[2017] FWC 27 [Note: This decision has been quashed - refer to Full Bench decision dated 24 April 2017 [[2017] FWCFB 1702]


Fair Work Act 2009

s739 - Application to deal with a dispute

Australian Rail, Tram and Bus Industry Union-New South Wales Branch
Asciano Services Pty Ltd t/as Pacific National

Rail industry



Application to deal with a dispute under a dispute settlement procedure (DSP) in an agreement – jurisdictional objection to the Commission issuing a recommendation – limitations on powers of the Commission to deal with a dispute under the Agreement – parties to dispute distinct to employees or their representatives – employees of Pacific National not identified in dispute application – reliance on Full Bench authority – the Union must be a representative of an employee/s to be able to lodge a dispute under the Agreement – the Union cannot lodge a s739 application in its own right – no evidence of Union acting as a representative of an employee/s – no jurisdiction of the Commission to make a recommendation under the DSP of the Agreement – application dismissed.


[1] This decision will determine a jurisdictional objection (previously foreshadowed and now pressed) by Asciano Services Pty Ltd t/as Pacific National (‘Pacific National’), which seeks to have the Fair Work Commission (the ‘Commission’) dismiss an application, pursuant to s739 of the Fair Work Act 2009 (the ‘Act’), to deal with a dispute under the Dispute Settlement Procedure (‘DSP’) of the Pacific National Coal NSW Enterprise Agreement 2016 (PR538035). Details of the dispute are set out in paragraph 4 below.

[2] The s739 application was filed by the Australian Rail, Tram and Bus Industry Union-New South Wales Branch (the ‘Union’) on 27 September 2016 and was the subject of three conciliation conferences chaired by the Commission. Regrettably, these conferences did not result in any final settlement of the many issues raised by the Union. Nevertheless, it must be noted that despite Pacific National’s consistent objection to the dispute being before the Commission, representatives of Pacific National have actively engaged with the Union, both before and after the filing of the s739 application, by considering the Union’s concerns, seeking requested information from relevant Pacific National management personnel and conveying the information to the Union.

[3] Nevertheless, the point has now been reached where the Union seeks a recommendation from the Commission, pursuant to clA30.2(i) of the Agreement (which would be ‘highly influential’) in respect to a range of matters relating to the pending redundancy of a number of Pacific National employees at Port Waratah and Illawarra Bulk Terminals. Given I was informed of the urgency of the dispute, and having regard to Pacific National’s intention to press the Commission to dismiss the s739 application on the grounds the Commission has no power to make the recommendation sought, (or any at all), the parties were directed to file expedited submissions on the jurisdictional objection in the week commencing 19 December 2016.

The Dispute Notification (F10)

[4] In its F10 application, the Union identified the clauses in the Agreement it alleged the dispute related to and set out what the dispute is about as follows:

[5] At Q 2.4 of the F10, the Union set out the steps it said had been taken to resolve the dispute by reference to exchanges of correspondence between the Union and Pacific National following the issuance of a notice of significant change to employees at Port Waratah Bulk Terminal and Illawarra Bulk Terminal on 2 September 2016. The Union then set out the relief it sought as follows:

[6] As Pacific National observed in its submissions it cannot be doubted that:

Relevant Provisions of the Agreement

[7] Clauses A2 and A3 set out the parties to the Agreement and its scope. They read as follows:

[8] As mentioned in an earlier unrelated decision involving the application of the DSP in this Agreement; see: Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd t/as Pacific National [2016] FWC 4614, there are two separate processes for dealing with disputes in relation to Consultation and Change (clA29) and the Resolution of Disputes (clA30), although for present purposes there is an important link between clsA29.3 and A30 which I will come to shortly. I set out both clauses in full below:


A29.1 Consultation:

A29.2 Significant Change

[9] The Agreement’s DSP is set out as follows:

A30 Resolution of Disputes

Statutory Provisions

[10] The Commission’s jurisdiction to deal with disputes in relation to the DSP in enterprise agreements is found at ss595, 738 and 739 of the Act which I set out below:

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


For Pacific National

[11] Mr P Almond, Solicitor, set out the background to the dispute and the relevant terms of the Agreement and the provisions of the Act. He claimed that even before the Union lodged the s739 notification of dispute, Pacific National had made known its jurisdictional objection to the application. He said that no notices of dispute were lodged by any employees of Pacific National, pursuant to clA30.2(a) of the Agreement. Moreover, the s739 application makes no reference to any particular dispute or circumstance giving rise to a dispute between an employee/s of Pacific National. The applicant is identified as the Union and no ‘representative’ is identified in the application. Mr Almond said that at no time, has any identifiable dispute been lodged by an employee of Pacific National. It follows that the Union has purported to lodge a dispute and make the s739 application in its own right. This was contrary to the provisions of the Agreement.

[12] Mr Almond dealt in detail with the express wording of clsA29 and A30 to submit that:

[13] Mr Almond relied on the decision of the Full Bench of the Commission in Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Ltd (PR943615) (‘North Goonyella’) which he submitted involved a DSP in substantively similar terms as the DSP in this case. The Full Bench said the DSP (clause 41):

[14] Mr Almond noted that clA30 in the Agreement (which did not apply in North Goonyella) concerns a dispute between Pacific National, NSW and its employees. A distinction is also apparent in subclause (f) of A30.2, which discloses a representative may be other than the union, but ‘may include a union’. This means the Union’s role is limited to acting as a representative of employee/s, not in the role of a party principal to a dispute.

[15] Mr Almond contrasted the Agreement’s DSP and the DSP in North Goonyella with that considered by Bissett C in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Southcorp Wines Pty Limited [2016] FWC 586 (‘Southcorp Wines’). In this latter case, the Commissioner concluded the wording of that Agreement’s DSP provided for the AMWU to initiate a dispute in its own right. There is no such right in this Agreement. Mr Almond concluded as follows:

For the Union

[16] Ms A Rose, Industrial Officer, rejected the submissions of Pacific National and submitted that there is a valid s739 application before the Commission and a recommendation was sought by the Union, pursuant to clA30.2(i) of the Agreement. Ms Rose put that the dispute concerned the correct interpretation of clA17- Redundancy and clA35 – Salary Maintenance in the Agreement, in circumstances where Pacific National is restructuring positions in the planning units at Port Waratah and Illawarra Bulk Terminals by abolishing all positions. She said the dispute was initially lodged on behalf of approximately 25 of 33 affected RTBU members. This number is now reduced to 13.

[17] Ms Rose said that the Union notified a dispute on 19 September 2016 under clA29.3(a) of the Agreement and then filed the s739 application in the Commission on 27 September 2016. The dispute was lodged by the Union on behalf of members affected by the restructure. In a letter notifying the dispute, the Union expressed dissatisfaction with the consultation process and alleged a number of breaches of the Agreement. Further exchanges of correspondence between the Union and Pacific National disclosed ongoing disagreement between them as to the approach of Pacific National and the application of the Agreement’s terms.

[18] Ms Rose submitted that it was incorrect for Pacific National to allege the Union’s s739 application makes no reference to a ‘dispute or circumstances giving rise to a dispute’. She relied on the answers given at Q2 of the application; see: paragraph 4 above. While Ms Rose conceded the application did not name individual employees, the Union under its Rules has the right to notify a dispute on behalf of its members. Further, Pacific National was made aware of the employees during later conciliation proceedings and correspondence from the Union. 17 employees were listed in an email to Pacific National dated 28 October 2016 and later reduced to 13. Meetings were arranged where employees were represented by the Union.

[19] Ms Rose relied on clsA2, A3 and A29.3 as providing for the Union as a party to the Agreement to lodge a dispute under clA29.3(a). The plain meaning in clA29.3(a), of skipping the steps in sub-clauses A30.2(a)-(e) results in a dispute being progressed through (f) and (i) of clA30.2, where a significant workplace change is contemplated.

[20] Ms Rose submitted that the interaction of these clauses allows the Union, as a party to the Agreement, access to the disputes clause as a party, not as a representative. The dispute is not with the RTBU office and Pacific National, but is a dispute between employees of Pacific National who are members of the Union and Pacific National. Ms Rose said the employees have requested the Union to represent them, in addition to the Union’s right as a party to lodge a dispute on their behalf. There is a change in the language from clA30.1 to cl30.2(f) to parties and not employees. Ms Rose contended that if clA29.3(a) only allows for the Union to notify a dispute and not be a party to the dispute, replicating clA30, then this would render clA29.3(a) with ‘no work to do’. This was not the intention of the parties to the Agreement.

[21] Ms Rose further submitted that the authorities relied on by Pacific National were not relevant because of the unusual provisions of this Agreement, whose words were not ambiguous; see: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426. In conclusion, Ms Rose put that:


[22] At the outset, I agree with Ms Rose that there is no ambiguity or uncertainty in the language used in clsA29 and A30 of the Agreement. The words used are plain and clear on their face and are not subject to more than one meaning. Nevertheless, to a casual observer it might be seen, (contrary to s577(b) of the Act), that Pacific National’s approach is overly technical and legalistic. What can be said with certainty, however, is that Pacific National – even before the filing of this application – has maintained a serious jurisdictional objection to the Union’s dispute notification under s739 of the Act. I do not apprehend the Union to be surprised or to have a complaint of not having been on notice as to this objection; but in any event, in my view, and not without some practical reservations, Pacific National’s submissions and argument are legally sound, consistent with the language of the relevant DSP clauses and supported by Full Bench authority. Let me elaborate.

[23] In order for the Commission to deal with a jurisdictional objection of the kind raised by Pacific National in this case, it is necessary to identify the characterisation of the dispute. In Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2016] FWC 2959, Commissioner Saunders helpfully set out the relevant legal principles to be applied when undertaking this exercise. I respectfully adopt the Commissioner’s approach which I outline hereunder;

[24] In my view, for there to be a valid dispute application before the Commission, pursuant either to clA30 per se or notified by a ‘party’ via clA29, two characteristics must be apparent and disclosed. Firstly, there must be identified employee/s who have lodged a grievance or dispute with their employer, Pacific National (in this case due to a workplace change). Secondly, the nature of the employee/s grievance or dispute with Pacific National must be identified and described. (Obviously, the steps in the procedure must also be followed). Given that the s739 application filed by the Union on 27 September 2016, failed on both these counts, it is axiomatic that there is no valid dispute application before the Commission.

[25] Also significant to my determination of this matter is the decision of the Full Bench in North Goonyella. There, the Full Bench dealt with the powers of the Commission to deal with disputes under an enterprise agreement and said, uncontroversially at paragraph 34:

[26] The Full Bench dealt with the provisions of the relevant enterprise agreement’s DSP at paragraphs 36 and 39 and concluded:

[27] In my view, the terms of the DSP considered by the Full Bench in North Goonyella are relevantly similar to that under this Agreement. Accordingly, the Full Bench’s conclusions there arising, must have resonance and application to this case.

[28] The Union’s recurring trope throughout its submissions is that it is simply representing the direct interests of its members adversely affected by the restructuring proposals of Pacific National. I would expect, of course, no less. After all, the ‘bread and butter’ of all Unions’ activities must be to represent their members’ interests. However, under an enterprise agreement, representation is conditional upon, and can only operate within the parameters set out in the dispute settlement procedures which the employees themselves have empowered their representative/s to act upon.

[29] In this case, the fact the Union filed a s739 application on behalf of unnamed members does not, in my opinion, satisfy the express requirements at clA30.1 and clA30.2 for the employees to lodge a dispute or grievance in writing with Pacific National and for them to be represented by a representative of their choosing, which may include a union. I shall develop my reasons for this finding shortly.

[30] The fact the Union subsequently represented individual Pacific National employees, having obtained their written or verbal authority to do so, cannot, in my view, cure the defect in the application by its lodgement without identifying the relevant employees, let alone setting out the Union’s authority to represent one or more of them. This is a jurisdictional ‘gateway’ which must be satisfied in order for the s739 application to be competently before the Commission.

[31] In addition, the fact Pacific National actively engaged in conciliation, without at any time surrendering its jurisdictional objection, does not, as it were, demonstrate any waiver of its right to press its objection at any time.

[32] In my view, the Union’s submissions ignore the link between clA29.3 and clA30. True it is, as Ms Rose contended, that the preliminary steps at clA30.2(a) to A30.2(e) can be ‘skipped’ in particular circumstances. But this does not mean the fundamental link to clA30 being a party’s right to notify of a dispute in accordance with clA30, can be ignored. The skipping of preliminary steps in the process, still requires a jurisdictional foundation under clA30 to have been established; namely, the lodging of a dispute, in writing, by an employee/s of Pacific National. This conclusion is fortified by the dispute or grievance being about the application of this Agreement or ‘other workplace change’.

[33] Moreover, clA30.1 as a preamble to the full DSP process, appears to emphasise that the Union (if nominated by the employee/s) may be the representative of the employee/s throughout the entire DSP process, as it is expressed as providing for employees to be ‘represented at any stage of the resolution of dispute process’… which is then set out in clA30.2.

[34] A number of salient features are evident from the language and structure of clA29 and clA30. These include:

[35] It is not disputed that clA30.2(a) was not complied with and the ultimate dispute notification did not name any employee affected by the workplace change. Accordingly, this s739 application has not been properly made in accordance with the Act, pursuant to s587(1)(a). It follows that I am satisfied that Pacific National’s objection to this s739 application has been made out. That being so, I have no alternative but to dismiss the application. An order to that effect will accompany publication of this decision.

[36] I make one final observation. The Union has consistently alleged a number of breaches of the Agreement by Pacific National. If these allegations are seriously contended, then they should be tested in a court of competent jurisdiction. Reliance on a non-binding recommendation might sound industrially sensible and practical, but ultimately allegations of Agreement breaches are serious matters requiring deliberative determination.


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Final Written Submissions

For Asciano Services Pty Ltd t/as Pacific National

20 December 2016

For Australian Rail, Tram and Bus Industry Union-New South Wales Branch

23 December 2016