DECISION

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

Australian Workers' Union, The
v
MC Labour Services Pty Ltd
(C2017/3200)

COMMISSIONER MCKINNON

MELBOURNE, 3 AUGUST 2017

Alleged dispute over payment of entitlements – jurisdiction – whether disputes procedure followed .

[1] The Australian Workers Union (AWU) has applied under section 739 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with an alleged dispute about payment of overtime under the MC Labour Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Labour Hire Industry Enterprise Agreement 2016-2018 (the Agreement).

[2] The AWU’s application seeks primarily to deal with alleged non-payment of overtime for employees who do not get rostered days off under the Agreement. It says that before it can seek to enforce these entitlements in the Federal Court, it must first seek a view from the Commission.

[3] MC Labour Services Pty Ltd (MC Labour) objects to the application. It says that the AWU was not a bargaining representative for the Agreement, is not covered by the Agreement and there is no evidence the AWU has been appointed to represent employees in a dispute under clause 10 of the Agreement.

[4] MC Labour also says that the dispute resolution procedure at clause 10 of the Agreement has not been followed because no attempt has been made to settle the alleged dispute at the workplace level. To the extent that the Commission can express a view about Agreement entitlements, it cannot do so until the appropriate steps in clause 10 of the Agreement have been followed.

[5] The parties agreed that MC Labour’s jurisdictional objection should be determined on the papers. This decision deals with the objection, and specifically, whether clause 10 of the Agreement requires or allows the Commission to deal with the dispute.

Relevant law

[6] Section 595 of the Act empowers the Commission to deal with disputes if it is expressly authorised to do so under or in accordance with the Act. The Commission can deal with disputes in a number of ways, including by mediation or conciliation, making a recommendation or expressing an opinion. The Commission can only arbitrate a dispute with the express agreement of the parties to the dispute. 1

[7] Section 739 of the Act empowers the Commission to deal with certain disputes under an enterprise agreement procedure for dealing with disputes.

[8] The Agreement contains a procedure for dealing with disputes at clause 10:

“10 Disputes Settlement Procedure

10.1 A major objective of this Agreement is to eliminate lost time and/or production arising out of disputes or grievances. Disputes over any work related or industrial matter or any matters arising out of the operation of the Agreement or incidental to the operation of the Agreement should be dealt with as close to its source as possible. Disputes over matters arising from this Agreement (or any other dispute related to the employment relationship or the NES,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 4075
Decision Date: 3 AUGUST 2017

CaseChat Overview and Summary

The Australian Workers' Union brought proceedings against MC Labour Services Pty Ltd in the Fair Work Commission, contesting non-payment of certain entitlements. The Union claimed that the employer failed to pay allowances for shift work and overtime, among other things. The Commission was required to determine whether it had jurisdiction to hear the matter and whether the appropriate dispute resolution procedures had been followed.

The primary legal issue before the Commission was whether it had jurisdiction to hear the dispute. A secondary issue was whether the Union had complied with the required dispute resolution procedures prior to bringing the matter to the Commission. The employer argued that the Union had not followed the correct internal dispute resolution process and, as such, the Commission lacked jurisdiction.

The Fair Work Commission found that it did have jurisdiction to hear the matter, as the Union had followed the correct procedures for escalating the dispute. The Commission noted that the Union had provided evidence of attempts to resolve the dispute internally and that these attempts had been unsuccessful. Consequently, the Commission ruled that it was appropriate to hear the matter and determine the dispute on its merits. The employer's argument regarding the failure to follow the correct procedures was dismissed.

The Fair Work Commission found in favour of the Australian Workers' Union, ordering MC Labour Services Pty Ltd to pay the outstanding entitlements, including allowances for shift work and overtime. The Commission further directed the employer to pay interest on the outstanding amounts and to provide a written apology to the Union for the failure to pay the entitlements in a timely manner. The decision serves as a reminder for employers to ensure compliance with award and agreement obligations and to follow proper dispute resolution procedures.

Orders