Australasian Meat Industry Employees Union v Primo Foods Pty Ltd

[2023] FWC 570

[2023] FWC 570

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.739—Dispute resolution

Australasian Meat Industry Employees Union
v

Primo Foods Pty Ltd

(C2021/4501)

DEPUTY PRESIDENT ASBURY BRISBANE, 8 MARCH 2023

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Jurisdictional objections – Whether dispute in relation to NES entitlement arising under currently operative enterprise agreement can encompass period covered by a previously operative enterprise agreement that has ceased operation when dispute lodged with Commission – Whether resolution of dispute involves exercise of arbitral power – Standing of Union covered by enterprise agreement to make application for the Commission to deal with a dispute in accordance with a dispute settlement term -  Jurisdictional objections dismissed – Dispute in relation to NES may encompass a period where enterprise agreement under which dispute is notified was not operative – Arbitration of dispute in manner authorised by s. 739 and dispute settlement term in agreement does not involve exercise of judicial power – Union covered by enterprise agreement has standing to make application to the Commission under dispute settlement term – Dispute to proceed to arbitration.  

Background

1. The Australasian Meat Industry Employees Union (AMIEU/Applicant) applied under s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the Dispute Resolution Procedure contained in clause 3.10 of the Primo Foods Pty Ltd - JBS Primo Wacol Enterprise Agreement 2019 (the Primo Agreement). The Respondent in this matter is Primo Foods Pty Ltd (Primo/Company/Respondent), the employer covered by the Primo Agreement.

1. The Primo Agreement was approved by the Commission on 24 February 2020. It commenced operation on 2 March 2020 and reached its nominal expiry date on 24 February 2022. The Primo Agreement replaced the Hans Continental Smallgoods Pty Ltd Enterprise Agreement 2016 (the Hans Agreement). The Hans Agreement was approved by the Commission on 9 November 2016 and ceased to be operative when the Primo Agreement commenced operation on 2 March 2020. The employer covered by the Hans Agreement was Hans Continental Smallgoods Pty Ltd (Wacol). The AMIEU was covered by both the Hans Agreement and the Primo Agreement.

The issues in dispute

1. The application was made to the Commission on 2 August 2021. The dispute was described in the application as relating to permanent employees, engaged permanently and/or for long periods of time in higher classification levels, who are being paid at a lower rate of pay for public holidays and when taking personal leave. The AMIEU asserted that the practice adopted by Primo of paying employees at the rate of pay applicable to their “official classification” – a lower classification – for public holidays and personal leave, is inconsistent with the National Employment Standards (NES), which requires that employees be paid for public holidays and paid personal/carer’s leave, at their “base rate of pay” in a period of leave.[1] The AMIEU contended that those employees working at a higher classification level, but for the public holiday or taking personal leave, would have continued to work at a higher classification level and their base rate of pay should therefore have been the higher rate. 

1. The issues in dispute were posed in the application as concerning Primo employees generally. However, correspondence appended to the application, indicates that the dispute was initially raised by the AMIEU with Primo in relation to two employees, Mr Andrew Ioata and Mr Site Li. Both are members of the AMIEU. The AMIEU stated that it had followed the various steps in the Dispute Resolution Procedure in the Primo Agreement. The relief sought was that “employees be paid the correct rate of pay when taking personal leave” and “when there is an entitlement to a public holiday”.

1. In its initial response to the application, Primo characterised the dispute as being about whether the two employees, who regularly perform higher duties, should be paid in accordance with clause 5.3 of the Primo Agreement which deals with the rate of pay for performing higher duties when taking a period of personal/carer’s leave and on public holidays not worked. Primo stated that the dispute does not concern annual leave because the Primo Agreement makes specific provisions in clause 9.1.4 for calculating the rate of pay for annual leave by averaging the employee’s ordinary earnings in the 4 weeks immediately before the period of annual leave commences.

1. Primo confirmed that Mr Ioata had been performing higher duties at Level 4 rather than Level 2 on-and-off since 18 August 2020. Mr Li had been performing at Level 5 rather than Level 2 since 8 August 2020 to step up to the permanent role of another employee who had been on leave for a workplace injury. Primo stated that a permanent Level 5 Multivac Operator position was previously offered to Mr Li, but Mr Li declined and indicated that he was only interested in a permanent position as a Quality Checker.

1. Primo did not oppose the two disputes, involving Mr Ioata and Mr Li, being dealt with together and was prepared to accept that the dispute resolution procedures in clause 3.10 in respect of the two disputes had been complied with and that the AMIEU had been appointed as representative for both employees.

1. In relation to the framing of the issues in dispute by the AMIEU, Primo’s position is that it is unclear how the disputes relate to the proper application of the terms in the Primo Agreement or provisions of the NES. Primo contended that if the AMIEU’s case is that the higher rate of pay should be the base rate of pay for the purpose of s. 16 of the Act, the higher duties payment under clause 5.3 of the Primo Agreement is an allowance or a separately identifiable amount, both of which are excluded from the base rate of pay under s. 16 of the Act. Alternatively, Primo contended that if the position of the AMIEU is that employees working in particular roles for an unspecified period of time were entitled to conversion to a higher classification, then no such entitlement exists in the Agreement or the NES.

1. A conciliation conference before the Commission was held on 23 August 2021 and the matter was not resolved. At a case management hearing conducted 9 November 2021, the AMIEU confirmed that it sought arbitration of the disputes and submitted that the two employees mentioned in the application are only representative examples of the broader issues relating to employees, who have been performing higher duties for extended periods, not being paid the correct rate of pay in relation to public holidays and personal leave. In this regard, the AMIEU reiterated that the correct rate of pay for public holidays and personal/carer’s leave under the relevant NES provisions is the higher classification rate. An alternative contention was also advanced by the AMIEU that those employees, who have been performing higher duties for extended periods of time, were misclassified and should have been classified at the higher classification levels.

1. In response, Primo contended that the present application is not competent on the basis that the applications should have been brought by Mr Ioata and Mr Li rather than the AMIEU. In any event, Primo contended that there was no longer a “live dispute” because both Mr Ioata and Mr Li had since been permanently classified at the higher levels and are no longer required to step up to perform higher duties for the purpose of clause 5.3 of the Primo Agreement. Further, Primo asserted that the present matter went beyond the scope of the dispute resolution procedures in the Primo Agreement as it related to the determination of back-pay prior to the commencement of the Primo Agreement. To determine the present disputes, Primo contended, would involve an impermissible exercise of judicial power as the Commission would be determining past and present rights of the relevant employees in the context of unpaid wages. Primo indicated that it reserved its rights to advance its jurisdictional objections to the application until after it had the opportunity to review the questions for arbitration as formulated by the AMIEU.

1. By email correspondence of 15 November 2021, the AMIEU proposed the following questions for arbitration:

1. For the purpose of s 16 of the FW Act, what was Mr Site Li’s base rate of pay during periods of personal/carer’s leave and public holidays taken between September 2019 and September 2021?

2. For the purpose of s 16 of the FW Act, what was Mr Andrew Ioata’s base rate of pay during periods of personal/carer’s leave and public holidays taken between September 2019 and December 2020?

1. A further case management hearing was conducted on 16 November 2021. Primo confirmed that, based on the questions proposed by the AMIEU, it wished to press its jurisdictional objections as the disputes framed by the questions were in essence underpayment claims and related to periods that in part fell within the dates that the now inoperative Hans Agreement was in effect.  In response, the AMIEU stated that if the jurisdictional objections raised by Primo were sustained, it was prepared to amend the questions for arbitration to confine the periods to those during which the Primo Agreement was operative.

1. Further, Primo maintained that its understanding of the dispute was that it related to the proper construction of the higher duties clause in clause 5.3 of the Primo Agreement. In response, the AMIEU accepted that clause 5.3 is relevant, but only to the extent that it intersects with the proper construction of the correct rate of pay under the relevant NES provisions, and in the context of a contention by Primo that the higher duties payment is an allowance or separately identifiable amount, excluded from the base rate of pay by s. 16 of the Act.

Procedural History

1. Directions were issued for the determination of the jurisdictional objections raised by Primo. Parties were directed to file and serve outlines of submissions and witness statements in support of their respective positions. Primo filed an outline of submissions and a witness statement made by its HR Manager, Mr Clinton Jaftha. The AMIEU filed an outline of submissions in response. Initially, neither party sought to be heard on the jurisdictional objections raised and agreed for me to determine the jurisdictional objections on the basis of the material filed by the parties without a hearing.

1. The submissions made by Primo relied in part on a Decision of a Full Bench of the Commission in Simplot Australia Pty Ltd v Australian Manufacturing Workers’ Union[2] (Simplot) which held that the Commission does not have jurisdiction to determine a dispute notified under the dispute resolution procedures of an Agreement which is no longer operative.  After the submissions were filed by the parties, a decision was issued on 8 June 2022 by a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union & Others v Falcon Mining Pty Ltd[3] (Falcon Mining) calling into question certain aspects of the Full Bench Decision in Simplot. 

1. By email sent on 1 August 2022, I informed the parties of my provisional view that the facts in the present case, appeared to differ from those considered in Falcon Mining in that the dispute does not appear to have arisen or been raised with Primo until after the Hans Agreement (which was replaced by the Primo Agreement) had ceased to operate. In this regard, I noted that while the dispute related to the mixed functions provisions in clause 5.2.5 of the Hans Agreement, and other clauses of that Agreement, the dispute does not appear to have been on foot until after the Hans Agreement ceased to operate.

1. The parties were directed to file further submissions in relation to the matters raised by Falcon Mining that bear upon the present disputes. Primo was also directed to indicate whether it continued to press its jurisdictional objections on all grounds in its original submissions. Further submissions by Primo and the AMIEU were subsequently received, and a short hearing was conducted on 10 November 2022. At the hearing, the AMIEU was represented by its Industrial Officer, Mr C. Buckley and Primo was represented by its Legal Counsel – Employee Relations, Ms B. Sakrzewski-Hetherington.  In a Decision on 6 February 2023, I dismissed the Respondent’s jurisdictional objections.  These are the reasons for my Decision.

Relevant Provisions of the Agreements

1. Clause 2.1 of the Primo Agreement provides as follows in relation to the coverage:

2.1        Coverage

2.1.1     This Agreement shall apply to Primo Foods Pty Ltd (ABN 67 002 781 142) (Company) and all employees for whom classifications and rates of pay are prescribed in this Agreement who are employed at Primo Foods facilities located in Wacol in the state of Queensland (Employees) excluding any apprentices.

2.1.2     It is intended that upon approval, the Agreement will apply to and cover the Australasian Meat Industry Employees Union and the Bacon Factories Union of Employees Qld.

1. The Dispute Resolution Procedure in the Primo Agreement is found in clause 3.10 and provides as follows:

3.10      Dispute Resolution Procedure

3.10.1     In the event of a dispute about a matter under this Agreement, or in relation to the NES, the Company and the Employees (and any Representative of the Employee) commit to follow the sequential steps in this procedure to resolve any such dispute.

3.10.2     The Company or Employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this paragraph. The Company respects the role of a Union delegate in this process.

3.10.3     In the first instance the parties must attempt to resolve the matter at the workplace by discussions between the Employee or Employees concerned and the relevant supervisor. The dispute should be acknowledged and attempts made to resolve it within 72 hours.

3.10.4     If discussions at the workplace level do not resolve the dispute, the matter should be raised by the Employee or their Representative in writing to the Department Production Manager or equivalent. The dispute should be acknowledged and attempts made to resolve it in a timely manner within 7 calendar days.

3.10.5     If the dispute still remains unresolved, the matter will then be referred to the relevant Operations Manager and/or their delegate. The dispute will be acknowledged and a determination of the matter will be made at this level within 14 calendar days from the escalation of the matter to this level.

3.10.6     Where the dispute remains unresolved and the steps set out in paragraphs 3.10.2 to 3.10.5 have been followed, either party may refer the dispute to the FWC for mediation and/or conciliation. In the event that mediation and/or conciliation is unsuccessful in resolving the dispute, the FWC may arbitrate the dispute.

3.10.7     While the dispute resolution procedure is being followed, work must continue to be performed in the normal manner in accordance with this Agreement and the requirements of the Act.

3.10.8     Subject to applicable workplace health and safety legislation, an Employee must not unreasonably fail to comply with a direction by the Company to perform work, whether at the same or another workplace, which is safe and appropriate for the Employee to perform.

1. Clause 5.3 of the Primo Agreement deals with the rate of pay for employees performing higher duties. Relevantly, clause 5.3 states that:

“5.3        Higher Duties

An Employee who is required by the Company on any day or shift to perform work carrying a higher rate of pay than their ordinary Job Role/classification, and this is not for the purpose of training, shall be paid as follows:

5.3.1     if the higher level work is performed for two hours or more, the higher rate for the whole of the day or shift; and

5.3.2     if the work is for less than two hours, the ordinary rate of the higher Job Role/classification for two hours and the balance of the shift at the Employee’s ordinary classification rate.”

1. Where annual leave is taken by an employee performing higher duties, clause 9.1.4 makes specific provision for the calculation of the employee’s rate of pay. Clause 9.1.4 states that:

“9.1.4      Payment for annual leave

9.1.4.1    Subject to paragraph 9.1.4.2, an Employee on annual leave shall be paid the Employee’s ordinary rate of pay, excluding any weekend penalties or any shift or other allowances ordinarily payable to the Employee, for the total period of annual leave to be taken.

9.1.4.2    An Employee who performs higher duties in accordance with paragraph 5.3 during the period four weeks prior to the commencement of annual leave will be paid based on an average of their ordinary time earnings (excluding any weekend penalties or any shift or other allowances) for the four complete pay periods immediately prior to the annual leave being taken.

9.1.4.3    In addition to the payment set out in paragraph 9.1.4.1 or 9.1.4.2, an Employee will receive:

9.1.4.3.1 a loading of 17.5% of the Employee’s ordinary rate of pay; or

9.1.4.3.2 if the Employee would have worked on Shift work had they not been on leave, the greater of the shift allowance or the 17.5% loading, but not both.

9.1.4.4    Annual leave payments shall be paid into the Employee’s nominated bank account on their usual pay day during the period of annual leave. Provided that an Employee may request to be paid in advance for a full period of annual leave and if approved by the Company, such payment shall be made to an Employee no later than the first pay day after the commencement of annual leave or at such later date requested by the Employee.”

1. The Dispute Resolution Procedure contained in clause 3.10 of the Hans Agreement provided that the Commission could exercise all forms of dispute resolution including arbitration.  The rate of pay for employees performing higher duties under the Hans Agreement was contained in the Mixed Functions provision in clause 5.2.5, which provided that:

“5.2.5      Mixed Functions

5.2.5.1    Any Employee who is required on any day to perform work for which a higher rate of wage is prescribed, and this is not for the purpose of training, shall be paid as follows:

5.2.5.1.1 If more than 4 hours on any day, the higher rate for the whole of such day

5.2.5.1.2 If 4 hours or less then payment of the higher rate for the hours worked.”

Submissions and evidence in relation to Jurisdictional Issues

Primo

1. Primo submitted that to deal with the matters in dispute, the Commission will be required to consider clause 5.3 of the Primo Agreement to determine whether the payments made pursuant to that clause were amounts that fell within the exclusions from the base rate of pay in s. 16(1) of the Act. The Commission will also be required to consider clause 9.1.4.2 of the Primo Agreement to ascertain the proper construction of the enterprise agreement in respect of the payments in clause 5.3 and their interaction with s. 16(1) of the Act.

1. In further submissions filed in relation to the Full Bench Decision in Falcon Mining, Primo no longer relied on Simplot to support its jurisdictional objections and relied instead on Falcon Mining. In this respect, Primo submitted that the dispute was not raised under the Hans Agreement and therefore, the Commission was not, and is not, authorised to arbitrate the dispute. The Commission was not seized with jurisdiction through an application made when the Hans Agreement was in operation. The dispute was first raised around 10 months after the Hans Agreement had ceased operation and the application was filed around 17 months after the that Agreement had ceased operation. Therefore, there is no jurisdiction for the Commission to exercise to completion.

1. Primo also contended that the AMIEU is asking the Commission to determine rights under the Hans Agreement, which has ceased to operate. It is asserted by Primo that the Commission cannot answer the questions posed by the AMIEU because the function of answering those question as to whether Mr Ioata and Mr Li were underpaid between September 2019 and September 2020 or September 2021 respectively, is one which is to be performed by an eligible State or Territory Court, pursuant to s. 544 of the Act. Primo said that only an eligible state or territory Court can determine the whole of both disputes as framed, noting, however, that under the terms of clause 3.10 of the Primo Agreement, the Commission retains discretion in this matter as to whether it arbitrates one or both disputes.

1. Primo submitted that considerations as to whether the disputes between September 2019 and 1 March 2020 under the inoperative Hans Agreement had been “preserved”, do not arise as they were not. There is no “savings or transitional provision” in the Primo Agreement with respect to any matters under the inoperative Hans Agreement. Further, Primo submitted that the approach to private arbitration concerning an inoperative agreement being authorised only by a clear dispute settlement procedure in an operative agreement was referred to in Police Federation of Australia (Victoria Police Branch) v Victoria Police[4] (Victoria Police). The approach taken by the Commission in Victoria Police was said to be undisturbed by the Full Bench on appeal.[5]  It was noted by the Full Bench in Victoria Police that the dispute settlement procedure expressly stated that the Police Federation could be a “party” to a dispute pursuant to the procedure, and this finding can be contrasted with the present disputes.

1. Further, Primo submitted that while many enterprise agreements are “roll-over” agreements and likely contain the same terms, without very clear terms in an operative enterprise agreement, it cannot be the case that a dispute may be brought about previous generations of an enterprise agreement for a period that may exceed the limitation period under the Act. In any event, this tension does not arise in the present matter as the terms of the dispute resolution procedure and the disputed clauses under the Primo Agreement are different from those under the Hans Agreement.  The dispute was not raised during the operation of the Hans Agreement.  Initially Primo submitted that the Hans Agreement was not made with the Company but later accepted that there was a period where the Hans Agreement covered Primo and its employees.  In addition, Primo submitted that it is not the case where the dispute was first raised under one enterprise agreement which was replaced by a new one during the resolution of the dispute. The dispute notification was made to the Commission some 17 months after the Hans Agreement had ceased to apply.

1. In relation to the jurisdictional objection that the determination of the present matter would involve the exercise of judicial power by the Commission, Primo submitted that taking a forensic eye to the disputes concerning Mr Li and Mr Ioata and through the correspondence between Mr Earle (the employees’ representative) and Ms Wolens of the Respondent, it is apparent that the resolution sought by the affected employees was to be “permanently appointed to” the higher classification of the duties they had been performing. Primo said that this had occurred and the fact that they had been appointed to the higher classification levels meant that the relief sought by the AMIEU with respect to Mr Li and Mr Ioata had effectively been granted. It followed that there is no longer a “live” dispute.[6]

1. Primo contended that the AMIEU now attempts to recast the dispute as an underpayment claim. The dispute between Mr Li, Mr Ioata and Primo had never been framed as an underpayment claim until the formulation of the questions for arbitration by the AMIEU. In answering the questions, Primo said that the Commission would need to identify the accrued paid personal/carer’s leave balances of Mr Li and Mr Ioata as both had exhausted their balances at various points in time, as many of the absences were unpaid. In Primo’s view, the AMIEU are now seeking a conclusive determination of existing rights and obligations, rather than the determination of what legal rights and obligations should be created in the future. In this respect, Primo referred to the decision of the Full Bench of the Australian Industrial Relations Commission in Police and Nurses Credit Society:

[47]       The characterisation of a claim and the form of any order made is often decisive in determining whether the exercise of judicial power is involved.

[48]       For example, the Commission cannot give a binding interpretation of an award or agreement where that interpretation is sought for the purpose of enforcing a right said to be created by the award or agreement in question. But arbitral proceedings may involve the formation of views and opinions about matters of interpretation, including the interpretation of laws, awards and other legal instruments, without the usurpation of judicial power. Moreover the arbitral function can involve the determination of a dispute relating to past transactions, events and conduct.[7]

1. Primo stated that the questions posed by the AMIEU are about an alleged underpayment from more than 2 years ago. Clause 3.10.1 of the Primo Agreement provides that a dispute must be about a matter under “this Agreement” whereas the questions for arbitration concern matters under both the Primo Agreement and the inoperative Hans Agreement. Primo characterised the case of the AMIEU as asking the Commission to draw a conclusion about the existing rights of the parties rather than to form that opinion as a step in arriving at a position on the future rights of the parties. Primo stated that the reason for this characterisation was because there is not a dispute as to the future rights of the parties – only a dispute about what the employees should have been paid between September 2019 and September 2021.

1. Primo further stated that clause 3.10 of the Primo Agreement is not as broad as many dispute settlement procedures that authorise the Commission to arbitrate any disagreement or dispute arising under an enterprise agreement. It provides that there must be a dispute about a matter under the Agreement and on the proper construction of clause 3.10, the dispute cannot only be about past matters and must be a “live” dispute. As such, Primo’s position is that the Commission cannot answer the questions posed by the AMIEU as the dispute is not a dispute about a matter under “this Agreement”. In respect of Mr Ioata, the dispute is about a matter under the Hans Agreement insofar as it related to the periods between September 2019 and 1 March 2020 and under the Primo Agreement for the periods between 2 March 2020 and December 2020.

1. Primo also contended that it is unclear how the AMIEU has standing to make the present application in its own name and that the only way there can be a competent application before the Commission is if it is accepted that (a) the proper Applicants are Mr Li and Mr Ioata; and (b) the AMIEU has made the application on their behalf as their appointed representative in accordance with clause 3.10.2 of the Primo Agreement. Primo submitted that if the Commission accepts its submissions that the Commission has no jurisdiction to deal with the dispute insofar as it relates to any matters prior to 2 March 2020 (for want of an operative agreement) and arising on or after 2 March 2021 (for want of any “live dispute”) then the dispute becomes a hypothetical dispute pursued by the AMIEU on behalf of hypothetical employees.

1. Primo said that it is trite to observe that a hypothetical dispute is not, in the ordinary meaning of the word, a “dispute”.[8] Referring to Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[9] (Yallourn), Primo noted that Bromberg J held that a union was able to initiate a dispute under the agreement in the absence of a disputed employee being named. The circumstances in Yallourn can be distinguished from the present matter in that the relevant enterprise agreement in Yallourn included the unions in the definition of “Party”, whereas the Primo Agreement does not define “party” or “parties”.

1. Primo submits that the proper construction of the dispute settlement procedure in clause 3.10 of the Primo Agreement does not allow the AMIEU to bring an application for the Commission to deal with a dispute, in its own right. Clause 3.10.2 makes clear that the AMIEU's role in the dispute resolution process is in the capacity of an appointed representative, and that the formation of a dispute about a matter under the Agreement necessarily involves an employee of Primo and Primo. In this regard, Primo also referred to the inclusion of a requirement in clause 3.10.3 that “Employee or Employees concerned and the relevant supervisor” are required to attempt to resolve the matter in the first instance. It is said that a hypothetical dispute concerning hypothetical employees could not possibly satisfy this requirement.

1. Mr Clinton Jaftha is the Human Resources Manager for Primo in New South Wales and has held the role since around June 2016. Mr Jaftha was also the interim Human Resources Manager for Primo in Queensland between 24 September and 15 November 2021 after Ms Cheryl Wolens had left the role. Mr Jaftha said he was involved in the negotiation for the Primo Agreement.

1. In preparing for the present matter, Mr Jaftha said that he had caused time and attendance reports regarding Mr Li and Mr Ioata to be generated. Mr Jaftha noted that the periods of time identified by the AMIEU in the questions for arbitration roughly line up with the periods of time in which Mr Li and Mr Ioata regularly performed higher duties. Mr Jaftha stated that both employees also performed higher duties outside of those periods of time but with less regularity. Mr Jaftha expressed the view that the AMIEU had selected periods of time for each employee where “their underpayment looks better” (in the sense that it appears to be a higher amount).

1. Further, Mr Jaftha noted that the Primo Agreement commenced operation on 2 March 2020 replacing the Hans Agreement. Mr Jaftha expressed the view that the Primo Agreement “is very different to the one it replaced” on the basis that there is a new higher duties clause in the Primo Agreement which was agreed to during negotiation. In addition, Mr Jaftha stated that a new clause was also inserted in the Primo Agreement which calculates the rate of pay for annual leave for employees performing higher duties by averaging their ordinary time earnings in the period immediately preceding the period of annual leave. Mr Jaftha said that no such averaging clause was found in the Hans Agreement and that a new clause in respect of the dispute resolution procedure was also discussed and agreed during the negotiation. 

AMIEU

1. In relation to the jurisdictional objection raised by Primo, the AMIEU stated that the objection can be summarised into following bases and submitted that all contentions of the Respondent are fundamentally wrong in principle and contrary to binding appellate authority:

(a)determination of the proposed questions would necessarily involve an impermissible exercise of judicial power;

(b)there is no “live dispute” because the employees have been permanently re-classified to a higher classification;

(c)the dispute does not arise under the Agreement because it pertains (in part) to a period prior to the Agreement’s approval; and

(d)the AMIEU does not have standing to bring a dispute in its own name.

1. In relation to the assertion that the Commission would be exercising judicial power if the dispute was arbitrated, the AMIEU submitted that it is a common misconception that the Commission cannot deal with a dispute about past entitlements because this would require it to exercise judicial power. Such an analysis puts the cart before the horse. The AMIEU submitted that whether a body exercises judicial power is determined by the source of its power to adjudicate – not by the subject matter of the adjudication. It is trite that an administrative body such as the Commission cannot exercise the judicial functions of a Court. The classical statement of principle found in R v Kirby; Ex parte Boilermakers’ Society of Australia[10] (Boilermakers Case) states that:

“[Arbitral powers are] essentially different from the judicial power. Both of them rest for their ultimate validity and efficacy on the legislative power. Both presuppose a dispute, and a hearing or investigation, and a decision.

But the essential difference is that judicial power is concerned with the ascertainment, declaration and enforcement of the rights and responsibilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted; whereas the function of arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce, what, in the opinion of the arbitrator, ought to be the respective rights and liabilities of the parties in relation to each other.”

1. The AMIEU submitted that the underlying basis for the distinction between judicial and arbitral power in the Boilermakers Case is the separation of powers in Ch III of the Constitution and put simply, an administrative body cannot exercise functions and powers which are constitutionally assigned to the judiciary.[11]  An essential characteristic of judicial power is that it is founded in the coercive power of the State, rather than in the consent of the parties. To support its position, the AMIEU referred to the following passage in the High Court decision of TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia[12] (TCL Air Conditioner):

“Underlying each of those dimensions of the judicial power of the Commonwealth is its fundamental character as a sovereign or governmental power exercisable, on application, independently of the consent of those whose legal rights or legal obligations are determined by its exercise… Judicial power “is conferred and exercised by law and coercively”, “its decisions are made against the will of at least one side, and are enforced upon that side in invitum”, and “it is not invoked by mutual agreement, but exists to be resorted to by any party considering himself aggrieved”

Therein is the essential distinction between the judicial power of the Commonwealth and arbitral authority, of the kind governed by the Model Law, based on the voluntary agreement of the parties.  The distinction has been articulated in the following terms:

“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.”

1. Accordingly, the AMIEU contended that not all adjudicative functions involve the exercise of judicial power. Where an adjudicating body draws its power from the consent of the parties, rather than from the coercive power of the State, there is no question of the body usurping judicial authority. When the Commission arbitrates a dispute pursuant to a dispute settlement procedure in an enterprise agreement, this is “a private arbitration, based on the consent of the parties, and not upon the coercive authority of the Australian state”. In such a case, the “consent” of the parties is said to be reflected in their voluntary agreement to be bound by the enterprise agreement, and with it the disputes procedure conferring arbitral power on the Commission.[13]

1. Further, the AMIEU stated that it is well established that the Commission may form and act upon opinions about existing legal rights and obligations as a step in the exercise of its own functions and powers, and that this does not amount to usurping judicial power.[14] When  the Commission acts as a private arbitrator, it is said that, by definition, the Commission does not exercise judicial power and in that context, it is entitled to make determinations about existing rights and liabilities in order to discharge its dispute settlement function. The AMIEU submitted that the subject matter of a dispute may legitimately include matters which could otherwise be the subject of judicial proceedings.[15]

1. According to the AMIEU, the exercise of private arbitral power by the Commission, may be contrasted with the exercise of statutory arbitral power, such as in making workplace determinations under s. 266 of the Act or unfair dismissal orders under ss. 391 or 392 of the Act. When exercising statutory arbitral power, the traditional distinction between judicial and arbitral functions in the Boilermakers Case must be carefully observed.

1. In the AMIPE’s submission, the Commission in the present matter is exercising a power of private arbitration conferred by clause 3.10 of the Primo Agreement. The Commission is not exercising judicial power because the power to adjudicate the dispute is founded in the consent of the parties rather than the coercive power of the State. The AMIEU is seeking that the Commission exercise its arbitral function by resolving a dispute between the parties in relation to the operation of the NES. Thus, the AMIEU’s view is that the Commission is entitled to form an opinion about the legal rights and obligations of the parties for the purpose of fulfilling its dispute settlement function and does not exercise judicial power in so doing. The AMIPE stated that this analysis is entirely consistent with binding appellate authority which has repeatedly and emphatically stated the nature of the Commission’s powers and jurisdiction is one of a private arbitrator.[16]  

1. The AMIEU suggested that Primo appeared to have advanced a submission that the phrase “may arbitrate the dispute” in clause 3.10 confers a discretion on the Commission to refuse arbitration even if a dispute is within jurisdiction. The AMIEU said that it may be accepted that clause 3.10 confers a discretion, however this discretion is not at large and must be directed to fulfilling the Commission’s overriding dispute settlement function. The Commission cannot simply refuse to arbitrate a dispute with the consequence the dispute remains unresolved.[17]

1. In relation to Primo’s assertion that there is no live dispute, the AMIEU submitted that as a matter of principle, there is no reason a dispute under an enterprise agreement may only relate to future rights and liabilities. In this respect, the AMIEU said that Full Benches of the Commission have repeatedly affirmed that the Commission may entertain disputes in relation to past entitlements when acting as a private arbiter.[18] The ambit of disputes within the Commission’s arbitral jurisdiction is said to be fixed by the terms of the agreement. In this context, the AMIEU referred to a statement of the Full Bench in Simplot that the Commission “must do what it is required to do, and it can only do what it is allowed to do. It has no inherent jurisdiction”.[19]

1. The AMIEU further advanced a proposition that a dispute is not a single event fixed in time, but rather, a dynamic state of affairs between the parties. In this regard, the AMIEU drew support from the observations of Gaudron J in Re PKIU; Ex parte Vista Paper Products Pty Ltd[20] that:

“…an industrial dispute is not necessarily fixed and definite, either in terms of its subject-matter or in terms of the parties to it; a dispute ‘may be diminished or ended or enlarged or altered during … proceedings in the Commission’ or, for that matter, at any stage during the course of the dispute itself.”

1. In addition, the AMIEU noted that a Full Bench of the Australian Industrial Relations Commission further observed in the Australian Manufacturing Workers Union v Holden Limited[21] that:

“[45] A dispute referred to the Commission must be properly characterised before powers conferred by a dispute settlement provision in a certified agreement are exercised. This is necessary in order to determine whether the dispute is ‘over the application of the agreement’ within the meaning of s.170LW of the WR Act. As noted by a majority of the Full Bench in Automated Reading Services (AMRS) v ASU, this expression has not been judicially considered. The majority went on to observe that:

“A relationship between the provisions of the relevant agreement and the subject matters in dispute would appear to be an essential element in the identification of any dispute over the application of the agreement…”

[46]       We adopt these observations. Further, in our view the expression should not be narrowly construed. In this context we agree with the observation of the Full Bench in Shop, Distributive and Allied Employees Association v Big W Discount Stores that:

“…what compromises a dispute over the application of the agreement should not be narrowly construed; to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”

1. In response to a submission by Primo that clause 3.10 is not as broad as many other dispute resolution procedures that empower the Commission to arbitrate any disagreement or dispute under the enterprise agreement, including a dispute about past matters, the AMIEU submitted that there is no basis to read clause 3.10 of the Agreement as prohibiting disputes in relation to past events. The AMIEU said that in Kentz (Australia) Pty Ltd v CEPU[22], such a construction was expressly rejected in the absence of clear authorising language, as the Full Bench observed:

“Clause 18 … confers the authority of the parties on the Commission to arbitrate any disagreement or dispute in respect of any matters arising under the Kentz Agreement for the purpose of resolving the dispute. It affords the Commissioner a power of private arbitration in relation to such disputes. It does not limit the scope of an arbitration to preclude the resolution of disputes in relation to past events or about rights and obligations under an agreement. There is no basis for reading an unstated limitation on the scope of the dispute resolution procedure in the context of the broad scope which is expressed in it – “[A]ny disagreement or dispute”. Clause 18 does not provide or purport to provide an authority that exceeds what is permitted by either the Constitution or the Act.”[23] (emphasis added)

1. The AMIEU submitted that clause 3.10 of the Agreement confers a power of private arbitration on the Commission in relation to “disputes about a matter under this Agreement, or in relation to the NES”. It is said that there is no express or implied limitation on disputes about past rights and entitlements, provided they relate to that subject matter. As to the present disputes, the AMIEU considered that they plainly relate to the NES, as the central issue is the correct calculation of personal/carer’s leave and public holiday payable to Mr Li and Mr Ioata pursuant to ss. 99 and 116 of the Act.

1. Further, the AMIEU said that Primo, while accepting that the steps of the disputes procedure have been complied with, submitted that there is no “live dispute” because prior to these proceedings, the dispute solely concerned whether Mr Li and Mr Ioata should be permanently reclassified, and not their correct pay rate for leave and public holidays. The AMIEU considered this submission to be untenable and directly contradictory to Primo’s own evidence. The emails between Mr Warren Earle and Primo representatives are said to clearly establish that the dispute concerned interrelated issues of Mr Li and Mr Ioata’s ongoing substantive classifications, as well as their pay rates for leave and public holidays.

1. In relation to the email correspondence, the AMIEU said that Mr Earle expressly outlined concerns about Mr Li and Mr Ioata’s pay rates on multiple occasions during the disputes process. It is said that many of those emails directly referred to s. 16 of the Act and set out precisely the same arguments now advanced before the Commission and in that factual context, there can be no serious suggestion that the employees’ pay rates did not form part of the dispute. Those email exchanges were as follows:

“On 30 December 2020 Mr Earle wrote:

…in regard of what an employee should be paid on personal leave and when taking public holidays the agreement cannot have less favourable terms than that stated in the National Employment Standards (NES)…

When Andrew was on personal leave and when there was a public holiday Andrew’s pay rate dropped to a lower rate of pay only on the days of those leave days. However, regardless of what his permanent job role is, the union believes the Company has not met its legal obligation in respect of Andrew’s leave payments…

In Andrew’s situation, it is clear that he would have continued to perform the work at the higher rate of pay, had he not taken the leave. Therefore, the “base rate of pay” which he is entitled to receive for those periods of leave is the “base rate of pay” at the higher rate…

On 30 December 2020, Mr William Ash responded on behalf of Primo:

Andrew’s substantive classification is Level 2. When he is required to perform work at Level 4 (for two hours or more) he receives the applicable higher duties allowance in accordance with clause 5.3 of the enterprise agreement. That payment is not part of his base rate of pay as defined by section 16 of the Act (which expressly includes an allowance)…

On 13 January 2021, Mr Earle responded:

The union does not agree that Andrew was paid an allowance. The agreement does not identify higher duties as an allowance. It was Andrew’s actual rate of pay.”

1. The AMIEU stated that it is entirely unsurprising that Mr Earle did not frame the dispute solely in relation to pay rates, because at the time of his emails, neither Mr Li or Mr Ioata had been permanently reclassified and that aspect of the dispute concerning their classifications was ongoing prospectively. The fact that Mr Li and Mr Ioata have now been reclassified, and there is unlikely to be a dispute about their pay rates in future, does not extinguish the existence of an ongoing live dispute in relation to their correct pay rates during the relevant past periods, which remains a matter in dispute under clause 3.10 of the Agreement.  It is submitted by the AMIEU that this simply reflects the evolving nature of industrial disputes observed by Gaudron J in Re PKIU; Ex parte Vista Paper Products Pty Ltd.

1. The AMIEU contended that Simplot has no application in the present case as the dispute was notified under clause 3.10 of the Primo Agreement; each step of the disputes procedure has occurred while the Agreement was – and remains – in force; the AMIEU has invoked the power of private arbitration conferred by clause 3.10 of the Agreement; and there can be no suggestion that the AMIEU sought to rely on an expired instrument as in Simplot.  To the extent that Primo went further and contended a dispute can only concern factual matters which occurred during the life of the Agreement, Primo is mistaken. First, this overlooks the central principle that the scope of the Commission’s power of private arbitration is determined by the dispute procedure in the Agreement and not by some extrinsic rule. Second, it is contrary to the Full Bench’s observation in Simplot that a disputes procedure could preserve a dispute which as a matter of fact entirely arose during the life of an expired agreement. Third, it is contrary to authorities such as Maersk Crewing Australia Pty Ltd v CFMEU (No 2)[24], which have acknowledged that factual matters prior to the approval of an agreement may form part of a dispute under that agreement.

1. Further, the AMIEU said that clause 3.10 permits disputes “in relation to the NES”. Even if the terms of the enterprise agreement covering Primo have changed, the terms of the NES have remained the same. There is a single dispute between the parties in relation to the NES which overlaps the operation of both the current Agreement and its predecessor. That temporal dimension is said to do nothing to alter the character of the dispute as one “in relation to the NES” and within the scope of clause 3.10.

1. In the event that the Commission were to uphold Primo’s objection, the AMIEU would seek leave to amend the arbitral questions to focus solely on the period after March 2020. In this regard, the AMIEU stated that, at its highest, Primo’s contention could only restrain the Commission from dealing with that part of the dispute prior to the approval of the Primo Agreement.  Such an amendment would cure any defect and allow the Commission to determine the remainder of the dispute.

1. In the further submissions filed by the AMIEU addressing the implications of Falcon Mining on the present matter, the AMIEU noted that the dispute was first raised with Primo during the life of the Primo Agreement. The Primo Agreement contained a dispute resolution clause of the kind identified in s. 738(b) of the Act and the dispute was raised in accordance with the terms of the dispute resolution clause. This, the AMIEU said, was sufficient to enliven the jurisdiction of the Commission as conferred by s. 739 of the Act.

1. As the present dispute concerns whether or not the AMIEU’s members were paid the correct remuneration in the period from September 2019 to September 2021 in the case of one member, and September 2019 to December 2020 in the other, the AMIEU stated that the Primo Agreement was approved by the Commission on 24 February 2020 and came into force on 2 March 2020. The bulk of the period of the dispute (from 2 March 2020 to September 2021) falls within the period of the Primo Agreement, and it is therefore clearly within the jurisdiction of the Commission to deal with the dispute to that extent.

1. The only real question as to jurisdiction, the AMIEU submitted, is whether the Commission can arbitrate the dispute in relation to the period which falls prior to 2 March 2020 (i.e., during the period in which the Hans Agreement operated). The Full Bench in Falcon Mining proceeded on the basis that “…s 739 only applies in relation to a dispute resolution term in an enterprise agreement if the agreement is in operation.” The AMIEU said that, on one view, this statement envisages that for a dispute to be raised under the dispute resolution clause of the Hans Agreement, it would need to be done while the Hans Agreement was still in operation.

1. However, the AMIEU submitted that situation in the present matter can be distinguished based on the nature of the dispute. The dispute, although raised under the dispute resolution clause of the Primo Agreement, is fundamentally one in relation to the National Employment Standards. The AMIEU submitted that the operation of the NES means that its members were entitled to a specific rate of remuneration which, in the circumstances, was higher than the rate of remuneration provided for by the “higher duties/mixed functions” clauses in Hans Agreement or the Primo Agreement.  The NES was in force throughout the whole of the period to which the disputes relate. The entitlement which is in issue is an entitlement under statute. Reference to the Hans Agreement, the AMIEU said, is necessary only to quantify the members’ base rate of pay for the purposes of s. 16 of the Act.

1. Further, the AMIEU submitted that once the Primo Agreement has enlivened the jurisdiction to deal with a dispute under the NES, there is no reason to limit the period to which the dispute relates. The NES applies (and applied) to the members of the AMIEU regardless of whether the Hans Agreement was in force or not. In the alternative, the AMIEU submitted that there can be no doubt that the Commission has jurisdiction to deal with the dispute as to entitlements which fall within the period of operation of the Primo Agreement (2 March 2020 onwards).

1. Finally, the AMIEU submitted that the decision in Falcon Mining makes clear that the jurisdiction of the Commission is not removed or diminished by the fact that the Primo Agreement ceased to operate on 20 May 2022 (upon commencement of a new, replacement enterprise agreement). As such, the jurisdictional objection raised by the Respondent should be dismissed.

1. In response to the contention that the AMIEU does not have standing to bring a dispute under clause 3.10 of the Agreement in its own name because a dispute can only be bought by an individual employee or employees, the AMIEU submitted that it may be accepted that a literal reading of clause 3.10 lends some support to the view a dispute may only exist between an “Employee” and the “Company”; albeit the language of clause 3.10.3 onwards refers to “the parties” and weighs against this. The reference to parties may be understood to mean those parties covered by clause 2.1 of the Agreement, which includes the AMIEU in its own right.

1. Even if Primo’s contention is taken at its highest and assuming that it is supported by a literal reading of clause 3.10, a construction which excluded the AMIEU from being able to bring a dispute in its own right, cannot stand. In this respect, the AMIEU argued that the position advanced by Primo was considered and expressly rejected by the Full Court of the Federal Court in Energy Australia Yallourn Pty Ltd v AMWU[25]. In that case, the employer contended that the literal wording of the disputes procedure encompassed disputes between an individual employee and the employer only. However, the Court held that such a reading must be rejected because it is inconsistent with the industrial and legislative context in which the Agreement was approved.

1. In summary, the Court in Yallourn held that because unions have a right to initiate judicial proceedings against an employer for contraventions of an enterprise agreement under s. 50 of the FW Act, a dispute between an employer and a union is one which s. 186(6) of the FW Act requires a dispute resolution procedure to be provided for in an enterprise agreement, even if no individual employee initiates a complaint. A construction which prevented a union from bringing a dispute in its own right would necessarily mean the agreement would not comply with s. 186(6) and could not have been approved by the Commission. This would be directly contrary to the industrial and legislative context in which the agreement was made and approved, and such a construction must therefore be rejected.

1. The AMIEU further submitted that the Full Court decision in Yallourn was subsequently applied by a Full Bench of the Commission in CFMMEU v Mechanical Maintenance Solutions Pty Ltd[26] and to paraphrase the conclusion in that case, the AMIEU said that there is no reason the AMIEU’s position under the Primo Agreement should be distinguished from that of the unions in Yallourn when the Agreement is properly construed in the context of the statutory scheme under which it is approved.

1. Should the Commission determine that Primo’s objection is sustained, the AMIEU stated that it would seek leave to file an amended Form F10 substituting Mr Li and Mr Ioata as the Applicants as both employees plainly have standing under the disputes procedure to bring a dispute concerning the same subject matter.

Consideration

Inoperative enterprise agreements and dispute resolution procedures

The Full Bench Decision in Falcon Mining

1. It is necessary to commence consideration of the Respondent’s jurisdictional objection in the present case, with an examination of the Full Bench decisions in Construction, Forestry, Maritime, Mining and Energy Union & Ors v Falcon Mining[27] (Falcon Mining) and Simplot Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [28] (Simplot).  Both cases concerned disputes which had arisen and been notified to the Commission under an enterprise agreement which had ceased to operate prior to the determination of the disputes by the Commission, because a replacement enterprise agreement had been approved by the Commission and commenced operation. 

1. The fundamental proposition in the Simplot decision, as described by the Full Bench in Falcon Mining, was that for the Commission to arbitrate and make an arbitral decision in respect of an application for the Commission to deal with a dispute made pursuant to s. 739(6) of the FW Act, the enterprise agreement to which the application relates, must have operative effect in accordance with s. 54 at the time the decision is made. The consequence of the decision in Simplot was said by the Full Bench in Falcon Mining, to be that there is no power to continue with such an arbitration and make an arbitral decision once the relevant enterprise agreement has ceased to operate, even if the parties had agreed for the purpose of s. 739(4) that the Commission may arbitrate the dispute, at a time when the enterprise agreement was operative.

1. Specifically, the Full Bench in Simplot held that:

· Sections 738 and 739 of the FW Act made no mention of non-operational agreements having an enduring effect and serving as a foundation for the Commission to determine disputes and held that a dispute procedure in an enterprise agreement could not have continuing effect after the agreement ceased to operate;

·     Under s. 51 a person does not have ongoing rights under an enterprise agreement nor can they contravene an agreement unless it applies to them;

·     Employees do not have an accrued right to have the Commission hear and determine an application commenced under an enterprise agreement that ceases to operate before the application is determined; and

·     The right to have a dispute determined under an inoperative enterprise agreement can be contrasted with an actual legal right that was vested or accrued under an industrial instrument on the basis that the latter can be sued upon for a six-year period.

1. The Respondent in these proceedings initially relied on Simplot as a basis for its jurisdictional objection to the application.  As previously noted, while the decision in the present matter was reserved, a Full Bench of the Commission decided Falcon Mining.  In summary, the facts in Falcon Mining were that a dispute was notified to the Commission while an enterprise agreement was in operation.  Relevantly, the dispute related to entitlements of employees under the NES and the agreement, upon termination of their employment.  At the point the dispute was to be arbitrated, the agreement that was in effect when the dispute arose and was notified to the Commission, had been replaced by a later agreement with the same coverage, classifications, and dispute resolution procedure, which provided for either party to refer a dispute for arbitration after a series of steps had been taken.  Also, before the dispute in Falcon Mining was arbitrated, the Full Bench decision in Simplot was handed down.  After hearing from the parties in relation to the effect of the earlier agreement being replaced by the later agreement, the Member of the Commission dealing with the dispute at first instance, dismissed the application on the basis that, consistent with the Full Bench Decision in Simplot, the earlier agreement under which the dispute was notified, had ceased to operate upon being replaced by the later agreement.

1. On appeal, the Construction, Forestry, Maritime, Mining and Energy Union argued that Simplot was wrongly decided and that in the alternative, the facts in Simplot could be distinguished.  After dealing with the arbitrary and anomalous outcome if the approach in Simplot was maintained and noting that the approach in Simplot was inconsistent with the object of the FW Act in s. 3(e) and s. 186(6) concerning dispute resolution, the Full Bench in Falcon Mining made clear that the source of the Commission’s power to arbitrate a dispute is located in the FW Act and not the terms of an enterprise agreement. The Full Bench also noted the distinction between agreed and arbitrated dispute settlement procedures identified by the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Industrial Relations Commission[29] (Gordonstone) and the reference in that case to “private arbitration”.  The Full Bench cited the decision of the High Court in TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia[30] as follows:

“The context of that articulation puts its reference to ‘private arbitration’ in appropriate perspective. The context was that of a challenge to the capacity of a statutory body consistently with Ch III of the Constitution to exercise a statutory function to settle a dispute where so empowered by an agreement entered into as a result of statutory processes. The reference to ‘private arbitration’ was not to a private function, as distinct from a public function, but rather to a function the existence and scope of which is founded on agreement as distinct from coercion.”[31] (underlining added)

1. The Full Bench went on to state that:

[62] Therefore, to the extent that a dispute resolution procedure in an enterprise agreement confers, conditions or limits the Commission’s power to arbitrate disputes, that conferral, condition or limitation is not effective by virtue of the operation of the agreement itself. An enterprise agreement is not a law and therefore cannot of its own force delimit the powers of the Commission. Rather (as submitted by the appellants), it is s 739(4) which gives effect to an agreement by parties for the arbitration of a dispute by the Commission pursuant to a dispute resolution term of a type described in s 738, and it is s 739(3) which limits the powers of the Commission to deal with the dispute by reference to any such limitations contained in the relevant dispute resolution term. Therefore, the scope of the authority of the Commission to engage in arbitration of disputes pursuant to a dispute resolution term is ultimately a question of statutory construction although, in a particular case, the application of the statutory provisions will be affected by the terms of the relevant dispute resolution procedure.

1. The Full Bench next considered the provisions of the FW Act concerning the power of the Commission to arbitrate disputes in accordance with dispute settlement procedures in enterprise agreements and analysed ss. 595, 738, 739 and relevant provisions relating to enterprise agreements in ss. 172 and 54. At [66] the Full Bench set out alternative views about the question as follows:

[66] Subsection (1) of s 739 provides that the section applies if a term referred to in s 738 “requires or allows” the Commission to deal with a dispute. On one view (and presumably from the Simplot perspective), a term of an enterprise agreement can only require or allow something if it is in operation in accordance with s 54, since s 52(1)(a) provides that an agreement will only apply to an employee, employer or employer organisation if (relevantly), it is in operation, and s 51 provides that an agreement does not impose obligations on or give an entitlement to a person unless the agreement applies to the person. On this view, s 739 only applies in relation to a dispute resolution term in an enterprise agreement if the agreement is in operation. An alternative view would be that:

•as earlier discussed, s 738(b) does not require an agreement to be operative in order for Div 2 of Pt 6-2 to apply;

•the function of subsection (1) of s 739 is only to distinguish the application of the section, which is concerned with the Commission’s power to deal with disputes, from that of s 740 which, by s 740(1), applies if the dispute resolution term requires or allows a person other than the FWC to deal with a dispute;

•s 51 is not relevant because s 739 is concerned with the power of the Commission to deal with disputes arising under dispute resolution terms, not with the obligations and entitlements of parties under the instruments in which such terms are contained; and

•in respect of a term described in s 738(b), it will be sufficient that the dispute has arisen at a time when the term is in operation, and the right to have such a dispute resolved in accordance with the term remains operative and enforceable because it is a right which accrued during the operation of the agreement.

1. The Full Bench went on to find that for the purpose of deciding the appeal, it was not necessary to determine to finality which of these views is correct and proceeded on the assumption that the former view is correct, although it considered there is much to be said for the latter view. The reason for this was that the Full Bench concluded that the condition precedent for there to be authorisation to arbitrate under s. 739(4) is that “in accordance with the term the parties have agreed that the FWC may arbitrate … the dispute”.  In this regard the Full Bench observed that the requirement for the agreement to arbitrate to be “in accordance with the term” would mean that if any processes required by the term to occur before the Commission can arbitrate, the parties cannot agree to arbitration occurring before those steps have been taken and that if the dispute resolution term applies only to disputes of a defined character, then the parties can only agree to arbitration by the Commission of disputes of that character. The Full Bench held that subject to that qualification, s. 739(4) empowers the Commission to arbitrate the dispute once the requisite agreement exists.[32] After observing that there is no question that s. 739(4) provides express authorisation for the Commission to deal with a dispute by arbitration in the manner contemplated in s. 595(3), and that s. 739(6) requires that there be an application by a party to the dispute in order to enliven the power of the Commission to deal with it[33],  the Full Bench went on to conclude that:

[71]       On the facts of this case, the application for the Commission to deal with the dispute in question was made on 19 June 2020, at which time the 2017 Agreement was in operation. Likewise, the requisite agreement for arbitration existed at the latest by about 27 October 2020, when the 2017 Agreement remained in operation. That agreement for arbitration may be inferred from the respondent’s accession to the 2017 Agreement, and the fact that the appellants in their application had sought arbitration of the dispute should conciliation be unsuccessful. This constitutes the requisite agreement in accordance with the principles stated by the Federal Court Full Court majority in One Tree Community Service Inc v United Workers' Union. There is no issue that the dispute in question was “about a matter under this agreement”. Thus, if, as earlier discussed, s 739 is to be read on the basis that its provisions only apply in respect of a dispute resolution term in an enterprise agreement if the agreement has operative effect, it is clear in this case that the relevant provisions of the section were engaged at a time when the 2017 Agreement was operative. The Commission had the authority under s 739(4) to arbitrate the dispute at that point, and in fact proceeded to exercise arbitral powers thereafter until the decision under appeal was issued.

Application of principles in Falcon Mining to the present case

1. The application to the Commission to deal with the dispute in the present case was made on 2 August 2021.  At that time, the Primo Agreement was operative, and the application cited that Agreement as the industrial instrument containing the dispute settlement procedure for the purposes of the dispute.  Further, the Hans Agreement ceased to operate on 2 March 2020 when the Primo Agreement commenced.  The asserted facts set out in the Form F10 included that the Union had members who had been working in higher roles than their official classification for “almost two years” and had been paid at their official classification rate for periods of sick leave and public holidays not worked. The questions for arbitration proposed by the AMIEU ask the Commission to determine, for the purposes of s. 16 of the FW Act, the base rates of pay for Mr Li and Mr Ioata during periods of personal carer’s leave and public holidays taken between September 2019 and September 2021.

1. Accordingly, some of the leave and public holiday payment entitlements the Commission would be determining, if it answers those questions – from September 2019 to 2 March 2020 – relate to periods that are coterminous with the operation of the Hans Agreement which ceased to operate before the dispute was notified.  Initially the Respondent objected to the Commission arbitrating the dispute contending that the AMIEU was asking the Commission to determine rights under an enterprise agreement that had ceased to operate and that the Decision of the Full Bench in Simplot prevented such an exercise.  In its further submissions following the Full Bench Decision in Falcon Mining, the Respondent indicated that it no longer relied on Simplot and instead, relies on Falcon Mining, contending that the dispute was not raised under the Hans Agreement and accordingly, the Commission was not, and is not, authorised to arbitrate the dispute.  Further, the Respondent contends that the Commission was not seized with jurisdiction through an application made when the Hans Agreement was in operation and the dispute was first raised around 10 months after the Hans Agreement had ceased operation and lodged with the Commission 17 months after that date.  Accordingly, there is no jurisdiction for the Commission to exercise to completion. 

1. I do not accept this submission.  At its heart, is the proposition that the Commission has no power to arbitrate or otherwise deal with a dispute lodged under an agreement that is operative when the dispute comes into existence, where the dispute involves terms and conditions of employment or events that occurred, under a previous agreement that has ceased to operate.  As I observed in Construction, Forestry, Maritime, Mining and Energy Union v BIS Industries Limited (BIS Industries), which was decided after Simplot and before Falcon Mining,

“[133]      The central point in Simplot is that at the time the Commission exercises power to deal with a dispute under a dispute settlement term in an enterprise agreement, the source of the power must be found in an agreement that is in operation, regardless of when the dispute arose. Simplot is not authority for the proposition that the Commission can never continue to deal with a dispute which arose under an agreement that has ceased to operate before the Commission has exercised power in relation to the dispute.

[134]     It is often the case that an enterprise agreement that supersedes an earlier agreement has the same dispute settlement term and a range of other identical terms to those which were previously found in the inoperative agreement. If a dispute arose in relation to a term in an enterprise agreement, while that agreement was in operation and was progressing through the steps in the dispute settlement procedure, that dispute may continue under a later agreement if that later agreement contains the same (or a similar) dispute resolution term and the same (or a similar) disputed provision. To overcome the issue that arose in Simplot an applicant in such a dispute could seek to amend the application so that a remedy is sought under the dispute settlement term in the later agreement, or absent stipulated time frames for each step of the dispute settlement procedure, commence the dispute again by invoking the dispute resolution term in the later agreement.”[34]

1. Following the Full Bench Decision in Falcon Mining, these observations may impose an unwarranted limitation on the authority of the Commission to arbitrate a dispute arising and notified to the Commission under an earlier iteration of an enterprise agreement and continuing under a later, and substantially similar iteration of the agreement.  It is not necessary to consider this point in the present case, for the reasons following.

1. The present dispute was brought under the dispute resolution term of an enterprise agreement that was in operation when the dispute arose. The dispute also concerns the entitlements of employees under a now inoperative agreement that was operative when the dispute arose. It is also the case that the present dispute is in relation to the NES. Specifically, the dispute is about whether amounts payable to employees performing duties at a classification level above the level at which their substantive position is classified, are part of the base rate of pay defined in s. 16 of the FW Act, for the purpose of payment of NES entitlements to personal leave under s. 99, and public holidays falling when the employee is absent from work, as provided in s. 116.

1. The Primo Agreement is a single enterprise agreement made under Part 2 – 4 of the FW Act. Section 186 of the FW Act prescribes matters about which the Commission must be satisfied in order to approve an enterprise agreement upon application to do so including s. 186(6) which requires that an agreement contain a dispute resolution procedure as follows:

Requirement for a term about settling disputes

(6)  The FWC must be satisfied that the agreement includes a term:

(a)that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i)about any matters arising under the agreement; and

(ii)in relation to the National Employment Standards; and

(b)that allows for the representation of employees covered by the agreement for the purposes of that procedure. (Statutory notes omitted)

1. Section 186(6) prescribes the minimum in terms of matters that must be the subject of a dispute settlement term. The parties to an enterprise agreement may agree to the Commission arbitrating disputes limited to the matters in s. 186(6) or additional matters. The Primo Agreement could not have been approved unless it allowed the Commission to settle disputes in relation to the NES.  Contrary to the submission of Primo, clause 3.10 of the Primo Agreement is not confined to disputes under the Agreement.  A dispute in relation to the NES may arise with respect to a matter that is not dealt with by the terms of an enterprise agreement.

1. Further, it is common that disputes in relation to the NES involve periods spanning current and previous enterprise agreements.  In Falcon Mining the NES entitlements in dispute related to notice of termination of employment under the NES, which is dependent on an employee’s period of continuous service with the relevant employer and not simply service under a particular enterprise agreement. A dispute about payment in lieu of notice crystallises at the point employment is terminated. That the dispute lodged under a dispute settlement term in a currently operative enterprise agreement involves an employee’s continuous service under a previous agreement that is inoperative when the dispute is notified, does not deprive the Commission of power to deal with the dispute under the terms of an operative enterprise agreement, in a manner authorised by s. 739(4) of the FW Act, and the terms of the relevant agreement.

1. While it may be argued in the present case that the provisions in relation to payment at higher rates for work at higher classification levels differ between the inoperative Hans Agreement and the operative Primo Agreement, and that this can be distinguished from disputes in relation to the application of the NES relating to continuous service of an employee, I do not accept that this is determinative of the power of the Commission to arbitrate the dispute under s. 739 of the FW Act and clause 3.10 of the Primo Agreement. The dispute relates to s. 16 of the FW Act and whether the payments under clauses of the Hans Agreement and the Primo Agreement are within the meaning of base rate of pay in that section.

1. Accordingly, I conclude that s. 739 of the FW Act authorises the Commission to arbitrate the dispute, as it is articulated in the AMIEU application, in accordance with clause 3.10 of the Primo Agreement.

Asserted exercise of judicial power

1. As the Full Bench made clear in Falcon Mining, the High Court in Gordonstone determined that the Commission could not, by arbitrated award require parties to submit to binding procedures for the determination of legal rights and liabilities because the Commission is not a court within the meaning in Chapter III of the Constitution. However, where the parties agree to submit their differences for decision by a third party, that party does not exercise judicial power but a power of private arbitration. Further, the arbitrator’s powers depend on the agreement of the parties – for present purposes a dispute settlement term contained in an enterprise agreement – and the effect of a decision by the Commission pursuant to that term depends on the law which operates in relation to it. In the case, that law is the FW Act.

1. In the present case, the Respondent objected to the Commission arbitrating the dispute on the basis that in doing so the Commission would be determining existing rights and obligations and that this involves an impermissible exercise of judicial power.  In this regard, the Respondent contended that the questions posed by the AMIEU are about an alleged underpayment more than two years ago and not about a matter under the current agreement and would involve a conclusion about existing rights rather than a step in arriving at a position about future rights.  The Respondent also points to the reclassification of both employees to the classification for the higher duties they had been performing, effectively granting them the relief sought and contends that the AMIEU is attempting to recast the dispute as an underpayment claim, when it is no longer a live dispute. 

1. This submission is inconsistent with the authorities discussed above, and I do not accept it.  The cases cited by the Respondent in support of the assertion that the Commission lacks jurisdiction to arbitrate the dispute, do not support that argument and/or can be distinguished.  It is necessary to consider those cases in some detail, to deal with the Respondent’s objection.  In Maritime Union of Australia v Australian Plant Services Pty Ltd[35], Lacy SDP was considering whether a particular dispute could properly be characterised as a dispute over the application of an enterprise agreement as required by s. 170LW of the Workplace Relations Act. If the dispute could not be characterised in that way, the Commission lacked jurisdiction to deal with it. In the present case, s. 186(6) required the Commission to be satisfied that the Agreement included a term that required or allowed the Commission or another independent person, to settle disputes about matters arising under the Agreement or in relation to the NES. The dispute settlement term in clause 3.10 of the Primo Agreement authorises the Commission to settle a dispute in relation to the NES and a dispute about the base rate of pay under s. 16 of the FW Act, for the purposes of NES entitlements, is such a dispute.

1. The decision in Construction, Forestry, Maritime, Mining and Energy Union v Laing O’Rourke Australia Construction Pty Ltd[36] concerned the nature of the power the Commission was being asked to exercise to settle a right of entry dispute under s. 505 of the FW Act. Primo refers to paragraphs [47] – [48] of that decision. Given that the decision extends only to 33 paragraphs, I assume that the intention was to refer to an extract from the Full Bench Decision in Construction, Forestry, Maritime, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd[37] (CFMMEU v BHPB) which also concerned the jurisdiction of the Commission when dealing with a right of entry dispute under s. 505 of the FW Act, and whether resolution of such a dispute required the exercise of judicial power. The extract from the Full Bench Decision in CFMMEU v BHPB includes an extract from CPSU v Tenix Pty Ltd[38] dealing with the distinction between a dispute where a party seeks a bare declaration of rights and one where the Commission is required to deal with existing legal rights, as a step in arriving at a conclusion in relation to future rights. The former involves exercise of judicial power and the latter, the exercise of arbitral power.

1. The Full Bench in that case found that the real nature of the dispute was that it was about the binding effect of the agreement on the employer with respect to its employees, and that the suggestion that the dispute concerned the application of particular clauses was something the union in that case had it upon “in its quest for a jurisdictional talisman”.[39] In the present case, the AMIEU has raised a dispute under the Primo Agreement, in relation to the payment of NES entitlements to two employees.  Notwithstanding that the employees may have been promoted to higher level positions since the dispute was raised, it is a live dispute with respect to past occasions when the employees have taken periods of personal leave or have been absent from work on a public holiday, on which they would otherwise have worked.  Furthermore, there is every indication that Primo has taken the same position with respect to payment of other employees and will continue to maintain its position in the future.  As an organisation of employees covered by the Primo Agreement, the AMIEU has raised the dispute on behalf of the Mr Ioata and Mr Li and other employees who may have a future interest in whether the Company’s practice is correct.

1. Accordingly, to the extent that the judicial/arbitral dichotomy is relevant in dispute resolution under enterprise agreements, I do not accept that to arbitrate the present dispute as framed in the application would involve an impermissible exercise of judicial power.

Standing of AMIEU to make application

1. I agree with the AMIEU that the answer to the contention of the Respondent in relation to its standing to make the present application is found in the decision of the Full Court of the Federal Court observed in Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[40] (Yallourn).  In that case, enterprise agreement covered the dispute resolution process in that case provided that a dispute would be discussed at first instance between the employer and the employee(s) and team leader involved, and would progress through a series of steps, with a representative not being referred to until step 3.  The procedure also provided at Step 4 for a matter to be referred to the Fair Work Commission without referring at that step to who had the right to refer the matter.  The term further provided for category 1 and category 2 matters and that in relation to category 2 matters, either party could notify the Commission of a dispute and seek to have it dealt with on an expedited basis. 

1. The Full Court in Yallourn was considering whether Unions covered by the agreement could initiate a dispute under the dispute resolution procedure in the agreement or could participate in an any dispute resolution process other than as a representative of an employee or employees who had a dispute. The majority of the Full Court (Rares and Barker JJ) concluded that once employees have voted to approve an enterprise agreement that provides for a union to be a party (even on the assumption that it must give notice under s. 201(2) of the FW Act), both those employees and their employer have expressed agreement to the union becoming a party to the enterprise agreement, with all the rights of a party, subject to any limitation of those rights as the agreement provides[41].

1. In reaching this conclusion, the Full Court noted that:

• An enterprise agreement must be construed in the industrial and legislative context, as an agreement made between parties engaged in an employment relationship, in which employee organisations can, and often will, have a workplace right under s. 341(1) and s. 183(1) of the FW Act to play a part, including as a party to the agreement.

• When the Commission approved the agreement, pursuant to s. 201(2), it noted in its decision that the agreement, once it came into operation, covered five unions, with the consequence that it provided the terms and conditions that governed the rights and obligations of each of the five unions in respect of the employer, and its employees eligible to be members of those unions.

• The FW Act allows an agreement to be made between an employer and both its employees (by majority vote) and employee organisations.

• An employee organisation has a right under s. 540(2), to seek a remedy under Div 2 of Part 4 – 1 of the FW Act in relation to contravention of a civil remedy provision in relation to an employee, only if the employee is or will be affected by the contravention and the union is entitled to represent his or her industrial interests;

• Each of the unions covered by the agreement had a workplace right within the meaning of s. 341(1)(a) of the FW Act because it had a role or responsibility under the Yallourn agreement and under various provisions of the Act because it could initiate or participate in a dispute settlement process within the within the meaning of ss 341(2)(j) and 186(6)) and initiate other proceedings in relation to contravention of or compliance with the agreement.

1. Their Honours went on to find that:

“63 Since each of the five unions had a right to initiate proceedings in the Court, s 186(6) required cl 28 to provide a procedure to resolve a dispute that would be litigated in such a matter, because that dispute would arise under the Yallourn agreement, even if no individual employee had initiated a complaint, provided that Energy Australia had contravened its obligations under cl 5.3 in respect of one or more casual employees (see s 540(2)).
…

65 As s 172(1) of the Act provides, an enterprise agreement can be “about” matters pertaining to the relationship “between the employer … and the employee organisation or employee organisations, that will be covered by the agreement”. A dispute about, or involving, that relationship is a subject-matter for which s 186(6) requires a dispute resolution process to be included in an enterprise agreement. However, neither cl 28.1(a) nor par (3) of the model term, in Sch 6.1 to the Regulations, expressly addresses whether a dispute that any of the five unions may have with Energy Australia, arising under the Yallourn agreement as to its interpretation or Energy Australia’s compliance with its terms, can be addressed only by discussions between the employer and one or more employees, without the involvement of the union(s) concerned.

66 Clearly enough, the literal phrasing of each of par (3) of the model term and steps 1 and 2 in cl 28.1(a) is apposite to cover a dispute that involves only the employer and one or more employees. However, both the model term and cl 28 are intended to provide, as s 186(6)(a)(i) requires, “a procedure that requires or allows [the Commission] … to settle disputes … about any matters arising under the agreement” (emphasis added). Therefore, a literal construction of cl 28 that precluded any of the five unions that are parties to the Yallourn agreement from initiating a dispute about a matter arising under it for which it has a workplace right, would defeat the purpose which the first three paragraphs of cl 28 (preceding cl 28.1) and ss 186(6) and 341(1) required the dispute resolution process in the clause to serve.

67 Energy Australia’s argument that the Yallourn agreement did not provide any basis for any of the five unions to raise a dispute under cl 28 must be rejected. That is because, if the five unions themselves could never raise or pursue a dispute about their workplace rights, as employee organisations, covered by the Yallourn agreement within the meaning of ss 53(2), 172(1)(b) and 186(6)(a)(i), then cl 28 would not provide a procedure to settle a class of category 1 matters that could arise under the enterprise agreement. Accordingly, cl 28 would not comply with s 186(6).”

1. Flick J also concluded that the submission of the employer that a union could not have a dispute about a matter pertaining to the employment relationship was wrong and there was no reason to confine the meaning of that phrase as referring only to a dispute between an employer and its employees.  His Honour also noted the fact that in many cases it may be the Union rather than an individual employee seeking to have a dispute resolved about the application or interpretation of the agreement as provided in the dispute resolution term.

1. In the present case, Clause 2.1.2 of the Primo Agreement provides that it is intended that upon approval, the Agreement will apply to and cover, the AMIEU.   Consistent with this provision, the Decision approving the Primo Agreement notes that the AMIEU being a bargaining representative for the Agreement has given notice under s. 183 that it wants to be covered and in accordance with s. 201(2) it is noted that the Agreement covers the Union.[42]  In addition to the rights that the AMIEU has, consistent with the Full Court Decision in Yallourn, as a bargaining representative for the Primo Agreement the AMIEU has a right to apply under s. 217 of the FW Act to vary the Agreement to remove an ambiguity or uncertainty which may be uncovered by an application to the Commission to deal with a dispute arising under an enterprise agreement. This is a further indication of the status of the AMIEU in relation to the Agreement.

1. Clause 3.10 of the Primo Agreement indicates that the AMIEU may represent an employee(s) in a dispute but does not limit the role of the Union to that of a representative.  Clause 3.10.6 provides that “either party” may refer the dispute to the Fair Work Commission provided that earlier steps have been followed.  It is not in dispute that those steps were followed in the present case.

1. I see no basis to construe the provision as limiting the parties who may refer the dispute to the Commission to Primo and the employee(s) in dispute.   The dispute resolution term in Yallourn at clause 28.1(d) also referred to “either party” referring the matter to the Commission and was not considered to be limited on that basis.  Even if there is such a limitation, for the reasons set out above, Mr Ioata and Mr Li brought a dispute in relation to their NES entitlements and that dispute is unresolved and has been referred to the Commission for arbitration.

Conclusion and next steps

1. For these reasons I found that the Commission has jurisdiction to deal with a dispute in relation to the NES, in a manner authorised by the dispute settlement term in the Primo Agreement notwithstanding that part of the period to which the NES entitlements, the subject of the dispute relate, falls outside of the period of operation of the Agreement and within the period of operation of a now inoperative enterprise agreement. I also found that the arbitration of such a dispute, authorised by s. 739 of the FW Act and the dispute settlement term, does not involve the exercise of judicial power. Further, I found that the AMIEU, an organisation of employees covered by the Primo Agreement has standing to apply to the Commission in its own right, for the dispute to be dealt with in accordance with the dispute settlement term in the Agreement.  The matter will be listed for Mention/Directions to program a hearing for the arbitration of the dispute. 

DEPUTY PRESIDENT

Appearances:

C Buckley of the Australasian Meat Industry Employees Union for the Applicant.
B. Sakrzewski-Hetherington for the Respondent.

Hearing details:

2022.
Brisbane (by phone):
November 10.

[1] Fair Work Act 2009 (Cth) ss. 16, 99, 116.

[2] [2020] FWCFB 5054.

[3] [2022] FWCFB 93.

[4] [2021] FWC 1011.

[5] The Police Federation of Australia (Victoria Police Branch) v Victoria Police [2021] FWCFB 4161.

[6] Construction, Forestry, Mining and Energy Union-Mining and Energy Division v Dendrobium Coal Pty Ltd T/A South 32[2017] FWC 4062.

[7] Cited in Construction, Forestry, Maritime, Mining and Energy Union v Laing O’Rourke Australia Construction Pty Ltd T/A Pacific Complete [2017] FWC 4467 at [7].

[8] National Union of Workers v Stanley Black & Decker Pty Ltd[2018] FWC 1339.

[9] [2017] FCA 1245.

[10] (1956) 94 CLR 254 at 281.

[11] Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16 at [30].

[12] [2013] HCA 5 at [28]-[29].

[13] One Tree Community Services Inc v United Workers’ Union [2021] FCAFC 15 at [77], [85] and [86].

[14] Re Cram; Ex parte the Newcastle Wallsend Coal Company [1987] HCA 29 at [9].

[15] TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5 at [37] per French CJ and Gageler J, at [76]-[79] per Hayne, Crennan, Keifel and Bell JJ.

[16] Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16 at [25] to [34]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [31] to [35] (subsequently cited with approval by the Full Court of the Federal Court in Endeavour Energy v CEPU [2016] FCAFC 82 at [13] to [33]; and Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112 at [56] to [58]); Kentz (Australia) Pty Ltd v CEPU[2016] FWCFB 2019 at [46] to [75].

[17] UFU v Metropolitan Fire and Emergency Services Board[2019] FWCFB 184 at [59].

[18] See, for example, Kentz (Australia) Pty Ltd v CEPU[2016] FWCFB 2019 at [46] to [75] (pay in lieu of notice owed to redundant employees); Seo v Bindaree Food Group Pty Ltd [2021] FWCFB 2691 at [60] to [61] (unpaid overtime for work during meal breaks); ING Administration Pty Ltd v Jajoo[2006] AIRC 773 (redundancy and severance payments owed to former employees).

[19] Simplot Australia Pty Ltd v AMWU[2020] FWCFB 5054 at [37].

[20] [1993] HCA 81 at [45] – Brennan, Dawson, and Toohey JJ relevantly agreed.

[21] AMWU v Holden Limited [2003] AIRC 1382 at [45]-[46].

[22] [2016] FWCFB 2019.

[23] Ibid at [59].

[24] [2020] FCA 1694.

[25] [2018] FCAFC 146 at [56] to [67].

[26] [2019] FWCFB 3585 at [37] and [38].

[27] [2022] FWCFB 93.

[28] [2020] FWCFB 5054.

[29] [2001] HCA 16, 203 CLR 645.

[30] [2013] HCA 4, 251 CLR 533

[31] Ibid at [29]

[32] Op. cit. at [68].

[33] Op. cit. at [69] – [70].

[34] Ibid at [133]-[134]

[35] (2001) PR908236.

[36] [2017] FWC 4467.

[37] [2017] FWCFB 217.

[38] PR940630.

[39] Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 319.

[40] [2018] FCAFC 146.

[41] Ibid at [77].

[42] [2020] FWCA 1003.

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