Australian Capital Territory as represented by the Emergency Services Agency (ESA) v United Firefighters' Union of Australia

[2020] FWC 890

[2020] FWC 890

FAIR WORK COMMISSION

DECISION

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

Australian Capital Territory as represented by the Emergency Services Agency (ESA)
v
United Firefighters' Union of Australia
(C2018/7204)

DEPUTY PRESIDENT KOVACIC CANBERRA, 21 FEBRUARY 2020

Application to deal with a dispute regarding clauses 45 and 149 of the ACT Public Sector Fire & Rescue Enterprise Agreement Enterprise Agreement 2013-2017 – jurisdictional objection raised that there was no dispute regarding the application of the Agreement – jurisdictional objection dismissed.

[1] On 19 December 2018 the Australian Capital Territory as represented by the Emergency Services Agency (ESA – the Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) and in accordance with the dispute resolution process of the ACT Public Sector ACT Fire & Rescue Enterprise Agreement 2013-2017 (the Agreement) 1.

[2] In its application the ESA contended that the dispute concerns clauses 45.1, 45.3 and 149.3 of the Agreement. By way of background, clause 45 of the Agreement deals with rest relief after overtime, while clause 149 of the Agreement concerns fatigue management. The application identifies the relief sought as a decision by the Commission as to the proper interpretation of the clauses in dispute.

[3] The application was listed for conference on 11 February 2019. In advance of that conference, the legal representative for the United Firefighters’ Union of Australia (UFU – the Respondent) sent an email to the Commission which inter alia advised of the UFU’s intention to raise a jurisdictional objection to the Commission dealing with the application. The email stated that the Applicant had been on notice of the UFU’s jurisdictional objection since 17 December 2018 and referred the Commission to correspondence attached to the application. That correspondence, which was from the UFU’s representative, Ms Tracey Davies, to Mr Mark Brown (Chief Officer, ACT Fire and Rescue) included the following:

“Our clients allege that the ACT Public Sector ACT Fire & Resue [sic] Enterprise Agreement 2013 (the Agreement) has been breached by the employer and as a consequence firefighters have been underpaid and the Fair Work Act 2009 (the Act) has been contravened.

This is not a dispute regarding the application of the Agreement.

The relief sought is beyond the jurisdictional power of the Commission and are matters of jurisdictional power specifically conferred upon the Courts by the Act. The Court proceeding will be issued in the name of the registered organisation.

We note that disputes regarding the application of the Agreement may only be instituted by an employee (see Step 1 of cl.118.6). There is no acceleration clause in the Agreement's dispute resolution clause, nor is there any ability for the Employer or the Union to unilaterally notify a dispute regarding the application of the Agreement under the clause.” 2

[4] The conference focussed on a timetable for dealing with the UFU’s jurisdictional objection, with Directions issued on 12 February 2019. On 20 March 2019 both parties wrote to the Commission consenting to the jurisdictional objection being determined on the papers.

[5] In response to a question from the Commission, the Applicant recently advised that it still wished to have the jurisdictional objection determined despite the alleged dispute apparently having been resolved.

[6] For the reasons set out below, the Respondent’s jurisdictional objection is dismissed.

Background

[7] On 6 December 2018 the Respondent’s Branch Committee of Management (BCOM) resolved as follows:

“That BCOM authorise the issuing of a letter of demand by Davies Lawyers and if necessary the issuing of proceedings in the federal court in relation to the issue of overtime and fatigue management by members A Donne, K Judd, K Rourke and S Geerdink” 3

[8] Later that day, Ms Davies, the Respondent’s a solicitor, wrote to Mr Brown in the following terms:

“We act on behalf of United Firefighters' Union of Australia ACT Branch (UFU), Andrew Donne, Kate Judd, Keith Rourke and Steve Geerdink.

The purpose of this correspondence is to draw to your attention serious ongoing breaches of the ACT Public Sector Act Fire and Rescue Enterprise Agreement 2013-2017 (the Agreement) and the Fair Work Act 2009 (the FW Act) which have resulted in underpayments to firefighters in your employ.

…

It has now come to the attention of the UFU that the ACT Fire and Rescue have not been abiding by the provisions of the Agreement and have failed to allow employees to have a rest break of 8 hours between shifts and when the break is less than 8 hours have failed to pay the appropriate rates of pay to the relevant employee.

Further a failure to accord firefighters a break of 8 hours between two consecutive shifts is in breach of clause 125 - Occupational Health and Safety of the Agreement.

…

Breaches and underpayment

We are instructed that ACT Fire and Rescue persistently fails to pay firefighters double time when they are required to perform duty and are accorded a rest period of less than 8-hours between shifts worked as required by the Agreement.

We attach to this correspondence a schedule setting out the underpayment in relation to the employees referred to above.

ACT Fire and Rescue have clearly breached the Agreement in refusing to pay these employees the correct rates of pay.

Accordingly, ACT Fire and Rescue have breached clauses 45.3, 149.3 and 125 of the Agreement and has consequently contravened s.50 and s.323 of the FW Act.

We now require that on or before 5:00pm 14 December 2018 the following occur:

1. The employees referred to in Schedule 1 of this letter be paid the underpayments amounts specified in the schedule.

2. ACT Fire and Rescue provide a written undertaking that:

(a) a pay roll and hours audit of all firefighters who were employed by the service in the past 6 years will take place for the purpose of ascertaining the extent of the underpayment in the current service.

(b) where underpayments have been identified by the audit that underpayment is immediately rectified by paying the identified employee immediately.

(c) it will in the future comply with ss.45.3 and 149.3 and ensure all firefighters are paid at the appropriate rates of pay as set out in the Agreement when they are not accorded the requisite 8-hour rest period.

If the above does not occur within the specified timeframe then proceedings will immediately be instituted in the Federal Court of Australia seeking compensation and penalties, without further notice to you.” 4

[9] Mr Brown responded to Ms Davies on 13 December 2018 with his response including the following:

“I refer to your letter dated 6 December 2018, in which you raise a dispute about the operation of the ACT Public Sector ACT Fire & Rescue Enterprise Agreement 2013-2017 (the Agreement) on behalf of Andrew Donne, Kate Judd, Keith Rourke and Steve Geerdink.

It appears from your letter that the United Firefighters Union (UFU) and the Territory interpret the relevant provisions of the Agreement i.e. clauses 45.1, 45.3 and 149.3 differently. I set these clauses out below:

…

It is in the interests of the Territory and the UFU, as well as in the interests of the individual workers affected, to resolve this dispute as efficiently and inexpensively as possible. I also note that clause 118.3 of the Agreement requires the UFU as well as the Territory to take reasonable internal steps to prevent disputes and explore all avenues to seek resolution of disputes. I therefore request that the UFU engage in that process with us in the first instance.

Of course, it may be that the parties' differing views of how to interpret these provisions of the Agreement will remain unchanged following any discussions. Unless the UFU wishes to hold a conference regarding this dispute under step 2 of clause 118, I will now refer this this dispute to the Fair Work Commission (FWC) for mediation and/or conciliation, followed, if necessary, by arbitration, under clause 118.6 of the Agreement.

Please advise me by close of business on Monday 17 December 2018 whether the UFU wishes to hold a conference under step 2 of clause 118 of the Agreement. If I do not receive a response from you within that timeframe I propose to file an application in the FWC immediately thereafter.

If the UFU fails to engage in the dispute resolution process provided for in the Agreement and instead refers this dispute to the Federal Court, the Territory will seek a stay of any such proceedings pending the outcome of its FWC application. The Territory may in such circumstances also counter-sue the UFU for breach of clause 118.3 of the Agreement.” 5

[10] Ms Davies wrote to Mr Brown again on 17 December 2018 as follows:

“The assertions contained in your correspondence of 13 December 2018 are not only misconceived they are also incorrect.

Our clients allege that the ACT Public Sector ACT Fire & Resue Enterprise Agreement 2013 (the Agreement) has been breached by the employer and as a consequence firefighters have been underpaid and the Fair Work Act 2009 (the Act) has been contravened.

This is not a dispute regarding the application of the Agreement.

The relief sought is beyond the jurisdictional power of the Commission and are matters of jurisdictional power specifically conferred upon the Courts by the Act. The Court proceeding will be issued in the name of the registered organisation.

We note that disputes regarding the application of the Agreement may only be instituted by an employee (see Step 1 of cl.118.6). There is no acceleration clause in the Agreement's dispute resolution clause, nor is there any ability for the Employer or the Union to unilaterally notify a dispute regarding the application of the Agreement under the clause.

We will of course carefully, consider any proposal you have regarding remedying the alleged contraventions and addressing the issues going into the future.” 6

[11] Mr Brown sent an email to Ms Davies on 19 December stating as follows:

“I refer to your letter dated 17 December 2018. I do not agree that the Enterprise Agreement should be interpreted in such a way as to deprive the employer of the power to institute a dispute regarding the application of the Agreement.

In any event, your letter dated 6 December 2018 met the requirements of Step 1 of clause 118.6 of the Enterprise Agreement insofar as it notified me of a dispute about the payment of employee entitlements and was brought by the UFU on behalf of the named employees, Andrew Donne, Kate Judd , Keith Rourke and Steve Geerdink.

My reply, and your response dated 17 December 2018, evidence the discussion of the dispute between the representatives of the employer and the employee respectively, as required under Step 2 of clause 118 .6 of the Agreement. As you have taken the dispute immediately to me (the Chief Officer), neither party can now escalate the dispute to higher management, as envisaged by Step 2 of clause 118.6 of the Agreement. Moreover, your assertion that there is no issue of interpretation (the dispute), only a breach, indicates that this dispute cannot be resolved between the parties.

Accordingly, the dispute may be referred by either party, or their representative, to the Commission for mediation and/or conciliation and, if those processes fail, arbitration, pursuant to Step 3 of clause 118.6 of the Agreement. The ACT Government Solicitor has filed an application for resolution of the dispute in the Commission today and you will shortly be served with a copy of that application.” 7

[12] As previously mentioned, the Applicant filed its application with the Commission on 19 December 2018.

The Agreement provision

[13] The relevant aspects of clause 118 – Dispute Avoidance/Settlement Procedures of the Agreement are set out below.

“118. Dispute Avoidance/Settlement Procedures

118.1 It is in the interests of all employees, the Head of Service and the UFU that the integrity of the terms and conditions set out in this Agreement are maintained. The objective of these procedures is the prevention and resolution of disputes about matters arising under this Agreement, including disputes about the interpretation or implementation of the Agreement, and the application of the National Employment Standards.

118.2 For the purposes of this clause, except where the contrary intention appears, the term parties refers to ‘parties to the dispute’.

118.3 The parties to the Agreement agree to take reasonable internal steps to prevent disputes and explore all avenues to seek resolution of disputes.

118.4 Pre-dispute work arrangements and patterns will apply during the dispute resolution process unless there is reasonable concern by the employee about an imminent risk to his or her health or safety. In these circumstances, employees will not work in an unsafe environment but, where appropriate, may accept reassignment to alternative suitable work consistent with their classification levels in the meantime.

118.5 A party may be assisted at any stage of the process by a representative of their choice (including an employee representative), and all relevant persons will deal with any such representative in good faith. This assistance includes notifying or advising any person or body of the existence of a dispute and speaking on behalf of the employee(s).

Resolution Process

118.6 In the event there is a dispute about matters arising under this Agreement, including a dispute about the interpretation or implementation of the Agreement the following steps will be applied.

Step 1: A dispute about the interpretation or implementation of this Agreement is identified by an employee or employees and notified to the manager.

Step 2: This step will commence within 7 working days of notification of the dispute or a longer timeframe agreed to by the parties if operational circumstances preclude commencement of this step. Where appropriate, the relevant employee(s) or their representative will discuss the matter with management. Should the dispute not be resolved, it will proceed to the next appropriate management level for resolution.

In instances where the dispute remains unresolved, the appropriate level of management and employee(s) or their representative(s) will be notified and a conference will be arranged and a course of action for resolution will be discussed.

Step 3: If the parties have not been able to resolve the dispute, the dispute may be referred by either party, or their representative, to FWC for mediation and/or conciliation and, if these processes fail, arbitration.

Role and Powers of FWC

118.7 For any dispute that is referred to FWC consistent with Step 3 of clause 118.6, the FWC has the role and powers set out in clauses 118.8 to 118.16.

118.8 For the purposes of the FW Act, the parties agree that FWC may give all such directions and do all such things as are necessary for the just resolution or determination of the dispute, subject to Chapter 5 Part 5-1 Division 3 of the FW Act. This may include, but is not limited to:

(a) inform itself in any manner that it thinks appropriate;
(b) taking verbal or written evidence on oath or affirmation, in chief and by cross examination;
(c) conducting a hearing, including a private hearing;
(d) holding a ballot of affected employees where in the opinion of the FWC such ballot may assist in the resolution of the dispute;
(e) meeting with any party separately during a conciliation but with the knowledge of the other party;
(f) summoning to appear before the FWC any party to the dispute, witnesses or persons whose presence the FWC believes would help in the resolution of the dispute;
(g) requesting the attendance before the FWC of any witness or person whose presence the FWC believes would assist in the resolution of the dispute;
(h) receiving documents and other material related to the dispute and compelling the production of documents and other material that relate to the dispute in hard or electronic form;
(i) determining the dispute in the absence of any party or person who has been notified of the dispute or who has been summoned to appear;
(j) convening a compulsory conference;
(k) giving directions in the course of or for the purpose of procedural matters relating to the dispute;
(l) making recommendations to the parties for the resolution of the dispute;
(m) deciding when conciliating is ended and arbitration is to begin;
(n) making interim decisions; and
(o) making final decisions.

118.9 To avoid doubt, the FWC does not have the power to:

(a) make an award in relation to the matter in dispute;
(b) make an order in relation to the matter in dispute; or
(c) appoint a board of reference.

118.10 In exercising any of the functions or powers set out above, the FWC will:

(a) apply the rules of natural justice, and ensure that the parties to a dispute have a reasonable opportunity to be heard;
(b) have regard to the FWC established principles for dealing with disputes and precedent decisions, including any precedent decisions in relation to the interpretation and application of this Agreement; and
(c) act according to equity and good conscience, and consider the merits of the case without regard to technicalities and legal form.

118.11 The FWC may dismiss or refrain from hearing a matter or part of a matter, which in the view of the FWC is vexatious.

118.12 A person may be assisted and represented at any stage in the dispute process on the same basis as applies to representation before the FWC under section 596 of the FW Act.

118.13 All persons involved in the mediation or conciliation or arbitration shall participate in good faith.

118.14 To assist in the decision making process, the proceedings before the FWC may be recorded and transcribed in the FWC.

118.15 Any decision or direction the FWC makes in relation to the dispute will be in writing and will be accepted by all affected persons, and the parties agree to comply with any decision or direction, be it final or procedural. Where relevant, a decision will be accepted as settlement of the dispute and will be complied with, subject to any right of appeal or review, which might exist.

118.16 The parties agree that any decision which alters the rights or responsibilities of the Head of Service, employees or UFU are enforceable in a Court of competent jurisdiction.

118.17 Notwithstanding the above, the parties may agree to submit the dispute to a body or person other than the FWC. To avoid doubt, an attempt to reach such an agreement is not a condition precedent to referring the dispute to the FWC. Where the parties agree to submit the dispute to another body or person, the parties agree that:

(a) all of the above provisions apply, unless the parties agree otherwise;
(b) references to the FWC in the above provisions will be read as a reference to the agreed body or person; and
(c) all obligations and requirements on the parties and other relevant persons in the above provisions shall be complied with.

Appeal of Decision or Direction

118.18 …”

The Respondent’s case regarding the jurisdictional objection

[14] The Respondent in its submissions set out the background to the matter referring to the exchange of correspondence between Ms Davies and Mr Brown set out above. In addition, the Respondent set out the scheme of the Act in respect of enforcement and compliance, referring to ss.3(e), 50, 323, 539, 540, 544 and 545 of the Act and noting that the Commission was not listed as a court to who an application for orders in relation to a contravention of ss.50 and 323 of the Act could be made. More particularly, the Respondent submitted that the application should be dismissed for want of jurisdiction, contending that it was clear that the matter was not a dispute raised under the Agreement but rather was a compliance and enforcement matter raised by the UFU in conjunction with four employees of the Applicant. The Respondent further contended that the application was an attempt by the Applicant to usurp the Court’s jurisdiction and deny the UFU and employees the rights and remedies available only in the courts.

[15] The Respondent further submitted that if the Commission determined that clause 118 of the Agreement applied to this matter that the Commission had no power to proceed because the dispute resolution procedure had not been followed. The Respondent posited that the requirements of Step 1 in clause 118.6 had not been fulfilled in this case, adding that if the Commission found otherwise that there was a failure to comply with Step 2 in the procedure. As such, the Respondent submitted, the Applicant was unable to invoke Step 3, i.e. referral of the matter to the Commission.

[16] In its reply submissions the Respondent submitted inter alia that:

● the Applicant in its submissions overlooked the fact that the alleged dispute was not about matters arising under the Agreement but rather about matters arising under the Act, i.e. alleged contraventions of ss.50 and 323 of the Act;

● the dispute was therefore beyond the jurisdiction of the Commission and must be dismissed;

● asking the Commission to make a determination under clause 118 of the Agreement was otiose as the facts relied upon by the Applicant to underpin the alleged dispute came to an end on 23 January 2019 at the latest, adding that if the dispute was no longer extant then the Commission no longer had power under clause 118 to determine the matter;

● the parties were unable to depart from the stepped requirements set out in clause 118.6 of the Agreement, emphasising that clause 118.6 had a plain meaning;

● there was nothing before the Commission that would allow it to interpret clause 118 in the manner advocated by the Applicant;

● Step 1 as per clause 118.6 had not been met by Ms Davies’ letter to Mr Brown of 6 December 2018;

● the Applicant could not attribute conduct to employees necessary to comply with Step 1 when their representative did not have authority to, nor did she, notify a dispute with respect to a matter arising under the Agreement;

● it was clear from the affidavits of Ms Davies and Mr McConville that there was no compliance with Step 2 as set out in clause 118.6 of the Agreement;

● for clause 118.6 of the Agreement to be enlivened an employee must notify a dispute, adding that neither the employer or the UFU could initiate the process; and

● the Commission should exercise the discretion available to it under s.587(3) of the Act to dismiss the application for a number of reasons, including that should the dispute ultimately be determined in the Respondent’s favour the Commission did not have the jurisdictional power to make awards or orders of compensation.

[17] In its submissions, the Respondent referred to the decision in The Australian Workers’ Union v MC Labour Services Pty Ltd (MC Labour) 8.

[18] In support of its submissions, the Respondent filed affidavits by Ms Davies and Mr Greg McConville, Secretary of the UFU’s ACT Branch.

[19] The key aspect of Ms Davies’ affidavit was that she had never been instructed to notify or advise any person or body of the existence of a dispute pursuant to the Agreement nor had she been instructed by the UFU or the UFU members to initiate a dispute about the interpretation or implementation of the Agreement.

[20] In his affidavit Mr McConville deposed among other things that:

● in early to mid-2018 it came to the Respondent’s attention that some members were working high numbers of hours in short periods without rest breaks between shifts, adding that the Respondent engaged in its own investigations gathering information for the purposes of possible Federal Court proceedings;

● on 6 December 2018 the UFU’s BCOM approved a letter of demand which was to be sent by its solicitors on behalf of the UFU and its four members to the Applicant’s Chief Officer;

● on 19 December 2019 after receiving a copy of the application in this matter he authorised Ms Davies to enter an appearance on behalf of the UFU for the purpose of challenging the jurisdiction of the Commission to deal with the matter;

● at no point was he authorised by any one of the four members to advise a person or a body of the existence of a dispute pursuant to clause 118 of the Agreement;

● the Chief Officer was not the “employee’s manager” as per clause 118 of the Agreement as each of the four members reported to their Station Officers; and

● on 23 January 2019 he received an email from Mr Brown 9 which advised that the Applicant had ceased the practice of offering Tanker overtime where the firefighter was required to continue ordinary nightshift without having an eight hour break.

[21] Mr McConville in his affidavit also set out the Respondent’s usual practice regarding the notification of a dispute pursuant to clause 118 of the Agreement. In short, an employee covered by the Agreement signed a dispute notice prepared by the UFU following discussions with the member which stated that the member nominated the UFU as their representative. The dispute notice requested that the employer arrange a meeting with the UFU within seven working days as per Step 2 of clause 118.6 of the Agreement and asked the employer to direct its response to the UFU’s Secretary.

The Applicant’s case regarding the jurisdictional objection

[22] The Applicant contended that the Commission had jurisdiction to hear the dispute and make a final determination with respect to the dispute pursuant to clause 118 of the Agreement. The Applicant further contended that it could not be rationally disputed that the parties to the application were in dispute about the interpretation of clauses 45.1, 45.3 and 149.3 of the Agreement, adding that the Respondent had refused to engage with its invitation to discuss the parties’ respective interpretation of these provisions of the Agreement. The Applicant also submitted that the Respondent’s contention that the existence of a dispute for the purposes of clause 118.6 of the Agreement was not to be determined objectively but was a matter to be determined at the absolute discretion of employees and their representatives should be rejected.

[23] The Applicant posited that Steps 1 and 2 of clause 118.6 of the Agreement had been complied with, or sufficiently complied with, to enable Step 3 of the provision to be enlivened. Other key aspects of the Applicant’s submissions included that:

● it was content to treat Ms Davies’ letter of 6 December 2018 as constituting compliance with Step 1 of clause 118.6 of the Agreement, adding that it would be a triumph of form over substance to construe Step 1 as not having been satisfied in the circumstances;

● Mr Brown responded to Ms Davies on 13 December 2018 with a view to complying with Step 2 of clause 118.6 of the Agreement;

● Step 3 in clause 118.6 made it clear that either party (or their representative) may refer a dispute to the Commission for mediation/conciliation and arbitration, i.e. it is not only the party that initiated a dispute who may refer the dispute to the Commission;

● the parties had not been able to resolve the dispute essentially because the Respondent had made it fundamentally clear that it had no interest in resolving the dispute;

● it denied the Respondent’s assertion that its application was an attempt to usurp the Court’s jurisdiction; and

● it was the Respondent who purported to deny it the right to have a dispute between itself and the employees heard by the Commission, adding that clause 118.6 of the Agreement was included for its benefit as well as that of its employees.

[24] The Applicant in its submissions referred to several authorities, including the decisions in Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd 10 and MC Labour.

Consideration of the issues

[25] As noted above, both parties referred to the decision in MC Labour in their respective submissions. The relevant aspects of that decision cited by the parties are set out below:

“[37] It may be that situations will arise where it is genuinely impossible for a party to comply with a mandatory step in a dispute resolution procedure, and that the effect of this is that the Commission or other independent person cannot attempt to settle the dispute. This might be an issue for the Commission to examine when considering whether to approve an agreement under s.185 of the FW Act. However, once an agreement has been approved, and a dispute is referred to the Commission under it, it would not be permissible for the Commission to recast or ignore certain components of the dispute settlement procedure. Section 186(6) is not a source of power to do this. An enterprise agreement comes into operation seven days after it is approved by the Commission. Once in operation, the agreement is presumed to be valid, until such time as the decision of the Commission to approve the agreement is overturned on appeal, or the agreement is otherwise found by a court to be invalid. The various terms of an enterprise agreement are also assumed to be valid, with the exception only of unlawful and certain other terms, which have no effect as a result of s.253 of the FW Act.

[38] The requirements of s.186(6) may be relevant in identifying the proper construction of a dispute resolution clause in an agreement. If the proper meaning of such a clause is disputed, the resolution of the disputed construction will begin with the ordinary meaning of the relevant words, considered in context, in accordance with the principles summarised in AMWU v Berri. The legislative framework, including s.186(6), is part of that context. There may be cases where, properly construed, the clause allows the Commission to proceed to deal with a matter, despite certain steps not being satisfied. And of course, there may be clauses which expressly allow certain steps to be bypassed, or for the Commission to have a general discretion to deal with disputes.

[39] However, the parties to an enterprise agreement are free to impose limitations on the role afforded to the body that is to settle disputes about matters arising under the agreement. Where these limitations are not observed, the Commission (or other persons) has no discretion to deal with a dispute referred to it under the agreement, unless one is conferred on it under the terms of the agreement.

Conclusion and orders

[40] Clause 10.4 of the Agreement set pre-conditions for the capacity of the Commission to deal with a dispute. Those pre-conditions were not met. There is no general discretion afforded to the Commission under the FW Act to deal with a dispute under an enterprise agreement. The Agreement affords no such discretion in the present matter. ” 11 (Endnotes not included)

[26] The reference to AMWU v Berri in the above extract is a reference to the Full Bench decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri) 12 which sets out the principles relating to the interpretation of enterprise agreements. More recently, the Full Court of the Federal Court in WorkPac Pty Ltd v Skene (WorkPac)13 summarised the principles applicable to the interpretation of enterprise agreements as follows:

“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “ … turns on the language of the particular agreement, understood in the light of its industrial context and purpose … ”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie[1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” 14

[27] Initially, I make the following observations regarding clause 118 of the Agreement:

● clause 118.1 describes the objective of clause of clause 118 as “the prevention and resolution of disputes about matters arising under this Agreement, including disputes about the interpretation or implementation of the Agreement, and the application of the National Employment Standards”;

● clause 118.3 states that the parties to the Agreement “agree to take reasonable internal steps to prevent disputes and explore all avenues to seek resolution of disputes”;

● clause 118.5 provides that a party may be assisted by a representative of their choice, that all persons will deal with any such representative in good faith and that the assistance which a representative may provide “includes notifying or advising any person or body of the existence of a dispute and speaking on behalf of the employee(s)”; and

● clause 118.6 sets out the resolution process “[i]n the event there is a dispute about matters arising under this Agreement, including a dispute about the interpretation or implementation of the Agreement” (underlining added) and specifies that the steps set out in the clause “will be applied.”

[28] Drawing on the decision in MC Labour, it is clear that the words “will be applied” in clause 118.6 of the Agreement have the effect of requiring each of the steps set out in the clause to be met if the Commission is to have jurisdiction to deal with a dispute about matters arising under the Agreement.

[29] Against that background, the key issues which need to be determined in respect of the Respondent’s jurisdictional objection are:

● Do the issues raised in Ms Davies’ letter of 6 December 2018 concern matters arising under the Agreement, including matters about the interpretation or implementation of the Agreement?

● Does Ms Davies’ letter of 6 December 2018 satisfy Step 1 in clause 118.6 of the Agreement?

● Does Mr Brown’s letter of 13 December 2018 satisfy Step 2 in clause 118.6 of the Agreement?

● Is it only an employee or employees who can notify a dispute such that clause 118.6 of the Agreement is enlivened?

[30] I will deal with each of these questions separately.

Do the issues raised in Ms Davies’ letter of 6 December 2018 concern matters arising under the Agreement, including matters about the interpretation or implementation of the Agreement?

[31] Ms Davies’ letter of 6 December 2018 refers to “serious and ongoing breaches” of the Agreement and also posits that the Applicant has “not been abiding by the provisions of the Agreement.” Given the language used in Ms Davies’ letter it is difficult to envisage how the matters raised in the letter are not about matters arising under the Agreement. While I note the Respondent’s contention that the the alleged dispute was not about matters arising under the Agreement but rather about matters arising under the Act, that contention appears to be premised on a view that the two are somehow mutually exclusive. I do not accept that premise for several reasons. First, implicit in Ms Davies’ letter is the proposition that the Applicant is incorrectly interpreting and/or implementing clauses 45 and 149 of the Agreement resulting in the alleged underpayments referred to in the letter. Second, s.50 of the Act provides that a “person must not contravene a term of an enterprise agreement”. The alleged contravention must therefore be about a matter arising under the Agreement.

[32] This supports a finding that the issues raised in Ms Davies letter concern matters arising under the Agreement, including matters about the interpretation or implementation of the Agreement.

Does Ms Davies’ letter of 6 December 2018 satisfy Step 1 in clause 118.6 of the Agreement?

[33] For Step 1 in clause 118.6 to be satisfied the following two things must occur:

● a dispute about the interpretation or implementation of the Agreement is identified by an employee or employees; and

● the dispute is notified to the manager.

[34] Having regard to the terms of Ms Davies’ letter of 6 December it is clear that she acts on behalf of the four employees specified in the letter. Further, as noted above, clause 118.5 of the Agreement provides that the assistance which a representative may provide “includes notifying or advising any person or body of the existence of a dispute and speaking on behalf of the employee(s)”. That together with my previously expressed view that implicit in Ms Davies’ letter is the proposition that the Applicant is incorrectly interpreting and/or implementing the Agreement resulting in the alleged underpayments supports a finding that the first leg of Step 1 is met. In coming to that view, I have, drawing on the language in WorkPac, adopted a purposive approach to interpretation of the provision as opposed to a narrow or pedantic approach. Key considerations underpinning the above finding are the objective of clause 118 of the Agreement as set out in clause 118.1 and clause 118.3 which reflects the agreement of those covered by the Agreement “to take reasonable internal steps to prevent disputes and explore all avenues to seek resolution of disputes.”

[35] As to the second leg of Step 1, I note that the term ‘manager’ is not defined in the Agreement though the term ‘Chief Officer’ is defined as meaning “the person appointed as Chief Officer (Fire and Rescue) under Section 29 of the Emergencies Act 2004.” 15 Section 29(3)(a) of the Emergencies Act 2004 (ACT) states inter alia that the “chief officer (fire and rescue service) is responsible for the general management and control of the fire and rescue service” (underlining added). This supports a finding that the Chief Officer would be a manager for the purposes of Step 1 of clause 118.6 of the Agreement and that Ms Davies letter of 6 December 2018 to the Chief Officer thereby met the second leg of Step 1 given that the letter brought to the attention of Mr Brown issues regarding the interpretation and/or implementation of the Agreement. It was open to Mr Brown to interpret Ms Davies’ letter as notification of a dispute.

[36] In his affidavit Mr McConville deposed that the Chief Officer was not the “employee’s manager” as each of the four members report to their Station Officers. However, Mr McConville’s characterisation of this aspect of the provisions involves rewriting the clause to include the word “employee’s”. Reading the clause as Mr McConville suggests would be inconsistent with Principle 2 in Berri which provides that “[t]he task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.” 16

[37] The above analysis supports a finding that Step 1 of clause 118.6 is satisfied in this case.

Does Mr Brown’s letter of 13 December 2018 satisfy Step 2 in clause 118.6 of the Agreement?

[38] For Step 2 in clause 118.6 to be satisfied the following things must occur:

● the step must commence within 7 working days of notification of the dispute (unless a longer timeframe is agreed);

● where appropriate, the relevant employee(s) or their representative will discuss the matter with management;

● should the dispute not be resolved, it will proceed to the next appropriate management level for resolution; and

● where the dispute remains unresolved, the appropriate level of management and employee(s) or their representative(s) will be notified and a conference will be arranged and a course of action for resolution will be discussed.

[39] Mr Brown responded to Ms Davies’ letter on 13 December 2018, which is within 7 working days of Ms Davies’ letter. As such, the first leg of Step 2 as set out above is met.

[40] It is clear from the material before the Commission that the parties have not engaged in any discussions regarding the issues raised in Ms Davies’ letter of 6 December 2018 other than exchanging correspondence setting out their respective interpretations of the disputed provisions. In writing to the Chief Officer Ms Davies raised the issues with the Applicant’s most senior manager, effectively bypassing the second and third legs of Step 2. Further, in respect of those two legs in Step 2, I note firstly that the Agreement states “where appropriate” suggesting a degree of discretion as to the level at which discussions occur and secondly that there is no “next appropriate management level” in this case given that Mr Brown is the Chief Officer, i.e. the Applicant’s most senior manager. As such, the second and third legs above have been overtaken in this case as a result of Ms Davies writing to the Chief Officer on 6 December 2018.

[41] As to the last leg, I note that Mr Brown’s letter of 13 December 2018 invited the UFU to indicate by close of business on 17 December 2018 whether it wished to hold a conference under Step 2 of clause 118 of the Agreement. Ms Davies response of 17 December 2018 inter alia did not accept that there was “a dispute regarding the application of the Agreement” but otherwise did not refer the proposal to hold a conference as per Step 2. In short, the issues raised in Ms Davies’ letter of 6 December 2018 remained unresolved and the UFU was not willing to participate in a conference to discuss “a course of action of resolution” of those issues because it did not accept that there was a dispute for the purposes of clause 118 of the Agreement.
[42] The above analysis supports a finding that Step 2 of clause 118.6 is satisfied in this case.

[43] Accordingly, where Steps 1 and 2 of clause 118.6 of the Agreement are satisfied and at the time the application was made the parties had been unable to resolve the issues raised in Ms Davies’ letter of 6 December 2018, Step 3 in clause 118.6 was enlivened. As such, it was open to the Applicant to refer the matter to the Commission “for mediation and/or conciliation and, if these processes fail, arbitration”.

Is it only an employee or employees who can notify a dispute such that clause 118.6 of the Agreement is enlivened?

[44] In circumstances where I consider that the steps set out in clause 118.6 of the Agreement were “applied” in this case, it is not necessary to determine this issue. However, I do note that Step 1 of clause 118.6 of the Agreement refers to disputes “identified by an employee or employees” (underlining added).

Conclusion

[45] For all the above reasons, I find that the requirements in clause 118.6 of the Agreement are satisfied such that it was open to the Applicant to refer the matter to the Commission “for mediation and/or conciliation and, if these processes fail, arbitration”. Accordingly, the Respondent’s jurisdictional objection is dismissed.

[46] In terms of next steps, the Applicant is to advise the Commission by no later than close of business on Friday, 28 February 2020 whether it intends to press its application. I would observe in that regard that, if as the Respondent contends, the matters in dispute no longer remain extant there would appear to be little utility in the application being pressed.

Printed by authority of the Commonwealth Government Printer

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 1   AE409030

 2   Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure at Attachment C

 3   Affadavit of Gregory Francis McConville at Annexure “GFMcC-2”

 4   Affadavit of Tracey Jane Davies at Annexure “TJD-1”

 5   Ibid at Annexure “TJD-2”

 6   Ibid at Annexure “TJD-3”

 7   Ibid at Annexure “TJD-4”

 8   [2017] FWCFB 5032

 9   Affadavit of Gregory Francis McConville at Annexure “GFMcC-4”

 10   [2016] FWC 2959

 11   [2017] FWCFB 5032 at [37]-[40]

 12   [2017] FWCFB 3005

 13 [2018] FCAFC 131

 14   Ibid at [197]

 15   AE409030 – Dictionary

 16   [2017] FWCFB 3005 at [114]