[2016] FWC 5089
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Mining and Energy Union
v
Thiess Pty Ltd
(C2015/7351)

Coal industry

DEPUTY PRESIDENT ASBURY

BRISBANE, 3 AUGUST 2016

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Construction of enterprise agreement – Dispute settlement procedure – Employee initiated dispute before employment terminated – Commission has jurisdiction to deal with dispute.

BACKGROUND

[1] On 17 November 2015, the Construction, Forestry, Mining and Energy Union – Mining and Energy Division (CFMEU) applied under s. 739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute in accordance with a dispute settlement procedure in the Thiess Curragh Mine Enterprise Agreement 2013 (the 2013 Agreement). The dispute relates to the selection for redundancy of a CFMEU member, Mr James Lever. On 25 November 2015 a notice of listing was issued for a conciliation conference to be conducted on 21 December 2015.

[2] On 25 November 2015, Thiess Pty Ltd (Thiess) corresponded with the Commission advising that it wished to raise a jurisdictional objection to the application on the basis that the dispute relates to an ex-employee; was not initiated while Mr Lever was in employment; and because the dispute had not been initiated in accordance with the specific provisions of the 2013 Agreement in relation to disputes about redundancy. Thiess requested that its jurisdictional objection be dealt with (by way of written submissions in the interests of expediency) before the matter was listed for conciliation.

[3] The Commission considered the request made by Thiess and determined that the Conference would proceed as listed. The parties were advised that the jurisdictional objection and any other matter relevant to the application would be dealt with at the Conference. At the request of the parties the Conference was rescheduled for 15 January 2016. Following the Conference, Directions were issued to the parties requiring the parties to file and serve material in relation to the jurisdictional objection and to advise whether any witnesses called by the other party were required for cross-examination. The matter was initially listed for hearing on 14 March but due to a series of events whereby the parties were not available, a hearing was not conducted until 14 June 2016.

[4] Thiess’ jurisdictional objection is advanced on two bases:

[5] Outlines of submissions were filed by the parties and the following persons gave evidence in relation to the jurisdictional objection:

ENTERPRISE AGREEMENT DISPUTE SETTLEMENT PROCEDURES

[6] The jurisdiction of the Commission to deal with disputes pursuant to dispute settlement procedures in enterprise agreements is provided for in ss.738 and 739 of the Act as follows:

[7] The Commission’s powers to deal with disputes derive, in the case of an enterprise agreement, from the terms of the disputes resolution procedure contained in the enterprise agreement. As summarised in the decision of a Full Bench of the Commission in CFMEU v North Goonyella Coal Mines Pty Ltd 4 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 resolution procedure (s.739(3)); may arbitrate only if the agreed dispute resolution 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)).

[8] 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. 5 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.6

[9] In the present case, it is not in dispute that the terms of the 2013 Agreement would allow Mr Lever to have his dispute dealt with notwithstanding that he is no longer employed by Thiess, provided that the dispute was initiated in the manner required by the dispute settlement procedure, before his employment was terminated. The issue for determination is whether Mr Lever initiated the dispute in the manner required by clause 7 of the 2013 Agreement, before his employment ceased. In order to determine these issues, it is necessary to construe the terms of the 2013 Agreement.

AGREEMENT PROVISIONS

[10] The provisions of the 2013 Agreement relevant to the issues in dispute are:

APPROACH TO THE CONSTRUCTION OF ENTERPRISE AGREEMENTS

[11] The approach to construing an enterprise agreement was set out in a Decision of a Full Bench of the Commission in AMIEU v Golden Cockerel Pty Limited (Golden Cockerel). 7 The principles established in the cases referred to in that decision, that are relevant in the present case can be summarised as follows:

EVIDENCE

[12] Mr Lever asserts that he initiated a dispute under the dispute settlement procedure in the 2013 Agreement before his employment ceased. Mr Lever’s evidence is that on 5 October 2015, the crew that he was working with attended a series of private meetings with Mr McCowan and Mr Armstrong, where individual employees were told whether or not they were to be made redundant. Mr Lever was informed that he was to be made redundant. No information was provided to Mr Lever about why he had been selected. Mr Lever believed that the decision was unfair and wanted to know what led Thiess management to select him for redundancy.

[13] On 8 October 2015, Mr Lever contacted the Mine’s Superintendent and requested a copy of his personnel record, including any documentation in connection with the decision to make him redundant. Mr Lever was told that the Superintendent would speak to Mr Armstrong and respond. Later that day, Mr Lever was informed that Thiess would not provide him with any documentation in relation to his redundancy, but that he could have an opportunity to “review” the decision along with his supervisor and the Mine Manager. Mr Lever informed the Superintendent that he would accept this proposal but that he wanted to see the information regarding his redundancy that he had previously requested and to which he was entitled. Mr Lever also requested that he have a representative to accompany him to the review.

[14] Mr Lever’s roster swing finished on 11 October 2015 with no meeting being organised. When Mr Lever returned to work on 17 October 2015 he asked his Supervisor, Mr Hills, when the review would be held and was told that it would be during that roster swing. At 6.00 am on 22 October 2015, Mr Lever was notified that the meeting would be held before the end of that shift. That shift was the last for Mr Lever’s swing, which was due to end at 6.30 pm on 22 October 2015. Further, by this stage, Mr Lever’s representative had left work on annual leave. Mr Lever told Mr Armstrong that he could not attend a meeting on such short notice. When Mr Lever returned to work on 27 October 2015, he was told that the meeting would be held on 28 October 2015.

[15] That meeting was attended by Mr Lever, Mr Draper (as Mr Lever’s representative) and Mr Armstrong. According to Mr Lever, Mr Armstrong informed him that the meeting was not a review of the decision to make him redundant, but rather, a review of the process undertaken by the Company to select Mr Lever for redundancy. Mr Lever was informed that Thiess had undertaken an assessment on the basis of: safety, punctuality, team work and operating ability. While Mr Lever performed satisfactorily to fair in all of the categories, his score put him in the bottom 25% of employees, resulting in his selection for redundancy.

[16] Mr Lever said that his response was to state that he did not believe that he could have scored in the bottom 25% and that he wanted to see his specific score and the reasons for it. Mr Armstrong told Mr Lever that this was not possible and that the contents of the score would not be made available to Mr Lever or anyone else, including a Fair Work Commissioner if Mr Lever decided to pursue the issue. Mr Lever then requested that his supervisor participate in the meeting so that Mr Lever could question him about the score and what he relied on to come up with that score. This request was declined by Mr Armstrong who stated that it was not necessary for the supervisor to participate.

[17] According to Mr Lever, Mr Armstrong reiterated that Thiess had legal advice that the process was correct and Mr Lever again questioned how he could have been in the bottom 25% of employees. Mr Lever said that this was particularly the case when there were other employees with worse disciplinary records than Mr Lever and he had only scored “satisfactory” for safety despite the fact that he is an elected safety representative. Mr Lever said that he expressed his frustration by stating that he could not defend himself when he did not know what he had been charged with. Mr Armstrong stated that this was the way it is and the process was correct.

[18] Mr Lever informed Mr Armstrong that he was dissatisfied with the meeting and the outcome, and was going to take the matter further. Mr Lever said that at this stage he believed that he was entitled under the 2013 Agreement to file a dispute application with the Fair Work Commission. Mr Armstrong said that it was Mr Lever’s prerogative to take the matter further, but it was his understanding that such an application would be outside the Commission’s jurisdiction and that none of the paperwork that Mr Lever was requesting would be made available for the Commission to see. According to Mr Lever, because Mr Armstrong had now twice raised the issue of the Commission being involved in the escalation of the dispute, he believed that Mr Armstrong understood that he would be seeking to escalate the dispute in relation to his redundancy by making an application to the Commission. On 5 November 2015, Mr Lever’s employment ended and he instructed the CFMEU to proceed to file a dispute with the Commission on his behalf. The application was filed on 17 November 2015.

[19] Under cross-examination, Mr Lever did not accept the proposition that simply stating that he was going to take a matter further was not the initiation of a dispute and said that when he made it known that he was not happy with the outcome of the meeting and that he would be taking the matter further, he had initiated a dispute. In relation to his meeting with Mr Armstrong on 29 October 2015, Mr Lever maintained that after talking with Mr Armstrong for around 30 minutes, he told Mr Armstrong that he would like to take this opportunity for Mr Armstrong to rescind his redundancy and offer his employment back on a full time basis. When Mr Armstrong said that this would not happen, Mr Lever said: “Well I am not happy with the outcome of this meeting and my intention is to take it further”.

[20] In response to the proposition that he did not file the dispute until after his employment ended, Mr Lever said that he contacted the Union before his employment ended and told Mr Armstrong that he would be taking the matter further and that he had every right to do so. Mr Lever also said that he requested a meeting with Mr Armstrong at the beginning of October 2015 and the following swing asked for his employment records including all documentation leading up to his redundancy. Mr Lever did this because he was thinking about why he had been made redundant when other people were still there, given the fact that his skill set was the same as other employees who were still employed and had disciplinary procedures and incidences listed against them, while Mr Lever did not.

[21] In response to the proposition that a three week delay in making an application when employment was to end in a week did not demonstrate a genuine attempt on his part to progress a dispute, Mr Lever said that he told Mr Armstrong that he was not happy and was taking it further, and contacted the CFMEU as soon as he could. Mr Lever did not lodge the application and said that he had no control over when the CFMEU did so. Mr Lever said that he also contacted the Fair Work Ombudsman in the week after he was dismissed, and was told that he should contact the Commission.

[22] In response to the proposition that he should have ensured his application was made before his employment ended if he wanted to have the selection decision changed and his name taken off the list, Mr Lever said that it was a bit hard, considering that he did not get a meeting with Thiess management until three days before he was due to go home. Mr Lever also maintained that at the meeting on 29 October 2015 he asked if Thiess would rescind his redundancy and was told: “No”. In response to the proposition that he had done nothing to follow up with the Union between the conclusion of the meeting on 29 October 2015 and the termination of his employment on 5 November 2015, Mr Lever said that he did what he considered to be necessary.

[23] It was also put to Mr Lever that he did not say at the meeting of 29 October 2015, that he would be lodging a dispute with the Commission. Mr Lever said that he stated that he was not happy with the outcome of the meeting and would be taking it further. Mr Lever did not agree that the comment that he would be taking it further was quite general, and said that it was twice mentioned to him during the meeting that if he did take the matter further, the supervisor’s assessment – which he was seeking – would not be made available to the Commission and the Commission did not have the right to see that assessment.

[24] Mr Lever did not agree with Mr Armstrong’s version of what was said at the meeting and that Mr Armstrong’s comment about the Commission related to what would occur if Mr Lever made an application for an unfair dismissal remedy. In response to the proposition that it would not have been reasonable for the mine manager to discuss individual assessments with 300 – 400 workers who were being considered for redundancy, or the 150 who were ultimately selected for redundancy, Mr Lever maintained that if supervisors were assessing him he should have had input and that he did not believe he was in the bottom 25%. Mr Lever said: “I have no idea what my supervisor has written in that assessment and, quite honestly, I don’t believe I was in the bottom 25% of the workforce. I find that laughable, ludicrous.” 16

[25] Mr Armstrong’s evidence was that when employees (including Mr Lever) were notified of the decision to make them redundant, they received a signed letter specifying a cessation date and were informed that they could elect to meet with Mr Armstrong to discuss their redundancy. Mr Armstrong was aware that Mr Lever expressed an intention to meet with him and was notified of this at some time after 5 October 2015. That meeting took place on 29 October 2015 and Mr Armstrong said that the time that elapsed between the request and the meeting was due to a combination of rostered off periods for Mr Lever, operational requirements, a particular incident which occurred prior to a period when Mr Lever was rostered on and rejection by Mr Lever of a particular meeting date because his support person was not available.

[26] Mr Armstrong said that the meeting on 29 October 2015 was quite informal and that Mr Lever appeared to be principally motivated by his desire to better understand the rationale for his selection and to convey his preference to remain employed. Mr Armstrong informed Mr Lever that the purpose of the meeting was to explain the process/considerations of the evaluation and not to undertake a re-evaluation. Mr Lever suggested that a review mechanism should have been built into the process and Mr Armstrong informed him that the introduction of a further mechanism was not agreed in the consultation process and would not be reasonable or feasible at that stage or in the time frame in which redundancies were to occur.

[27] It was apparent to Mr Armstrong that Mr Lever was disappointed with being selected for redundancy and did not believe that he fell within the bottom 25% of employees. Mr Armstrong said that this perspective was almost universally inevitable for displaced employees. Mr Armstrong’s recollection is that the nature, content and tone of the conversation with Mr Lever was akin to meetings he regularly has with employees, where employees express views, make demands or submit requests – often strongly or passionately – about any number of matters such as machinery allocations, training, leave, discipline and file access. At no time during the meeting does Mr Armstrong recall Mr Lever stating that he was putting the matter into dispute.

[28] Mr Armstrong also said that at no time during the meeting does he recall stating that Mr Lever’s assessment would not be made available to a Fair Work Commissioner. The reference that Mr Armstrong made to the Commission during the discussion was to express his view that the process Thiess had followed would withstand scrutiny and that any review would likely be on a process globally, rather than a reassessment of individual cases. In closing the meeting, Mr Armstrong said that he told Mr Lever that if he remained unsatisfied, he understood the process of taking any action was a matter for him.

[29] Under cross-examination, Mr Armstrong confirmed that he had instructed Mr Lever’s supervisor to inform Mr Lever that documents related to his selection for redundancy would not be made available to him but that he could request a review. In response to a question about whether he had used the term “review” Mr Armstrong said that he had agreed to meet Mr Lever to discuss the process. Mr Armstrong agreed that he was not party to the conversation between Mr Lever and the supervisor and did not know whether the supervisor had told Mr Lever that he could request a meeting to “review” his redundancy. Mr Armstrong also agreed that there was a “disconnect” at the meeting about what was going to happen in the meeting. Mr Armstrong did not agree that it was unusual for employees to bring representatives to a meeting with management when that meeting was held just for the purposes of “having a chat”.

[30] Mr Armstrong also said that during the meetings where employees were told about the decision to make them redundant, they were also told that if they had questions or issues, or they wanted further elaboration on the decision, they could request a meeting with Mr Armstrong. In response to the proposition that employees, including Mr Lever, were offered a meeting with Mr Armstrong to discuss reasons why they were being made redundant, Mr Armstrong said that there was an option for employees to request a meeting with him to go through the process and to ensure that it had been followed. When employees requested such a meeting, Mr Armstrong looked at the process and made sure there were no anomalies and also spoke to supervisors to ensure that they had completed their reviews of employees properly. Mr Armstrong agreed that Mr Lever asked for a copy of his supervisor assessment during the meeting of 29 October 2015 and that he wanted a copy of this documentation so that he could engage with Mr Armstrong in the review and that the documentation had not been provided to Mr Lever. Mr Armstrong said that he did not know if Mr Lever had also requested a copy of the assessment directly from his supervisor.

[31] In relation to Mr Lever’s evidence about Mr Armstrong stating that he would not provide this documentation to the Commission, Mr Armstrong said that his comment was that the Commission would look at whether the redundancy was genuine, and whether there was an adequate process in place. Mr Armstrong denied that he said that the individual assessments would not be given to the Commission and said that his comments were in the context that the Commission would look at whether the redundancies were genuine and that the Commission would not look at individual assessments. In response to a question about why he had even mentioned the Commission, Mr Armstrong said that it was a comment to reassure Mr Lever that the process followed by Thiess had been fair and equitable.

[32] Mr Armstrong agreed that Mr Lever wanted his scores and that he did not believe that he was in the bottom 25%. The meeting went for 15 to 30 minutes, and Mr Armstrong agreed that at the end of the meeting Mr Lever was still unhappy and that it was apparent that agreement would not be reached. Mr Armstrong said that he did not remember Mr Lever saying that he wanted to offer Thiess an opportunity to rescind the termination of his employment or that he was going to take the matter further. Mr Armstrong agreed that it is possible that Mr Lever said that he was going to take the matter further although he did not recall Mr Lever making that statement. At the end of the meeting, when taking the matter to the Commission was discussed, Mr Armstrong said that he told Mr Lever that: “You understand the disputes process and to go further to the Commission is what you’d need to do.” 17

[33] Mr Armstrong maintained that a conversation with an employee about an issue where there are differing points of view is a disagreement, not a dispute. Mr Armstrong also maintained that 90% of the conversations he has on site involve differing points of view. Mr Armstrong said that he only considers that a matter is a dispute for the purposes of the 2013 Agreement, if someone states that they are in dispute. Mr Armstrong said: “It goes beyond a discussion. There are certain things you listen for: I will be taking this further. I will be going – I will dispute this.” 18 In re-examination, Mr Armstrong said that his perception of the meeting was to assure Mr Lever that the process was fair and equitable, above board and done professionally. Mr Armstrong also said that there have been situations where an employee says that he or she is not happy with something and that this is the last that is heard on the matter and that not all discussions where an employee is dissatisfied result in matters being taken to the Commission.

[34] Mr McCowan’s evidence related to the negotiation of the 2013 Agreement. The 2013 Agreement replaced the Thiess Curragh North Agreement 2008-2012 (the 2008 Agreement). Mr McCowan was the lead negotiator for Thiess for the 2013 Agreement. According to Mr McCowan, the lead negotiator for the CFMEU, Mr Glenn Power, sought clarification of clause 7.3 in the 2008 Agreement that disagreements associated with redundancy were exempt from Steps 1 – 4 of the Dispute Settlement Procedure and that immediate recourse to the Commission was the default process.

[35] According to Mr McCowan, Mr Power’s rationale was that where redundancy selections had been made by management of Thiess and consultation processes concluded, time would be of the essence to any employees who disagreed with selections. Accordingly, Mr Power expressed a view, with which Mr McCowan agreed, that the escalation of such a dispute through steps 1 – 4 of the Dispute Settlement Procedure would be unsuitable and that immediate progress to the Commission would be the mode of raising such a dispute. Mr McCowan said that no other bargaining representative objected to the claim and it was agreed to on behalf of Thiess and the requested amendment to clause 7.3 was made. Clause 7 of the 2008 Agreement (which was appended to Mr McCowan’s witness statement) was in the following terms:

[36] It is Mr McCowan’s belief that there was a clear, shared understanding established between the bargaining representatives regarding the intention of clause 7.3 and to how it should operate. Mr McCowan’s recollection of the shared understanding is that disagreements about redundancy were believed to be of a special character, and justified their own expedited access to the Commission. Mr McCowan’s belief is that all parties understood the reference to “the discussions” in clause 7.3 was a reference to pre-selection discussions such as consultation, given that the point of providing expedited access to the Commission was to avoid the need for post-selection discussions.

[37] Under cross-examination, Mr McCowan said that clause 7.3 of the 2013 Agreement was specifically intended to deal with redundancies and to provide a “fast-track” to the Commission in relation to disputes about the selection process. Mr McCowan agreed that the clause makes no reference to the selection process and that discussion about who was to be made redundant could only occur after the process of selection had been concluded. Notwithstanding this, Mr McCowan maintained that the process is a two part process and that clause 7.3 would also be used if there was a dispute about the selection process for redundancies, notwithstanding that the clause refers only to disputes about who is to be made redundant. In re-examination, Mr McCowan agreed that the reference to “the discussions” in clause 7.3 meant discussions about the selection process.

SUBMISSIONS

[38] Essentially Thiess’ argument centres on clause 7.3 of the 2013 Agreement and it is asserted that the plain meaning of the clause is to require that any dispute about redundancy be referred immediately to the Commission. This is the only means by which such a dispute can be initiated. It is submitted that in order to initiate a dispute under the 2013 Agreement, the person must be a party to the 2013 Agreement, in accordance with the definition of “Parties” in clause 1 (extracted above). Thiess submits that the dispute was not initiated until the CFMEU filed the Form F10 application with the Commission on 17 November 2015, which was twelve days after Mr Lever’s employment had ceased. As Mr Lever was not an employee engaged on the Thiess Curragh Mine Project at the point the Form F10 was filed, the Commission does not have jurisdiction to deal with the dispute.

[39] It is further submitted that clause 7.3 of the 2013 Agreement stipulates that for a dispute of this nature, the only available course was for the CFMEU or Mr Lever to lodge an application with the Commission. It is also submitted that:

[40] In the alternative, Thiess submits that the meeting cannot be considered to have been the initiation of a dispute by Mr Lever, based on the nature, tone and content of the discussions. According to Thiess, at no time during the meeting or during the remainder of his employment, did Mr Lever take any action, engage in any conduct or make any statement which may reasonably be inferred to have been an attempt to put any matter in dispute. In the meeting of 29 October 2015, Mr Lever sought clarification of his assessment outcomes, asked to view documents, and conversed in general detail about his preference to remain employed. The nature, tone and content of this meeting was said to be akin to many of the common, often daily meetings management staff at the mine site have with employees in relation to a range of matters in respect of which employees have an interest, including: allocation of machinery, training, leave requests, disciplinary processes, dismissal, access to personal files or promotion. If the meeting relied upon by Mr Lever constituted initiation of a dispute, then any of the common meetings could be so construed, resulting in a situation where a former employee could agitate a dispute about any matter by claiming that it was initiated during employment, leading to incongruous and absurd outcomes.

[41] The CFMEU submits that the use of the term “will” in clause 7.3 of the 2013 Agreement needs to be read in the context of the opening words of the clause “[W]here agreement cannot be reached about who is to be made redundant following discussions with Thiess local management...”, which indicates that clause 7.3 only becomes operative when discussions fail. In those circumstances the aggrieved person then has the right to lodge an application seeking that the Commission deal with a dispute, bypassing the preliminary steps, which would otherwise be required to be followed under clause 11 of the 2013 Agreement. Further, the CFMEU points to the use of the term “progressed” in clause 7.3 of the 2013 Agreement and submits that if the drafters had intended that the clause was the first step of the process to settle disputes about redundancy then they would have used wording similar to that used in clause 11.1 of the 2013 Agreement. By using the word “progressed” in clause 7.3 of the 2013 Agreement, the drafters have indicated that they did not intend that referral to the Commission in step 5 of the Dispute Procedure in clause 11 would be the first step in initiating a dispute but rather another step in the progress of a dispute that had already been initiated.

[42] According to the CFMEU, the clear intention of the parties to the 2013 Agreement was that there would be a number of necessary and prerequisite steps before an application to the Commission could be made, in accordance with clause 7.3 of the 2013 Agreement. Firstly, a decision is made by management about who is to be made redundant, as per clause 7.2. If a party is not satisfied by the process in clause 7.2, the party would seek to meet and discuss the issue with local management. If agreement is not able to be reached, the aggrieved party could then bypass steps 1 – 4 of the dispute settlement procedure in clause 11 of the 2013 Agreement and lodge an application with the Commission under s.739 of the Act as allowed in clause 7.3.

[43] It is submitted that there are two instances where the Commission could find that Mr Lever initiated a dispute being when Mr Lever:

[44] Once the meeting of 29 October 2013 occurred, prima facie a dispute must have been initiated as it is clear the parties have met, discussed their differences and are unable to reach agreement over the process in clause 7.2 of the 2013 Agreement. Therefore, regardless of whether or not a dispute was “initiated” at either the first time that Mr Lever sought to meet with the Company on 8 October, or later on 29 October when he met Mr Armstrong and failed to reach agreement over his redundancy, it is clear that at the end of the meeting on 29 October 2015, the parties were in dispute over clause 7.2 of the 2013 Agreement and the dispute had been initiated.

[45] Mr Lever’s evidence is also said to make it clear that he was in dispute with Thiess about the redundancy well before the redundancy took effect on 5 November 2015 and that the lodgement of the dispute with the Commission was simply the next procedural step in the dispute settlement process. As early as 8 October 2015, Mr Lever was making it clear to management of Thiess that he was unhappy with the decision that his employment was to be made redundant and as a response to this, a meeting was organised between Mr Lever and local Thiess management.

[46] Thiess’ submission that the Commission does not have jurisdiction to deal with the dispute is incorrect based on the proper interpretation of the 2013 Agreement and from a factual standpoint. The dispute was not initiated by the filing of the application. Rather it was initiated by either Mr Lever first questioning the redundancy decision or at the time that the meeting/discussions took place between Mr Lever and Thiess’ local management on 29 October 2015. Once the meeting concluded, and it was apparent that they could not reach agreement, the dispute was well and truly initiated. Mr Lever made it clear that he was disputing the decision of management to select him for redundancy and that he would be continuing to dispute the decision. As this meeting occurred before Mr Lever’s employment ended, the dispute was initiated while Mr Lever was an employee (and party to the 2013 Agreement) and the application to the Commission for the dispute to be dealt with is part of the process and not the initiation of the dispute.

CONSIDERATION

[47] By virtue of clause 1 of the 2013 Agreement, and the definition of “Employee” in clause 3, while he was employed by Thiess and engaged on the Thiess Curragh Mine Project, Mr Lever was covered by the 2013 Agreement and it applied to him. I also note that the heading of clause 1 is “Parties to the Agreement”. Although it is not clear that Mr Lever was a party to the 2013 Agreement, he has status as an employee under the 2013 Agreement. Clause 7 of the 2013 Agreement required Thiess to consult with affected employees about the matters listed in clause 7.1. That sub-clause also required Thiess to offer voluntary redundancy before forced redundancies. Clause 7.2 of the 2013 Agreement then sets out the basis upon which employees are to be selected where forced redundancies are required.

[48] Clause 7.3 provides that where agreement cannot be reached about who is to be made redundant, following discussions with Thiess’ local management, the matter will be progressed immediately to the Commission in accordance with clause 11 Disputes Resolution Procedure (Step 5). Clause 11.1 of the 2013 Agreement states that it is the intention of the parties that all “disputes” arising out of the interpretation or application of the 2013 Agreement, or the National Employment Standards, or over disciplinary action taken against an employee, are to be dealt with at the local level, to the maximum extent possible. Clause 11.2 provides that in the event a dispute arises regarding the interpretation or application of the 2013 Agreement, or the National Employment Standards, or over disciplinary action taken against individual/s a procedure set out in that clause shall apply. That procedure has five steps whereby discussions are held between an employee and his or her representative and various levels of Thiess management.

[49] As previously noted, clause 7 of the 2013 Agreement refers to discussions with local management and clause 7.3 provides that where agreement cannot be reached following such discussions, the matter will be progressed immediately to the Commission in accordance with step 5 of the dispute resolution procedure.

[50] I do not accept that clause 7.3 should be read so that a dispute cannot be found to have been initiated by an employee before an application is made to the Commission for resolution of that dispute. Such an interpretation is not consistent with the terms of clause 7 generally and in particular clause 7.3. Clause 7 of the 2013 Agreement generally provides for discussions about numbers of employees to be made redundant and how employees will be selected. Clause 7.3 deals only with disputes about who is selected for redundancy. At the point that clause 7.3 is enlivened, agreement cannot be reached about who is to be made redundant, and the matter is then to be dealt with in accordance with the Dispute Resolution Procedure. The effect of clause 7.3 is to fast track what is already a dispute about who is to be made redundant, so that the matter may be dealt with by the Commission under Step 5 of the Dispute Resolution Procedure, without the need for Steps 1 to 4 of the disputes procedure to have been followed. But for clause 7.3 (or agreement of the parties to bypass steps 2, 3 and 4 as provided for in clause 11) those earlier steps in clause 11 are mandatory. The fast track process in clause 7.3 is consistent with clause 7.3 operating with respect to disputes about the selection of a particular employee or particular employees, rather than the clause operating with respect to the process of selection.

[51] Accordingly, clause 7.3 of the Agreement constitutes agreement in advance that any unresolved dispute about who is to be made redundant, will be progressed to the Commission and dealt with in accordance with Step 5 of the Dispute Resolution Procedure, so that the other party to the dispute cannot delay the progress of the dispute in the Commission, by asserting that the earlier steps in the procedure in clause 11 have not been exhausted or followed. If clause 7.3 was not in the Agreement, then the dispute could not be fast tracked to step 5 in the procedure under clause 11, unless both parties agreed to do so (see the second last paragraph of clause 11.2). Clause 7.3 guarantees that the initiating party can access the Commission to resolve the dispute at Step 5 whether the other party agrees or not. Further, if one of the Unions in clause 1 is involved in the dispute, then further entitlements flow under clause 11.4 so that Thiess is required to pay for reasonable travel and accommodation expenses for up to two elected site employee representatives to participate in Commission proceedings.

[52] The term “will” in clause 7.3 is not mandatory in the sense that the clause should be construed so that the notification of the dispute to the Commission initiates the dispute. As previously stated, where agreement has not been reached about who is to be made redundant, there is a dispute, which is then able to be notified to the Commission as provided for in Step 5 of clause 11. In my view, the relevant provisions are not ambiguous and recourse to extrinsic material is not required as an aid to construction. If I am wrong on that point, then at best, Mr McCowan’s evidence about the shared belief and understanding of the parties establishes little more than an agreement for a fast track process to the Commission in the event that there was a dispute about who is to be made redundant under clause 7.

[53] Accordingly, I have concluded that on a proper construction of the 2013 Agreement, a dispute under clause 7 can be initiated before an application is made to the Commission under clause 7.3. A former employee who puts his or her selection for redundancy in issue before employment ceases has initiated a dispute and can make an application to the Commission after that time, in accordance with clause 7.3 and Step 5 of the Dispute Resolution Procedure in clause 11 of the 2013 Agreement.

[54] It is therefore necessary to consider whether Mr Lever put the issue of his selection for redundancy into dispute prior to the termination of his employment, so that he could make an application under clause 7.3 and Step 5 of the Dispute Resolution Procedure in clause 11 of the 2013 Agreement. I am satisfied on the basis of the evidence before me, that Mr Lever did put the issue of his selection for redundancy in dispute before his employment ended.

[55] Mr Lever’s employment ended on 5 November 2015. On 5 October 2015, Mr Lever was told that he had been selected for redundancy. On 8 October 2015, Mr Lever sought documents relating to his selection for redundancy and when those were refused, accepted an offer of a review and requested that he have a support person attend the review meeting with him. Mr Armstrong said under cross-examination that he instructed Mr Lever’s supervisor not to provide Mr Lever with the documents that he had requested and to inform Mr Lever that he could seek a “review”. I accept that Mr Lever was told that the meeting was a review and that it was not until he attended the meeting that he was told that it was a review of the process and not the decision to select him. Given that Mr Lever was told that the meeting was a review, and the he disagreed with his selection, it was not unreasonable that he would await the outcome of the meeting before progressing his dispute.

[56] The meeting was not held until 29 October. This was due to unavailability of Thiess’ managers and Mr Lever. Mr Lever attended with a support person. It is clear from the evidence that Mr Lever was not satisfied with the outcome of the meeting and told Mr Armstrong of his dissatisfaction in no uncertain terms before he left the meeting. I also accept that Mr Lever told Mr Armstrong he was going to take the matter further. That Mr Armstrong incorrectly assumed that Mr Lever was referring to making an application for an unfair dismissal remedy does not alter the fact that Mr Lever disagreed with his selection for redundancy and told Mr Armstrong that he intended to pursue the matter of his selection and the basis upon which it had been made.

[57] In my view, this was sufficient to put the matter into dispute and to enliven clause 7.3 so that Mr Lever could subsequently make an application to the Commission in accordance with Step 5 of the Dispute Resolution Procedure in clause 11 of the 2013 Agreement, notwithstanding that his employment ended before he made that application. It is not relevant, for the purposes of determining the jurisdictional objection, that there was a delay between Mr Lever’s employment ending and the CFMEU making the application to the Commission or otherwise progressing the dispute. What is relevant is that Mr Lever put the issue of his selection for redundancy into dispute pursuant to the procedures in the 2013 Agreement under which disputes in relation to such matters may be dealt with by the Commission, prior to the termination of his employment taking effect.

[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.

CONCLUSION

[59] I find that Mr Lever initiated a dispute under the Dispute Resolution Procedure in the 2013 Agreement prior to the termination of his employment taking effect, and that the Commission has jurisdiction to deal with the CFMEU’s application under s.739 of the Act to deal with that dispute, in accordance with that Procedure. The jurisdictional objection made by Thiess is dismissed and the application by Mr Lever will be listed so that Directions can be issued in relation to it.

C seal- Asbury DP.jpg

DEPUTY PRESIDENT

Appearances:

Mr C. Newman for the Applicant.

Mr S. Donaldson for the Respondent.

Hearing details:

2016.

Brisbane.

14 June.

Final written submissions:

Respondent, 8 February 2016.

 1   Witness Statement of Mr John Lever – Exhibit 1.

 2   Witness Statement of Mr Adrian McCowan – Exhibit 2.

 3   Witness Statement of Mr James Armstrong – Exhibit 3.

 4   [2015] FWCFB 5619.

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

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

 7   [2014] FWCFB 7447.

 8   City of Wanneroo v Australian Administrative Clerical and Services Union (2006) 153 IR 426.

 9   Amcor Limited v CFMEU and Ors [2005] HCA 10.

 10   Short v Hercus (1993) 40 FCR 511 at 518.

 11   Ibid.

 12   Bond & Co Ltd (in liquidation) v McKenzie (1929) 28 AR 499.

 13   Toll FGCT Pty Limited v Alphapham Pty Ltd (2004) 219 CLR 165 (at 179).

 14   (1996) 66 IR 182.

 15   [2014] FWCFB 7447 at [30].

 16   Transcript of proceedings 14 June 2016 PRN 88.

 17   Transcript of proceedings 14 June 2016 PRN 234.

 18   Transcript of proceedings 14 June 2016 PRN 298.

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