Australian Nursing and Midwifery Federation v Achieve Australia Limited

[2021] FWC 6188

[2021] FWC 6188

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Nursing and Midwifery Federation
v
Achieve Australia Limited
(C2021/2366)

COMMISSIONER JOHNS SYDNEY, 22 OCTOBER 2021

Alleged dispute about any matters arising under a Copied State Award – jurisdictional issue raised by Respondent.

Introduction

[1] On 13 October 2021 I issued an order 1 dismissing an application brought by the Australian Nursing and Midwifery Federation in NSW (NSWNMA) against Achieve Australia Ltd (Achieve). These are the reasons for my decision explaining why the Fair Work Commission (Commission) was not invested with jurisdiction to arbitrate the substantive underlying dispute.

[2] Achieve is a for-purpose community organisation providing accommodation and services to people with disability. It is a National Disability Insurance Scheme (NDIS) registered provider delivering disability support services in greater Sydney and the Northern Rivers regions of New South Wales. The NSWNMA is a union representing the interests of nurses employed by Achieve.

Substantive dispute

[3] The substantive dispute concerns employees, employed in nursing classifications, who, in around February 2018, transferred from the Department of Family and Community Services (FACS) within the NSW State Government to Achieve. The transfer of their employment occurred in the context of the implementation of the NDIS.

[4] At time of the transfer the employees were covered by the Nurses (Department of Family and Community Services – Ageing, Disability and Home Care) (State) Award 2017 (Copied State Award).

[5] After the transfer of employment Achieve implemented a restructure of its frontline staff, which included staff working in community homes (Frontline Restructure). The Frontline Restructure included new position descriptions for registered nurses.

[6] On 5 July 2021 Achieve commenced implementing the Frontline Restructure. Consequently, approximately 25 registered nurses (Registered Nurses) were treated by Achieve as no longer being covered by the Copied State Award.

[7] Achieve contends that the Registered Nurses are now covered by the Nurses Award 2010 (Nurses Award).

[8] The ANMF contends that the Copied State Award continues to cover the Registered Nurses.

[9] Those competing contentions are the subject of the substantive dispute before the Commission.

[10] In settlement of the dispute the NSWNMA sought orders that:

1. The Registered Nurses are to remain covered by the Nurses (Department of Family and Community Services – Ageing, Disability and Home Care) (State) Award 2017, a copied state instrument pursuant to clause s768AH of the Fair Work Act 2009.

2. The Registered Nurses are to continue have their pay and conditions set by the Nurses (Department of Family and Community Services – Ageing, Disability and Home Care) (State) Award 2017.

[11] The NSWNMA abandoned a third proposed order.

Jurisdictional issue

[12] Achieve challenged the jurisdiction of the Commission to determine the dispute. Its primary jurisdictional argument was that the Commission has no power to arbitrate the dispute because the Copied State Award does not provide for arbitration.

Hearing and materials

[13] A jurisdictional hearing occurred on 31 August 2021. At the jurisdictional hearing:

a) The NSWNMA was represented by Mr Mark Gibian of Senior Counsel. He was instructed by Mr Mark Dunstan a Lead Industrial Officer of the Applicant.

b) Achieve was represented by Mr Shane Prince of Senior Counsel and Ms Tammy Wong of counsel, instructed by Mr Tim Frost, Partner, and Ms Rachel McInerney, Solicitor, from HWL Ebsworth.

[14] In advance of the jurisdictional hearing the parties filed the following documents:

Exhibit	Document title	Document date
1	Form F10	27 April 2021
2	Applicant’s Submissions	24 June 2021
3	• Copied State Award
4	Witness Statement of Michael Kirby-Wilson	24 June 2021
5	• Annexure A	4 March 2021
6	• Annexure B	18 March 2021
7	• Annexure C	12 April 2021
8	• Annexure D	30 April 2021
9	• Annexure E
10	Witness Statement of Brett Coleman	23 June 2021
11	Respondent’s Submissions	30 July 2021
12	Witness Statement of Lorraine Salloum	15 July 2021
13	• Annexure A	31 May 2021
14	• Annexure B	16 March 2021
15	• Annexure C	30 March 2021
16	• Annexure D	13 April 2021
17	• Annexure E	20 May 2021
18	• Annexure F	27 May 2021
19	• Annexure G	8 July 2021
20	• Annexure H	7 July 2021
21	• Annexure I
22	• Annexure J
23	• Annexure K
24	Witness Statement of Timothy Frost	16 July 2021
25	Witness Statement of Maria Galang	28 July 2021
26	Supplementary Witness Statement of Lorraine Salloum	29 July 2021
27	• Annexure A	5 March 2021
28	• Annexure B	8 March 2021
29	• Annexure C	9 March 2021
30	• Annexure D	16 March 2021
31	• Annexure E	29 March 2021
32	• Annexure F	30 March 2021
33	• Annexure G	1 April 2021
34	• Annexure H	6 April 2021
35	• Annexure I	13 April 2021
36	• Annexure J	14 April 2021
37	• Annexure K	20 May 2021
38	• Annexure L	21 May 2021
39	• Annexure M	22 May 2021
40	• Annexure N	27 May 2021
41	• Annexure O	7 June 2021
42	• Annexure P	28 May 2021
43	• Annexure Q	5 July 2021
44	• Annexure R	8 July 2021
45	• Annexure S	23 July 2021
46	• Annexure T	28 July 2021
47	Witness Statement of Karen Aurisch	30 July 2021
48	Applicant’s Submissions in Reply	18 August 2021
49	Witness Statement of Elenita Rivera	17 August 2021
50	Witness Statement of Tejinder Kaur	12 August 2021
51	Witness Statement of Stephen Taylor	12 August 2021
52	Supplementary Witness Statement of Michael Kirby-Wilson	18 August 2021
53	Respondent’s Submissions in Reply	30 August 2021

[15] In coming to this decision I have had regard to all of the materials filed in the proceedings and the submission made during the jurisdictional hearing.

Jurisdiction

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

[17] Section 739 provides that:

“Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) ….

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[18] The Copied State Award contains a dispute resolution clause. It is clause 18. After the completion of steps in the dispute resolution process requiring discussion between the parties Clause 18 provides as follows:

“(v) If these procedures are exhausted without the matter being resolved, or if any of the time limits set out in those procedures are not met, either the Association or the Department may seek to have the matter mediated by an agreed third party, or the matter may be referred in accordance with the provisions of the Industrial Relations Act 1996, to the Industrial Relations Commission of New South Wales, for its assistance in resolving the issue.”

[19] By virtue of the operation of 768BX of the FW Act (which modifies the FW Act for copied State instruments) and other transitional provisions, I accept that, for present purposes, the words “may be referred in accordance with the provisions of the Industrial Relations Act 1996, to the Industrial Relations Commission of New South Wales” should be taken to read as “may be referred to the Fair Work Commission”. A copied State Award operates like a Modern Award.

Agreed Facts

[20] The parties filed in the Commission an Agreed Statement of Facts. Consequently, I make the following findings of fact:

a) The Respondent conducts a disability services business.

b) In this business, the Respondent operates a number of community homes in which persons with disabilities of various kinds and extents live and are supported.

c) The Respondent employs people in a range of positions to work in these community homes, including disability support workers, Assistants in Nursing, Endorsed Enrolled Nurses and Registered Nurses

d) In February and November 2018, the Respondent acquired a number of facilities (including community homes) from the New South Wales Department of Family and Community Services (FACS).

e) Following the acquisition of the facilities, a number of staff who were employed by FACS at the time of the acquisition by the Respondent transferred to and became employed by the Respondent.

f) At the time of transfer of these employees to the Respondent, the employees who were employed by FACS in various nursing classifications and who transferred to the Respondent were employed on the terms of the Nurses (Department of Family and Community Services - Ageing, Disability and Home Care) (State) Award 2017.

g) As a result of the transfer of these employees to the Respondent and the operation of Part 6.3A of the Fair Work Act 2009 (Cth), copied State awards came into operation in relation to ex-FACS registered nurses who had transferred from FACS to the Respondent following the business acquisition process, and those copied State awards were in the terms of the Nurses (Department of Family and Community Services - Ageing, Disability and Home Care) (State) Award 2017 as it existed at the transfer time for each such employee.

h) On 3 March 2021, the Respondent commenced a consultation process in relation to a proposed restructure of its 'Frontline' staff, which included staff working in the community homes. Some of those staff are the subject of the present application. This consultation process included numerous staff briefings, information sessions (including 12 information sessions by Zoom for registered nurses specifically in relation to the Frontline Restructure). The Frontline Restructure proposed Voluntary Redundancies for some of the registered nurses who had been transferred from FACS.

i) Following these discussions, at a consultation meeting on 24 March 2021 with Mr Kirby Wilson, the Respondent consulted about the Frontline Restructure.

j) On 30 March 2021, the Respondent then provided to the Applicant a range of written material regarding the Frontline Restructure including a draft Frontline Restructure Management Plan and Frequently Asked Questions document (provided to Ms Scilinato on 30 March 2021).

k) Sometime shortly after 30 March 2021, Mr Dunstan of the Applicant emailed Ms Salloum of the Respondent notifying her that the Applicant intended to raise a dispute. Thereafter, the Respondent attended a meeting on 7 April 2021 with officials of the Applicant including Mr Kirby-Wilson (Head of Member Services) and Ms Nola Scilinato (the Applicant's normal representative for dealing with the Respondent) and Mark Dunstan (Lead - Western Team, Member Rights Centre) to discuss the dispute. The Respondent also responded to queries from individual employees through the consultation and disputes processes.

l) On 30 April 2021, the Respondent created a new Position Description for registered nurses. The new Position Description was provided to the Applicant by Mr Tim Frost, the Respondent’s legal representative, in the course of these proceedings.

m) The Respondent provided a Final Restructure Management Plan to the Applicant on 31 May 2021.

n) The Final Restructure Management Plan included the introduction of a new Senior Support Worker role into the Respondent’s workforce.

o) The Respondent has not made an application to the Fair Work Commission, in these proceedings or elsewhere, for the industrial instrument applying to the transferred registered nurses to be altered.

p) Each copied State Award contained at the time of the transfer a provision entitled '18. Disputes' which provides that:

“18. Disputes

(i) All parties must use their best endeavours to cooperate in order to avoid any grievances and/or disputes.

(ii) Where a dispute arises in any work location, regardless of whether it relates to an individual nurse or to a group of nurses, the matter must be discussed in the first instance by the nurse(s) (or the Association on behalf of the nurse(s) if the nurse(s) so request(s)) and the immediate supervisor of that nurse(s).

(iii) If the matter is not resolved within a reasonable time, it must be referred by the nurse(s) immediate supervisor to the Department’s nominee, and may be referred by the nurse(s) to the Association’s Head Office. Discussions at this level must take place and be concluded within two working days of referral or such extended period as may be agreed.

(iv) If the matter remains unresolved, the Association must then confer with the appropriate level of management (i.e. at facility or Department level, depending on the nature and extent of the matter). Discussions at this level must take place and be concluded within two working days of referral or such extended period as may be agreed.

(v) If these procedures are exhausted without the matter being resolved, or if any of the time limits set out in those procedures are not met, either the Association or the Department may seek to have the matter mediated by an agreed third party, or the matter may be referred in accordance with the provisions of the Industrial Relations Act 1996, to the Industrial Relations Commission of New South Wales, for its assistance in resolving the issue.

(vi) During these procedures normal work must continue and there must be no stoppages of work, lockouts, or any other bans or limitations on the performance of work.

(vii) The status quo before the emergence of the issue must continue whilst these procedures are being followed. For this purpose 'status quo' means the work procedures and practices in place:

(a) immediately before the issue arose; or

(b) immediately before any change to those procedures or practices, which caused the issue to arise, was made.

The Department must ensure that all practices applied during the operation of these procedures are in accordance with safe working practices.

(viii) Throughout all stages of these procedures, adequate records must be kept of all discussions.

(ix) These procedures will be facilitated by the earliest possible advice by one party to the other of any issue or problem which may give rise to a grievance or dispute.”

q) The Respondent commenced the process of implementing the Frontline Restructure on 5 July 2021. Approximately 25 registered nurses were treated by the Respondent as no longer covered by the copied state awardand treated as being covered by the Nurses Award 2010.

[21] I should also note, it was not contested, that Achieve took no steps to seek an order that the Copied State Award not apply to the transferring employees. It voluntarily assumed the operation of the Copied State Award as a transferring instrument when it acquired the facilities that it acquired from FACS.

NSWNMA Submissions

[22] On 24 June 2021, the NSWNMA submitted the following in relation to the dispute procedure in clause 18:

8. The Fair Work Commission (‘FWC’) is entitled to act as the industrial tribunal referenced in the clause pursuant to 768BX of the Fair Work Act 2009 and Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Schedule 3A.

9. Copied State Instruments are, by their nature, drafted with a view to the application of state industrial legislation. In the case of the Copied Award, the dispute procedure was drafted with a view to applying the wide powers available under the Industrial Relations Act 1996 (NSW). The FWC has previously applied a broad construction to dispute procedures from copied state instruments. Association of Professional Engineers, Scientists and Managers, Australia, The v WaterNSW [2016] FWC 564:

Here, the dispute settlement procedure in the Award is a product of its own particular New South Wales jurisdiction-based industrial lineage, albeit the Award has more recently become a federal industrial instrument. I accept the submissions advanced by APESMA that the Industrial Relations Commission of New South Wales would have had broad-ranging powers in relation to disputes of the type now before this Commission, and the particular dispute settlement procedure doubtless would have been included within the Award against the background of the legislative position that obtained in the New South Wales jurisdiction as to industrial disputes

10. In Transit Systems West Services Pty Ltd T/A Transit Systems West Services v Australian Rail, Tram and Bus Industry Union[2020] FWCFB 4, the Full Bench upheld a decision by Commissioner Cambridge wherein the FWC asserted its authority to interpret a Copied State Award subject to a dispute.

11. Clause 18 of the Copied Award provides no limiting language on the scope of appropriate disputes pursuant to the dispute procedure. Accordingly, the right assumption would be that disputes may involve any matter within the jurisdiction of the Industrial Relations Act 1996, which gives definition of an industrial dispute as involving ‘industrial matters’ which, at s6, ‘means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry.’

12. The coverage and application of the Copied Award is an essential industrial matter and clearly falls within the language of ‘industrial matters’ under the NSW Act. Accordingly, the dispute falls within the jurisdiction of the dispute clause and, subsequently, the FWC.

13. The FWC recently considered a matter which closely mirrored the present dispute, also applying to workers who had transferred from the Department of Family and Community Services to the non-government sector, in CPSU, the Community and Public Sector Union v Cerebral Palsy Alliance - Accommodation Northern Sydney Ltd T/A Cerebral Palsy Alliance[2021] FWC 2654and in that case decided it was appropriate to make an order that staff would continue to be covered by a Copied State Instrument.

Achieve Submissions

[23] On 30 July 2021, Achieve submitted the following:

20. Clause 18 - Disputes of the copied State award does not provide for arbitration. Rather, the power conferred by it is for the matter to be:

'referred in accordance with the provisions of the Industrial Relations Act 1996, to the Industrial Relations Commission of New South Wales, for its assistance in resolving the issue'.

21. Under section 595 of the Act, the Commission may deal with a dispute by arbitration only if it is expressly authorised to do so under or in accordance with another provision of the Act (section 595(3)). To avoid doubt, the Commission must not exercise this power of arbitration except as authorised by section 595 (section 595(5)).

22. Section 739 of the Act provides for the Commission to deal with a dispute in accordance with an award term (which Achieve accepts would include clause 18 -Disputes of the copied State awards) (see section 739(3)), but provides that:

a. in dealing with the dispute, the Commission must not exercise any powers limited by the term (section 739(3)); and

b. if, in accordance with the term, the parties have agreed that the Commission may arbitrate (however described) the dispute, the Commission may do so (section 739(4)).

23. Clause 18 - Disputes does not provide that the Commission may arbitrate the dispute. The argument that the dispute resolution procedure permits the relevant tribunal (ie the NSW Industrial Relations Commission as expressed, or the commission following the operation of Part 6-3A of the Act) to arbitrate the dispute is not expressed plainly in the manner required in section 739(4) of the Act). Rather, it allows the dispute to be 'referred in accordance with the provisions of the Industrial Relations Act 1996 . . . for its assistance in resolving the issue'. The phrasing of the provision, with the assistance of the Commission following the alternative of 'seek to have the matter mediated by an agreed third party', and the expression of the Commission's powers being to provide 'assistance in resolving the dispute', compel the conclusion that the power conferred by clause 18 does not extend to arbitration.

24. This is not a case in which it can be said that 'in accordance with the term, the parties have agreed that the Commission may arbitrate (however described) the dispute' (section 739(4)).

25. The decisions cited by the Applicant do not support an alternative conclusion:

a. in the case of APESMA v WaterNSW [2016] FWC 5640, the Commission determined that the Commission did not have power to deal with the dispute (see the conclusion expressed in paragraph 12) and stands for no greater proposition than the relevant dispute resolution procedure should be given effect in accordance with its terms (see paragraph 10); and

b. in the case of RTBU v Transit Systems West Services Pty Ltd[2019] FWC 6767, the relevant instrument (the State Transit Authority Bus Operations Enterprise (State) Award 2018) specifically provided in clause 85.8 for arbitration by the NSW Industrial Relations Commission, unlike the copied State awards in this matter.

NSWNMA Reply Submissions

[24] On 18 August 2021, the NSWNMA submitted the following:

6. The respondent objects to the jurisdiction of the Commission to arbitrate the present dispute on the basis that the copied State awards do not confer a power of arbitration: RS[20]-[25]. The respondent does not dispute that the copied State awards are capable of conferring jurisdiction on the Commission to deal with a dispute, including by arbitration, nor does it suggest that the present dispute does not fall within the relevant dispute resolution procedures in the copied State awards. Rather, the sole jurisdictional objection is that clause 18 of the copied State awards does not provide that the Commission may arbitrate a dispute: RS[23].

7. The jurisdiction of the Commission to deal with a dispute is governed by the Act. Section 595(1) provides that the Commission may deal with a dispute only if expressly authorised to do so under or in accordance with another provision of the Act. Specifically, the Commission may deal with a dispute by arbitration only if it is expressly authorised by do so under or in accordance with another provision of the Act by operation of s 595(3). The most common circumstance in which the Commission is able to exercise a power to arbitrate is in accordance with a dispute resolution procedure in a modern award or enterprise agreement under Part 6-2.

8. Part 6-2 applies, in accordance with s 738, if a modern award, enterprise agreement, contract of employment or public service determination includes a term that provides a procedure for dealing with disputes. The instruments conferring power on the Commission to deal with the present dispute are copied State awards which came into operation by force of Part 6-3A of the Act, rather than an instrument expressly referred to in s 738. Part 6-2 applies to a copied State award as if it were a modern award and to the Commission as if a copied State award referred to the Commission rather than a State industrial tribunal.

9. The statutory route to that conclusion is circuitous. In short, s 768BX(Item 16) provides that Part 6-2 of the Act has effect in relation to a transferring employee as if reference to a modern award included reference to a copied State award for the transferring employee. Further, s 768BY(1)(Item 1) and 768BY(2)(Item 3) (read together with item 13 of Schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)) provide that a term of a copied State award which is expressed to confer a power or function on a State industrial tribunal has effect as if it referred to the Commission. 2

10. The powers of the Commission are, accordingly, those ordinarily capable of being exercised by the Commission under a dispute provision of an enterprise agreement or a modern award. The powers of the Commission to deal with a dispute are limited by s 739, including that the Commission must not exercise any powers limited by the term (s 739(3)), may arbitrate if the parties have agreed that the Commission may arbitrate (however described) (s 739(4)) and cannot make a decision inconsistent with the FW Act or a fair work instrument (s 739(5)). A party may “agree” to arbitration by voluntarily assuming the binding force of an instrument through transmission of business. 3

11. The powers capable of being exercised by the Commission under a term of a type referred to in s 738 is a matter to be determined on the proper interpretation of the relevant term. The question is whether, on its proper construction, the parties have, in accordance with the term, agreed that the Commission may arbitrate the dispute. To the extent that the respondent submits that s 739(4) requires that the provision for arbitration must be “expressed plainly” (RS[23]), the submission cannot be accepted. Section 739(4) itself recognises that the capacity to arbitrate may be variously described. The question is simply whether the term provides that the Commission may arbitrate in substance, however the power is expressed.

12. The principles to be applied in the interpretation of industrial instruments are well settled. The task of construing an award or agreement is to discern the objective meaning of the words used bearing in mind the context in which they appear and the purpose they are intended to serve. 4 Relevant context may include the whole of the text of the document, the circumstances in which the instrument was made and its history and the legislative background.5 An overly strict or literal approach to construction is rarely appropriate. It is justifiable to read an award or agreement so as to give effect to its evident purposes despite mere inconsistencies or infelicities of expression and meanings that “avoid inconvenience or injustice may reasonably be strained for.”6 Relevant context here is that the purpose of a dispute resolution clause is the orderly, fair and appropriate resolution of disputes.7

13. The relevant term is clause 18 of the copied State awards. Clause 18 provides for a process to deal generally with “any grievances and/or disputes”. The process, as is customary, provides initially for discussions to occur at the workplace and involving management in subclauses (ii) to (iv). In the event the dispute remains unresolved, subclause (v) provides:

(v) If these procedures are exhausted without the matter being resolved, or if any of the time limits set out in those procedures are not met, either the Association or the Department may seek to have the matter mediated by an agreed third party, or the matter may be referred in accordance with the provisions of the Industrial Relations Act 1996, to the Industrial Relations Commission of New South Wales, for its assistance in resolving the issue.

14. In addition, the clause provides that normal work must continue during these procedures (subclause (vi)) and that the status quo before the emergence of the issue must continue whilst these procedures are being followed (subclause (vii)).

15. Whilst there is some ambiguity in subclause (v), the better view is that the clause encompasses referral to the Commission for arbitration, that is, to resolve the dispute by determination if necessary. Firstly, a critical contextual consideration in construing clause 18 is that it was drafted, and included in the copied State awards, against the backdrop of the NSW industrial relations system. 8 Subclause (v) expressly provides for referral to the Industrial Relations Commission “in accordance with the provisions of the Industrial Relations Act 1996”. To understand what was contemplated by the clause, it is necessary to understand the powers capable of being exercised by the Industrial Relations Commission under the Industrial Relations Act 1996 (NSW).

16. The objects of the Industrial Relations Act also include “to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality.” 9The Industrial Relations Commission has a general jurisdiction with respect to the conciliation and arbitration of industrial disputes. An industrial organisation or employer is able to notification the Commission of an industrial dispute “for the purpose of resolving the dispute”.10 The Commission is able to resolve a dispute by conciliation or, after reasonable attempts have been made to resolve the dispute by conciliation, by arbitration.11 Furthermore, an award cannot be made by the Commission “unless it contains procedures for the resolution of industrial disputes under the award.”12 That is, a dispute resolution clause in an award is required to include procedures “for the resolution” of disputes. That provision is to be interpreted broadly and consistently with the objects of the Act.13

17. Against the statutory background in which the State awards were made, the only available conclusion is that the parties intended the disputes clause to permit referral to the Industrial Relations Commission to include the Commission arbitrating the dispute, if necessary. To the extent that the phrase “for its assistance in resolving the issue” is unclear, the reference to referral being “in accordance with the provisions of the Industrial Relations Act 1996” makes clear that a reference to the Commission includes arbitration. Furthermore, if the respondent’s interpretation were correct, the State awards would not comply with the statutory injunction in s 14(1) of the Industrial Relations Act that an award contain a procedure “for the resolution” of disputes. That cannot have been intended.

18. Secondly, and contrary to the respondent’s submissions (RS[23]), the reference to the possibility of a dispute being “mediated by an agreed third party” supports the conclusion that referral to the Commission encompasses resolution by arbitration. The clause expressly describes the role capable of being fulfilled by “an agreed third party” as being limited to mediating the dispute. The role of Commission is not so limited, but rather broader language is used. The parties may seek “its assistance in resolving the dispute”. The assistance able to be provided by the Commission in resolving a dispute, in accordance with the Industrial Relations Act, includes arbitration in the event the parties cannot agree. The contrast in the language used to describe the role of an agreed third party and the Commission supports the applicant’s construction.

19. Thirdly, other aspects of the clause favour the conclusion that the parties must have intended that the Commission be able to resolve a dispute by arbitration. In particular, subclause (vi) and (vii) provide for normal work to continue and for the status quo to be maintained while the procedures are to be followed. It cannot be thought, consistently with industrial common sense, that the parties intended normal work to continue and the status quo to be maintained whilst a dispute was being dealt with without the procedure providing for a method of resolving a dispute in the absence of agreement and in which the conclusion of the procedure is uncertain. Clause 6(v)(e) specifically provides for workload disputes to be dealt with in accordance with clause 18 if not capable be being resolved by the reasonable workload committee. Again, it cannot be suggested that the parties intended there be no method of resolving such a dispute in the absence of agreement.

20. For these reasons, the proper interpretation of clause 18(v) is that that a dispute is able to be referred to the Commission for resolution including, if necessary, by arbitration. The Commission has jurisdiction to arbitrate the dispute in accordance with s 739(4) of the Act. The jurisdictional objection must be rejected.

Achieve Reply Submissions

[25] On 30 August 2021, Achieve submitted the following:

7. The Applicant asserts that the combined effect of s.768BX(Item 16), s.768BY(1), s.768BY(2)(Item 3) and item 13(1) of Schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TPCA Act) are such that clause 18(v) of the copied State award is modified to read (emphasis added): 14

(v) If these procedures are exhausted without the matter being resolved, or if any of the time limits set out in those procedures are not met, either the Association or the Department may seek to have the matter mediated by an agreed third party, or the matter may be referred in accordance with the provisions of the Industrial Relations Act 1996, to the Fair Work Commission, for its assistance in resolving the issue.

8. The Applicant concedes that clause 18(v) does not expressly refer to any agreement between the parties that the Commission may arbitrate any dispute. Instead, the Applicant contends that the agreement of the parties may be inferred from the words “in accordance with the provisions of the Industrial Relations Act 1996” (IR Act) (which on its case are included in the copied State award) having regard to the objects of the IR Act. 15

9. The Applicant’s attempt to read an agreement for the Commission to arbitrate into clause 18(v) for the purposes of s.739(4) of the FW Act should be rejected for the reasons which follow. The Applicant’s premise that there had previously been an agreement from the respondent’s predecessor to arbitration by the Industrial Relations Commission of New South Wales, (hereafter IRC) is flawed as its assertion that the applicant has adopted any such agreement to submit to private arbitration in the principles discussed in One Tree.

Re Nurses (Department of Family and Community Services – Ageing, Disability and Home Care) (State) Award 2017 [2018] NSWIRComm 1006

10. The significance of “agreement” in relation to the Commission’s power to arbitrate pursuant to s.739(4) was considered in the context of this very copied State Award in Re Nurses (Department of Family and Community Services – Ageing, Disability and Home Care) (State) Award 2017 16(Re Nurses). In Re Nurses, the New South Wales Nurses and Midwives Association (NSWMNA) sought a variation to the same clause 18(v) of the copied State award currently in dispute in these proceedings. The NSWMNA correctly conceded that clause 18(v) was ambiguous as to an agreement between the parties for the IRC to arbitrate disputes and did not contain an express power for the IRC to do so17. Therefore, the NSWMNA sought to insert the following words into clause 18(v):

“The Industrial Relations Commission may deal with the dispute by mediation, conciliation and/or arbitration as permitted by relevant legislation at the request of either the Association or Department.” 18

11. The NSWMNA urged the IRC to take the same approach advocated by the Applicant in this case, namely, that the words in clause 18(v) “provides that the parties have agreed that the [IRC] may arbitrate a dispute” because the phrase referred in accordance with the provisions of the Industrial Relations Act 1996 to the Industrial Relations Commission of New South Wales for its assistance in resolving the issue “clearly contemplates that the IRC may arbitrate a dispute in accordance with ss.135 and 136 of the IR Act”. 19

12. About this submission, the IRC noted at [25]:

“The dispute settlement powers of the FWC, when dealing with a dispute involving an employer and employees covered by a copied State award, will be governed and limited by the FW Act.”

13. The Full Bench rejected the NSWMNA’s argument that s.739(4) of the FWA was a potential source of power for the FWC to exercise arbitration powers in relation to a dispute covered by the copied State award and declined to make the variation sought because:

[31] It is apparent from the High Court judgement in Gordonstone that the Australian Industrial Relations Commission was acting in the capacity of a private arbitrator, as it was authorised to do by the legislation and empowered to do by the agreement of the parties, and was not exercising arbitral power conferred by statute.

[33] …the power of the FWC to settle disputes by arbitration pursuant to subs 739(4) of the FW Act is as a private arbitrator exercising power pursuant to a “term” in an award or enterprise agreement to which the parties have agreed and which is permitted by the statute.

[34] If the current subclause 18(v) of the Award is not such a “term”, which is a matter we cannot authoritatively determine, then making the amendment sought by the Association will not change that position. That is because the amendment is opposed. If the amendment makes the difference, it will be to no avail because, in terms of subs 739(4), it is not “agreed”.

Exclusion of the IR Act

14. The starting point for any purposive analysis is section 26 of the FWA which expressly excludes the operation of State or Territory industrial laws, including the IR Act. Section 27 of the FWA then provides for a list of State and Territory laws that are not excluded by section 26, including those prescribed in r.1.13 of the Fair Work Regulations 2009 (Cth) (Regulations). The IR Act is not included in either section 27 of the FWA or the Regulations. Although there are limited carve-outs in the FWA and TPCA 20 allowing for certain aspects of State industrial laws to continue to apply, they are not relevant to the question before the Commission and, rightly, the Applicant does not rely upon them.

15. Contrary to the Applicant’s submission in ARS [15], there is no basis for asserting that the proper way to read clause 18(v) is to import the jurisdiction conferred by the IR Act and then have the Commission carry out that jurisdiction. The purpose of the transitional provisions was to transfer employees from the State industrial framework into a federal industrial framework. Therefore, the “relevant context” in which clause 18(v) is to be assessed should reflect the primacy of the FWA over the IR Act. This is not a “mere inconsistency” or “technicality” that can be rectified as the Applicant submits. It is a fundamental issue of jurisdiction and the Applicant has cited no authority to support its proposition that clause 18(v) should be read as giving effect to the objects of the IR Act or importing its terms into the FWA contrary to the clear provisions of s.26 FWA.

16. If it was necessary to read words into clause 18(v) as modified (which is denied) the Respondent submits that the better reading would be to read the words Industrial Relations Act 1996 as referring to the FWA. This would properly give effect to the purpose of a statutory scheme that seeks to transfer employees from one statutory framework into another and to give power to the Commission where it previously had none. If so, then the provisions of the FWA must prevail and the express power to arbitrate given to the Commission only by consent between the parties. The IR Act cannot be read to give the Commission jurisdiction beyond the confines of the FW Act.

Power to arbitrate does not arise from copied State award

17. Further, even if, contrary to the submissions above, section 26 FWA does not prevent resort to the provisions the IR Act (as asserted by the Applicant), this does not have the consequence of incorporating a power to arbitrate within the words of clause 18(v). Even if clause 18(v) is analysed in the context of the IR Act which once applied to it, the dispute resolution procedure in clause 18(v) itself does not act as the source of power on IRC to arbitrate the dispute.

18. The Applicant relies heavily on the provisions of Chapter 3, Part 1 of the IR Act to infer that the dispute resolution procedure in the copied State award carries with it a right to private arbitration by the Commission. 21

19. The dispute resolution procedures in state awards are distinct from the general law powers under the IR Act for the conciliation and arbitration of industrial disputes at large. The source of the power in s.136 of IR Act is not the dispute resolution procedure in the State Award as it existed prior to the transfer (State Award) but rather the operation of s.136 of the IR Act itself.

20. The fact that the scope of the dispute resolution procedure is sourced from the public power of arbitration conferred by the Act under Chapter 3, Part 1 IR Act is clear from s.131 IR Act which provided that the IRC could refuse to deal with the dispute under the provisions of Chapter 3, Part 1 of IR Act if the dispute resolution procedure under the State Award had not been followed as far as was reasonably practicable in the circumstances.

21. Thus the IR Act itself drew a distinction between the content of the dispute resolution procedures in the State Award and the public powers of resolution of industrial disputes under the IR Act. This is consistent with the public nature of the power to arbitrate which is evident from the terms in s.135 IR Act which requires the IRC to consider the effect that any industrial action in connection with the industrial dispute is having on the parties and the public generally (s.135(4), IR Act).

22. The mechanisms in s.135 IR Act which are a prerequisite for the exercise of arbitral power under Chapter 3, Part 1 IR Act are not incorporated in the FWA in any way; could not be incorporated in the copied State award provisions and are not apposite to be applied by the Commission in circumstances where there is no federal statutory mechanism for converting those statutory functions to the Commission.

23. If clause 18(v) did not generate a power of private arbitration when it was vested in the IRC, it cannot now confer a right of power arbitration on the Commission by reason of the transitional provisions.

24. Clause 18(v) of the copied State award is a dispute settlement procedure that was incorporated in the State Award pursuant to s.14 IR Act. Section 14(3) IR Act required dispute resolution procedures in a state award to include procedures for:

a) Consultation at the workplace; and

b) The involvement of relevant industrial organisations

25. Nothing in s.14 IR Act required the dispute resolution procedure to create a right of private arbitration to be vested in the IRC. Accordingly, it is no part of the “instrument content rule” for the purposes of Item 9, Schedule 3A TPAC Act that the dispute settlement clause in the State Award required private arbitration.

26. Further, Chapter 3, Part 1 of the IR Act underscores the separate and distinct notions of “assistance” and “arbitration” which the Applicant has erroneously conflated. Implicit in ARS at [16], is that any provision “for the resolution” of disputes must necessarily include a reference to arbitration because of the use of the word “resolution”. That submission is not consistent with the language in the FWA which repeatedly refers to attempts to “resolve the dispute” other than by arbitration. 22 Likewise, the IR Act recognised that “resolution of disputes” with the “assistance” of the IRC did not necessarily involve arbitration.23 In neither statutory scheme is it inevitable that to “resolve a dispute” must carry with it a power to determine the dispute by arbitration. There is nothing in the term “resolve the dispute” that mandates or confers a power of private arbitration to be exercised by the IRC as a power conferred by the State Award. Further, no such term could exist in the federal statutory scheme because it would render ss. 595 and 739(4) FWA redundant.

27. The Respondent’s submissions proceed on the false assumption that every dispute referred to the IRC under clause 18(v) would be arbitrated by the IRC pursuant to clause 18(v) of the Award. That is not so. To the extent that any arbitration may have occurred under that regime, it could only have occurred under s.136 of the IR Act after the application of s.135 of the IR Act and any such arbitration would be pursuant to the Act and not pursuant to the Award. The transitional provisions of Schedule 3A TPAC Act only allow for the copying of State industrial instruments in relevant circumstances and do not permit the copying of the provisions of the IR Act which vest public powers in the IRC for industrial dispute resolution contrary to s.26 FWA.

28. At most, the terms of clause 18(v) of the Award are a recognition that at the time they were made there was an independent right under Chapter 3, Part 1 to engage the provisions of that part of the IR Act. That does not incorporate, and nor did it need to, those rights into the body of the Award so that they could be copied by the transitional provisions.

29. Once those rights were swept away by s.26 FWA they did not spring back to life because at one stage they had been available to the former employees and employers under the IR Act independently of the State Award. There is no separate power under the State Award to arbitrate. The only source of power to arbitrate was left to the operation of the IR Act itself. By reason of s.26 FWA, the IR Act no longer applies and cannot apply. Accordingly, there is no power vested in the Commission to arbitrate this proceeding.

Clear intention of legislature in s.768BY FWA

30. As the majority held in One Tree Community Services Inc v United Workers’ Union (One Tree) at [89]: “if Parliament could simply legislate to deem or mandate consent to a private arbitration, the Ch III restrictions (founded as they are on the important doctrine of the separation of judicial power) could be readily usurped.” 24

31. It is significant the legislature chose not to include Item 7 of Schedule 3A, TPAC Act in the relevant transitional provisions in s.768BY and further, chose to expressly remove the reference to “Note 1” when including Item 13 (see s.768BY(2)(Item 3)). If applied, Item 7 (and Note 1, which refers to Item 7) would have the effect of removing any term in a copied State award regulating disputes and replacing it with the model term contained in Schedule 6.1A, Regulations. Inter alia, that model term provides that the Commission “may” arbitrate any dispute and that “the parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this term” (Model Term). Setting aside whether such a term would be constitutional in any event, it must be noted that no such term applies in the present case.

32. In One Tree, the Enterprise Bargaining Agreement to which One Tree became subject upon transfer of employment contained a provision in clause 77 that was identical in effect to the Model Term. It is significant that the employer into whose shoes One Tree stepped had consented to clause 77 by making the Enterprise Bargaining Agreement. The majority (Flick J dissenting) held that, upon the facts of the case, One Tree had “voluntarily elected” to be bound by the by clause 77 because it had knowingly structured its workforce in a way that would subject it to the Enterprise Bargaining Agreement which contained that express term as to agreement to submit to the Commission’s jurisdiction. 25

33. This is not the case in the present proceeding. The Model Term, which sets out an express agreement between the parties, has not been included by s.768BY. Applying the reasoning of the majority in One Tree, the most that the Respondent can be said to have “voluntarily” or “knowingly” elected to be bound by in this case is that the words Industrial Relations Commission of New South Wales would be replaced with the words Fair Work Commission and that the Commission would “assist” to resolve any dispute. In this case, there is no basis for finding the Respondent agreed to the application of Chapter 3, Part 1 IR Act to it. It is not open to the Commission to read any other agreement as to arbitration into the word “assist” in circumstances where s.595 and s.739(4) FWA make it clear it is the act of agreeing to arbitrate that gives the Commission its jurisdiction.

34. Finally, it is erroneous for the Applicant to assert that clause 18(v) (as modified) would create a situation where there would be “no method of resolving such a dispute in the absence of agreement”. 26 Clause 18(v) provides for the dispute to be resolved by way of referral to an agreed third party mediator (again, agreement is expressly included in the clause because the parties have agreed by clause 18(v) to submit to a mediation; no such express agreement is set out submitting the parties to the Commission’s power to arbitrate) or otherwise by the Commission to “assist” in ways other than by arbitration. It is not correct to assert that there is “no method” of resolving a dispute when clause 18(v) allows the Commission to resolve the dispute at least by way of conciliation or mediation but then conclude its involvement after that point if the parties do not agree to arbitration and, further, allows the parties to resolve the matter by way of a mediation with a third party mediator. There is no legislative impediment to workers continue their ordinary duties whilst such a “resolution” is sought by the Commission whether in the FWA or the IR Act.27

35. The appropriate forum for the declarative relief sought by the Applicant is the Federal Court and not the Commission. The orders that the Applicant seeks are similar to the exercise of judicial power by Katzmann J in Community and Public Sector Union, NSW Branch v Northcott Supported Living Limited. 28

Consideration – Is Achieve subject to arbitration by reason of the operation of clause 18 of the Copied State Award?

[26] Both parties referred me to the decision in One Tree. I was familiar with it.

[27] That matter arose in the context of Mission Australia having entered into an enterprise agreement (MAEA) that contained an arbitration provision in respect of its childcare services. Mission Australia then lost its contract with the Department of Defence (Defence) to manage the provision of childcare services to Defence personnel at 19 childcare centres. One Tree was successful in the tender and entered into an agreement with Mission Australia to transfer assets. The employment of employees also transferred. The dispute was about whether the arbitration provision in the MAEA bound One Tree. One Tree contended that it was not bound by the arbitration power because it was not a party to the MAEA and it did not agree to the Commission arbitrating disputes in accordance with s.739(4) of the FW Act.

[28] In One Tree I explained the following:

[21] The Commission may only deal with a dispute if it is “expressly authorised to do so under or in accordance with another provision of [the FW Act]”. 29 Section 739 of the FW Act then applies if a term of an enterprise agreement requires or allows the Commission to deal with a dispute.

[22] A term about the settling of disputes is a requirement of all enterprise agreements. Before approving an agreement the Commission must be satisfied that the agreement includes a term that provides a procedure that requires or allows the Commission, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes about any matters under the agreement and in relation to the National Employment Standards. 30 The dispute resolution term must allow for the representation of employees covered by the agreement.31

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

[24] Outside the requirements of section 186(6) of the FW Act, the scope and terms of the dispute settling procedure included in the agreement is a matter to be determined by the parties to the agreement. For example, there is no requirement that a dispute settling procedure invest the Commission with the power of arbitration. 32 Only if, in accordance with the dispute resolution procedure included in the agreement, the parties have agreed that the Commission may arbitrate the dispute, may the Commission do so.33 Further, once the parties have agreed upon the scope and terms of the dispute settling procedure, the Commission must not exercise any powers that are limited by the terms of the dispute settling procedure.34 The Commission can only deal with a dispute on application by a party to the dispute.35

[25] A decision of the parties to agree to include an arbitration power in the dispute settling procedure included in an agreement has some significance. This is because, as was stated in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (CFMEU v AIRC): 36

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

[26] Further, the parties can invest the Commission with the power to hear an appeal from the first instance (privately arbitrated) decision. That appeal decision will also be in the nature of a private arbitration. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd, 37 the Full Federal Court held that:

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

[27] It follows from the fact that, if an agreement includes an arbitration power and the Commission is exercising a power of private arbitration, it does not in the settlement of the dispute exercise its public law functions under the FW Act. 38 This is an important consequence because it means that when the Commission exercises power derived from an agreement, judicial relief from the decision via a constitutional read is not available.39

[29] In short, in One Tree I decided that:

a) the relevant enterprise agreement contained an arbitration provision,

b) the relevant enterprise agreement transmitted to One Tree,

c) One Tree voluntarily entered into the transmission of business,

d) “It is plainly wrong for One Tree to seek to characterise the arbitration clause as transferring by operation of law and nothing more (as if One Tree had nothing to do with it). That argument simply ignores the many voluntary acts engaged in by One Tree” 40, and consequently,

e) the submission made by One Tree, that it was not subject to the arbitration power in the MAEA must be rejected.

[30] One Tree appealed to the Federal Court of Australia. On 25 March 2020 41,
McKerracher J, dismissed the application for substantive relief including constitutional writs, an injunction and a declaration. His Honour held that,

89. The question in the present case is whether there was any form of consent or agreement by One Tree. The primary issue is what the effect of s 311 and s 313 of the FW Act have upon One Tree’s acquisition of the business and the employment of the Transferring Employees.

90. In my view, the FW Act achieves a statutorily mandated consent. This is necessary for the protection of employees who are not parties in any sense to the contractual acquisition of a business. …

….

93. The effect of an enterprise agreement is that consent is deemed in certain circumstances, not only for an acquiring employer, but also for employees who did not vote to approve an enterprise agreement by virtue of the fact that they were not employees at the time. These future employees are taken to have consented to the agreement even though the agreement was approved by a historical majority of employers, some or all of whom may no longer be employed. By One Tree’s argument, these future employees would all be able to avoid an arbitration pursuant to a dispute resolution clause if they preferred not to go to arbitration. This is clearly not the intent of the statutory regime. The effect of One Tree’s subjective, personalised consent argument would be to allow all such persons who did not personally vote to approve the EA to disregard it if they so chose. Construction of the statute consistent with that argument should not be accepted.

….

95. In any event, if the matter is viewed in terms of express consent, as One Tree contends, the argument also fails. Consent is a concept to be determined objectively. In this instance, One Tree’s consent was manifested through its actions. …

[31] One Tree appealed to the Full Court of the Federal Court of Australia. On 24 February 2021 42 a majority of the Court (Bromberg and Kerr JJ, Flick J dissenting) dismissed the appeal. The majority rejected the notion of “statutorily mandated consent”43, but, held that “the requisite consensual foundation for a private arbitration is not dependent upon the existence of an inter partes agreement between the disputants.”44 They further held that,

78. There is, on the facts of this case, a basis for the conclusion that One Tree voluntarily submitted to the binding force of the EA …

….

85. Those factual findings sustain the objectively ascertainable conclusion that One Tree made a voluntary election to have the binding force of the EA (including that of cl 77) applied to it. In other words, in circumstances where One Tree could have conducted its business without being legally bound by the obligations imposed upon an employer by the EA, One Tree knowingly chose to structure its business in a manner which would subject it to those obligations. One of those obligations was that it agreed to be bound by the determination of the FWC of a cl 77 dispute.

….

91. One Tree contended that the word “agreed” in s 739(4) must be construed to refer to an inter partes agreement or, in other words, an agreement embodied in a common law contract. There is no imperative to construe “agreed” in that limited way. To the contrary, the provision should be construed to encompass the full breadth of the constitutionally available means by which a private arbitration may be authorised by its disputant parties. That construction is available on the text of the provision and is consistent with the evident purpose of the scheme of the Act dealing with dispute resolution processes required to be included in enterprise agreements, of facilitating rather than mandating the resolution of disputes by arbitration.

[32] On 12 August 2021 the Hight Court of Australia (Keane and Gleeson JJ), held that,

“The appeal foreshadowed by this application for special leave to appeal does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal. Special leave should be refused.”

[33] The present matter can be distinguished from One Tree because it does not concern the application of an enterprise agreement that:

a) was negotiated by a previous employer with the union,

b) transmitted to the new employer, and

c) contained a clause expressly providing for arbitration.

[34] The present dispute relates to an entirely different type of industrial instrument, namely a copied State Award. A copied State Award is a unique creature of statute. It is not the product of an agreement between parties (no matter how that agreement might be founded).

[35] A copied State Award derives from a State Award that arises out of the applicable legislative and industrial processes in the relevant State (in the present case, in New South Wales). The disputes procedure in the Copied State Award has its foundation in the operation of the Industrial Relations Act 1996 (NSW).

[36] So, while the Copied State Award has become a federal instrument, that does not import it into the operation of the FW Act, the NSW legislative/industrial scheme. The limits of the modification to the FW Act are expressly dealt with in the FW Act and the transitional provisions.

[37] It is obvious on its face that the Copied State Award does not expressly provide for arbitration. Clause 18 provides as follows,

“(v) If these procedures are exhausted without the matter being resolved, or if any of the time limits set out in those procedures are not met, either the Association or the Department may seek to have the matter mediated by an agreed third party, or the matter may be referred in accordance with the provisions of the Industrial Relations Act 1996, to the Industrial Relations Commission of New South Wales, for its assistance in resolving the issue.”

(emphasis added)

[38] However, what is clear from the authorities is that the failure to use the word “arbitration” is not always fatal to the Commission exercising arbitral power.

[39] The NSWNMA relied upon the decision in Association of Professional Engineers, Scientists and Managers, Australia, The v WaterNSW. 45 The relevant NSW State Award that became a copied State Award was the Sydney Catchment Authority Consolidated Award 2015-2016. In that matter the Commission held that it did not have jurisdiction to arbitrate the dispute, but for different reasons than those advanced before me.

[40] The NSWNMA also relied upon the decision in Transit Systems West Services Pty Ltd T/A Transit Systems West Services v Australian Rail, Tram and Bus Industry Union, 46 because “the Full Bench upheld a decision by Commissioner Cambridge wherein the FWC asserted its authority to interpret a Copied State Award subject to a dispute.”

[41] However, the dispute clause in the State Transit Authority Bus Operations Enterprise (State) Award 2018 expressly provided for arbitration as follows:

“85.8 If a dispute referred to Unions NSW under 85.7 remains unresolved, following that reference and the giving of assistance by Unions NSW, either State Transit or the relevant Union/s may refer the matter to the NSW Industrial Relations Commission (IRC) for conciliation and, if necessary, arbitration.”

[42] It is also relevant that in Transit Systems, it was the Commissioner’s construction of the substantive clause that was in dispute and that was contested on appeal. The jurisdiction of the Commission was not in issue at first instance (as it is now before me) nor on appeal.

[43] The NSWNMA further relied upon the decision in in CPSU, the Community and Public Sector Union v Cerebral Palsy Alliance - Accommodation Northern Sydney Ltd T/A Cerebral Palsy Alliance. 47

[44] First, in that matter, there was no contest between the parties as to the jurisdiction of the Commission to resolve this dispute by way of arbitration, in accordance with clause 21 of the relevant Copied State Award (namely the Crown Employees Ageing, Disability and Home Care – NSW Department of Family and Community Services (Community Living Award) 2015), as modified by Subdivision E of Part 6-3A of the FW Act, and Schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009).

[45] Secondly, the relevant copied State Award in re Cerebral Palsy Alliance contained a term that provided for the parties agreeing “to be bound by any order or determination by the Industrial Relations Commission in relation to the dispute.” 48 Although the word “arbitration” was not used, arbitral power is clearly to be found in the language of the clause.

[46] What is clear from the decisions referred to above is that copied State Awards are capable of conferring jurisdiction on the Commission to deal with a dispute, including by arbitration. The powers and functions conferred on a State tribunal by operation of the State Award are, by virtue of the FW Act and the transitional provisions, conferred on the Commission by operation of the copied State Award.

[47] However, in the present matter, no language like that used in the,

a) State Transit Authority Bus Operations Enterprise (State) Award 2018; or

b) Crown Employees Ageing, Disability and Home Care – NSW Department of Family and Community Services (Community Living Award) 2015)

is used in clause 18(v) of the Copied State Award.

[48] The language of clause 18(v) is couched in terms of,

a) mediation “by an agreed third party”, or

b) referral to the Fair Work Commission “for its assistance in resolving the issue.”

[49] Nothing in the language of clause 18(v), considered in context, lends itself to a conclusion that the Commission is invested with arbitral power. Nothing in the language of clause 18(v) suggests that the Commission can make an order or determination that binds the parties in dispute.

[50] By applying the well settled principles applicable to the interpretation of industrial instruments, the objective meaning of the words used in clause 18 of the Copied State Award, bearing in mind the context in which they appear and the purpose they are intended to serve, 49 do not invest the Commission with arbitral power. It would stretch those well settled principles to liken “assistance in resolving [an] issue” with “arbitration”.

[51] As Achieve correctly contended, “this is not a case in which it can be said that 'in accordance with the term, the parties have agreed that the Commission may arbitrate (however described) the dispute' (section 739(4)).”

[52] I reject the suggestion that the relevant context (i.e. the purpose of dispute resolution) lends itself to a finding that there is a power of arbitration. The dispute resolution procedures of Modern Awards do not mandate arbitration (without consent). The fact that the dispute resolution clause in the Copied State Award likewise does not mandate arbitration is unremarkable.

[53] It is the case that the foundational State Award provided for referral to the NSW IRC “in accordance with provisions of the Industrial Relations Act 1996.” However, to the extent that such a referral occurred, and the NSW IRC arbitrated a dispute, the determination of the matter would occur under the NSW IRC’s general dispute resolution powers 50, not under the State Award. This is because the State Award did not provide for a separate power of arbitration (however described).

[54] If the NSW IRC did not have power under the operation of the State Award (as opposed to its general legislated powers) to arbitrate the dispute (and it did not), then the Commission does not have the power: “a stream cannot rise higher than its source.” 51 During the jurisdictional hearing I asked whether there were any authorities that I could be taken to where the NSW IRC arbitrated a dispute under the foundational State Award.52 Mr Gibian said he was not aware of any.53

[55] The general industrial dispute resolution scheme, provided for in the Industrial Relations Act 1996, is not incorporated into the Copied State Award. The FW Act and transitional provisions do not reach back that far and do not “call up” the operation of the NSW IRC’s general dispute resolution powers.

[56] Consequently, unlike the factual circumstance in One Tree, Achieve did not, when it acquired a number of facilities from FACS, voluntarily submit to a power of arbitration. This is because there was no effective provision in the Copied State Award that contemplated arbitration.

[57] Because I have decided the matter on the basis that clause 18(v) in the Copied State Award does not invest the Commission with arbitral power I do not need to further consider or decide upon Achieve’s alternate argument. That contention was that, because a State Award finds its source of power in the sovereign power of the State (as represented by the NSW IRC), it cannot be said that any arbitration power contained in a State Award is made by consent and, therefore, it is not something the parties have agreed to (unlike the situation in relation to an enterprise agreement). That argument can be left for another day.

Conclusion

[58] For the reasons set out above, the Commission as presently constituted, was not satisfied that it was properly invested with jurisdiction to hear and determine the substantive dispute. Consequently, NSWNMA application for the Commission to deal with a dispute under the Copied State Award was dismissed.

[59] On 13 October 2021 an order to this effect was issued 54.

COMMISSIONER

Appearances:

Mr Mark Gibian of Senior Counsel for the Applicant.
Mr Shane Prince of Senior Counsel and Ms Tammy Wong of counsel for the Respondent

Hearing details:

Sydney
Tuesday, 31 August 2021.

Printed by authority of the Commonwealth Government Printer

<PR735176>

 1   PR735175.

 2   As recognised in decisions such as CPSU, the Community and Public Sector Union v Cerebral Palsy Alliance – Accommodation Northern Sydney Ltd T/A Cerebral Palsy Alliance[2021] FWC 2654 (Cerebral Palsy Alliance) and Transit Systems West Services Pty Ltd v Australian Rail, Tram and Bus Industry Union[2020] FWCFB 4.

 3   One Tree Community Services Inc v United Workers’ Union (2021) 304 IR 57 at [78]-[91].

 4   Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] and [96]; TWU v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449 at [22].

 5   Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518.

 6   Kucks v CSR Ltd (1996) 66 IR 182 at 184; United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2006) 152 FCR 18 at [51]-[52].

 7   Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 at [78]; Energy Australia Yallourn Pty Ltd v Australian Manufacturing Workers’ Union (2018) 264 FCR 342 at [30].

 8   As explained by Commissioner McKenna in Association of Professional Engineers, Scientists and Managers, Australia v WaterNSW[2016] FWC 5640 at [9].

 9   Industrial Relations Act 1996 (NSW), s 3(g). See discussion in Australian Salaried Medical Officers Federation (NSW) v Ministry of Health [2019] NSWIRComm 1041 at [32]-[42].

 10   Industrial Relations Act 1996 (NSW), s 130(1).

 11   Industrial Relations Act 1996 (NSW), ss 132-136.

 12   Industrial Relations Act 1996 (NSW), s 14(1).

 13   See approach in Principles for Review Of Awards — State Decision 1998 (1998) 85 IR 38 at 49.

 14   ARS [8], [9], [13].

 15   ARS [15], [16].

 16 [2018] NSWIRComm 1006 (Re Nurses).

 17   Re Nurses [18] referring to paragraph 13 and 14 of the NSWMNA’s submissions to the IRC.

 18   Re Nurses [5].

 19   Re Nurses [18] referring to paragraph 11 of the NSWMNA’s submissions to the IRC.

 20 For example, Item 9, Item 10 and Part 6 of Schedule 3A of the Fair Work Regulations 2009 (Cth).

 21   ARS [15], [16].

 22 See s.368(3), s.369 (noting that s.369 requires express consent of parties to arbitration and contemplates that steps taken under s.368 were attempts to “resolve the dispute”), note to s.526, s.595(2), s.727(1)(a)(iii) and s.776 FWA as well as

 23 See s.130(1), s.133 and s.134(1) IR Act.

 24 [2021] FCAFC 21 (One Tree) at [89] per Bromberg and Kerr JJ.

 25   One Tree [85] per Bromberg and Kerr JJ.

 26 ARS [19].

 27   See fn 10 and for examples where it is contemplated that disputes may be resolved whilst employees continue to work.

 28 (2021) 303 IR 404.

 29 S.595 of the FW Act

 30 Section 186(6)(a) FW Act

 31 Section 186(6)(b) FW Act

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

 33 Section 739(4) FW Act

 34 Section 739(3) FW Act

 35 Section 739(6) FW Act

 36 (2001) 203 CLR 645

 37 [2015] FCAFC 123

 38   Linfox Australia Pty Ltd v TWU [2013] FCA 659

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

 40   [2019] FWC 4235, [41]

 41   One Tree Community Services Inc v United Workers Union [2020] FCA 390.

 42   One Tree Community Services Inc v United Workers Union [2021] FCAFC 15.

 43   Ibid, 80.

 44   Ibid, 71.

 45   [2016] FWC 564.

 46   [2020] FWCFB 4.

 47   [2021] FWC 2654

 48   Clause 21(x), Crown Employees Ageing, Disability and Home Care – NSW Department of Family and Community Services (Community Living Award) 2015.

 49   Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] and [96]; TWU v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449 at [22].

 50   Industrial Relations Act 1996 (NSW),see s.130, ss.132-136.

 51   Australian Communist Party v Commonwealth (1951) 83 CLR 1, per Fullagar J at 258.

 52   Transcript PN118.

 53   Transcript PN119.

 54   PR735175.