Australian Rail, Tram and Bus Industry Union v Aurizon Operations Limited
[2024] FWC 3280
•27 NOVEMBER 2024
| [2024] FWC 3280 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Rail, Tram and Bus Industry Union
v
Aurizon Operations Limited
(C2024/6177)
| COMMISSIONER SIMPSON | BRISBANE, 27 NOVEMBER 2024 |
Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure - Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – employer’s jurisdictional objections – application dismissed.
On 4 September 2024, the Australian Rail, Tram and Bus Industry Union (RTBU / the Applicant / the Union) made an application to the Fair Work Commission (the Commission) on behalf of their member Mr Cameron Webb, under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute. Aurizon Operations Limited is the Respondent in the matter (Aurizon / the Respondent).
Upon the Applicant’s request for an urgent conference, the matter was listed for an urgent private conference before me on 5 September 2024. On 5 September 2024, the Applicant’s representative subsequently advised that the urgency of the matter had dissipated and, upon the agreement of both parties, I relisted the matter for a conference on 19 September 2024. Due to emergent circumstances, the conference was subsequently relisted for 27 September 2024.
On 12 September 2024, Aurizon filed a response to the application, asserting the RTBU had failed to follow the dispute resolution procedure prescribed under the relevant enterprise agreement such that the application was not within the Commission’s jurisdiction. At the conference of 27 September 2024, I made directions (later issued in writing) for parties to file material addressing the jurisdictional objections raised by the Respondent, with a view to determining the matter on the papers subject to either party’s objections.
The Respondent filed its submissions on jurisdiction on 14 October 2024, the Union filed its submissions on 29 October 2024, and the Respondent filed its reply on 5 November 2024. No party requested a further hearing and I am satisfied it is appropriate to proceed to determine the dispute on the material now before the Commission.
The Dispute’s Procedural Background at the Commission
The current dispute arises under clauses 12.1 and 12.4 of the Aurizon NSW Coal Operations Enterprise Agreement 2021 (the Agreement) and originates from several previous decisions of the Commission involving the same parties.
On 9 January 2024, Mr Webb lodged an application under s.739 of the Act in relation to a dispute with Aurizon regarding Clause 12.1. Deputy President Cross issued a decision on 5 February 2024 rejecting the Respondent’s assertions that the Applicant’s failure to adhere to steps in the dispute resolution procedure at clause 54 of the Agreement rendered the application outside of the Commission’s jurisdiction.[1] On 5 March 2024, Deputy President Cross issued a decision in the same matter[2] regarding a Form F52 Application for an order for production of documents lodged by the Applicant, seeking production of an investigation report concerning the Applicant. Deputy President Cross ordered the production of the document by the latter of either seven days from his decision or from the date of receipt of a confidentiality undertaking from an officer or employee of the RTBU. That decision and order to produce documents was then quashed by a Full Bench decision on 25 July 2024,[3] and also dismissed Mr Webb’s application for the Commission to deal with the dispute.
Chronology and subsequent dispute
I traverse both parties’ detailed written accounts of events leading to this current application below.
In December 2023, Aurizon received a formal grievance from an employee raising concerns regarding Mr Webb. The RTBU says Mr Webb was accused of inappropriate conduct towards another Aurizon employee at Aurizon’s out-of-hours event. In response to these concerns, upon Mr Webb's return from leave on 8 January 2024 (at 8.15am) Aurizon provided Mr Webb with a letter:
(a) advising that an investigation into allegations concerning his behaviour was being conducted by an external investigator;
(b) outlining three allegations that he was required to respond to at an information gathering meeting with an external investigator on 9 January 2023 at 9.00am;
(c) inviting him to have a support person present during the meeting;
(d) advising that during the investigation he would be stood down on full pay.
On 8 and 9 January 2024, there was an exchange of email correspondence between Mr Webb's representative (Jason Hart, RTBU) and Mr Morgan of Aurizon. Aurizon says an ‘earlier dispute application’ was filed on the morning of 9 January 2024. The RTBU refers to this as a ‘prior dispute’ raised on behalf of Mr Webb in accordance with the Agreement’s Dispute Resolution Procedure, escalated through the required steps. The Union’s application was filed pursuant to s.739 for the Commission to deal with the ‘prior dispute’.
Mr Webb and Mr Hart attended the investigation meeting as scheduled on 9 January 2024. At the meeting, Mr Webb provided a verbal response to the allegations. Following the meeting, Mr Webb provided a written response to the allegations.
The investigation was subsequently finalised on 17 January 2024 and the allegations were substantiated. Aurizon reviewed and accepted the findings of the investigator.
At a meeting with Mr Webb and Mr Hart on 23 January 2024, Mr Webb was advised of the investigation findings and he was invited to provide a written show cause response by 29 January 2024 as to why his employment should not be terminated. A show cause letter was provided to Mr Webb at the meeting. Following the meeting, Mr Hart emailed Mr Morgan on 23 January 2024 requesting a copy of the investigation report, and an extension to provide Mr Webb's show cause response to allow the Mr Webb to 'properly consider the findings of the report' and 'prepare a properly considered response'.
In response to this email correspondence, on 24 January 2024, Mr Morgan advised Mr Hart that
(a)The investigation report would not be provided on the basis it was confidential;
(b)Mr Webb had been provided with sufficient information to respond to the show cause letter, including the findings made by the investigator and the specific sections of Aurizon's policies that his behaviour had breached;
(c)Mr Webb had been afforded procedural fairness but remained open to addressing any outstanding concerns of Mr Webb;
(d)Mr Webb's request for an extension to provide his show cause response was granted.
In response to this email correspondence, on 24 January 2024 Mr Hart requested Mr Morgan provide a response to several questions as a 'way forward' to assist Mr Webb in preparing his show cause response in light of Mr Morgan's position to not disclose the investigation report. Mr Hart also requested a further extension to provide the show cause response until 2 February 2024.
In response to this email correspondence, on 25 January 2024 Mr Morgan provided detailed responses to the questions, and confirmed that Mr Webb's show cause response was required by 30 January 2024.
No response to the show cause letter was provided as the matter proceeded through the FWC. During that time, Mr Webb remained stood down on full pay and subject to his employment obligations to Aurizon.
On 2 February 2024, the Commission heard submissions regarding the Respondent’s jurisdictional objections and subsequently determined in a decision of 5 February 2024 it had jurisdiction to deal with the application because relevant steps of the Dispute Resolution Procedure under clauses 54.1 and 54.2 of the Agreement had been followed.[4]
The RTBU states between 5 – 14 February 2024 Mr Webb sought access to the Investigation Report relied on by Aurizon in substantiating allegations against him. On 14 February 2024, Webb filed and served an application for an order requiring production of documents, including the Investigation Report, to the Commission ahead of a hearing held later that day, in relation to the substantive matters in dispute as part of these proceedings. In the RTBU’s view, in effect, that dispute evolved to become the question of whether the Investigation Report should be provided to Webb in accordance with the procedural fairness requirements of clause 12 of the Agreement. In resolving that application, at first instance Cross DP:
(a)rejected submissions made by Aurizon in respect of the confidentiality provisions of clause 12.2 of the Agreement;
(b)found that the Commission has jurisdiction to hear that matter; and
(c)otherwise dismissed Aurizon’s objections.[5]
Aurizon appealed the decision with eight appeal grounds. At hearing, Aurizon relied upon six grounds and one was successful. On 25 July 2024, a Full Bench of the FWC upheld an appeal made by Aurizon and dismissed Mr Webb's earlier dispute application.[6]
The RTBU notes with relevance to this current dispute that while the Full Bench found Aurizon did not have to provide the Investigation Report to Webb as part of its procedural fairness obligations arising from clause 12 of the Agreement, it emphasises paragraphs [61] to [62] of that Decision, and this particular sentence:
“It would be prudent for Aurizon to take a step back from the current show cause process and re-open the investigation so that the substance of the adverse material is put to Mr Webb for his response before any findings are made by the investigator.” (Emphasis added and footnotes omitted)
Aurizon describes the Full Bench as having made obiter comments in that decision suggesting Aurizon should provide additional information to Mr Webb in respect of the allegations made against him.
The RTBU states in response and giving rise to the current dispute, Aurizon availed themselves of the opportunity to cure the defect in the investigation recognised by the Full Bench, and sought to re-open the investigation against Webb to put to him the adverse material relied upon in substantiating the allegations against him.
The RTBU attests to Aurizon writing to Mr Webb on 6 August 2024 in relation to the Full Bench decision, advising the investigation would be re-opened and the investigator would contact him. An investigator appointed by Aurizon then wrote to Mr Webb reopening his investigation and supplying evidential particulars adverse to him. Aurizon states the investigator sought a response regarding additional adverse information obtained during the investigation. The RTBU contends the letter called for a response to various items of evidence adverse to Webb expressed in summary form, and where it involved witness evidence those witnesses were unnamed but not provided with a pseudonym or designation.
The RTBU responded as Mr Webb’s representative on 13 August 2024. It says it highlighted issues with the way in which the adverse material had been presented and requesting further particulars of evidence required to allow Webb to properly respond. The Union’s response also maintained Webb’s denial of the allegations against him.
Aurizon states having considered that response, the investigation was subsequently finalised on 22 August 2024 and the allegations were substantiated. Aurizon reviewed and accepted the investigator’s findings.
On 29 August 2024, Aurizon informed Mr Webb the investigation had concluded and that allegations against him were substantiated and simultaneously issued a further show cause notice to Mr Webb for his response by 5:00pm on 3 September 2024. The RTBU asserts there was no response or mention of the particulars that it had requested.
On 30 August 2024, Mr Matthews of the RTBU wrote to Mr Mitchell Morgan, Aurizon’s Regional Operations Manager, expressing its view there was a dispute under the Agreement arising by way of a failure to provide particulars sought on 13 August 2024, leading to non-compliance with the procedural fairness provisions in clause 12 of the Agreement.
On 30 August 2024, Mr Morgan responded to the RTBU maintaining not responding to the request for particulars did not raise procedural fairness issues. The RTBU states Aurizon denied any breach and provided reasons for issuing the Show Cause letter instead of responding to the RTBU’s request for particulars.
The RTBU attests it responded to Mr Morgan’s email by providing further information regarding the procedural fairness issues, and escalating the matter to Mr Ed Lawrie, Aurizon’s Principal of Industrial Relations. It wrote separately to Mr Lawrie that day advising a call would shortly follow because of the impending Show Cause deadline. On 2 September 2024, the RTBU conveyed its intention to bring the matter before the Commission if it did not receive a response by noon on 2 September 2024. The RTBU states Aurizon advised later that day the disciplinary process would be delayed whilst it sought representations concerning Mr Webb’s alleged secondary employment. The RTBU also attests to Aurizon stating they were formulating a response, but considered Mr Lawrie the incorrect point of escalation.
Aurizon states it became aware of information that Mr Webb had commenced employment with a competitor while stood down on full pay and wrote to Mr Webb about this on 30 August 2024. Emails were exchanged between Mr Morgan and Mr Matthews on 30 August 2024 and 3 September 2024 regarding the allegation of Mr Webb's secondary employment. Aurizon asserts Mr Matthews did not provide a direct answer on behalf of Mr Webb as to his alleged secondary employment.
The RTBU states, following email exchanges between the parties, Aurizon responded by denying the existence of a dispute, and advised Mr Webb at 4:12pm on 3 September 2024 the disciplinary process had recommenced and Mr Webb was required to show cause by 9:00am the next morning. The RTBU corresponded, contending half a business hour’s notice was insufficient to respond to the show cause. The RTBU states on 4 September 2024 Aurizon advised Mr Webb’s show cause response was instead due at 9:00am on 5 September 2024.
[32] Aurizon states at 9.01am on 4 September 2024, Mr Webb (through Mr Matthews) tendered his resignation.
The RTBU confirms this application was lodged the same day, with the RTBU seeking relief in the form of a finding that the Employer has failed to adhere to the procedures contained in clause 12 of the Agreement. The RTBU contends after the application was filed, Mr Webb tendered his resignation, which Aurizon accepted. Aurizon contends it had advised Mr Webb it would neither take issue with his alternative employment nor progress his show cause process further if he resigned.
The RTBU’s chronology and application
In its Application, the RTBU contended that Aurizon had:
1.failed to adhere to principles of procedural fairness, pursuant to clause 12.1 of the Agreement;
2.failed to make the Applicant ‘fully aware in writing’ of the allegations and subsequent questions that it seeks to rely on as part of the investigation, pursuant to clause 12.1.1;
3.failed to adhere to clause 12.1.2 concerning the provision of sufficient information for the Applicant to make an informed response to the allegations being put to him;
4.failed to provide, in accordance with clause 12.1.4, reasonable time to prepare a response to the allegation by moving to disciplinary action without supplying requested particulars; and
5.breached clause 12.4 by issuing a ‘show cause’ letter in pursuit of a disciplinary outcome despite non-compliance with clause 12.1, 12.1.1, 12.1.2 and 12.1.4.
Employer’s response
On 12 September 2024, Aurizon filed its response to this application in accordance with directions. Aurizon made several arguments to support its view the application should be dismissed. Aurizon’s primary arguments were that, firstly, the application is an abuse of the dispute settlement procedure and the Commission’s procedures, and secondly, that the RTBU had failed to comply with clause 54.1’s prerequisites for lodging the application with the Commission by failing to raise the dispute with relevant senior management as required by the clause.
Aurizon’s alternative submission was it had complied with its obligations in Clause 12 of the Agreement such that I should dismiss the application.
In relation to its contention that the application was an abuse of process, Aurizon submitted that:
Mr Webb’s disputes arise out of investigative and disciplinary processes already resolved to finality by previous determinative proceedings before the Commission;
There was no utility in this dispute proceeding because Mr Webb gave notice resigning from Aurizon concurrent to filing this Application; and
The only relief the RTBU could seek is a form of post-facto declaration, which would not be genuinely directed to resolving any dispute relevant to Mr Webb’s employment and would require exercising judicial power of which the Commission does not have.
In elaborating on its submission that the Application was an abuse of process, Aurizon referred to a Schedule annexed to its submission outlining the dispute’s background. Aurizon noted Mr Webb has previously disputed the investigation process and disciplinary process in a dispute resolved to finality by a Full Bench in prior proceedings.
Upon the conclusion of the prior proceedings, in response to the Full Bench’s guidance, Mr Webb was given an additional opportunity to respond to particular factual matters. Aurizon notes such opportunity was not required by the Agreement nor by any finding or suggestion of the Full Bench. Aurizon contends Mr Webb should not now be permitted to agitate matters arising out of the investigation process in these circumstances, having already had the opportunity and, in Aurizon’s view, the dispute having now been resolved.
Aurizon also contended this dispute is not genuinely directed to resolving a dispute between Aurizon and Mr Webb regarding the disciplinary process and that finalising the disciplinary process was unnecessary given Mr Webb’s employment ended by his own resignation.
Aurizon attested to obtaining information suggesting Mr Webb had worked for one of its competitors while he was stood down on full pay. Aurizon had sought Mr Webb’s response, resulting in emails exchanged between Aurizon and the RTBU between 30 August 2024 and 3 September 2024.
Aurizon advised Mr Webb it would neither take issue with his alternative employment nor would it progress the show cause process further if he resigned.
Aurizon contends it accepted the resignation Mr Webb tendered on 4 September 2024, ending the show cause process, Mr Webb’s employment, and his obligation to respond to the show cause letter issued to him.
On that basis, Aurizon contended there is no continuing dispute between Aurizon and Mr Webb regarding this issue and his employment, and therefore no utility in the Commission dealing further with this dispute as it is not genuinely directed to resolving an extant dispute between the parties.
In submitting the Commission lacked judicial power, Aurizon again emphasised Mr Webb’s resignation and the concluded disciplinary process, and submitted it left no available relief except a form of declaration that the disciplinary process has proceeded in breach of the agreement, and such relief would require exercising judicial power and is therefore impermissible.
In submitting the RTBU failed to follow the dispute resolution procedure, Aurizon asserted the RTBU purported to notify a dispute to Aurizon’s Mr Morgan on 30 August 2024, but failed to take the appropriate second step regarding the dispute of escalating it to Mr Daniel Kadziela, the General Manager of Aurizon NSW Coal – a step accepted in the prior proceedings.
Aurizon advised the RTBU of this issue by email on 30 August 2024 and it submitted the RTBU’s failure thereafter to seek to resolve the matter by discussing it with Mr Kadziela constituted a failure to comply with clause 54.1 of the Agreement, therefore leaving the Commission without jurisdiction to deal with the Application.
In regard to its alternative submission, Aurizon contended it had fully complied with all its obligations under the Agreement, and in any event its process had already been reviewed to the extent permissible in the prior proceedings such that there was neither capacity nor reason to reopen those decisions. Aurizon contended it followed the Full Bench’s guidance and undertook additional steps, neither required by the Agreement nor the Full Bench’s decision, to ensure Mr Webb received natural justice. Aurizon therefore contended the Application does not disclose an arguable case that Aurizon proceeded in breach of the Agreement in any respect.
Respondent’s jurisdictional objections
In Aurizon’s substantive submissions objecting to the application’s jurisdiction, Aurizon continued to submit the Application should be dismissed.
The primary reason submitted for Aurizon’s view the application should be dismissed was the dispute relates wholly to a disciplinary process against Mr Webb, who had resigned from his employment before the disciplinary process concluded, and therefore by definition there was no ongoing dispute between Mr Webb and Aurizon now capable of being resolved pursuant to clause 54 of the Agreement.
Aurizon reserved its reply (having considered the RTBU's submission in response) regarding its position on whether, as a consequence of Yallourn[7] and Primo Foods,[8] the implication of Clause 2.2 of the Agreement and the fact that the RTBU is covered by the Agreement is that the RTBU may notify disputes in its own right.
However, Aurizon contended even if the RTBU does have such a right, it has not notified a dispute which exists as between it and Aurizon in relation to the terms or effect of clause 12 of the Agreement. Clause 12 is straightforward and in Aurizon’s view there has been no dispute or disagreement as to its terms.
The dispute notification before the Commission is a dispute about the application of clause 12 to the particular facts of Mr Webb's disciplinary process, however that dispute is no longer in existence.
Additionally, Aurizon contended:
(a)The RTBU failed to comply with the prerequisites of clause 54.1 of the Agreement as the dispute was not raised with the relevant ‘senior levels of management’ as required by the clause prior to the filing of the Application with the FWC;
(b)The only relief the RTBU seeks (or could seek) in respect of the facts raised by the Application is a form of post-facto declaration, which would require the exercise of judicial power which the FWC does not have;[9]
(c)Given that the objective of the application is to seek an outcome which it is beyond the capacity of the jurisdiction to provide, it is also an abuse of process of the kind referred to by the High Court in Williams v Spautz.[10]
Aurizon contended it was particularly relevant that concurrent with the filing of the application, Mr Webb tendered his resignation to Aurizon (through the RTBU) and so his employment with Aurizon has ceased. Aurizon did not pursue the disciplinary process to finality, and having accepted Mr Webb's resignation it could not do so. Aurizon contended on that basis there is no ongoing disciplinary process in relation to Mr Webb and there is no longer any controversy capable of being resolved by the Commission regarding Mr Webb.
Regarding the nature of a dispute settlement procedure, Aurizon noted the Commission’s dispute resolution function under s.739 of the Act is an arbitral function, the outcome is to resolve disputes prospectively to settles future rights between parties in dispute.
On that basis, Aurizon submitted the Commission has no jurisdiction to make declaratory relief or to make binding findings in relation to existing rights (although it may determine questions of fact and law in pursuance of the arbitral function).5
Its jurisdiction depends on the existence of a dispute which is permitted by and amenable to the relevant source of jurisdiction (in this case the disputes procedure in clause 54 of the Agreement).
Aurizon submitted the notified dispute for this application is one solely between Mr Webb and Aurizon, with no suggestion of a dispute RTBU has given notice of in its own right, and noting the correspondence from the RTBU was on behalf of and in respect of Mr Webb. Aurizon submitted there is now no dispute between Aurizon and Mr Webb, because Mr Webb has resigned and because the disciplinary process has necessarily ceased, and there is no separate dispute between Aurizon and the RTBU because the only dispute which has ever existed is exclusively a dispute between Aurizon and Mr Webb arising out of the peculiar facts of Mr Webb's disciplinary process.
Aurizon anticipated the RTBU may consider referring to Sydney Trains[11] to suggest the Commission can deal with a dispute about the operation of clause 12 of the Agreement notwithstanding that the disciplinary process for Mr Webb had ceased. Aurizon sought, in the event of an appeal, to reserve its right to contend in relation to Sydney Trains’ applicability the decision ‘may have been wrongly decided’, noting the decision granted relief plainly in the nature of a post facto declaration of past rights which appeared to Aurizon to be impermissible. Aurizon considered it unclear whether parties had acquiesced to a determination irrespective of jurisdiction in order for the issue to be resolved, or whether submissions were made on the point. There is no acquiescence in this matter.
Additionally, Aurizon contended Sydney Trains was distinguishable given the disciplinary process in that matter proceeded to finality in the face of an RTBU contention an additional step was still required, whereas Aurizon contended the relevant factual matrix in the current application is incomplete.
Aurizon also asserted the issue in contention in Sydney Trains was an interpretation of the relevant disciplinary clause which was not fact-dependent, and involved the issue of whether a further right of review was available following an initial disciplinary outcome being set aside. Aurizon concluded there was a dispute which genuinely existed between the RTBU and the employer on the issue of interpretation in that matter, whereas in this application, Aurizon contended the dispute was not about interpreting the clause but rather its application to Mr Webb’s peculiar facts. Given its view the dispute had ‘disappeared’, Aurizon argued the Commission has no capacity to substitute the RTBU as an applicant in its own right because it had no interest in the dispute save for representing Mr Webb. Aurizon recommended other authorities as preferable approaches to follow in relation to Mr Webb’s dispute.[12]
In submitting the RTBU failed to follow the dispute resolution procedure, Aurizon referred to clause 54 of the Agreement, which is set out below.
“…
54.1 In the event of a dispute about a matter arising under this Agreement, or in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employee's representative concerned and more senior levels of management as appropriate.
54.2 If a dispute arises under Clause 54.1 and is unable to be resolved at the workplace, and all appropriate steps under the above Clause 54,1 have been taken, a party to the dispute may refer the dispute to the FWC.
…”
Aurizon contended the RTBU purported to notify a dispute to Mr Morgan of Aurizon on 30 August 2024, but failed to take the required second step, as was accepted in the prior proceedings between parties,[13] required escalation to Mr Daniel Kadziela, General Manager of Aurizon NSW Coal. Aurizon attested to advising Mr Matthews of the RTBU of this issue on 30 August 2024 by email, and contended the RTBU’s subsequent failure to seek to resolve the matter by discussing it with Mr Kadziela constituted non-compliance with relevant steps in clause 54.1 of the Agreement such that the Commission had no jurisdiction to deal with this application.
Aurizon contended the RTBU has not clearly articulated the relief sought, and the only relief it could seek is a form of declaration that Aurizon’s disciplinary process involving Mr Webb breached clause 12 of the Agreement, and would additionally require a declaration regarding Aurizon’s compliance in relation to a disciplinary process they never concluded. Aurizon contended this would require exercising judicial power which the Commission did not have and therefore had no power to grant any relief. Additionally, Aurizon argue a Court properly exercising judicial power would not exercise its jurisdiction to declare or opine on the issue because the factual circumstances on which the declaration would be based would be incomplete, and because doing so would give an advisory opinion regarding hypothetical circumstances, which Aurizon argue a Court would never do.
Aurizon contended no issue as it relates to 'an employee' (to whom any obligation under clause 12 of the Agreement can be owed) can be resolved in the abstract absent a particular factual scenario, and that it is entirely speculative as to how any other Aurizon employee may be treated in future disciplinary processes. Aurizon cited [28] to [34] of the ASMOF decision in this regard.
Aurizon argued the Commission should be satisfied that there is no actual dispute in existence and that it was inappropriate for the Commission to deal with the application further.
In relation to its contention the application is an abuse of process, Aurizon argued the dispute is not genuinely directed to resolving an actual dispute between parties to the Agreement, and because the only available form of relief (a declaration as to past rights) is not available in this jurisdiction (referring to Spautz as an example).
Aurizon also argued its event chronology made it apparent Mr Webb has previously disputed the investigation process and disciplinary process, which was resolved, in Aurizon’s view, to finality by a Full Bench of the Commission in the Prior Proceedings. Upon those proceedings concluding, Aurizon gave Mr Webb an additional opportunity to respond to particular factual matters, which Aurizon argued neither the Agreement required nor the Full Bench found or suggested was required.
Aurizon argued the RTBU should not now be permitted to agitate matters arising out of the investigation process in these circumstances. Aurizon noted Mr Webb already had that opportunity, his dispute was determined, and additionally there was no ongoing dispute or disciplinary process regarding Mr Webb's employment given it has ended.
In the absence of any continuing dispute between Aurizon and Mr Webb in respect of this issue, Aurizon argued it would be an abuse of process for the RTBU to seek to pursue a 'dispute' which no longer exists, has no jurisdiction, and for which a resolution has no utility.
The Applicant’s submissions
The RTBU provided written submissions in response to the Respondent’s, and also traversed the previous procedural history of the matter (which I have explored concurrently with Aurizon’s account above).
The RTBU made submissions about the dealing of industrial disputes, contending it is well established that an industrial dispute is not a fixed concept as it progresses towards resolution. Facts, the law, and circumstances of the parties may overtake a dispute after it has been raised. However, that does not diminish or alter the character of the dispute such that it becomes a new or different dispute. The goal is to resolve the fundamental disagreement between the parties as long as it exists as ‘to facilitate the harmonious working relationship of the parties during the operation of the agreement.’[14]
The RTBU also cited DP Saunders’ summation of enterprise agreement disputes’ nature:[15]
“[8] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction. Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.
[9] It is also important to note that the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute. However, the relief sought may cast light on the true nature of the dispute in some cases.
[10] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant in such circumstances will depend on the limitation in s.739(5) of the FW Act and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the Enterprise Agreement to which the dispute relates.”[16]
The RTBU submitted in the present dispute, Mr Webb’s termination has an obvious effect on the utility and type of relief that can be sought pursuant to an application filed under s.739 but it does not dispose of the fundamental dispute about the requirements imposed by clause 12. The RTBU seeks to resolve the proper construction of clause 12, so that the parties to the Agreement have certainty in its application moving forward.
The RTBU rebutted Aurizon’s submission the application ‘is entirely speculative as to how any other Aurizon employee may be treated in future disciplinary processes’ by arguing the parties’ disagreement as to obligations created by clause 12 of the enterprise agreement in operation is itself the dispute. The RTBU argues accepting Aurizon’s argument that no dispute exists would impermissibly narrow the scope to resolve genuine industrial disputes through the dispute settlement procedure. The RTBU also asked rhetorically if a dispute was raised about refusing an annual leave request whether the dispute ought to remain unresolved because, in line with Aurizon’s submission, it was ‘entirely speculative’ as to how Aurizon would treat the request if it was made again the next day. The RTBU noted such disputes are regularly resolved by the Commission by referring to past events.
The RTBU also rebutted the relevance of authorities Aurizon cited.
The RTBU contended the ASMOF authority is distinguished because in that case the Commission found it had no jurisdiction because there was no active or present dispute between the Respondent and individuals covered by the enterprise agreement, whereas currently, clause 54.1 of the Agreement in this matter does not require, in RTBU’s submission, for Aurizon to be in dispute with an employee, only that a dispute has arisen about a matter arising under the Agreement, which is the present dispute between Aurizon and the RTBU.
The RTBU contended the Dampier authority is also distinguished because the disputed obligation persists and continues to exist in this matter, whereas in Dampier, any obligation arising from the disputed direction was subsequently revoked and ceased to exist. RTBU argued there were contextual circumstances present in the current matter, unlike the ‘absence of contextual circumstances’ Deputy President Dobson referred to in Dampier.
In Hicks, the applicant in that matter was an individual who sought to resolve a dispute about duties for a classification in which no one was employed, and therefore there was nothing in dispute. The RTBU contended this is distinguished from present facts where Aurizon has outlined its own position on clause 12’s obligations in opposition to the RTBU’s position.
The RTBU submitted, with reference to the Full Bench’s earlier decision,[17] the parties are bound to accept clause 12 requires Aurizon to put to an affected employee the substance of adverse material during a disciplinary investigation. It submitted the Commission is implored to answer whether this requirement of procedural fairness in clause 12 is met by an incomplete summary of the adverse material. It proposed an arbitration question as follows:
“Do the procedural fairness obligations in clause 12 of the Agreement require Aurizon to provide sufficient particulars to an affected person when making them aware of the substance of adverse material that would include:
1. Information that discloses the number of adverse witnesses and statements? and
2. Information that discloses an adverse witness’s evidence on any contested facts the witness would reasonably be expected to know?”
The RTBU’s position is that “informing the affected person of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than the affected person…” involves a significant level of particularisation. Where adverse material includes a number of witness statements the accused should be able to determine whether those statements came from one or a number of witnesses. Further, where a witness has given evidence about a particular event, the adverse material presented to the accused should be complete, for example by not omitting the time and location of the investigated event.
The substance of adverse material is not merely notification that it exists and that it is adverse. Providing proper particularisation ensures practical fairness, per Gleeson CJ in Lam: “Fairness is not an abstract concept. It is essentially practical.”[18]
The RTBU argued Mr Webb’s factual circumstances affords the FWC the opportunity to resolve the dispute by reference to a practical example and brings a complex concept out of the abstract. The RTBU contended the incomplete nature of adverse material in this case is a practical injustice and presenting witness evidence denied Mr Webb the opportunity to know if there was one or more corroborative witnesses, allowing him to assess the strength of the case against him or offer theories on collaboration, and to know the position of the witness(es) on critical facts, such as the alleged incident’s timing.
With the later example, Mr Webb maintains that he was not at the event at the time the complainant alleges. He advised the investigator that he was picked up well in advance of the time of the alleged incident by a third party (who was never contacted by the investigator) and suggested that his phone records that record his nearest cell phone tower when making a call would show he was not in the area (a line of inquiry the investigator apparently ignored). Alternatively, if the witness(es) did not corroborate the complainant’s recount of events with respect to the time of the incident, the RTBU contended then Mr Webb was denied the opportunity to make submissions as to why that may be so.
The RTBU submitted the Commission should reject Aurizon’s argument it is relevant to procedural fairness in the investigation that the disciplinary process was not concluded. The RTBU noted Aurizon’s submissions before the Full Bench were clear on its view the investigative process and disciplinary process were separate. The RTBU also noted the Full Bench found they were separate processes, with the procedural fairness requirements contained only in clause 12.1, emphasising the following from that decision:
“The investigation “process” required to be followed in accordance with clause 12.1 is one in which the employer “must apply the principles of natural justice and due process”.
…Clause 12.4 provides that “Following the [investigation] procedure in Clause 12.1 employees may be subject to the following disciplinary outcomes”. This sentence reinforces the point that the disciplinary outcome process is different from, and takes place after the conclusion of, the investigation process under clause 12.1.”[19]
The RTBU argued in its submissions the “investitive” process had well and truly concluded by the time the dispute was brought to the Commission.
It also argued the existence of this factual matrix is not a burden to resolving the dispute, but rather provides the relevant contextual circumstances that are required to resolve a dispute of this type. The RTBU noted the Full Bench found where the FWC is posed with an abstract question it may choose to answer the question by reference to specific factual circumstances, even if that did occur in the past, as noted by the Full Bench dismissing an appeal against a decision of DP Dobson in CEPU v Rio Tinto:[20]
“[37] Also self-evident, as we earlier mentioned, is that answering the first question in the abstract would not yield a definitive answer, because an answer is available only when there has been a refusal of an employee’s request for leave by applying the Guidelines… The mere existence or promulgation of the Guidelines will not “offend” the NES and/or clause 36 of the Agreement because there has been no refusal of leave. It is only the application of the Guidelines to an employee’s request resulting in a refusal by the respondent of the leave request, which can have that result. Only Mr Henderson’s circumstances were before the Deputy President and question 1 could thus only be answered by reference to those circumstances. This is what the Deputy President did.
[38] For these reasons, the failure to exercise jurisdiction grounds advanced by the appellant do not disclose appealable error.”
In relation to issues regarding the dispute resolution process, the RTBU noted as in the earlier dispute, Aurizon once again raises a suite of jurisdictional objections relating to the dispute settlement procedure in lieu of resolving the real issues between the parties. Given the overlap between those objections, the RTBU considers it more convenient to deal with the concept of jurisdiction as a single thread, noting the comments of Colvin J:
“The terms of a procedure for resolving disputes should not themselves be construed in a manner that turns them into an instrument for generating disputes as to whether the procedure itself has been followed. Such provisions must be construed having regard to their evident purpose as providing a mechanism by which to encourage discussion and resolution. They should be interpreted 'practically and with an eye to common sense' having regard to the context in which they will be applied so that they can be implemented 'in a clear way on a day-to-day basis at work sites'”.[21]
The RTBU noted Aurizon’s submissions allude to, and the Full Bench of the Federal Court has found,[22] all parties to an enterprise agreement are and must be entitled to bring disputes concerning the construction of that agreement. Relevantly, the Union highlighted it is a party to the Agreement by virtue of s.201(2) of the Act.
The RTBU considered the provisions of clause 54 containing the Agreement’s dispute settlement procedure harmonious with that requirement, noting the first step of the process per clause 54.1 provides parties must attempt to resolve the matter at the workplace by discussions between employee or employees concerned and the relevant supervisor. Based on clause 54.1’s language, the RTBU argued it expressly allows the parties to the Agreement to raise disputes as long as they attempt to resolve the dispute by discussion with the employee(s) concerned and the relevant supervisor. The RTBU argued in the present case it raised the dispute with Mr Morgan at Aurizon on behalf of Mr Webb as the employee concerned. According to the RTBU, it is of no moment that Mr Webb was not present to make representations to his supervisor, as he is entitled to rely on clause 54.4 to appoint the Union in a representative capacity to undertake any obligations on his behalf arising from clause 54.1.
The RTBU noted the subsequent step of the dispute settlement process requires parties endeavour to resolve the dispute in a timely manner ‘by discussion between the employee or employee’s representative concerned and more senior levels of management as appropriate’. The RTBU noted Aurizon disputed this step was followed without, in its view, providing ‘any logical reason for this’, other than to state it was accepted an earlier dispute required escalation to someone else. The RTBU argued all this step requires is ‘escalation to more senior levels of management as appropriate’, words which should be given their ordinary meaning, construed objectively by the employees who voted on the Agreement, and therefore plainly this step anticipates there may be more than one manager to whom a dispute may be escalated. The RTBU considered ‘as appropriate’ a qualifying term for determining an appropriate escalation point and that in the present dispute involving a complex legal issue, the matter was escalated to Mr Ed Lawrie, Aurizon’s inhouse lawyer and ‘Principal [of] Employee Relations’ and also described as a ‘Industrial Relations and Employment Law Specialist’, which the Union argued was an appropriate escalation point on an objective construction of the provision, even if Aurizon’s subjective view was a different manager was more appropriate.
The RTBU then noted the process provides if the process cannot resolve the dispute, a party to the dispute can refer it to the Commission and the Union itself being a party, it had availed itself of the right to so escalate.
Alternatively, it argued if the Union is found not to be a party to the dispute, it was nonetheless entitled to file the application in its own name in a representational capacity, as Mr Webb was entitled pursuant to clause 54.4 to appoint the Union to represent him for any purposes arising under clause 54. With Mr Webb having filed the application before resigning, the RTBU’s view is the jurisdiction to hear this application had crystallised and is unaffected by subsequent events.
In the event this was not established, the RTBU cited RTBU v Sydney Trains and argued it would be appropriate to substitute the union for Mr Webb in case because it is in the interests of all parties to resolve the dispute as soon as practicable, quoting Deputy President Cross:
“Nonetheless, I consider it appropriate to amend the Application to insert the RTBU as the Applicant. Amendment would allow the disputed interpretation of the Agreement to be determined on the merits of the arguments, using Mr Fakhouri as an apposite example, while avoiding technicalities. As is observed below, were the issue not determined, another employee of Sydney Trains may have their employment terminated without review of a “new decision” and in those circumstances be met with an argument that their dispute was not justiciable due to the absence of an employment relationship. That possibility should be avoided.”[23]
Respondent’s reply submissions on jurisdiction
Aurizon filed a response to the Applicant’s submissions on jurisdiction. It considered RTBU had sought to recast the ‘character’ of the dispute as being one about constructing clause 12.1 of the Agreement, but asserted there was no dispute about the clause’s construction and that the obligations are plain on the face of the clause.
Additionally, Aurizon referred to RTBU’s own submissions noting the Commission has already given guidance as to Aurizon’s obligations under clause 12.1 of the Agreement.[24] Albeit in obiter, and subject to applicable jurisdictional limitations, the Full Bench may be taken to have resolved in a practical way the issue of construction which the RTBU now presses, at least so far as it arises in relation to Mr Webb's disciplinary process. Aurizon argued, at that point, there was still a genuine extant dispute about that process, however, that it is no longer the case and therefore the Commission should not (and cannot) take the issue of construction further.
Aurizon argued the Union’s submissions[25] made it clear the 'dispute' is tethered solely to the historical case of Mr Webb. The dispute involving Mr Webb was a factual one, which although it evolved over time revolved around the issue of whether the obligations in clause 12.1 of the Agreement had been complied with by Aurizon.
Aurizon considered the RTBU had correctly characterised the nature of its present application at [36] of the RTBU’s submissions, where it acknowledges that all that remains is an asserted dispute about the proper construction of clause. In the absence of relevant facts, a dispute which is only about the interpretation of a clause, even if there was a genuine disagreement about the effect of the clause, is precisely what the Commission may not deal with. It is Aurizon’s argument the Commission may only decide disputed issues of construction in the course of determining a dispute about the application of the clause to facts, and then only to resolve that dispute prospectively. It pressed that the Commission had no jurisdiction to make a binding determination on the clause’s construction even regarding established facts and where utility for doing so exists.
Aurizon highlighted the disciplinary process, and therefore the facts, are incomplete, there is no ongoing dispute about either the disciplinary process or the application of the clause to the facts, and an order declaring clause 12’s correct interpretation even by reference to the incomplete facts would exercise judicial power and not resolve an actual dispute with prospective effect.
Aurizon also contended there is no dispute between Aurizon and either Mr Webb or the RTBU which exists other than by reference to the application of the clause to Mr Webb's facts, rendering no utility in proceeding further because no actual (as opposed to hypothetical) dispute existed between the parties.
Furthermore, any future dispute involving a disciplinary process would necessarily be resolved having regard to the particular factual circumstances and the application of clause 12 of the Agreement within that factual matrix. Whilst matters of construction of clause 12 of the Agreement may arise in a future dispute, it is, in Aurizon’s view, speculative as to whether they would or what they would be.
Aurizon rebutted the RTBU's reliance on the decision in CEPU v Rio Tinto. The questions in the primary decision were answered by reference to the particular circumstances of an extant dispute about a specific refusal of an application for annual leave by the employer for a period of leave which was yet to occur.[26] Therefore there was a specific dispute which was capable of being resolved by the Commission, which Aurizon considers is plainly very different to the present scenario where no ongoing dispute exists in relation to Mr Webb.
More broadly on the Union’s jurisdiction, Aurizon argued the RTBU is not a party principal to the dispute, and only Mr Webb and Aurizon were. Aurizon noted the RTBU had not brought the dispute on its own behalf, but had been appointed as representatives for Mr Webb per clause 54.4 of the Agreement to bring the dispute on his behalf in respect of his disciplinary process, which along with any dispute about its progression had come to an end following his resignation. Aurizon therefore submitted there is no justiciable controversy involving Mr Webb and there can be no utility in the Union being substituted as a party to the dispute.
Aurizon also argued resolving the matter does not require determining RTBU’s status under the Agreement and for the purposes of the dispute resolution procedure, however it reserved its position regarding:
Whether the RTBU is to be regarded as a 'party' to the Agreement in circumstances where its status is as a union covered by the Agreement but it is not otherwise named or identified as a party;
Whether a dispute resolution clause in an enterprise agreement is required to contemplate the resolution of disputes between a union who is 'party' to the Agreement;
If the answer to the first two questions is 'yes' whether in any event on a proper construction of the dispute resolution clause in the Agreement the RTBU has a right to notify disputes in its own right.[27]
Aurizon sought the right to make further submissions in the event the Commission found it necessary to examine and determine the issues above.
In relation to the alleged failure to comply with the dispute resolution procedure, Aurizon contended Mr Kadziela had been the appropriate escalation point for the earlier dispute involving Mr Webb and Aurizon, however, the wording ‘more senior levels of management as appropriate’ within the requisite second step contemplated escalating to a representative of ‘management’ such that, in Aurizon’s view, for the clause to make sense it must mean a ‘manager’ who has authority to resolve a dispute between the employee and the company. Aurizon rejected RTBU’s suggestion it was entitled to pick a person of their choosing to escalate any matter based on their characterisation of a dispute. Aurizon noted the provision’s inherent flexibility, but argued the person still has to meet the description ‘more senior level of management’, which in its view Mr Lawrie did not meet, there having been no evidence Mr Lawrie held a ‘management’ role. Aurizon contended Mr Lawrie was not more senior than Mr Morgan (the ‘relevant supervisor’ to whom the RTBU purported to notify the dispute). Aurizon noted the RTBU does not suggest that the dispute could not have been escalated to Mr Kadziela or that they tried to escalate the issue to him and could not reach him. They also observed there was also no attempt by the RTBU to raise the matter with Mr Kadziela after Mr Morgan told Mr Matthews that Aurizon did not consider Mr Lawrie to be the appropriate escalation point. Aurizon therefore maintained its submission that the second escalation stage of the dispute resolution procedure was not met.
The Agreement
The relevant provisions of the Agreement are reproduced below.
Clause 12.1 in the Agreement provides the process for disciplinary matters, stating as follows:
“12 Disciplinary Matters
12.1 Process: Any internal investigation in relation to a matter or incident by the Company that may lead to disciplinary action being taken against an employee must apply the principles of natural justice and due process, including:
12.1.1The employee being made fully aware in writing of the allegations that are the subject of investigation;
12.1.2 The employee being provided with sufficient information to enable the provision of an informed response;
12.1.3The employee being informed of their entitlement to have a Union representative present and / or a witness / support person at any meetings/interviews, if so requested;
12.1.4 The employee being given reasonable time to prepare a response to the allegations that are the subject of the investigation;
12.1.5Records of conversation and RU OK conversations are an informal counselling tool that do not form a part of the disciplinary process. This clause does not limit the Company’s ability to use these informal counselling tools which may lead to the commencement of a formal discipline process.”
Clause 12.4 in the Agreement provides for Disciplinary Outcomes, as follows:
“12.4 Disciplinary Outcomes
12.4.1Following the procedure in Clause 12.1 employees may be subject to the following discipline outcomes:
(i)Verbal warning with a file note entered on the employee’s personnel file; or
(ii)Written warning or reprimand; or
(iii)Temporary reduction in position, classification level and pay (for a period of up to twelve (12) months). When this option is implemented, the employee will be required to undertake work activities in accordance with the classification level to which they have been regressed; or
(iv)Suspension from duty without pay, or
(v)Dismissal, with or without notice as applicable.
12.4.2In assessing what disciplinary outcome an employee may be subject to, the Company will:
(i)Assess and place appropriate weight to relevant matters only; and
(ii)Give the employee a reasonable opportunity to provide reasons to the Company as to what the appropriate disciplinary outcome should be, taking into account their employment history, including years of service, performance, discipline and their plans for improving their performance / conduct.
(iii)Where the Company has elected to suspend the employee from duty or dismiss the employee with or without notice, as a disciplinary outcome, the Company will provide the employee with written information as to why a verbal or written warning, reprimand, or temporary reduction in position is not an appropriate outcome and allow the employee the opportunity to respond.
12.4.3Employees who wish to dispute the outcome of a disciplinary procedure, except where the discipline involves dismissal, must follow the procedure set down in Clause 54 of this Agreement.”
Clause 54 provides for the dispute settling procedure as follows:
“54 Dispute Settling Procedure
54.1 In the event of a dispute about a matter arising under this Agreement, or in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussion between the employee or employee’s representative concerned and more senior levels of management as appropriate.
54.2 If a dispute arises under Clause 54.1 and is unable to be resolved at the workplace, and all appropriate steps under the above Clause 54.1 have been taken, a party to the dispute may refer the dispute to the FWC.
54.3 Where the dispute remains unresolved, the FWC may exercise any method of dispute resolution permitted by the Act that it considers appropriate to resolve the dispute.
54.4 The Company or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause.
54.5 Subject to Clause 54.6, while the above procedures are being followed, all work shall continue as normal prior to the dispute occurring.
54.6 Normal operations will not continue where a genuine and serious safety concern makes it unsafe to continue normal operations and is the issue in dispute.
54.7 The ultimate terms of the settlement of the dispute shall not be affected in any way, nor shall the rights of any person involved in the dispute be affected or prejudiced by the fact that normal work has continued without interruption.”
Conclusion
As Mr Webb resigned from his employment the dispute between Aurizon and Mr Webb regarding his conduct and his employment was resolved. I agree with Aurizon that therefore there is no utility in the Commission dealing further with this dispute as there is no ongoing dispute between Mr Webb and Aurizon and this dispute application is not genuinely directed to resolving an extant dispute that was said to exist when the application was filed.
The RTBU has relied in part on its submission that as it is covered by the Agreement it may notify disputes in its own right. The RTBU did not notify a dispute which exists as between it and Aurizon in relation to the terms or effect of clause 12 of the Agreement.
The character of this dispute, even considering that a dispute may evolve during the course of its life, was a dispute about the application of clause 12 to the particular facts of Mr Webb's disciplinary process. That dispute no longer exists. There are no longer facts to grapple with to resolve the dispute prospectively. The RTBU now seeks to alter the nature of the dispute such that it is a different dispute.
Based on the conclusion above there is no need to deal with the other jurisdictional argument put by Aurizon concerning the alleged failure to follow the steps in the dispute settlement procedure.
For the reasons set out above the dispute application is dismissed. An order to this effect will be issued separately and concurrently with this decision.
COMMISSIONER
Hearing details:
Determined on the papers.
Final written submissions:
Applicant submissions: 29 October 2024; Respondent submissions: 5 November 2024.
[1] MrCameron Webb v Aurizon Operations Limited (‘Webb v Aurizon’) [2024] FWC 296.
[2] Mr Cameron Webb v Aurizon Operations Limited, Aurizon Operations Limited (No. 2)[2024] FWC 513.
[3] Aurizon Operations Limited v Cameron Webb [2024] FWCFB 318 (‘Aurizon v Webb’).
[4] Webb v Aurizon (n 1) [56].
[5] Webb v Aurizon (n 1) [54].
[6] Aurizon v Webb (n 3).
[7] Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC
146 (‘Yallourn’).
[8] Australasian Meat Industry Employees Union v Primo Foods Pty Ltd [2023] FWC 570 (‘Primo Foods’).
[9] Primo Foods (n 9) [89], citing Construction, Forestry, Maritime, Mining and Energy Union v Laing O’Rourke Australia Construction Pty Ltd [2017] FWC 4467 and CPSU v Tenix Solutions Pty Ltd PR940630 [2003] AIRC 1435.
[10] Williams v Spautz (1992) 174 CLR 509.
[11] Australian Rail, Tram and Bus Industry Union (139V) v Sydney Trains [2024] FWC 533 (‘Sydney Trains’).
[12] Australian Salaried Medical Officers Federation v The Royal Children's Hospital T/A The Royal Children's Hospital [2023] FWC 639 (‘ASMOF’); Mining and Energy Union v Dampier Coal (QLD) Pty Ltd T/A Stanmore Resources & Stanmore SMC Pty Ltd [2024] FWC 178 (‘Dampier’); Anthony GilbertHicks v Woolworths Group Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Supermarkets [2024] FWC 1425.
[13] Webb v Aurizon (n 1); Aurizon v Webb (n 3).
[14] Shop, Distributive and Allied Employees Association v Big W Discount Department Stores PR924554 [2004] AIRC 1376 [23].
[15] Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2016] FWC 2959.
[16] Ibid [8] – [10].
[17] Aurizon v Webb (n 3) [61].
[18] Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 [14].
[19] Aurizon v Webb (n 3) [56] – [58].
[20] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Rio Tinto Aluminium Limited T/A Rio Tinto [2023] FWCFB 220 [37] – [38].
[21] Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694 [86].
[22] Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries
Union [2018] 264 FCR 342, from [61].
[23] Sydney Trains (n 12) [39].
[24] RTBU, ‘2024.10.29 – RTBU Submissions on Jurisdiction’, Submission in RTBU v Aurizon Operations Ltd, C2024/6177, 29 October 2024, [43].
[25] Ibid [47] to [48].
[26] Aurizon stated CEPU did not press the dispute relating to earlier refusal of annual leave for a period which had passed, referring to Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Rio Tinto Aluminium Limited T/A Rio Tinto [2023] FWCFB 220 [18].
[27] With reference to Australian Federation of Air Pilots v PHI (International) Australia Pty Ltd T/A Hnz Australia Pty Ltd [2024] FWC 1007 per O’Keefe DP.
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