DECISION

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

United Workers' Union
v
One Tree Community Services Inc
(C2019/1489)

Alleged dispute about any matters arising under the enterprise agreement – jurisdictional issue raised by Respondent.

Introduction

[1] This decision is about whether the jurisdiction of the Fair Work Commission (Commission) is enlivened in relation to a dispute lodged by United Voice against One Tree Community Services Inc (One Tree).

The substantive dispute

[2] The substantive dispute about whether One Tree is required to recognise the prior service that some employees had with a previous employer (Mission Australia) if, in the future, One Tree decides to terminate the employment of those employees by reason of redundancy.

[3] One Tree and approximately 171 of its employees (Transferred Employees) are covered by the Mission Australia Early Learning Services Agreement 2013-2016 (Agreement) by reason of it being a transferring instrument. The Agreement transmitted to One Tree when it won a contract to take over the operation of 17 Department of Defence childcare centres previously operated by Mission Australia. Mission Australia lost the Department of Defence contract.

[4] Twenty-five of the Transferring Employees are represented by United Voice.

[5] In the asset transfer agreement between One Tree and Mission Australia, the parties agreed that One Tree would recognise the service of transferring employees for all purposes except for redundancy. Clause 10.6(b) of the asset transfer agreement is the relevant clause. One Tree then made offers of employment to the Transferring Employees and sought to rely on section 122 of the Act, which allows an employer to not recognise the service an employee had with the first employer.

[6] United Voice contend that:

“… the Agreement excludes subsection 122(1) of the Act. It was not open for One Tree to decide not to recognise the transferring employees’ service for the purpose of redundancy. Subsection 122(1) is excluded by virtue of subsection 55(4) of the Act is a relevant terms of the Agreement are more beneficial to the transferring employees than the National Employment Standard. The Agreement Austria’s terms are ancillary and supplementary to the NES. Such terms and allow inferior NES provisions to run parallel. Subsection 55(6) of the Act is not relevant because the Agreement does not provide the same entitlement as the NES.”

[7] United Voice having attempted to discuss and resolve the matter with One Tree (without success), the present dispute was commenced on 7 March 2019.

Jurisdictional issue

[8] One Tree challenged the jurisdiction of the Commission to determine the dispute. It contended that neither United Voice nor any of the employees which it may represent:

a) are otherwise entitled to refer the present matter to the Commission.

b) complied with the dispute resolution procedure under the Agreement; or,

[9] One Tree further contended that:

“… the prerequisites to filing an application referring a dispute under clause 77.4 of the Agreement not been satisfied. Relevantly, One Tree observes that it is currently unaware of:

(a) any employees of One Tree that are party to a dispute with One Tree or that any such employees have otherwise appointed United Voice as the representative in accordance with clause 77.2 of the Agreement; and

(b) any such employees having tried to resolve the dispute at a workplace level in accordance with clause 77.3 of the Agreement.”

[10] United Voice contended that the proceedings were properly notified, that the Commission is competent to deal with the matter and should do so under clause 77 of the Agreement.

Hearing and materials

[11] A hearing occurred on 28 March 2019. In addition to the jurisdictional dispute, the hearing also dealt with an application made by United Voice for confidentiality orders. Confidentiality orders were issued on 1 April 2019.

[12] In addition to the matters submitted on 28 March 2019 the following materials were received:

(a) The Applicant represented by Mr S Bull, National Industrial Coordinator, United Voice filed:

i. submissions on 21 March 2019 and 3 May 2019;

ii. a witness statement by one of its Senior Officers in the National Shared Services Team, Alex Prell (Prell Statement) dated 21 March 2019;¹

iii. a witness statement by one of its members (UV Member Statement) dated 21 March 2019.²

(b) The Respondent represented by Ms L Nickels, Partner, DLA Piper,³ filed:

i. Form F1 – Application for orders the proceedings be dismissed pursuant to s.587(1) of the FW Act on the basis that they have no reasonable prospects of success and orders for costs pursuant to s.611 (2) of the FW Act dated 15 March 2019;

ii. Supporting Statutory Declaration of Irina Cattalini, Executive Director, One Tree dated 15 March 2019 (Cattalini Declaration);

iii. submissions on 3 May 2019.

[13] In coming to this decision I have had regard to all of the materials filed in the proceedings.

Jurisdiction

[14] Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms.

[15] Section 739 provides that:

“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.”

[16] The Agreement contains a dispute resolution clause. It is clause 77. It provides as follows:

77. Procedures for preventing and settling disputes

77.1 If a dispute relates to:

(a) a matter arising under this Agreement other than relating to termination of employment; or

(b) the National Employment Standards; this Section sets out procedures to settle the dispute.

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

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

77.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission.

77.5 The Fair Work Commission may deal with the dispute in two stages

(a) the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties.

77.6 While the parties are trying to resolve the dispute using the procedures in this Section;

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

(b) an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless;

(i) the work is not safe;(ii) applicable occupational health and safety legislation would not permit the work to be performed;

(iii) the work is not appropriate for the employee to perform; or (iv) there are other reasonable grounds for the employee to refuse to comply with the direction.

(iv) there are other reasonable grounds for the employee to refuse to comply

with the direction.

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

Submissions

[17] On 21 March 2019, United Voice submitted the following:

“Summary

1 The dispute has been properly notified. The Commission is competent to deal with the matter and should deal with the matter in accordance with clause 77 of the Mission Australia Early Learning Services Enterprise Agreement 2013-2016 (‘the Agreement’).

Background

2 On 7 March 2019, United Voice lodged a dispute notification against the Respondent with the Commission. The dispute concerns the service histories of 25 members⁴ of United Voice and other employees (collectively: ‘the cohort’) who transferred from Mission Australia Early Learning (‘Mission Australia’) on 1 January 2019 under to a transfer of business between Mission Australia and the Respondent.

3 There is a related dispute (‘the Mission Australia dispute’) lodged by Mission Australia concerning the cohorts’ possible entitlement to redundancy pay. The transfer of the employment of the cohort occurs as a result of the loss by Mission Australia of the contract to manage 17 Defence child care centres. The Respondent is the new operator and employer of the cohort.

4 One Tree has objected to the lodgement of the dispute on the basis that United Voice has not complied with the dispute resolution process within the Mission Australia Early Learning Services Enterprise Agreement 2013-2016 (‘the Agreement’) and that United Voice is not ‘entitled to refer this matter to the Commission.’

General matters

5 United Voice is a federally registered industrial organisation covered by the Agreement and has members currently employed by the Respondent and covered by the Agreement.

6 Prior to 1925, the relationship between an industrial organisation and its members was viewed as likely a contractual one. The industrial organisation being an agent acting on behalf of its members.

7 The 1925 High Court decision in Burwood Cinema Ltd v Australian Theatrical and Amusement Employees’ Association⁵ (‘Burwood Cinema’) clarified the position of an industrial organisation in a dispute⁶. Thereafter an industrial organisation’s role in an industrial dispute was as a principal standing in the place of its members as the representative of the class associated collectively with the industrial dispute. In Burwood Cinema Justice Starke noted succinctly:

An industrial relationship, and not a contractual relationship, is all that is necessary to constitute an industrial dispute. The nexus is to be found in the industry or in the calling or avocation in which the participators are engaged.⁷

8 The unique nature of an industrial organisation’s relationship with a cohort of employees that it is entitled to represent was further elaborated in a 1957 decision of the High Court in R v Dunlop Rubber Australia Ltd; Ex parte Federate Miscellaneous Workers Union of Australia.⁸ This case added that a union acts in an industrial dispute in an independent capacity because the association represents ‘not definite or then ascertainable individuals but a group or class the actual membership of which is subject to constant change’. Further an industrial organisation has the capacity ‘to formulate industrial claims in the interests of that group or class ascertainable by reference to the 'conditions of eligibility' prescribed by its rules’.⁹ An industrial organisation is competent to industrially represent a cohort of workers within its constitutional coverage irrespective of whether the individual employees are members. This feature of Australian industrial law is known as the ‘Dunlop Rubber principle’.

9 In 2017, the High Court in Regional Express v Australian Federation of Airline Pilots¹⁰ clearly recognised the survival of the Dunlop Rubber principle after the enactment of the Fair Work Act 2009 (’the Act’). The critical feature of the Act which the High Court considered indicative of the survival of the Dunlop Rubber principle is the Act’s civil remedy regime which permits an industrial organisation to be an applicant on behalf of a cohort of aggrieved employees who the organisation is ‘entitled to represent.’ The entire cohort may not be members but this will not preclude the industrial organisation bringing the proceedings and applying for orders generally on behalf of the cohort.¹¹

10 In relation to the cohort concerned with this dispute, the individual member who has made a statement and the other members; the work and employees are within the eligibility rules of United Voice.

11 Rule 3, Part 1 of the Rules of United Voice note:

Part 1:

The following persons shall be eligible to be members of the Union:

The Union shall consist of an unlimited number of persons who are employed or usually employed to perform work in or in connection with any one or more of the following industries and/or industrial pursuits, namely:-

… child minding centre, child care, child minding (other than qualified teachers in Victoria and other than in hospitals in New South Wales and within universities in New South Wales and the Australian Capital Territory) …

12 The appropriateness of United Voice’s notification of the dispute must be viewed in terms of the text of the Agreement’s dispute resolution clause but it is worthwhile to view the broader and unique status that an industrial organisation has in being able progress industrial disputes on behalf of a cohort of employees when the industrial organisation is entitled to represent the group.

13 The Respondent’s objection appears largely premised on the conceptualisation of the relationship between members and the broader cohort to an industrial organisation as one of agency or akin to a solicitor client relationship. This is misconceived. The apparent incredulity that the Respondent’s complaint demonstrates appears to proceed from failing to understand the traditional and recently confirmed autonomy given to an industrial organisation to progress the industrial rights of a cohort of workers within its coverage. Doing this is not a concoction.

The Disputes Process

14 Clause 77 of the Agreement provides a procedure for preventing and settling disputes. Clause 77 needs to be complied with. The notifier of this dispute has complied with the preconditions for notification of a dispute to the Commission. The various steps and facts that need to be established have occurred.

15 In summary there must be:

•  a dispute in terms of clause 77.1;

•  an appointment by an employee of the notifier in terms of clause 77.2;

•  an attempt to resolve the dispute at the workplace level in terms of clause 77.3; and

•  it must be evident that those discussions have not resolved the dispute (clause 77.4).

Existence of a ‘dispute’- clause 77.1

16 There is a dispute arising under the Agreement and also in relation to the National Employment Standards. The dispute is clearly stated within the dispute notification at point 2.1 of the form at paragraphs 12 to 26. The dispute is technical but in summary concerns whether the Agreement excludes the capacity of the Respondent to decide not to recognise the cohort’s service with Mission Australia for the purpose of redundancy in the context of the transfers of employment that has taken place due to the transfer of business occasioned by a contract change event.

17 The Commission may not accept United Voice’s view but the description of the dispute as a ‘concoction’ is inappropriate.

18 The evidence of the Member clearly indicates that the dispute is real and is of concern to her and other members within the cohort. This evidence is entirely plausible. The evidence demonstrates that the cohort has significant prior service. A cohort with significant service histories can expect to be concerned about these histories being obliterated for the purpose of a critical industrial right such as redundancy. The practical effect of the dispute, if United Voice is successful, is that these lengthy service histories will be preserved.

19 The evidence of Alex Prell demonstrates interactions and engagement by the Members with United Voice in relation to the subject matter of the dispute from at least 14 November 2018. 12 The records of the Members interactions are found at annexure C of Ms Prell’s statement and if read in their totality clearly show both a dispute about redundancy and service and that the Members appointed United Voice to represent their interests in relation to these industrial concerns.

20 On 13 Member 2018, in a call log produced at annexure C of Ms Prell’s statement, a United Voice member in Victorian (ID 604 0242 13) explicitly seeks assistance concerning the Respondent and the Agreement’s transfer to One Tree. The record notes:

Left VM (voice mail) for M (member) to return. Called in response to M’s email (attached) in relation to new contract with One Tree (rollover from Mission Australia). If M calls-determine what her enquiry is relating to her new contract and advise accordingly. Contract attached (Note: the same instrument applies to both contracts. Mission Australia Early Learning Services EA 2013-2016.

21 On 18 January 2019, a member (ID 807 1403) from NSW clearly raises the issue of redundancy rights albeit in the context of the Mission Australia application. The note reads:

Advised member that United Voice are contesting this through our National Office and that United Voice have a list of all affected employees and once there is an outcome those people will be contacted. Member was happy that United Voice are following this up.

22 We apologise to the Commission and our opponent for the difficulty in reading these records. Like many computerise record systems, [#redacted pursuant to Confidentiality Order, 1 April 2019] does not produce pellucid paper records.

23 This jurisdictional fact is established.

Appointment – clause 77.2

24 United Voice’s participation, status and the existence of members within the cohort has not been disguised at any stage and cannot be credibly disputed.

25 Clause 77.2 does not qualify the capacity of an employee covered by the Agreement to appointment a representative in anyway. The appointment does not have to be in writing, at any particular time, continuous, competent or of any duration. A representative could be appointed generally to progress a number of disputes or future disputes on behalf of ‘an employee’. Disputes can also under go metamorphosis while an appointment remains valid.

26 A disputes term is mandatory content for an enterprise agreement made under the Act. Subsection 186(6) (b) notes that the term must allow ‘for the representation of employees covered by the agreement for the purpose’ of dispute resolution.

27 A single employee is sufficient for there to be a valid appointment.

28 The status of an industrial organisation as noted earlier suggests that an employee by joining an industrial organisation and then contacting and seeking assistance about an industrial problem is appointing the union as their representative. Consistent with the status of an industrial organisation there is some flexibility in terms of the precise content of any dispute ‘appointment.’ Employees who join unions do so because they want the organisation to represent them (i.e. be their appointed representative) as the industrial organisations has status, industrial expertise and the capacity to effectively improve the terms and conditions of the employees as a member of a cohort. In terms of the subject matter of the dispute, a general appointment concerning the fact concerning the dispute should suffice.

29 This dispute is clearly to the benefit of the cohort.

30 Our status as a representative commenced when our members started contacted United Voice from November 2018 onwards and raised concerns about the industrial consequences of the imminent contract change at their places of work. The evidence of Alex Prell indicates requests for assistance from the Members and appointments from late November 2018 onwards in terms of the broad subject matter of the dispute. 14

31 In this matter, a specific written appointment is obtained on 7 March 2018 from a member. This places beyond doubt United Voice’s ‘appointment’. Our appointment in terms of the dispute exists well prior to 7 March 2018 due to the subject matter of the dispute being of concern to the Members and the Members’ clear appointment of United Voice as their industrial representative.

32 We note that it would be possible for the dispute notification to be amended to have an employee as the notifier under section 587 of the Act.

33 Lastly, we observe that if there is concern that the written appointment of the member on 7 March 2019 by an email sent at 11.14am to United Voice in circumstances where the dispute is notified at 5.37pm the same day is ‘too quick’ we note section 557 of the Act.

34 Section 577 of the Act reads:

The FWC must perform its functions and exercise its powers in a manner that:

(a)  is fair and just; and

(b)  is quick, (Emphasis added) informal and avoids unnecessary technicalities; and

(c)  is open and transparent; and

(d)  promotes harmonious and cooperative workplace relations.

35 The use of the word ‘quick’ in section 577 is significant. Further, the Respondent is represented by obviously competent and efficient legal practitioners that respond in a timely manner to correspondence.

Attempts to resolve the dispute- clause 77.3

36 This dispute is consequential to an application lodged by Mission Australia which sought to reduce to nil the redundancy entitlement of the cohort as a result of a contract change event. We have been involved in the general factual matrix of the dispute since 9 August 2018 when Mission Australia wrote to United Voice indicating that it had lost the contract for the defence child care work.

37 Over time, United Voice formed the view that the proper characterisation of the transaction and related disputes was that the transaction was a transfer of business with related transfers of employment governed by the Agreement.

38 Our first correspondence with the Respondent was on 14 November 2018 when we wrote to the Respondent and sought information concerning the offers of employment to be made to our Members. The response of the Respondent was immediate and unequivocally uncooperative. The Respondent refused to provide any of the information sought.

39 On 18 February 2019, we wrote to the Respondent clearly outlining the dispute and noted ‘we represent 26 of our members who are’ employed by the Respondent. We asked for the Respondent’s response and indicated that the matter may be arbitrated if it could not be resolved. This correspondence was in aid of resolving the dispute at the workplace level.

40 On 26 February 2019, the Respondent replied through solicitors and indicated in summary that all matters raised by United Voice were ‘baseless’. This correspondence invited no further workplace discussions.

41 On 5 March 2019, United Voice sent an email to the Respondent and reiterated much of what had been said earlier and formally raised the Agreement’s dispute resolution procedure. We noted the Respondent’s apparent intransigence and explicitly asked whether the Respondent had changed its position and clearly asked if ‘there is utility in further discussions please contact the undersigned by close of business tomorrow for further discussions.’

42 On 6 March 2019, the Respondent responds through its solicitors and again addresses the merits of the dispute, alleges that United Voice had not complied with the disputes clause and makes a statement concerning seeking costs against United Voice in the event that a dispute is notified. The correspondence from the solicitor of 6 March 2019 is timely and nowhere does the Respondent take up our invitation to engage in further discussions.

43 Workplace discussions do not have to physically take place in the workplace or directly between the employer and the employee. The totality of the correspondence that has preceded the notification of this dispute demonstrates that a significant attempt was made to ‘resolve the dispute at the workplace level’. The workplace discussions, on one analysis, commenced on 14 November 2018 and concluded on 7 March 2019.

44 This jurisdictional fact is established.

Workplace discussions did not resolve the dispute - clause 77.4

45 The position of the Respondent was clear and consistent. United Voice’s concerns about the transfer of employment of our Members were baseless and when invited to undertake further discussions the Respondent in effect indicates further discussions are pointless. A fair reading of the Respondent’s responses and the conduct of the Respondent towards United Voice was that further discussions at the workplace level would not resolve the dispute.

46 The Respondent cites a decision of Commissioner Lee in Oscar Rivera v Transdev Melbourne Pty Ltd 15 (‘Transdev’) as support for the proposition that if one party does not want to listen to the other, workplace discussions are not complete. This is not a fair reading of this decision. In Transdev, Mr Rivera had an opportunity to have further discussions and did not take up this opportunity. Mr Rivera failed to attend a meeting he was invited to by the employer.16 This is not the same as not listening. But not listening frequently means something is unresolvable.

47 In this matter, United Voice in its email of 5 March 2018 clearly asks the Respondent whether there is utility in further discussions and whether it has changed its mind and the response of the Respondent is that it has not changed its mind and threatens United Voice with a possible costs order. The Respondent has not raised in its objection that it was caught off guard and did not have time to make a response.

48 Here, the parties were repeating themselves and the discussions were a restatement of fixed positions. This is axiomatic of the dispute not being resolved

49 This jurisdictional fact is established.

Commission’s power to deal with the dispute

50 The Respondent’s submission on this point appears to be that as the Respondent did not bargain for and ‘make’ the Agreement it cannot be said to have consented to the referral of a dispute under the Agreement as the Commission is acting as a private arbitrator and this is premised on consent of the parties. Accordingly, the Commission has no power to act in accordance with the Agreement’s disputes clause.

51 The Respondent further raises issues concerning Chapter III of the Constitution of the Commonwealth of Australia.

52 The Respondent does not cite a single decision or authority to support these propositions on point in relation to the Act.

53 The first submission concerning the alleged absence of agreement by the Respondent misconceives how enterprise agreements are made under the Act and what occurs in dispute resolution under an enterprise agreement.

54 Enterprise agreements, like the Agreement, are ‘made’ when a majority of the employees within the bargaining cohort cast a vote to approve the agreement. 17 Further, the requirement that an agreement is genuinely agreed relates to an enterprise agreement being ‘genuinely agreed to by the employees covered by the agreement’18. An enterprise agreement can be approved and then cover an employer who in no sense agreed to the instrument.19 While enterprise agreements are almost always lodged for approval by the employer, any bargaining representative can lodge an agreement after it is made for approval by the Commission.20 The characterisation of a disputes’ clause which provides for private arbitration as having to be specifically agreed to by the employer for the clause to be of utility is misleading.

55 Clause 77 does not, like some disputes clauses, require the consent of the parties or the employer prior to a party being able to refer the dispute to the Commission.

56 Further, the ‘lack of agreement’ submission is inconsistent with Part 2-8 of the Act which deals with transfers of business. The Respondent consented to the transfer of business and with this transfer the Agreement. The Respondent had to do certain things for the Agreement to transfer with the cohort. 21 Further, the transfer of business being examined here was not inadvertent and was formalised in an Asset Transfer Agreement executed by the Respondent and Mission Australia.

57 The Agreement now ‘covers’ the Respondent and the cohort by operation of law because a transfer of business has occurred. If the various ‘requirements’ found in section 311 are satisfied a transfer of business occurs and an instrument will also transfer. No order of the Commission is required to formalise the event. The capacity of the Commission to make orders concerning transferring instruments found at section 318 deals with limiting the de jure effect of a transfer.

58 The Agreement is a transferrable instrument in terms of section 312 as it is an enterprise agreement that has been approved by the Commission. The Respondent is now ‘covered’ by the Agreement by virtue of section 313 which reads:

Transferring employees and new employer covered by transferable instrument

(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee's employment with the old employer, then:

(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time ) the transferring employee becomes employed by the new employer; and

(b) while the transferable instrument covers the new employer and the transferring employee in relation to the transferring work, no other enterprise agreement or named employer award that covers the new employer at the transfer time covers the transferring employee in relation to that work.

(2) To avoid doubt, a transferable instrument that covers the new employer and a transferring employee under paragraph (1)(a) includes any individual flexibility arrangement that had effect as a term of the transferable instrument immediately before the termination of the transferring employee's employment with the old employer.

(3) This section has effect subject to any FWC order under subsection 318(1).

59 Somewhat inconsistently with the Respondent’s general reasoning, the Act contemplates individual flexibility agreements surviving transfers of business. A disputes term is mandatory content. There is nothing in Part 2-8 of the Act or elsewhere that indicates an agreement’s disputes term ‘disappears’ in a transfer of business.

60 The Respondent’s submission that the Commission would be exercising judicial power by going through mandated steps permitted by an agreement’s disputes process which contemplates a binding determination being made is inconsistent with almost 100 years of judicial authority concerning the Commission and its predecessor’s capacity to resolve industrial disputes.

61 The suggestion at paragraphs [35] to [37] that section 313 of the Act and presumably Part 2-8 is unconstitutional is a matter that need to be raised in a court.

Costs

62 If the Commission is minded to entertain an application concerning costs, we would seek a capacity to make a separate submission on this matter.”

[18] In compliance with the Directions issued after the hearing on 28 March 2019, United Voice further submitted that:

“Summary

1 The Commission is competent to deal with the matter and should deal with the matter in accordance with clause 77 of the Mission Australia Early Learning Services Enterprise Agreement 2013-2016 (‘the Agreement’). The dispute has been properly notified. United Voice has complied with the disputes procedure under the Agreement.

2 We are now at the point where clause 77.5(b) is relevant.

3 Due to the nature of the dispute and the intransigence of the parties the Commission should exercise its discretion and arbitrate the matter under dispute and make a determination that is binding on the parties.

4 This submission addresses the Commission’s request for assistance as to whether United Voice has complied with clause 77.3 and more generally how the Commission should proceed in relation to clause 77.5(b) of the Agreement.

Background

5 We rely on our submission filed on 21 March 2019 and further submissions made on 28 March 2019.

6 The Respondent concedes that United Voice has members in its employ and at the time of the last hearing the number was 25 and at least one of those members has expressed explicit concerns to United Voice concerning the recognition of service for the purpose of redundancy in the context of the transfer of the Agreement. 22 The statement, dated 21 March 2019, which is described as ‘the UV Member Statement’ is filed in this proceeding and is clear evidence of the appointment of United Voice and that an employee of the Respondent wishes to dispute the issue of service.

7 We can confirm that the person known as the UV Member does not resile from her statement or that she wishes to progress the dispute in the terms of her filed statement. We have had our appointment and instructions recently confirmed in writing from the UV member.

8 The Respondent does not dispute that it will not recognise service for all purposes including redundancy. 23 The fixed position of the Respondent was confirmed at the last hearing and is abundantly clear from all correspondence and submissions made by the Respondent. Since the hearing, the Respondent’s position has not changed.

9 United Voice was appointed well prior to the dispute being notified. We note our earlier submission made concerning the representative character of an employee organisation in an industrial dispute. 24We have 26 members who are employees of the Respondent.25 A collorary (sic) of the Respondent’s admission that United Voice has members within its employ is that we are entitled to represent these employees of the Respondent as they fall within the constitutional coverage provided by the Rules of United Voice. The Respondent has not disputed the entitlement of United Voice to represent the members within the cohort of transferring employees.

10 There is no argument that the dispute materially affects the members and if successful will be to their benefit. We say we were appointed to represent our members from at least late November 2018 and have a specific written appointment in relation to the precise issue in dispute prior to the notification. 26

Workplace discussions

11 The dispute is one under the Agreement and the Agreement has always applied to the cohort concerned with the dispute. United Voice was appointed by its members prior to our members becoming employees of the Respondent to deal with the industrial consequences of the contract change from Mission Australia to the Respondent. This dispute properly arises within the context of this general appointment.

12 There were workplace discussions well prior to the dispute being notified and there is no requirement that to comply with clause 77.3 there has to be a laborious process of an employee raising the issue with her supervisor and the matter working its way through the management structure. Even a pedantic reading of clause 77.3 indicates United Voice has complied with this requirement. The clause requires that some attempt be made to resolve the dispute with ‘relevant supervisors and/or managers’. The issue was always one that would be dealt with at the level at which our correspondence was addressed and it is inconceivable that a different result would have been obtained had a more staged process taken place.

13 The fact that the Agreement permits an employee to appoint a representative means that all workplace discussions can take place at arms’ length from the workplace through representatives. This cannot be viewed as rendering discussions via correspondence between representatives not ‘workplace discussions’.

14 The Respondent has repeatedly and clearly rejected our assertion that the Agreement prohibits them as an employer from refusing to recognise the prior service of the cohort for the purposes of redundancy. Workplace discussions took place and quickly the positions of the parties became clear. United Voice did try to resolve the dispute at the workplace level. The 2018 decision of Commissioner Lee in Oscar Rivera v Transdev Melbourne is not relevant. 27 In this case the notifier failed to attend a meeting.28

Clause 77.5(b)

15 There has already been one attempt by the Commission to resolve this dispute and this occurred on 28 March 2019. The clear statement of the Respondent at this hearing that it refuses to compromise or recognise service for the purpose of redundancy indicates the futility of any further measures in aid of clause 77.5(a).

16 The Commission is able to now consider that it is unable to resolve the dispute by ‘mediation, conciliation, expressing an opinion or making a recommendation’ and ‘may’ proceed to resolve the dispute pursuant to clause 77.5(b).

17 Dispute clauses in agreements are mandatory content under the Act. 29 The Act recognises the importance of dispute resolution taking place and the courts have given primacy to the statutory imperative that dispute resolution processes within agreements are the primary mechanisms to settle disputes arising under an agreement and in relation to the National Employment Standards (‘NES’).

18 The Full Federal Court’s judgment in Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union 30 (‘Yallourn’) can be broadly cited as authority for the proposition that the role of the Commission when properly vested with jurisdiction as a private arbitrator pursuant to an agreement’s dispute resolution process is to settle the dispute although this proposition is really more a statement of the Act’s requirement that agreements contain a procedure to ‘settle disputes’.

19 The Court in Yallourn confirmed the appropriateness of the judgment of Justice Bromberg and other authorities, when dismissing a collateral cause of action raised by the employer concerning the matter under dispute. The Full Court confirmed that when the Commission makes a decision as a private arbitrator of an industrial dispute, this ‘award’ extinguishes the justiciable controversy 31.

20 Justices Rares and Barker observed at [73] of their judgment in Yallourn:

The evident purpose of the Yallourn agreement was to ensure industrial peace at a large power plant in which there were many employees and five unions, each of whom had, or could have, different industrial and workplace concerns in respect of its own members (or employees eligible to be its members) and the other unions. The dispute resolution process in cl 28 would be pointless if it did not operate so as to bind all of those parties in a way that was certain. Unless all were capable of being bound, the requirement in s 186(6) of the Act, and the object of the parties themselves in agreeing to cl 28, could not be achieved. Instead there would be a chaotic decision-making process in which, on the one hand, the Commission could make binding arbitral awards between employees and Energy Australia, and on the other hand (as Energy Australia argued), both it and the five unions would be free to challenge those awards collaterally by proceedings in the Court.

21 Clause 77.5(b) is phrased in terms that the Commission ‘may’ then arbitration the dispute and make a binding determination. The consent of the parties is not required. The Commission is not compelled under the Agreement to conduct an arbitration and make a binding determination. The Commission’s principal obligation when acting as a private arbitrator under the Agreement is to settle the dispute. This consideration structures the exercise of the discretion provided to the Commission at clause 77.5(b). The discretion is not unfettered. An examination of the relevant discretionary considerations provide compelling reasons for the Commission to exercise its discretion and conduct an arbitration of the industrial controversy raised by the dispute and make a binding determination.

22 First, if the matter is not arbitrated, the dispute will not be settled. United Voice, any employee within the cohort or even Mission Australia may wish to re-agitate the same issue in some other proceedings in the future. There is a type of industrial dispute where declining arbitration will in effect resolve the dispute. This dispute is not such a dispute. The issue raised by the dispute will not go away. A very plausible scenario is where the issue re-emerge when the Respondent makes a member of the cohort redundant and the employees then raises what they says are their true service histories under the Agreement as the relevant service for a future redundancy event. An absence of a clear binding determination now of the matter will prejudice the rights of the cohort and the Respondent in the future.

23 Second, Mission Australia has an extant application (C2018/7058) to avoid the payment of redundancy to the same cohort who are concerned in this dispute. The 2 disputes are interconnected. These proceedings necessarily precede the determination of C2018/7058 and concern the construction and application of the Agreement. If the Commission accepts that the Agreement does not allow the Respondent to refuse to recognise service for the purpose of redundancy, the application of Mission Australia has no utility. On its face, the Mission Australia application C2018/7058 is one that the Commission must determine as an incidence of its statutory functions. The Commission would be clearly compellable by a writ of mandamus to deal with C2018/7058 but not this matter. It is nonsensical to determine Mission Australia’s application when this matter is unresolved.

24 Thirdly, the industrial controversy raised by the dispute notification is significant or has merit. The dispute is precisely the sort of matter, the Commission as a specialist industrial tribunal, is best placed to resolve.

25 Lastly, a subsidiary consideration is that the arbitration will be relatively straightforward. The issue in dispute is construction of the Agreement. Now is when the Agreement applies to a new employer and determination of the issue at this moment is appropriate. Any arbitration will not be evidentially dense albeit the issues have some legal and technical complexity.

26 The Commission should exercise its discretion to arbitrate this dispute and make a determination that is binding on the parties.

Further matter

27 The Respondent has made some communications to its workforce concerning this dispute since the last hearing that could be characterised as divisive and potentially misleading. We attach a copy of an email sent by the Respondent on 18 April 2019. We have in correspondence to the Respondent noted section 345 of the Act which deals with a false or misleading representation about the workplace rights of another person.

[19] One Tree submitted that:

2 “The Respondent seeks that the Application be dismissed on the grounds that:

2.1 the Application was not brought in accordance with the Fair Work Act 2009 (Cth) (FW Act); and

2.2 further or alternatively, that the Application has no reasonable prospects of success

3 There are two bases for the Respondent's Jurisdictional Objection, being:

3.1 the prerequisites to filing of an application referring a dispute to the Commission under clause 77.4 of the Mission Australia Early Learning Services Enterprise Agreement, 2013 - 2016 (MAEL EA) have not been satisfied; and

3.2 the Commission has no power to arbitrate the dispute the subject of the Application as contemplated under clause 77.5(b) of the MAEL EA.

Clause 77.5(b) – Commission's power to arbitrate

4 Section 595 of the FW Act provides that the Commission may deal with a dispute "only" if it is "expressly authorised to do so under or in accordance with another provision of (the Act)". Section 739 of the FW Act is an enabling provision which enables the Commission to deal with disputes pursuant to agreed dispute resolution procedures.

5 Section 739(4) authorises the Commission to participate in private arbitration procedures and provides that"[i]f, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so" (emphasis added).

6 The Respondent has not agreed, and does not agree, to the Commission arbitrating any dispute that may exist.

7 More importantly, the Respondent has not agreed to the terms of the MAEL EA. The Respondent is not a party to the MAEL EA and the MAEL EA only applies to, and "covers", the Respondent by operation of law under s 313 of the FW Act.

8 Given clause 77 is purportedly being imposed on the Respondent by operation of law, it is artificial to describe the Respondent as having "agreed" to the clause or private arbitration.

9 As the Respondent has not agreed to private arbitration, the Commission would not be exercising a private arbitral power but rather judicial power in any "arbitration" of the purported dispute (cf. CFMEU v Australian Industrial Relations Commission [2001] HCA 16 [26]-[31]).

Judicial power

10 Judicial power cannot be vested in a tribunal or commission not constituted as a federal court: see s 71 of the Commonwealth Constitution; Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434.

11 It has long been accepted that no comprehensive definition can be framed defining judicial power: see Precision Data Holdings Limited v Wills (1991) 173 CLR 167, 188-199. In determining whether an application calls on the Commission to exercise judicial, as opposed to arbitral, power, the entire factual background should be reviewed to properly characterise the claim and the power sought to be invoked: see Transport Workers' Union v Mayne Nickless Limited [1998] FCA 1022.

12 Clauses 77.5(b) and 77.7 of the MAEL EA, which are applied by virtue of s 313 of the FW Act, purport to confer upon the Commission the power to arbitrate a dispute and make a determination that is binding on the parties.

13 Ordinarily, a power to make a binding determination as to legal rights and liabilities arising under an award or agreement is, of its nature, judicial power: CFMEU v Australian Industrial Relations Commission [2001] HCA 16 [26]. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374, Kitto J relevantly observed that:

"[A] judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist."

14 In making any binding determination, the Commission would necessarily be exercising judicial power in considering past conduct and making declarations with respect to legal rights and liabilities, including under the FW Act and the MAEL EA, and the validity of Respondent’s decision not to recognise prior service for the purposes of redundancy.

15 The mechanism contemplated by the FW Act for private arbitration by the Commission was authoritatively considered in relation to the statutory predecessor of the FW Act by the High Court in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645 (Gordonstone).

16 The High Court in Gordonstone at [31] relevantly stated:

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

17 As further explained by Hayne, Crennan, Kiefel and Bell JJ in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5 at [75]:

“…Whilst it is “both right and important to observe that the determination of rights and liabilities lies at the heart of the judicial function”, parties are free to agree to submit their differences or disputes as to their legal rights and liabilities for decision by an ascertained or ascertainable third party, whether a person or a body. As will be explained, where parties do so agree, “the decision maker does not exercise judicial power, but a power of private arbitration.” (emphasis added)

18 The Respondent accepts, had it agreed with the other parties to the dispute for the Commission to arbitrate any disputes, then the Commission would be able to exercise a power of private arbitration rather than judicial power. However, the Respondent is not a party to the MAEL EA and has not otherwise agreed to the Commission, or any other person, arbitrating any dispute with the Applicant or its members.

19 The current cases dealing with private arbitration, including Gordonstone, have failed to consider the present situation where a law of the Commonwealth attempts to apply a private arbitration agreement between two parties to a third party upon a transfer of business in effect by operation of law rather than actual consent or agreement.

Constitutional limitations to FW Act

20 Sections 313 and 739(4) of the FW Act must be read subject to s 15A of the Acts Interpretation Act 1901 (Cth) which relevantly provides:

“Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.”

21 The legislative power of the Commonwealth is constrained by Chapter III of the Constitution, which limits the conferral of judicial power to only federal courts constituted in accordance with Chapter III.

22 Given the Commission is not a Chapter III court, a conferral of judicial power on the Commission by Commonwealth legislation would be impermissible as being contrary to s 71 of the Commonwealth Constitution.

23 Sections 313 and 739(4) of the FW Act must be read down, to the extent that these sections attempt to apply clauses 77.5(b) and 77.7 to the Respondent and confer binding determinative powers on the Commission, so as to not be invalid as exceeding the Commonwealth’s legislative competence.

24 The Respondent does not contend that the entirety of Part 2-8 of the FW Act is invalid. Such an outcome is inconsistent with s 15A of the Acts Interpretation Act 1901 (Cth) in light of the primary objects of the Part contained in s 309 of the FW Act.

25 Furthermore, the Respondent accepts that ss 313 and 739 of the FW Act are necessarily constitutionally valid to the extent that the parties to a dispute have agreed to submit their dispute to arbitration.

26 Applying s 15A of the Acts Interpretation Act 1901 (Cth), ss 313 and 739(4) of the FW Act must be read to exclude any dispute resolution term which permits the Commission to make, without the Respondent’s agreement, a binding or conclusive decision on the Respondent.

No implied agreement to arbitrate

27 Any private arbitration necessarily requires the Respondent to submit to arbitration at its own volition. An “arbitration” cannot be construed as a “private arbitration” where the arbitration is given mandatory force by law.

28 Mission Australia Early Learning’s agreement to the arbitration clause cannot be transferred by law to another entity. There is no legal basis for another entity’s agreement to arbitrate to lawfully be imputed to the Respondent.

29 In order to avoid the conferral and exercise of judicial power, the law simply cannot deem consent by operation of law, there needs to be actual private agreement and consent.

30 Section 313 cannot be construed so as to impliedly impute or import Mission Australia Early Learning’s agreement to arbitrate, which is reflected in clause 77.5(b), to the Respondent. Such an implication is not available when construing s 313 with regard to s 15A of the Acts Interpretation Act 1901 (Cth).

31 If a law of the Commonwealth could force persons to agree to a binding private arbitration before a statutory body of the Commonwealth which is not a Chapter III court, it would in effect be circumventing the very restrictions created by the Constitution, which vests the judicial power of the Commonwealth solely in Chapter III courts.

32 In other words, the legislature cannot simply “recite itself” into power where the Parliament’s legislative power is constrained by the Constitution: see e.g. Australian Communist Party v Commonwealth (1951) 83 CLR 1 [205].

Clause 77.3 – Attempts to resolve the dispute at a workplace level

33 The dispute resolution procedure of the MAEL EA is contained in clause 77 and is largely reflective of the model clause prescribed in Schedule 6.1 of the Fair Work Regulations 2009 (Cth).

34 Assuming the Commission is satisfied that United Voice has validly been appointed as a representative of one or more employees pursuant to clause 77.2 (which is disputed by the Respondent), the Commission still cannot be satisfied that there has been compliance with clause 77.3 of the MAEL EA.

35 Clauses 77.3 and 77.4 of the MAEL EA provide as follows:

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

77.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission.”

36 Relevantly, the Respondent observes that it is currently unaware of:

36.1 the identity of any employees of the Respondent that are party to a dispute with the Respondent or of any employees that have otherwise appointed United Voice as their representatives in accordance with clause 77.2 of the MAEL EA; and

36.2 any such employees having discussions with relevant supervisors and/or managers or otherwise having tried to resolve any dispute at a workplace level in accordance with clause 77.3 of the MAEL EA.

37 These are mandatory steps to be followed and are a precondition for the dispute being referred to the Commission. Accordingly, the Commission has no jurisdiction to deal with the Application under s 739 of the FW Act: see The Australian Workers’ Union v MC Labour Services Pty Ltd [2017] FWCFB 5032.

38 The Applicant’s correspondence of 18 February 2019, and the Respondent’s correspondence to the Commission, must be construed in its context of the MAEL Application and cannot be inferred to invoke the dispute resolution procedure under clause 77 of the MAEL EA.

39 The first purported notification of a dispute arising under clause 77 of the MAEL EA was an email on 5 March 2019 (see attachment “IC-4” to the Statutory Declaration of Irina Cattalini dated 15 March 2019). That correspondence purported that the Applicant had already complied with clause 77.3 in so far as it stated:

“…we have complied with the disputes procedure of the agreement and attempted to resolve this matter in terms of clause 77.3. We therefore intend to notify the dispute to the Fair Work Commission as permitted by clause 77.5 of the Agreement. We will notify the dispute on Thursday…”

40 The Respondent submits that the Applicant’s correspondence on 5 March 2019 indicated that the Applicant was unwilling to try and resolve the dispute at the workplace level.

41 The Respondent is unaware of any evidence of attempts to try to resolve any dispute at the workplace level including by:

41.1 face-to-face discussions between employees and the relevant supervisors and/or managers; or

41.2 telephone discussions.

42 Rather the evidence is to the effect that no attempts, bona fide or otherwise, have been made to resolve any dispute at the workplace level. Such evidence only supports the conclusion that there has been no compliance with clause 77.3 of the MAEL EA.

43 This is no mere pedantry – compliance with clause 77.3 is not an optional step but rather a prerequisite to existence of the Commission’s jurisdiction to deal with the matter.

44 The requirement to try to resolve the dispute, and have discussions, at a workplace level, is a mandatory requirement and precondition even where one party does not want to listen: see e.g. Rivera v Transdev Melbourne Pty Ltd [2018] FWC 2255 [22]-[25].

45 Furthermore, it is accepted that situations may arise “where it is genuinely impossible for a party to comply with a mandatory step in a dispute resolution procedure, and that the effect of this is that the Commission or other independent person cannot attempt to settle the dispute”: The Australian Workers’ Union v MC Labour Services Pty Ltd [2017] FWCFB 5032 [37].

46 Despite being alerted to the fact that it had not complied with clause 77 of the MAEL EA, the Applicant subsequently proceeded to make a purported referral to the Commission on 7 March 2019 by way of the lodgement of a Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure.

47 During oral argument in respect of the Jurisdictional Objection on 28 March 2019, counsel for the Applicant relied on the Full Bench’s decision in Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd t/a Pacific National [2017] FWCFB 1702 (Asciano) as authority for the proposition that a term such as clause 77.3 was not a mandatory prerequisite to the referral of a dispute to the Commission.

48 Asciano cannot be relied upon as authority for such a proposition as it can clearly be distinguished from the present case.

49 In Asciano, the relevant dispute resolution procedure included a clause that expressly provided that certain steps did not need to be followed before notifying the dispute to the Commission: see Asciano at [14]. An equivalent clause does not exist in the MAEL EA and, as such, it is not open for the Commission to apply Asciano to the case at hand.

50 The plain and clear language of clause 77.3 in the MAEL EA cannot be disregarded for the sake of convenience to the Applicant.

Application for costs order under s 611

51 The Applicant’s non-compliance with clause 77, and the Commission’s subsequent lack of jurisdiction, was readily apparent and was brought to the attention of the Applicant, by way of letter from the Respondent’s solicitors, before the Application was filed (see attachment “IC-5” to the Statutory Declaration of Irina Cattalini dated 15 March 2019).

52 Notwithstanding the matter being brought to the Applicant’s attention, the Applicant made no attempt to address or allay the Respondent’s concerns regarding compliance with the dispute resolution procedure in clause 77 prior to filing the Application.

53 Furthermore, prior to filing the Application, the Applicant was put on notice that the Respondent intended to seek its costs under s 611(2)(a) of the FW Act in the event that the Applicant were to proceed with filing an application to the Commission without satisfying the prerequisites under the MAEL EA (see attachment “IC-5” to the Statutory Declaration of Irina Cattalini dated 15 March 2019).

54 It is apparent that the purported ‘dispute’ in the Application has been brought for the collateral purpose of the application to vary redundancy pay brought by Mission Australia Early Learning (application no. C2018/7056) (MAEL Application). Such collateral purpose is readily apparent from the Applicant’s email of 5 March 2019:

“We intend to formally notify this matter as a dispute prior to 8 March 2019 so that Commissioner Johns is in a position to potentially determine the correct interpretation of the Agreement at the hearing of 19 March 2019”.

55 The Respondent submits that it is entitled to its costs on the basis that:

55.1 the Application was made without reasonable cause (or otherwise vexatiously due to the collateral purpose identified above) (s 611(2)(a)); and

55.2 given that the Applicant had access to, and the benefit of, legal advice from Mr Stephen Bull, it should have been reasonably apparent to the Applicant that the Application had no reasonable prospect of success (s 611(2)(b)).

56 The Respondent must be entitled to its costs accordingly.

Conclusion

57 The Commission has no power to arbitrate any dispute in the Application as the Respondent has not agreed to any private arbitration and s 313 of the FW Act cannot have the effect of applying clause 77.5(b) to the Respondent by operation of law.

58 The Application has not been brought in accordance with the FW Act as it has not been brought in accordance with clause 77.3. As the Application has not been brought in accordance with the MAEL EA or the FW Act, the Commission has no power to deal with any dispute in the Application.

59 The Application was brought without reasonable cause and has no prospect of success. It must be dismissed with costs.

Findings of fact

[20] The following matters were either agreed or not contested 32. Accordingly, I make the following findings of fact:

a) On 10 May 2012 the UV Member joined United Voice. 33

b) In 2012 the UV Member became employed by Mission Australia. 34

c) Mission Australia recognised continuity of service for all purposes. 35

d) In 2018 Mission Australia lost the contract with the Department of Defence (Defence) to manage the provision of childcare services to Defence personnel at 19 childcare centres (Centres) in NSW, Victoria, West Australia, Queensland Northern Territory and the Australian Capital Territory. Mission Australia ceased providing services on 31 December 2018.

e) One Tree successfully tendered to operate the Centres.

f) On learning of the success of One Tree tender process United Voice wrote to One Tree on 11 September 2018 requesting a meeting to discuss, amongst other things, “whether current employees’ entitlements… will be maintained.”

g) On 5 November 2018 Mission Australia and One Tree executed an “Asset Transfer Agreement”. Under the Asset Transfer Agreement Mission Australia transferred assets to One Tree used in connection with the work of the Centres.

h) Clause10.6(b) of the Asset Transfer Agreement noted that One Tree would not recognise periods of service which a transferred employee had with Mission Australia for the commencement of employment with One Tree, for the purpose of calculating an entitlement to redundancy pay.

i) In November 2018 One Tree made offers of employment to former employees of Mission Australia. 36 The offers were conditional upon the completion of the agreement between One Tree and Mission Australia. Further, the contract provided that:

“One Tree will recognise the length and continuity of your period of service/early learning (including curious thing or contract for all purposes except redundancy…

One Tree will not recognise prices current or future redundancy (including any redundancy entitlements which may arise to Be of Division 11 of Part 2-2 of the Fair Work Act 2009 (Cth) or any Applicable Industrial Instrument).”

j) In the period 1 November 2018 to 20 March 2019 United Voice received a number of telephone calls “from members that appear to relate to redundancy, Mission Australia, One Tree Community Services or service history concerns in relation to their employment.” 37

k) On 12 November 2018 “one of [United Voice’s] members sought advice concerning her contract of employment with One Tree and sent a copy of the contract…. An official of the union provided telephone advice.” 38

l) The member wrote:

“I would like to ask help from you to take a look and assist me into my new contract under One Tree. I’m currently under Mission Australia Early Learning and will be rolled over to One Tree on January 1, 2019.”

m) On 14 November 2018 United Voice wrote to One Tree asking about arrangements relation offers of employment. Later that day One Tree responded by indicating it would not speculate in answer to the questions raised.

n) On 1 January 2019 One Tree commenced operating the Centres. 39

o) 171 employees transferred from Mission Australia to One Tree (Transferred Employees).

p) 25 of the Transferred Employees are members of United Voice. 40

q) On 30 January 2019 the UV Member contacted United Voice about their concerns “about redundancy and recognition of service”. 41

r) The UV Member appointed United Voice to act for her. She attested to the fact that:

“In seeking the assistance of my union, I was appointing United Voice to act on my behalf. I do not have any expertise [in] industrial relations.” 42

s) On 7 February 2019, the UV Member sent an email to United Voice’s National Office because they had received:

“…correspondence from Mission Australia and the Commission about an application to reduce their redundancy entitlements to nil. This was the main concern I had.” 43

t) On 11 February 2019 United Voice told the UV Member that it would “make submissions on behalf of our members…” 44

u) On 18 February 2019 United Voice wrote to One Tree 45 and noted that:

“5. Our members [sic] service with Mission Australia is generally recognised other than their service to the purpose of redundancy.

6. We have concerns that due to the application of the Agreement to our members [sic] transfers of employment that there may have been no capacity for One Tree to decide not recognise our members service for the purpose of redundancy.

7. Our view is that as the Agreement applies to this transfer, the agreement specific provision at clause 61 concerning transfers of employees governs the transfer of our members’ employment to One capturing. Clause 61 does not provide One Tree with capacity to decide not to recognise service for the purpose of redundancy.

….

10. We write to you to seek your advice concerning One Tree’s view concerning recognition of our members’ complete service histories pursuant to the transfer of business that is taking place with Mission Australia.

11. We seek a response within 14 days.

v) On 26 February 2019 One Tree’s solicitors responded to United Voice 46 communicating that “One Tree reject any assertion by United Voice that there was no capacity for it to decide not to recognise prior service of any transferring employees of [Mission Australia] the purpose of calculating redundancy entitlement under the [Agreement] or otherwise.” One Tree’s solicitors set out the basis for that contention.

w) On 5 March 2019, United Voice wrote to One Tree 47 (copying in One Tree’s solicitors) noting that:

“We are in dispute in terms of clause 77 of the [Agreement] concerning service histories of our members who are transferring employees as a result of One Tree’s recent commencement as the contract for Defence childcare centres which were previously operated by Mission Australia Early Learning Service.

We have 26 members who are employed by One Tree is transferring employees in United Voice represents our members in terms of clause 77.2 of the Agreement. We are able to particularise the identity of our members and have already done so for the purpose of the proceedings on foot concerning the transaction.

The response of 26^th February 2019 evinces a clear understanding of the dispute and rejection of our position …

…

Subject to One Tree altering what appears to be clear position, we have complied with the dispute procedure of the Agreement and attempt to resolve this matter in terms of clause 7.3. We therefore intend to notify the dispute to the Fair Work Commission as permitted by clause 77.5 of the Agreement. We will notify the dispute on Thursday. As noted if One Tree’s position has changed and there is utility in further discussions please contact the undersigned by close of business tomorrow further discussions.”

x) Ms Cattalini “instructed One Tree’s solicitors … to respond to United Voice on the basis that there had not been compliance with the dispute resolution procedure under the [Agreement]”. 48

y) On 6 March 2019 One Tree’s solicitors replied to United Voice foreshadowing the present jurisdictional objection.

z) On or about 6 or 7 March 2019 United Voice invited the UV Member to appoint United Voice as their representative.

aa) On 7 March 2019 the UV Member wrote to United Voice in the following terms:

“I am a member of United Voice. I’ve been aware and active in relation to the dispute concerning the transfer of my employment Mission Australia to One Tree Community Services. I’ve appointed United Voice from late last year as my representative I have been kept up-to-date whilst negotiations and discussions have taken place.

I am aware that my union has sought to resolve the dispute as my full service for the purpose of redundancy. I’ve been informed today these discussions not resolve the dispute. I authorise United Voice, my representative, to refer the matter to the Commission. I confirm the appointment of United Voice as representative for the purpose of this dispute. 49

bb) Also on 7 March 2019 United Voice:

i. thanked the UV Member for their instructions; and

ii. commenced the present proceedings.

cc) On 15 March 2019 One Tree filed a Form F1 seeking that the matter be dismissed and costs ordered.

Consideration – Is One Tree subject to the arbitration power in clause 77.5(b)(i) of the Agreement?

[21] The Commission may only deal with a dispute if it is “expressly authorised to do so under or in accordance with another provision of [the FW Act]”. 50 Section 739 of the FW Act then applies if a term of an enterprise agreement requires or allows the Commission to deal with a dispute.

[22] A term about the settling of disputes is a requirement of all enterprise agreements. Before approving an agreement the Commission must be satisfied that the agreement includes a term that provides a procedure that requires or allows the Commission, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes about any matters under the agreement and in relation to the National Employment Standards. 51 The dispute resolution term must allow for the representation of employees covered by the agreement.52

[23] If an agreement does not include a dispute settling procedure that meets the requirements in the FW Act and FW regulations, the Commission will usually invite the employer to provide an undertaking that the model term in Schedule 6.1 of the FW regulations will apply. Absent any dispute settlement terms, the Commission must reject the approval of the agreement.

[24] Outside the requirements of section 186(6) of the FW Act, the scope and terms of the dispute settling procedure included in the agreement is a matter to be determined by the parties to the agreement. For example, there is no requirement that a dispute settling procedure invest the Commission with the power of arbitration. 53 Only if, in accordance with the dispute resolution procedure included in the agreement, the parties have agreed that the Commission may arbitrate the dispute, may the Commission do so.54 Further, once the parties have agreed upon the scope and terms of the dispute settling procedure, the Commission must not exercise any powers that are limited by the terms of the dispute settling procedure.55 The Commission can only deal with a dispute on application by a party to the dispute.56

[25] A decision of the parties to agree to include an arbitration power in the dispute settling procedure included in an agreement has some significance. This is because, as was stated in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (CFMEU v AIRC): 57

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

[26] Further, the parties can invest the Commission with the power to hear an appeal from the first instance (privately arbitrated) decision. That appeal decision will also be in the nature of a private arbitration. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd, 58 the Full Federal Court held that:

“… There is much in the proposition that parties who choose to go to arbitration with [the Commission] take that body as they find it. Such choice we made with knowledge of the structure of the body and of the appellate function performed by the Full Bench. The reference of a dispute for resolution by [the Commission] is for resolution by that body, and not by one part of it. It follows that if the parties intend that there be no appeal pursuant to s.604, they should say so. Similarly, if it is intended that any appeal be other than by way of private arbitration, the party should say so.”

[27] It follows from the fact that, if an agreement includes an arbitration power and the Commission is exercising a power of private arbitration, it does not in the settlement of the dispute exercise its public law functions under the FW Act. 59 This is an important consequence because it means that when the Commission exercises power derived from an agreement, judicial relief from the decision via a constitutional read is not available.60

[28] In the present matter, the Agreement includes a dispute settling provision at clause 77. If the parties have been unable to resolve the dispute at the workplace level the Commission is invested with powers in relation to disputes about matters under the Agreement (except disputes about termination of employment) and disputes relating to the National Employment Standards. The Commission’s powers are divided into two stages. Stage one involves mediation, conciliation, expressing an opinion or making a recommendation. 61 Stage two involves arbitrating the dispute.62

[29] To the extent that the Agreement was negotiated by and agreed to by Mission Australia there could be no complaint about the jurisdiction of the Commission in respect of any dispute involving Mission Australia. Consistent with s.739(4) of the FW Act, Mission Australia was a party that agreed to the Commission arbitrating disputes.

[30] One Tree contends that it is not bound by the arbitration power in clause 77(b)(i) of the Agreement because it is not a party to the Agreement and it did not agree to the Commission arbitrating disputes in accordance with s.739(4) of the FW Act.

[31] One Tree is covered by the Agreement by operation of s.313 of the FW Act. One Tree further contends that the fact that it is covered by the Agreement (by virtue of the transfer of business provisions in the FW Act) is not sufficient to make it a party to the Agreement or that it consented to private arbitration.

[32] One Tree then contends that because it “has not agreed to private arbitration, the Commission would not be exercising a private arbitral power but rather judicial power in any ‘arbitration’ of the purported dispute.”

[33] One Tree relies upon the High Court of Australia decision in CFMEU v AIRC where it was held that “judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought…”

[34] One Tree submitted that:

“… had it agreed with the other parties to the dispute for the Commission to arbitrate any disputes, then the Commission be able to exercise a power of private arbitration rather than judicial power. However, [One Tree] is not a party to the [Agreement] and has not otherwise agreed to the Commission … arbitrating any dispute with [United Voice] or its members.”

Further, it submitted that:

“Any private arbitration, necessarily requires [One Tree] to submit to arbitration at its own volition. An “arbitration” cannot be construed as “private arbitration” where the arbitration is given mandatory force by law.”

“[Mission Australia’s] agreement to the arbitration clause cannot be transferred by law to another entity. There is no legal basis for another entity’s agreement to arbitrate to lawfully be imputed to [One Tree].

[35] It is a cute argument but it is an argument that is fundamentally flawed and fails to recognise what occurs as a matter of fact when there is a transmission of business. One Tree is not being compelled against its will into arbitration. The Commission in the present matter is not seeking to exercise arbitral power independently of the consent of One Tree.

[36] No-one and nothing compelled One Tree to:

a) tender to take over the operation of 17 Department of Defence childcare centres; or

b) enter into an asset transfer agreement with Mission Australia; or

c) make offers of employment to former employees of Mission Australia.

[37] One Tree did all of the above voluntarily.

[38] It did so, I am entitled to assume, in the full knowledge of the operation of the transfer of business provisions in the FW Act. Likely some junior solicitor sat in a data room and trawled over contracts of employment and applicable industrial instruments (including the Agreement) and this resulted in a due diligence report being received by One Tree about the same.

[39] Likely the diligence report advised One Tree about the significant service accruals of Mission Australia employees. Consequently One Tree negotiated a term in the asset transfer agreement, purporting to relieve it of an obligation to recognise service for the purposes of redundancy. That is to say, there is clear evidence that One Tree turned its mind to the implications of making offers of employment to former employees of Mission Australia.

[40] Likely also that due diligence report advised One Tree of the existence of the arbitration power in the Agreement. Notwithstanding, One Tree decided to proceed with entering into the transfer agreement and making offers of employment to former employees of Mission Australia.

[41] At all times One Tree had it within its power to avoid coverage of the Agreement transmitting to it. It chose not to do so. It knew about the existence of the arbitration power in clause 77.5(b)(i) and it voluntarily elected to enter into a transmission of business that would see it covered by the Agreement and thus subject to the arbitration power. It is plainly wrong for One Tree to seek to characterise the arbitration clause as transferring by operation of law and nothing more (as if One Tree had nothing to do with it). That argument simply ignores the many voluntary acts engaged in by One Tree that brings it to this position. For these reasons, I reject the submission made by One Tree that it is not subject to the arbitration power in the Agreement.

Consideration – Has there been compliance with the necessary preconditions or steps in the dispute settling procedure before the making of the present application to the Commission?

[42] A finding as to whether jurisdiction exists is a necessary prerequisite to exercising the arbitral power in the Agreement. 63

[43] In the present matter before the Commission can exercise the arbitration power in clause 77.5(b) of the Agreement, I must be satisfied that the preconditions in the dispute settling clause have been complied with.

Clause 77.1 - Is there a dispute relating to a matter under the Agreement or the National Employment Standards?

[44] Clause 61 of the Agreement provides for transfer of employment. Subdivision B of Division 11 of the FW Act is about redundancy pay under the National Employment Standards.

[45] This dispute, in short, is about whether the Agreement excludes the capacity of One Tree to decide not to recognise the service of former employees of Mission Australia for the purposes of redundancy.

[46] Consequently, while expressing no view about the merits of the substantive dispute, I am satisfied that there is a dispute relating to a matter under the Agreement and/or the National Employment Standards.

Clause 77.2 - Has an employee who is a party to the dispute appointed a representative for the purposes of the dispute settling procedures?

[47] Clause 77.2 does not detail how an employee who is a party to the dispute is to appoint a representative for the purposes of the dispute settling procedure. Nonetheless I have already made a finding of fact that on 30 January 2019 the UV Member contacted United Voice about their concerns concerning redundancy and recognition of service. UV Member indicated she was “seeking the assistance of my union.” She attested to “appointing United Voice to act on her behalf.” Appointment by a single member of the union is sufficient for present purposes. If it was necessary to do so, the UV Member confirmed the appointment on 7 March 2019 before the present proceedings were commenced.

[48] Consequently, I am satisfied that at least one employee who is a party to the dispute is appointed United Voice as their representative for the purposes of the dispute settling procedure.

Clause 77.3 - Have the parties tried to resolve the dispute at the workplace level by discussions between an employee and the relevant supervisor or manager?

[49] In the present matter, whether there have been attempts to resolve the matter at the workplace level is the most contested are of compliance with the dispute settling provision in the Agreement.

[50] United Voice has been corresponding with One Tree about this matter at least since 14 November 2018. Everyone has a clear understanding about the nature and scope of the dispute. To suggest otherwise would be disingenuous.

[51] Clause 77.3 does not detail the manner in which disputes are to be resolved at the “workplace level”. What it means to be at the workplace level is not defined. It would be wrong to narrowly define the phrase to mean that disputes had to be attempted to be resolved within the physical workplace. That would be too narrow and pedantic a definition. It would be equally narrow and pedantic to require resolution of the workplace level to involve a mandatory face-to-face meeting.

[52] I have been referred to a number of decisions of the Commission concerning compliance with dispute settling procedures.

[53] This matter is like the dispute in Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd t/a Pacific National (Asciano). 64 In Asciano:

a) The union applied to the Commission to deal with a dispute under an enterprise agreement pursuant to s.739 of the FW Act;

b) the dispute concerns the removal of positions at certain locations;

c) the union named itself as the party to the dispute and did not disclose the name of its members;

d) conciliation was unsuccessful;

e) the matter proceeded to arbitration;

f) Asciano raised a jurisdictional objection on the basis that, it contended, there had been non-compliance with the dispute settling clause;

g) the Deputy President at first instance agreed and dismiss the application;

h) the union appealed;

i) the Full Bench granted permission to appeal and upheld the appeal. The decision of first instance was quashed. In doing so the Full Bench held that “it would be contrary to the obligations imposed on the Commission pursuant to s.577 of the FW Act for s.739 applications to be automatically dismissed on the basis that every employee party to the dispute was not identified by name in the application.”

[54] I was also referred to the decision in Australian Workers’ Union v MC Labour Services Pty Ltd 65 (MC Labour). In MC Labour the Commissioner at first instance decided she did not have jurisdiction to deal with the dispute because certain mandatory steps in the dispute resolution procedure had not been followed and these were a precondition for the dispute being referred to the Commission.

[55] The dispute related to the alleged non-payment of overtime in relation to employees covered by an enterprise agreement. The enterprise agreement contained a dispute settlement procedure. That procedure required the dispute to be submitted to “the site for person/supervisor or the other appropriate site representative of the Employer” and if not resolved also to the Victorian Building Industry Disputes Panel. It was uncontested that neither of these events occurred. MC Labour was unaware of any dispute until the AWU filed its application in the Commission. At first instance, the Commissioner held that non-compliance with the mandatory steps meant the Commission did not have jurisdiction to deal with the dispute.

[56] On appeal, the Full Bench held that “once an agreement has been approved, and a dispute is referred to the Commission under it, it would not be permissible for the Commission to recast or ignore certain components of the dispute settlement procedure.” Consequently, the AWU’s appeal in MC Labour was dismissed.

[57] However, having regard to the findings of fact I have made above, the decision in MC Labour can be distinguished. One Tree did not first become aware of this dispute when it was filed in the Commission.

[58] I am satisfied that on a fair reading of the dispute resolution clause in the Agreement, at all times, an employee is entitled to be represented by and to act through that representative. In these proceedings the solicitors for One Tree have been given a confidential list of their employees who are members of United Voice.

[59] I have already made a finding of fact that on 18 February 2019 United Voice (in its representative capacity of at least the UV Member) wrote to One Tree about the dispute. United Voice expressed its view that One Tree was not able to not recognise service for the purposes of redundancy. United Voice invited One Tree to express its view. It provided One Tree with 14 days to do so. The correspondence was sent directly to One Tree, i.e. to the workplace. It was sent to a very senior manager, Ms Cattalini.

[60] Ms Cattalini decided to respond through One Tree’s solicitors. What is immediately apparent from the correspondence sent by One Tree’s solicitors is that One Tree rejected the assertions made by United Voice. It is plainly obvious that the attempts made by United Voice to resolve the dispute at the workplace level were unsuccessful.

[61] Notwithstanding, United Voice again wrote directly to One Tree on 5 March 2019 seeking to resolve the dispute. The dispute remained unresolved. If there was any defect in the earlier correspondence it was cured by the exchange of correspondence that happen on and from 5 March 2019 (i.e. before the present application was filed).

[62] Consequently, I am satisfied that the parties tried to resolve the dispute at the workplace level by discussions between the UV Member (as represented by United Voice) and One Tree’s Executive Director, Ms Cattalini.

Clause 77.4 - Has a party referred the matter to the Commission?

[63] On 7 March 2019 United Voice commenced the present proceedings.

[64] Consequently, I am satisfied that a party (namely the UV Member as represented by United Voice) referred the matter to the Commission.

Clause 77.5(a) - Has the Commission attempted to resolve the dispute?

[65] On 28 March 2019 I conducted a conference in relation to the present matter. The matter remained unresolved.

[66] Consequently, I am satisfied that the Commission has attempted to resolve the dispute.

[67] For the above reasons, I am satisfied that all of the steps required in the dispute settlement procedure, that are necessary to be completed before the Commission can exercise the power of private arbitration in clause 77(b)(i), have been completed.

Conclusion

[68] For the reasons set out above, the Commission as presently constituted, is satisfied that it is properly invested with jurisdiction to hear and determine the substantive dispute. Consequently, One Tree’s application for costs is dismissed.

[69] The matter will now be listed for another mention/directions hearing to further program the matter.

COMMISSIONER

Appearances:

Mr S Bull, National Industrial Coordinator, United Voice, for the Applicant.

Ms L Nickels, Partner, DLA Piper, for the Respondent.

Hearing details:

Sydney

Tuesday, 28 March 2019.

Final written submissions:

Exchanged 3 May 2019.

Printed by authority of the Commonwealth Government Printer

<AE402587 PR709480>

1 By order made by me on 1 April 2019 there are confidentiality restrictions on the publication and disclose of some of the material and annexures to the Prell Statement.

2 By order made by me on 1 April 2019 there are confidentiality restrictions on the publication and disclose of some of the material and annexures to the UV Member Statement.

3 I gave Ms Nickels permission to represent the Respondent under section 596 of the Fair Work Act 2009 (FW Act) because I was satisfied that the matter was invested with some complexity and that I would be assisted in the matter if I granted her client permission to be represented (Transcript PN9).

4 Statement of Alex Prell, dated 21 March 2019.

5 (1925) 35 CLR 528.

6 The cases generally concern a ‘dispute’ in the context of a dispute being a precondition for the making of an award.

7 As above at 549.

8 [1957] HCA 19.

9 As above at 87.

10 [2017] HCA 55.

11 The use of the terminology ‘entitled to represent’ throughout the Act was view as significant.

 12   Prell statement at [11] to [14].

 13   This member is the member who sends her One Tree contract to United Voice on 13 November 2018 which is found at annexure D of Ms Prell’s statement.

 14   As above.

 15   [2018] FWC 2255.

 16   As above at [19].

 17   Subsection 182(1).

 18   Section 188.

 19   The litigation concerning the bargaining between JJ Richards and the Transport Workers Union of Australia demonstrates this proposition. The union initiated the bargaining, which was resisted by the employer and was able to progress it. See: J.J. Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 (20 April 2012).

 20   Section 185.

 21   Section 311.

 22   Transcript of 29 March 2019, PN320 to PN328.

 23   As above, PN330.

 24   Submission of United Voice, 21 March 2019, at [5] to [13] and [24] to [35].

 25   We have identified an additional member in Western Australia and supply the Commission with the details of this employee. While our members are now identified, the Full Bench decision in Australian Rail, Tram and Buss industry Union v Asciano Services Ltd [2017] FWCFB 1702 at [15] does not consider identification of the names of employees on whose behalf a dispute is brought intrinsic to the Commission having jurisdiction. The natural justice concern raised by the Full Bench in the above decision is not relevant as the Respondent has conceded we have members in its employ. Natural justice does not extend to providing the employer with the opportunity to pressure or convince its employees to cease to be in dispute once an appointment of a representative is made and a dispute is notified.

 26   See submission of 21 March 2019 at [24] to [35]; and statement of the UV Member at 21 March 2019 at [20].

 27   [2018] FWC 2255.

 28   At [23] to [24].

 29   Subsection 186(6).

 30   [2018] FCAFC 146 (31 August 2018).

 31   At [92].

 32   See for example Transcript PN325-331.

 33   UV Member Statement, para 2.

 34   UV Member Statement, para 8.

 35   Ibid.

 36   Prell Statement, Annexure D.

 37   Prell Statement, para 12.

 38   Prell Statement, para 14.

 39   UV Member Statement, para 10 and Cattalini Declaration, para 3.

 40   Prell Statement, para 8.

 41   UV Member Statement, para 12.

 42   UV Member Statement, para 15.

 43   UV Member Statement, para 16.

 44   UV Member Statement, para 16.

 45   Cattalini Declaration, para 5.

 46   Cattalini Declaration, para 6.

 47   Cattalini Declaration, para 8.

 48   Cattalini Declaration, para 9.

 49   UV Member Statement, para 19 and Annexure C.

 50   Section 595 of the FW Act.

 51   Section 186(6)(a) FW Act.

 52   Section 186(6)(b) FW Act.

 53   Re Woolworths Ltd (t/a Produce and Recycling Distribution Centre) [2010] FWAFB 1464.

 54   Section 739(4) FW Act.

 55   Section 739(3) FW Act.

 56   Section 739(6) FW Act.

 57   (2001) 203 CLR 645.

 58   [2015] FCAFC 123.

 59   Linfox Australia Pty Ltd v TWU [2013] FCA 659.

 60   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 and also Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82.

 61   Clause 77.5(a) of the Agreement.

 62   Clause 77.5(b) of the Agreement.

 63   Schweppes Australia Pty Ltd v United Voice (2012) 218 IR 251.

 64   [2017] FWCFB 1701.

 65   [2017] FWVFB 5032.