Australian Workers' Union, The v Bekaert Wire Ropes Pty Ltd T/A BBRG Australia

[2018] FWC 6369

[2018] FWC 6369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Workers’ Union, The
v
Bekaert Wire Ropes Pty Ltd T/A BBRG Australia
(C2018/4934)

COMMISSIONER SAUNDERS NEWCASTLE, 15 OCTOBER 2018

Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement - jurisdiction.

Introduction

[1] On 6 September 2018, the Australian Workers’ Union (AWU) made an application to the Fair Work Commission (Commission) for it to deal with a dispute it has with Bekaert Wire Ropes Pty Ltd T/A BBRG Australia (BBRG) under section 739 of the Fair Work Act 2009 (Cth) (Act) (Application). The dispute concerns the employment of Mr Geoff Baker.

[2] The parties (and Mr Baker) participated in conciliation of the dispute before me on 13 September 2018. During this conciliation, BBRG raised a jurisdictional objection to the Application on the basis that the dispute does not fall within the scope of disputes which may be dealt with in accordance with the dispute resolution procedure in the BBRG Enterprise Agreement 2016 (Agreement).

[3] On 13 September 2018, directions were emailed to AWU and BBRG directing them to file and serve any Agreed Statement of Facts, submissions, witness statements and documents, following which I would, absent any request for a hearing, decide the jurisdictional question in chambers ‘on the papers’.

[4] BBRG filed and served submissions and a Statement of Agreed Facts on 20 September 2018 and reply submissions on 5 October 2018. The AWU filed and served submissions on 28 September 2018. I have had regard to the parties’ Agreed Statement of Facts and submissions, together with the Application (including the documents annexed thereto), all documents provided to me during the conciliation, the email sent from Mr Alistair Sage, Industrial Officer of the AWU, to my Associate on 8 October 2018 and the email sent from Mr Mark Adams, solicitor for BBRG, to my Associate on 11 October 2018 in deciding the jurisdictional questions ‘on the papers’.

Agreed facts

[5] The Agreed Statement of Facts record the following agreed facts:

(a) On 6 December 2017, Mr Baker gave BBRG notification of his retirement date by way of letter, with his last day of employment to be Friday, 30 November 2018. That letter states:

“Marty Francis/Steve Hennessey

BBRG Australia

Notification of Retirement

I write to advise of my intention to retire from my full time role with BBRG Australia.

My last day of employment will be Friday 30 November 2018.

As part of my transition to retirement, as per the EBA, I would request the business look to move me to day work as soon as possible.”

(b) On 9 April 2018, Mr Baker gave BBRG a request in writing seeking to extend his retirement date to 29 March 2021. That letter states:

“Marty,

I wish to apply for an extension on my retirement date from 30 November 2018 to my pension age of 66yrs on 29-Mar-2021.”

[6] The AWU and Mr Baker contend that BBRG agreed to extend his retirement date from 30 November 2018 to 29 March 2021. BBRG denies that any such agreement was made.

What is the scope of disputes which may be dealt with under the dispute resolution clause in the Agreement?

[7] Clause 8 of the Agreement provides as follows:

“8. Dispute Settlement Procedure

8.1 Objective

The objective of this procedure is to promote the resolution of disputes by measures based on consultation, co-operation and discussion and to avoid interruption to the performance of work and the consequential loss of production and wages.

8.2 Resolution and Escalation

The parties acknowledge that disputes are best resolved as close to the source of the issue as possible. As such the parties agree that matters will only be escalated (including to more senior company officers and where nominated, employee representatives) after genuine attempts have been made to resolve them locally, and these attempts have been unsuccessful.

a) A party to the dispute may, at any time, appoint another person, organisation or association to accompany or represent them in relation to the dispute.

b) In the event of a dispute in relation to a matter arising under this Agreement or in relation to the National Employment Standards, in the first instance the parties will genuinely attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor and the pre-dispute position will be maintained during this period.

c) If such discussions do not resolve the dispute then discussions between the employee/s, and their union representative/representatives, and more senior levels of management will be held to resolve the dispute.

These discussions will also explore whether the pre-dispute position will be maintained whilst the dispute continues to be resolved. Where agreement on maintaining the pre-dispute position cannot be reached and it is found that work can continue safely, employees must not refuse a reasonable request to continue work. If it is found, that work cannot continue safely, the pre-dispute position will be maintained.

d) If a dispute in relation to a matter arising under this Agreement or the National Employment Standards is unable to be resolved at the workplace, and all agreed steps (as per 8.2(b) & 8.2(c)) for resolving it have been taken, the dispute may be referred by either party to Fair Work Commission (the Tribunal) for resolution by conciliation and, where the matter in dispute remains unresolved by arbitration. In any arbitration the Tribunal may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.

e) Fair Work Australia may exercise conciliation and arbitration powers in relation to unresolved issues about work value claims.

f) Any decision of the Tribunal will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench.

g) Any outcome determined by the Tribunal cannot be inconsistent with the National Code of Practice for the Construction Industry and the Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry, or inconsistent with legislative obligations.”

[8] Clause 8 in the Agreement is plainly intended to have operation in a wide range of circumstances, but its reach is not unlimited. It prescribes procedures designed to resolve “a dispute in relation to a matter arising under” the Agreement or in relation to the NES. Not all disputes which might conceivably occur at, or in connection with, the workplace will be subject to the dispute resolution procedure in the Agreement. The operation of clause 8 will only be attracted if the dispute can be linked in the requisite way to “a matter arising under” the Agreement or in relation to the NES.

[9] The expression “in relation to” in clause 8 is of wide and general import. 1 The use of the word “matter” in clause 8 is of variable import.2 Its meaning in a particular context depends upon that context.3 In the context of clause 8, the “matter” is one “arising under” the Agreement. To arise under the Agreement, it is not necessary that the matter involve the interpretation of the Agreement.4 All that is necessary is that the matter will involve the Commission making a decision on a claim which is made by one of the parties to the dispute which is based on the Agreement.5

What is the proper characterisation of the dispute between the AWU and BBRG?

[10] Section 1.4 of the Application completed by the AWU states as follows:

“What clause of the industrial instrument or other written agreement does the dispute relate to?

Clause 2 (Employment Relationship), in particular paragraph 2.1.3”

[11] Clause 2.1.3 of the Agreement provides:

“2.1.3 Employees’ notice requirements

Employment shall be terminated by giving notice at any time during the week, or by the payment or forfeiture of wages, as the case may be. Employees need to provide a week’s notice of intention to terminate their contract of employment.”

[12] The AWU describes the dispute in the following way in section 2.1 of the Application:

“1. This dispute relates to the employment conditions and retirement date of Geoff Baker. Mr Baker, a member of the applicant, has been an employee of the respondent for over 24 years.

2. On 6 December 2017, Mr Baker initially provided the respondent with a retirement date of 30 November 2018 (the original retirement date). Subsequently, however, on 9 April 2018, Mr Baker gave the respondent a letter seeking to vary his retirement date to 29 March 2021 (the new retirement date).

3. The respondent’s officers verbally agreed to the new retirement date following receipt of the letter.

4. However, in August 2018, the respondent indicated that Mr Baker would need to transition from the rotating shiftwork roster to the 1-shift roster (afternoon shift only). He is currently on a 2-shift roster. It is the custom and practice at the workplace that employees who are transitioning to retirement are placed on the 1-shift roster.

5. As Mr Baker was of the understanding that his retirement date had (by agreement) moved back to 29 March 2021, he and the AWU opposed the respondent’s plan for him to move to the 1-shift roster.

6. Following a number of meetings and an exchange of correspondence with the AWU, the respondent has asserted that Mr Baker’s retirement date is still 30 November 2018 and the new retirement date is not recognised/accepted.

7. Mr Baker is entitled to remain on the standard 3-shift roster and have his new agreed retirement date recognised by the respondent.”

[13] The AWU seeks the following relief in section 3.1 of the Application:

“1. In the first instance – conciliation of the dispute.

2. If conciliation is unsuccessful – arbitration of the dispute and findings that

Mr Baker’s retirement date is 29 March 2021 and that he is entitled to remain on the 3-shift roster.

3. The applicant will provide the precise relief sought at arbitration in accordance with the Commission’s directions should the matter proceed to that stage.”

[14] The AWU annexed to the Application the following letter sent from Mr Paul Delaney, Senior Vice-President of the AWU, to Mr Francis dated 21 August 2018 (21 August Letter):

“Dispute – Employment of Geoff Baker

1. I refer to recent discussions between Bekaert Wire Ropes Pty Ltd T/A BBRG Australia (the Company) and the Australian Workers’ Union (the AWU) about the above matter and the Company’s unilateral decision of 10 August 2018 to alter Geoff Baker’s work arrangements.

2. The AWU considers that we are now in dispute with the Company over matters arising under the BBRG Enterprise Agreement 2016 (the Agreement).

3. The dispute relates to matters arising under clause 2 (Employment Relationship), including the right of employees to resign pursuant to sub-clause 2.1.3.

4. Pursuant to the dispute settlement procedure in clause 8 of the Agreement, we seek to resolve the dispute at the workplace level via discussions with management if at all possible.

Background

5. Mr Baker has been employed by the Company for over 24 years.

6. On 6 December 2017, Mr Baker handed a resignation letter to the Company with a resignation date of 30 November 2018, which was accepted by the Company.

7. In an email dated 6 December 2017, the Company confirmed its request that Mr Baker stay on the 2-shift roster (day and afternoon) rather than transition to the 1-shift roster (day work only).

8. This request differed from the custom and practice of retiring workers moving from the rotating shiftwork roster to the 1-shift roster.

9. Mr Baker agreed to the Company’s request.

10. On 9 April 2018, Mr Baker gave a letter to the company seeking to change his resignation date to 29 March 2021.

11. You and Anne Maree Willis (formerly the Company’s HR officer) verbally accepted Mr Baker’s variation of his resignation date.

12. Following the acceptance of the new resignation date by the Company, Mr Baker was returned to the rotating shiftwork roster (now a 3-shift roster – day/afternoon/dog watch), consistent with the custom and practice at the workplace.

13. On 2 August 2018, Mr Baker and Darren Newell, AWU Delegate, met with the Company to discuss an apparent change in the Company’s position with respect to Mr Baker’s employment and duties.

14. On 6 August 2018, Mr Baker and Mr Newell again met with the Company to discuss the Company’s plans for Mr Baker.

15. On 10 August 2018, Mr Baker, Mr Newell and I met with the Company for a third time to discuss Mr Baker’s circumstances and confirm our understanding that his retirement date had moved, by agreement, to 29 March 2021.

16. At that third meeting, the Company advised that due to a new hire, Mr Baker will more than likely need to exit the business in November 2018.

17. After the third meeting, but following my departure from the site, the Company approached Mr Baker (with Mr Newell) again and formally advised him that he had 48 hours’ notice of a change of roster from the 3-shift roster to the 1-shift roster.

AWU Position

18. Through the conduct of its officers, you and Ms Willis, the Company has agreed to Mr Baker’s revised 2021 retirement date and cannot withdraw that agreement with Mr Baker’s consent (which has not been provided).

19. The Company has acted unreasonably in transferring Mr Baker to the 1-shift roster in circumstances where his transition to retirement is not taking place until 2021.

Resolution

20. The AWU requests that the Company do the following by 5:00pm Wednesday 29 August 2018, failing which we reserve the right to notify this dispute to the Fair Work Commission:

a. confirm that Mr Baker’s resignation date is 29 March 2021; and

b. return Mr Baker to the 3-shift rotation he was on prior to the Company’s decision of 10 August 2018 to place him on the 1-shift afternoon roster.”

[15] The AWU subsequently clarified that the references to a “1-shift” roster in the 21 August Letter were erroneous and should have been references to a “2-shift” roster.

[16] The AWU submits that the following two questions arise for determination in the dispute:

“6. Notice of Termination

i. Does the second resignation letter, 6 in conjunction with the conduct of the respondent, constitute valid notice of termination within the meaning of paragraph 2.1.3 of the Agreement?

Change of Roster

ii. Was the respondent permitted to alter Mr Baker’s rostering arrangements pursuant to a provision of the Agreement or otherwise?”

[17] I conducted a conference, by telephone, at 10am on 12 October 2018, for the purpose of clarifying the issues in dispute between the parties. In that conference, the parties agreed that Mr Baker would, with effect from 28 October 2018, move from a two shift roster to a three shift roster for the foreseeable future. BBRG made clear in the conference that its agreement to accede to Mr Baker’s request to move him from a two shift roster to a three shift roster would have no impact on its position that there was no agreement made to change Mr Baker’s retirement date from 30 November 2018 to 29 March 2021. As a result of the resolution of this issue, the AWU and Mr Baker agree that:

• there is no longer any rostering dispute concerning Mr Baker; and

• the only issue in dispute between the parties (and Mr Baker) is whether an agreement was made to change Mr Baker’s retirement date from 30 November 2018 to 29 March 2021.

[18] The AWU and Mr Baker have framed the question for resolution by asking whether, in light of the events which they say have happened, “valid notice of termination within the meaning of paragraph 2.1.3 of the Agreement” has been given. 7 I do not accept that is the proper characterisation of the dispute. There is no doubt that Mr Baker’s letter dated 6 December 2017 constituted valid notice of termination within the meaning of clause 2.1.3 of the Agreement. Further, if an agreement was made in or about April 2018 to change Mr Baker’s retirement date from 30 November 2018 to 29 March 2021, then there is no doubt that the requirements of clause 2.1.3 of the Agreement would still be met. Having reviewed the entire factual background,8 I am satisfied that the real issue between the parties is whether an agreement was made to change Mr Baker’s retirement date from 30 November 2018 to 29 March 2021. That is the proper characterisation of the dispute the subject of the Application.

Does the dispute, properly characterised, fall within the scope of the dispute resolution clause in the Agreement?

[19] There is no suggestion in this case that the dispute between AWU and BBRG is in any way concerned with the National Employment Standards. The question is whether the dispute is one in relation to a matter arising under the Agreement.

[20] The AWU contends that the dispute falls within the scope of clause 8 in the Agreement because the date of Mr Baker’s retirement (a) is subject to the rules found in clause 2.1.3 of the Agreement and, as such, is determined in part by reference to the terms and conditions of the Agreement and (b) governs his eligibility for the special benefits provided to employees transitioning to retirement under clause 10.6 of the Agreement. 9

[21] BBRG submits that there is no connection between the dispute and clause 2.1.3, clause 10.6 or any other provision of the Agreement. It denies that it agreed to extend Mr Baker’s resignation date from 30 November 2018 to 29 March 2021 and submits that the dispute involves the application of common law principles relating to contracts in general and the contract of employment in particular. 10

[22] As I have already found at paragraph [18] above, whether it is accepted that Mr Baker’s resignation date is 30 November 2018 or 29 March 2021, the requisite notice was given by Mr Baker to BBRG under clause 2.1.3 of the Agreement. Therefore, it is not necessary for me to make a decision based on that clause. Similarly, whether it is accepted that Mr Baker’s resignation date is 30 November 2018 or 29 March 2021, it is not necessary for me to make a decision based on clause 10.6 of the Agreement. Contrary to the AWU’s submission, Mr Baker’s eligibility to access the transition arrangements in clause 10.6 of the Agreement can be ascertained without establishing his retirement date. Although such transition arrangements do not “normally exceed a period of 12 months”, it is clear from clause 10.6 that transition arrangements can exceed a period of 12 months, subject to “the capacity of the business to reasonably accommodate the needs of the employee”. As Mr Baker has nominated his retirement to BBRG in advance, he is eligible to access the transition arrangements in clause 10.6 of the Agreement. In any event, at present there is no dispute concerning Mr Baker’s access to any transition arrangements.

[23] Resolution of the dispute as to whether an agreement was made to change Mr Baker’s retirement date from 30 November 2018 to 29 March 2021 would not involve making a decision based on the Agreement, nor would it involve interpreting any provision in the Agreement. Resolution of the dispute would require the finding of facts necessary to make a determination as to whether Mr Baker and BBRG entered into a binding agreement to vary Mr Baker’s retirement date from 30 November 2018 to 29 March 2021. Common law principles concerning variation of contracts would govern such a dispute. Viewed in that way, it is apparent that the dispute is one-step removed from the Agreement. 11 It follows that there is no matter arising under the Agreement, and thus, there is no dispute in relation to a matter arising under the Agreement.

Conclusion

[24] For the reasons set out above, I find that the dispute the subject of the Application is not a dispute in relation to a matter arising under the Agreement or in relation to the NES. It follows that the Commission does not have jurisdiction to deal with the dispute. Therefore, I dismiss the Application.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR701312>

 1   Fountain v Alexander (1982) 150 CLR 615, 629

 2   Sensis Pty Ltd v Members of the Full Bench of the Industrial Relations Commission [2005] FCAFC 74 at [65]

 3   Ibid

 4   LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581, applying R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, 154

 5   Felton v Mulligan (1971) 124 CLR 367, 382

 6   The so-called second resignation letter is the letter from Mr Baker to BBRG dated 9 April 2018, requesting an extension to his retirement date. See paragraph [5(b)] above.

 7   Subparagraph 6(i) of paragraph [15] above.

 8   TWU v Mayne Nickless Ltd [1998] 1022 FCA per Olney, Drummond and Moore JJ.

 9   Applicant’s Outline of Submissions at [23]

 10   Respondent’s Outline of Submissions at [4.17]

 11   See, by analogy, United Firefighters’ Union v Metropolitan Fire and Emergency Services Board  PR973884 at [26]-[29]