Australian Workers' Union, The v MC Labour Services Pty Ltd

[2017] FWC 4075

[2017] FWC 4075

FAIR WORK COMMISSION

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, including subsections 65(5) or 76(4) of the Fair Work Act) shall be dealt with according to the following procedure.

10.2 Work shall continue without interruption from industrial stoppages, bans and/or limitations while these procedures are being followed. The pre-dispute status quo shall prevail while the matter is being dealt with in accordance with this procedure.

10.3 All Employees have the right to appoint a representative in relation to a dispute. It is the express priority of all Parties to attempt to settle a dispute at the workplace level at first instance.

10.4 In the event of any work related grievance arising between the Employer and an Employee or Employees, the matter shall be dealt with in the following manner:

(a) The matter-shall be first submitted by the Employee/s or his/her job delegate/ Employee representative or other representative, to the site foreperson / supervisor or the other appropriate site representative of the Employer, and if not settled, to a more senior Employer representative.

(b) Alternatively, the Employer may submit an issue to the Employee/s who may seek the assistance and involvement of the job delegate/ Employee representative or other representative.

(c) If still not resolved, there may be discussions between the relevant Union official (if requested by the Employee/s), or other representative of the Employee, and senior Employer representative.

(d) Should the matter remain unresolved, either of the parties or their representative shall refer the dispute at first instance to the Victorian Building Industry Disputes Panel (which shall deal with the dispute in accordance with the Panel Charter).

(e) Either party or their representative may, within 14 days of a decision of the Panel, refer that decision to FWC for review. FWC may exercise conciliation and/or arbitration powers in such review.

10.5 This procedure shall be followed in good faith without unreasonable delay.

10.6 If any party fails or refuses to follow any step of this procedure the non breaching party will not be obligated to continue through the remaining steps of the procedure, and may immediately seek relief by application to FWC.

10.7 All Parties will cooperate with the requests of the Disputes Panel including requests to provide substantiating information or undertaking an independent audit of matters arising from this Agreement. For the avoidance of doubt, an affected Employee may appoint a representative in relation to such matters.”

[9] In The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited 2, a Full Bench of this Commission set out the relevant principles to be applied in the construction of agreements. These principles were recently revised in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited3.

[10] I respectfully adopt and apply these principles in reaching this decision.

Background

[11] MC Labour is a labour hire company which provides personnel for civil and construction work, security services and traffic management. It employs approximately 500 employees on various work sites each day.

[12] On 15 June 2017, the Commission was notified of the alleged dispute by the AWU. In its F10 Application Form, the AWU stated that it had “little or no relationship with the employer” and sought the assistance of the Commission by way of conciliation. According to MC Labour, it was not aware of the dispute until it received a copy of the application.

[13] On 29 June 2017, MC Labour objected to the application proceeding on jurisdictional grounds.

[14] The Commission conducted a conference in the matter on 5 July 2017 and a meeting was held the next day between the parties. MC Labour asked the AWU to provide details about who it represented, which sites were affected and the work patterns of affected employees. The AWU was not prepared to disclose the details of its members and the matter was not resolved.

[15] On 12 July 2017, following a mention in the Commission, directions were issued for the filing and serving of materials to deal with MC Labour’s jurisdictional objection. Materials were filed over the period from 17 to 24 July 2017 and a further mention was held in the Commission on 1 August 2017.

Consideration

[16] Clause 10 is clear on its terms. Clause 10.1 of the Agreement explains that one of the “major objectives” of the Agreements is the elimination of lost time and/or production arising from disputes or grievances. Under the clause, disputes over “any work related matter” “should be dealt with as close to its source as possible.” This includes disputes over “matters arising from this Agreement”, which “shall be dealt with according to the following procedure.”

[17] Clause 10.2, 10.3 and 10.5 contain general dispute resolution principles, including preservation of the “pre-dispute status quo”, the “right to appoint a representative” and agreement to follow the procedure “in good faith without unreasonable delay”.

[18] Clause 10.4 outlines an escalating process for dealing with disputes between MC Labour and one or more of its employees. The process requires:

• That the matter shall be submitted by:



• the employee(s) or their representatives to the site foreperson, supervisor or appropriate site representative, and if not settled, to a more senior employer representative; or



• by the employer to the employees who can seek assistance and involvement from their representative(s).



• If the matter is still not resolved, that discussions may be held between the relevant CFMEU official or other employee representative and senior employer representative;



• If the matter remains unresolved, that the dispute shall be referred by either of the parties or their representative to the Victorian Building Industry Disputes Panel (Disputes Panel) to be dealt with in accordance with its Panel Charter 4; and



• Within 14 days of a decision of the Disputes Panel, that either party or their representative may refer the decision for review by this Commission.

[19] Clause 10.6 expressly provides as follows:

“If any party fails or refuses to follow any step of this procedure the non breaching party will not be obligated to continue through the remaining steps of the procedure, and may immediately seek relief by application to FWC.”

[20] If and when the matter is referred to the Commission for review, the Commission may exercise its powers of conciliation and arbitration. I find no ambiguity in the terms of clause 10.

[21] I accept the evidence of Mr Currie, National Industrial Relations Manager for MC Labour, that:

• he was first made aware of the alleged dispute when he received a copy of the Form F10 Application for the Commission to deal with a dispute on 15 June 2017;



• he sought information about the identity, sites and work patterns of affected employees from the AWU; and



• he is not aware of the issue being submitted to any site supervisor, foreperson or other site representative by, or on behalf of, any employee.

[22] No evidence was led by the AWU. In any event, the parties appear to agree that the disputes procedure has not been followed. MC Labour asserts as much, and the AWU conceded it had not followed the procedure in the mention on 1 August 2017.

[23] I find that the alleged dispute has not been submitted by the employee(s) or their representatives to the relevant site foreperson, supervisor or other appropriate site representative. This is not an optional step in the dispute procedure. It is a mandatory term and a precondition for the dispute to then be referred to the Disputes Panel, and eventually, to the Commission.

[24] It follows, and I find, that the disputes procedure in clause 10 of the Agreement has not been followed. The Commission has no present jurisdiction to deal with the alleged dispute.

[25] The application is dismissed.

COMMISSIONER

 1   CC Pty Ltd T/A Cook Colliery v Construction, Forestry, Mining and Energy Union [2017] FWCFB 2749

 2   [2014] FWCFB 7447

 3   [2017] FWCFB 3005

 4   by authority of the Commonwealth Government Printer

<Price code C, PR595088>