Angela Caroline Collins v Bay Islands Community Services Inc
[2022] FWC 1995
•28 JULY 2022
| [2022] FWC 1995 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Angela Caroline Collins
v
Bay Islands Community Services Inc
(C2022/1369)
| COMMISSIONER HUNT | BRISBANE, 28 JULY 2022 |
Alleged dispute about any matters arising under the modern award and the NES; [s146] - Commission’s power to arbitrate under the terms of an award and/or the contract of employment - no power to arbitrate without consent from both parties - Respondent does not consent to arbitration
Ms Angela Caroline Collins has applied to the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with a dispute settlement procedure.
The dispute concerns Ms Collins’ employment with Bay Islands Community Services Inc (the Respondent). The Respondent is in the social, community, home care and disability services industry. Ms Collins raised the dispute in relation to the classification of her position and the corresponding pay rate.
The matter was listed for a conference before me on 9 March 2022 and on 7 April 2022. The parties participated in the conferences and provided submissions as to the duties undertaken by Ms Collins in her role.
The parties have been unable to resolve the dispute between them. The Respondent communicated that it does not consent to the Commission arbitrating the dispute.
Ms Collins has been requested to withdraw her application, which she has not done.
Dispute resolution procedure
Ms Collins’ employment is covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award). The Award contains the following dispute resolution procedure:
“9. Dispute resolution
9.1 Clause 9 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
9.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.
9.3 If the dispute is not resolved through discussion as mentioned in clause 9.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
9.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 9.2 and 9.3, a party to the dispute may refer it to the Fair Work Commission.
9.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
9.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
9.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 9.
9.8 While procedures are being followed under clause 9 in relation to a dispute:
(a)work must continue in accordance with this award and the Act; and
(b)an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
9.9 Clause 9.8 is subject to any applicable work health and safety legislation.”
At clause 9.5, the procedure permits the Commission to deal with the dispute including by consent arbitration.
The conferences convened have been done so pursuant to clause 9.5, as the Commission has been exercising mediation and conciliation powers. I am satisfied that all attempts to mediate and conciliate the dispute have been exhausted.
Consideration
Section 595 of the Act sets out the Commission’s powers to deal with disputes:
“FWC’s power to deal with disputes
(1)The FWC may deal with a dispute only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.
(2)The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a)by mediation or conciliation;
(b)by making a recommendation or expressing an opinion.
(3)The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.
Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).
(4)In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.
(5)To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.
Section 595(3) provides that the Commission may only deal with a dispute by arbitration if it is expressly authorised to do so under or in accordance with another provision of this Act. This limitation is emphasised by s.595(5) of which provides that to avoid doubt, the Commission must not deal with a dispute by arbitration except as authorised by s.595.
The terms of the Award’s dispute resolution procedure at clause 9.5 expressly only provides for consent arbitration. Arbitration is only available where both parties have agreed to it. This is made clear in The Explanatory Memorandum to the Fair Work Bill 2008 at item 2289:
“FWA will have power to arbitrate a bargaining dispute or a Part 6-2 dispute if the parties have agreed that it may arbitrate, however the parties describe that process (subclauses 240(4) and 739(4)) ...”
The Full Bench in Woolworths Ltd trading as Produce and Recycling Distribution Centre[1] which held in relation to s.595 of the Act:
“[19] The section is concerned with the powers the tribunal may exercise in dealing with disputes. Section 595(1) provides that Fair Work Australia may only deal with a dispute if it is expressly authorised to do so. Section 595(2) provides that the tribunal may deal with a dispute by mediation, conciliation, making a recommendation or expressing an opinion subject to the qualification that it may not deal with the dispute by arbitration. Section 595(3) permits the tribunal to arbitrate if it is expressly authorised to do so. Section 595(4) operates to confer procedural powers. It seems to us clear enough from the text of these provisions that the legislature intended that Fair Work Australia can deploy voluntary methods of dispute resolution without the consent of the parties to the dispute, provided the dispute is one with which it is authorised to deal, but can only arbitrate if it has been specifically empowered to do so.”
Section 739 of the Act applies if a term referred to in s.738 requires or allows the Commission to deal with a dispute. Section 739(4) is reproduced below:
“If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.”
The Full Bench in Woolworths also found:
“[21] Section 738 specifies the type of dispute resolution terms to which the division applies.... Section 739(1) provides that the section applies if a term in s.738 requires or allows Fair Work Australia to deal with a dispute. Section 739(2) is not relevant. Section 739(3) provides that a dispute resolution term can limit the powers available to Fair Work Australia to settle a dispute. Section 739(4) sets out the circumstances in which Fair Work Australia may arbitrate a dispute, providing that if the parties have agreed that Fair Work Australia may arbitrate, Fair Work Australia may do so. It appears to us that s.739(4) strongly implies the negative stipulation that if the parties have not agreed, Fair Work Australia has no power to arbitrate.”
I find that the Commission may only arbitrate a dispute under clause 9 of the Award where the parties consent to arbitration by the Commission. In the absence of agreement by both the parties, the Commission has no power to arbitrate the dispute. The Respondent has not agreed with Ms Collins on the process to be used by the Commission to determine the dispute and specifically does not consent to arbitration.
There is no evidence before the Commission that there is an enterprise agreement or contract of employment or other written agreement including a term that provides a procedure for dealing with disputes between Ms Collins and the Respondent.
Accordingly, the Commission does not have power to arbitrate this dispute and this application must be dismissed.
COMMISSIONER
[1] [2010] FWAFB 1464
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