispute resolution procedure contained in that agreement.
[103] In dismissing her appeal the Full Bench stated (footnotes omitted): 46
“By parity of reasoning with the decision of the Full Bench in Simplot v AMWU, we consider that we would have no power to rehear Ms Vendrig’s application under s 739. Moreover, there cannot be a dispute over the application of the 2018 Agreement in respect of a person who is not an employee covered by the agreement. This is not a case where, for example, a union has brought an application on behalf of an employee who has since been dismissed, but the issue in question remains in dispute between the union and the company. The matter concerns the claim of a former employee of the company concerning her own particular circumstances during a period when she used to be employed. Accordingly, there could be no utility in quashing the decision, because there would be no proper basis for the Full Bench to rehear Ms Vendrig’s application or to remit it to another member for redetermination.”
[104] Mr Tracey’s circumstances mirror Ms Vendrig’s. His application concerns a claim as a former employee of BP. The Application is not commenced by a union who remains a party to the Determination. There is no evidence that the question raised by Mr Tracey was, or is, a matter in dispute between the AWU and BP. Over 600 employees were made redundant at, or around, the same time as Mr Tracey. If the issue was the subject of broader scope than Mr Tracey then presumably it would have been agitated by the AWU and/or other redundant employees at the time of their retrenchment.
[105] Mr Tracey says that the decision of the Full Bench in the Ausgrid Case should be ignored and instead he relies on two comments contained in the decision of Deputy President Asbury in Construction, Forestry, Maritime, Mining and Energy Union v Bis Industries Limited (Bis Industries Case). 47 The Bis Industries Case In that decision at [15] Deputy President Asbury stated that:
“… it is well established that, depending on the terms of a dispute resolution 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.”
[106] Deputy President Asbury cited CFMEU v North Goonyella Coal Mines Pty Ltd 48 and ING Administration Pty Ltd v Jajoo49 as authorities for this principle. Both of these cases were determined prior to the Ausgrid Case.
[107] At [131] the Deputy President quoted the extract from the decision of the Full Bench extracted above in this decision noting that this comment was obiter and making no reference to the Ausgrid Case.
[108] Ultimately the Deputy President determined that she did not have jurisdiction to hear the Application. The decision in the Bis Industries Case does not therefore provide anything which would cause me not to follow the decision in the Ausgrid Case.
[109] On his own admission in agitating this Application Mr Tracey is hopeful of securing payment of his claim in relation to the 2014 Agreement which he was unable to agitate in the FWC after the 2014 Agreement was replaced by the Determination.
[110] Mr Tracey has sought to characterise this dispute as one with respect to the interpretation of the Determination however it is clear from the factual matrix of the dispute and Mr Tracey’s own extensive submissions that fundamentally what is in dispute is as a matter of fact was Mr Tracey promoted to the classification of CT1A before he was suspended in 2018. This requires a determination of fact. It does not in truth involve any dispute about the operation of either the Determination or the 2014 Agreement.
[111] If, as Mr Tracey says, he was appointed a CT1A prior to his standdown and that BP had no power to demote him then the appropriate course of action was for Mr Tracey to appeal the decision of the Full Bench in relation to the compensation it awarded him in respect to the termination of his employment. Mr Tracey is now seeking to ‘overturn’ the Full Bench decision by stealth by trying to recharacterize what ought to have been an appeal of the award of damages in his unfair dismissal claim as a dispute pursuant to an industrial instrument which had not even been created as at the date at which he has any plausible argument that he might have been ‘appointed’.
[112] By taking this course of action Mr Tracey is trying to avoid the ‘discount’ (in the form of a demotion) the Full Bench made from the compensation that it awarded him on the account of his misconduct.
[113] Having chosen not to appeal the decision of the Full Bench Mr Tracey’s remedy if any lies in an application seeking recovery of an underpayment. The FWC is not the jurisdiction in which such claims ought properly be prosecuted.
[114] There is no evidence before me of the utility of these proceedings other than for Mr Tracey to circumvent the discount that the Full Bench applied on account of his misconduct. The dispute turns entirely on the factual matrix of events which occurred in 2018. The resolution of the dispute is no utility to the AWU or those few employees still covered by the Determination. A Determination which on the evidence before me has remaining only a very short life.
[115] The Application is therefore dismissed. An order 50 to this effect will be issued with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr S Tracey, for the Applicant.
Ms H Millar, for the Respondent.
Hearing details:
2022
Perth
20 and 21 October
Final written submissions:
Applicant’s final written submissions, 2 February 2022 and 7 March 2022.
Respondent’s final written submissions, 23 February 2022.
Printed by authority of the Commonwealth Government Printer
<PR743075>
1 Warrell v Walton (2013) 233 IR 335, 341 [22].
2 Digital Court Book (DCB).
3 Ibid.
4 DCB above n 2, 6.
7 DCB above n 2, 6.
9 [2020] FWCFB 820, 293 IR 170.
10 [2020] FCAFC 89, 378 ALR 120.
11 DCB above n 2, 6.
12 Ibid 348-349.
13 PR720121, DCB above n 2, 6, 205.
14 Ibid 367-373, 350-351.
15 Ibid 367-373, 350-351.
16 Ibid 351.
17 Ibid 377 – 385.
18 Ibid 401-409.
19 Ibid 353.
20 Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 4206 at [27].
21 Simplot Australia Pty Ltd v AMWU [2020] FWCFB 5054.
22 Ibid [18].
23 DCB above n 2, 272-273.
24 Ibid 275.
25 Ibid 279.
26 Ibid 281.
27 Ibid 3-10.
28 Ibid 355.
29 Ibid 11 – 17.
30 Ibid 11.
31 Ibid 355.
32 Ibid 578-579.
33 Fair Work Act 2009 (Cth) s.276(1).
34 See Queensland Services, Industrial Union of Employees v Ergon Energy Corporation Limited [2013] FWC
7025 at [19].
35 DCB above n 2, 279.
36 After the filing of the jurisdictional objections Mr Tracey identified two other additional dates after the Determination commenced operation at which time he says he was entitled to be paid at the CT1A rate namely 29 October 2020 and 14 March 2021. These were not dates identified by Mr Tracey prior to the filing of his merit submissions and appear to be an effort to address the jurisdictional issues with his claim. See DCB2 at 20.
37 See for example 351.
38 Scott Tracey v BP Refinery (Kwinana) Pty Ltd [2020] FWCFB 4206 at [27].
40 Ibid at [18].
41 Ibid [5].
42 See in contrast the clause cited in Prime v Federation University Australia [2020] FWC 2846 at [52].
43 DCB above n 2, 352.
44 Simplot, above n 39 at [34].
46 [2021] FWCFB 370 at [40].
47 [2021] FWC 2352 at [15].