"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Acciona M&E Pty Ltd Trading as Acciona Mechanical & Electrical - [2025] FWC 1382

[2025] FWC 1382

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 – Dispute Resolution

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v

Acciona M&E Pty Ltd Trading AS Acciona Mechanical & Electrical

(C2024/2664)

COMMISSIONER PERICA

MELBOURNE, 19 MAY 2025

Application to deal with a dispute in accordance with a dispute settlement procedure

INTRODUCTION

On 19 April 2024, the AMWU filed an application under s.739 of the Act to deal with a dispute in accordance the dispute settlement procedure in clause 17 of the John Beever (Aust.) Pty. Limited Victorian Workshop and Site Enterprise Agreement 2021-2025 (the Agreement).

The employer in this dispute, Acciona M&E Pty Ltd (Acciona) has made a jurisdictional objection. It argues under the terms of the dispute settlement procedure the AMWU cannot bring a dispute to the Commission in its own name.

Acciona also argues the Commission should not amend the application to substitute the name of an employee of Acciona (and AMWU delegate) Mr. Mario Pantalleresco in place of the AMWU using the amendment power under s 586. Acciona makes a series of submissions to support this argument including: such an amendment would make the application fundamentally different; AMWU has not provided sufficient evidence to meet its onus the amendment ought to be made; and the conduct of the AMWU throughout this proceeding should count against the exercise of the discretion to amend under s 586.

For the following reasons I find:

· The AMWU was not a Party to the dispute under clause 17.5 of the dispute settlement procedure and could therefore not bring an application to the Commission in its own name.
· Mr. Pantalleresco as an “Employee with a concern” under clause 17.4.1, and as an “Employee” under clause 17.4.2 was a Party to the dispute under clause 17.5 and can therefore bring a dispute to the Commission.
· I exercise my discretion to amend the application under s 586 (a) by deleting AMWU as the applicant and inserting in its place the name “Mario Pantalleresco” as applicant.

PROCEDURAL HISTORY

The process of hearing Acciona’s jurisdictional objection, together with the AMWU’s application to amend, has been a saga. It has proceeded in fits and starts.

The matter was first listed for a mention on 24 June 2024. I issued a statement and made directions with respect to the jurisdictional objection and the capacity to amend under s 586. I first listed the matter for hearing on 6 August 2024.

On 6 August 2024, during the hearing, it became apparent:

· Mr. Pantalleresco (an employee of Acciona and an AMWU delegate named in the F10) had not been available to provide a witness statement to support the AMWU’s case because he was on “four weeks of long service leave and eight weeks annual leave”.[1]
· The AMWU had not articulated the form of amendment it would seek should I decide that it could not make the s 739 application in its own name. On 6 August 2024, Ms. Simmons, a Victorian Branch industrial officer for the AMWU, did orally state that “we would just be naming Mr. Pantalleresco as applicant.”[2] The parties agreed I would adjourn the matter to allow further material to be filed.

On the afternoon of 6 August 2024, I issued further directions which required the AMWU and Acciona to file further submissions and witness statements. The matter was set down for further hearing on 18 September 2024.

On 26 August 2024, the AMWU filed its material including a witness statement of Mr. Pantalleresco dated 20 August 2024.

On 30 August 2024, Acciona filed a Form 52 seeking an order to produce documents referred to in the 20 August 2024 Statement of Mr. Pantalleresco. I issued a notice to produce in the terms sought later that day.

On 5 September 2024, the AMWU filed an objection to the 30 August order for production which enumerated various objections to the production of classes of documents on the basis of relevance, fishing, oppression and legal professional privilege.

On 6 September 2024, I listed a short mention to take submissions on the process for dealing with the order to produce and the AMWU objections. On 10 September 2024, Acciona filed a response to the AMWU objections.

On 12 September 2024, I advised the parties I would vacate the directions, including the 18 September 2024 hearing date. I adjourned the matter to produce a written decision on the AMWU objections.

On 4 October 2024, I issued a decision varying the terms of my 30 August 2024 order to produce. In that decision I found some of the objections raised by the AMWU had been made out.[3]

On 10 October 2024, a further mention was heard in the matter. I then issued still further directions leading up to the hearing of the matter which was now listed for 15 November 2024.

On 15 November 2024, the jurisdictional objection and the application to amend were finally heard in person. Mr. Dominic Fleeton of K & L Gates appeared for Acciona on my leave. Ms. Chloe Simmons, an AMWU industrial officer appeared for the AMWU. Mr. Pantalleresco and Mr. Souvatzis, his organiser, gave oral evidence.

RELEVANT LEGISLATION AND TERMS OF THE AGREEMENT

POWER TO DEAL WITH DISPUTES

The Commission’s power to deal with disputes is conferred by the following provisions of the Act:

595 FWC’s power to deal with disputes
(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under
or in accordance with another provision of this Act.
(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate,
including in the following ways:
(a) by mediation or conciliation.
(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it
considers appropriate) only if the FWC is expressly authorised to do so under or in
accordance with another provision of this Act.
Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).
(4) In dealing with a dispute, the FWC may exercise any powers it has under this
Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in
relation to a matter before the FWC except as authorised by this section.
738 Application of this Division
This Division applies if:
(a) …
(b) an enterprise agreement includes a term that provides a procedure for dealing with
disputes, including a term referred to in subsection 186(6) …
739 Disputes dealt with by the FWC.
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) …
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate
(however, described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a
recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.

The Commission’s power to deal with this dispute derives from the terms of the dispute settlement procedure in the Agreement. I can only deal with a dispute on an application by a party to the dispute (s 739(6)). I am prohibited from exercising any power limited by the dispute settlement procedure (s 739(3)) and can only arbitrate if the dispute settlement procedure permits me to do so.

Acciona argues the disputes settlement procedure does not permit the AWMU to make an application as a party principal. It argues I can therefore not deal with this dispute. The relevant terms of the Agreement follow.

RELEVANT TERMS OF THE AGREEMENT

Definition of Party or Parties covered by the Agreement

Clauses 2.1 to 2.3 of the Agreement states:

“2.1. The Agreement covers:
2.1.1. John Beever (Aust.) Pty. Limited (Company), whose head office is located at 174 Turner Street, Port Melbourne in the State of Victoria (Company Head Office); and
2.1.2. Employees of the Company that work throughout Victoria, employed within the classifications provided for in Appendix 3 (Employees), who perform:
2.1.2.1. Fabrication, repairs, equipment maintenance and related work at the Company’s Workshop currently located on premises at the Company Head Office (Workshop Work); and/or
2.1.2.2. Facility and Plant Maintenance, Upgrade and related work on-site (Maintenance and Related Work); and/or
2.1.2.3. Metal and engineering (on-site) construction work, as defined in the Building and Construction General On-site Award 2020, on projects (Construction Work).
2.2. For clarity, this will not include executive, managerial, supervisory and clerical staff, who are to be specifically excluded.
2.3. The Company and the Employees acknowledge and understand that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (Union) was a bargaining representative for the Agreement and may give notice to the Fair Work Commission (FWC) that the Union wants to be covered by the Agreement.
2.4. Those covered by the Agreement will be referred to as a Party or the Parties.”

Dispute Settlement Procedure

The dispute settlement procedure (from here on the DSP) in cl 17 of the Agreement states (with emphasis added):

17.1. Disputes over matters arising from this Agreement or the National Employment Standards will be dealt with according to the procedures set out in this clause.
17.2. While the dispute settlement procedures in this clause are being followed, the Parties must ensure that the pre dispute status quo shall prevail, and that work continues as normal without interruption from industrial stoppages, bans and/or limitations. If any of the Parties fails or refuses to follow any step of this procedure the non-breaching party will not be obligated to continue through the remaining steps and the requirement for pre
dispute status quo shall no longer apply.
17.3. For the purposes of this clause:
17.3.1. Any reference to Employee also includes any Employee representative or other representative or support person that the Employee has chosen to support or represent the Employee throughout this dispute prevention and settlement process; and
17.3.2. Any reference to the Company also includes any person or organisation the Company has chosen to support or represent the Company throughout this dispute prevention and settlement process.

17.4. The Parties are committed to the promotion and development of a harmonious workplace based upon consultation, collaboration and co-operation and it is agreed that the following dispute prevention and settlement procedure will apply to assist the Parties to efficiently resolve issues so that no industrial lost time occurs:

17.4.1. An Employee with a concern or dispute will first meet and confer with their immediate supervisor. The Employee may request that an Employee representative support or represent them at any stage of discussions and/or the dispute procedure to resolve the concern or dispute.
17.4.2. If the matter is not resolved at such a meeting then the Employee will arrange further discussions involving more senior management as appropriate.
17.4.3. If the matter remains unresolved after taking the above steps, the Company may refer it to a more senior level of management or representative.

17.5. In the event that there is no resolution of the dispute after following the steps prescribed in the sub-clause above then either Party to the dispute may refer the matter to the FWC for assistance in resolving the matter first by conciliation, or where the matter in dispute remains unresolved after conciliation, then arbitration. If arbitration is necessary, the FWC may exercise such procedural powers in relation to hearings, witnesses, evidence, and submissions which are necessary to make the arbitration effective.

17.6. The decision of the FWC will bind the Parties to the dispute, subject to either Party exercising a right of appeal against the decision….

POWER TO CORRECT OR AMEND AN APPLICATION

During the proceedings, the AMWU made an argument in the alternative, that it has made a mistake in naming itself as a party principal on the initiating application and applied under s 586 to substitute the name of its delegate, Mr. Pantalleresco in the application. The terms of s 586 follow:
586 Correcting and amending applications and documents etc.
The FWC may:
(a)allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b)waive an irregularity in the form or manner in which an application is made to the FWC.

THE FORM F10 FILED BY THE AMWU

The F10 was filed by the AMWU.[4] It made an application for the Commission to deal with a dispute brought through the dispute settlement procedure in clause 17 of the Agreement. It was made in the name of the AMWU and filed by Mr. Stephen Fodrocy, a Victorian Branch industrial officer. The dispute was over whether clause 16 of the Agreement required the payment of superannuation payments while an employee was on long service leave. The AMWU bases their argument on the analysis of “analogous provisions” by the Full Bench in Programmed Facility Management v AMWU.[5]

By way of context, the Full Bench decision in Programmed affirmed the first instance decision of Deputy President O’Neill, who found that long service leave paid by Coinvest constituted “any paid leave from the employer” under the relevant Agreement. This meant an employee who took long service leave paid by Coinvest was entitled to superannuation payments while on long service leave.

The “What is the dispute about” section of the F10 included the following text:[6]

“In March 2024, an employee and workplace delegate, Mario Pantalleresco, raised a dispute with the Respondent on the employees’ entitlement to superannuation contributions while they are on long service leave paid through the CoINVEST fund (trading as LeavePlus) per the Construction Industry Long Service Leave Act 1997 (Vic).
The Respondent claims that superannuation contributions are not payable while an employee is on long service leave paid through LeavePlus.
The Applicant’s view is that clause 16.4.1 of the Agreement requires the Respondent to make superannuation contributions while an employee is on long service leave paid through LeavePlus.”

In the “steps already taken to resolve the dispute under the dispute settlement procedure”, the AMWU included the following text:[7]

“On 21 March 2024, Mr. Pantalleresco contacted Daniela Schroeder of Payroll regarding unpaid superannuation.
On 26 March 2024, Mr. Pantalleresco contacted Craig Nicholas and Julia Hay (operations manager) regarding the issue.
On 28 March 2024, Mr. Pantalleresco again contacted Mr. Nicholas and Ms. Hay.
On 2 April 2024, Ms. Hay said she would get back to Mr. Pantalleresco.
On 12 April 2024, Mr. Pantalleresco again contacted Mr. Nicholas and Ms. Hay requesting a response and stating that if no response is received, we intend to refer the matter to the Commission.
As of writing, no response has been received.”

The jurisdictional objection of Acciona is the plain words of the dispute settlement procedure in clause 17 only allows a dispute to be brought to the Commission by a Party to the dispute or concern. It argues only Acciona or “Employees with a dispute or concern” can bring a dispute to the Commission. As this dispute was made in the name of the AMWU as a party principal, I have no jurisdiction to deal with the dispute under s 739.

EVIDENCE

The AMWU called two witnesses in the proceeding. Mr. Pantalleresco, its delegate at Acciona and Mr. Luke Souvatzis, the AMWU organiser.

Mr. Pantalleresco is employed by Acciona as a mechanical fitter. He filed a witness statement dated 20 August 2024 which was tendered into evidence as A1.[8] His evidence is significant to the issues currently before me. Acciona argues Mr. Pantalleresco, as a delegate, was acting as an agent of the AMWU in the pursuit of the controversy that is the subject of the dispute.

Mr. Pantalleresco’s statement for the period 18 March to 21 March

In his statement, Mr. Pantalleresco gave the following evidence concerning events from 18 March up to an email exchange to between himself and Ms. Schroeder, who works in payroll at Acciona, on 21 March 2024.[9]

“Application for long service leave
On or around 18 March 2024 I put in my application for a total of 12 weeks leave. This was to be made up of a combination of 4 weeks of long service leave followed by 8 weeks of annual leave.
When I made the Application, I was told by Manager Craig Nicholas that the long service leave period would be processed as leave without pay by Acciona. This was the approach taken by the company because they said that long service leave would be paid by CoInvest.

Dispute regarding superannuation on long service leave
On 20 March 2024 I attended the AMWU delegates’ forum where I was informed of the Programmed decision. I took note of the announcement as this was relevant to my current personal circumstances going into my upcoming long service leave.

On 21 March 2024 I sent an email to Daniela Schroeder of payroll asking her to confirm whether superannuation would be paid on long service leave. I decided to seek clarification from Ms. Schroeder as I was unsure when superannuation would start to be paid on all forms of paid leave.”

21 March e-mail exchange

The 21 March e-mail and the response from Ms. Schroeder were filed by the AMWU and attached to its “further submissions of fact and law.”[10] The e-mail was sent at 9:40 AM on 21 March 2024 and the response came a day later on 22 March 2024 at 4:50 PM:

Pantalleresco e-mail
I have a question about superannuation payments while on long service leave. If our time sheets, go through as unpaid leave (because we are using our co-invest account) will the superannuation be paid?

Schroeder reply
thanks for your enquiry, when are you planning on taking your long service leave?
We are reviewing your query at the moment and get back to you shortly.

25 March 2024 e-mail exchange

The statement of Mr. Pantalleresco continues:

“On 25 March 2024 Ms. Schroeder provided a more detailed response explaining that there is no superannuation payable on long service leave as it is paid by Coinvest, and therefore not paid by the employer as per clause 16.4.1 of the Enterprise Agreement.”[11]

The e-mails within that exchange were:

Schroeder e-mail
Hi Mario, thanks for the quick response. There is no super payable at this stage when you are on long service leave through Co-invest./My leave.
Pantalleresco response
What do you mean by: at this stage? Does that mean superannuation payments go through on the weeks of long service leave period or we are not entitled to the payments when on long service leave?
Schroeder reply
…apologies for the confusion. I just meant under the current rules. There is no super payment if you are on long service leave via Coinvest/Myleave.

26 March 2024 e-mail to management

Mr. Pantalleresco gave evidence that he “disagreed” with Ms. Schroeder’s position on the payment of superannuation on long service leave. On 26 March 2024, he wrote to Mr. Nicholas, his Manager and the Operations Manager, Ms. Julia Hay.[12] That e-mail relevantly read:

“…I was told by pay roll that we are not entitled to superannuation payments when on co-invest payments (long service leave payments) could you check to see if that is correct. I am on the understanding that superannuation payments should be paid when on leave if still employed by the company however if it is paid out as a lump sum after leaving the company it is not payable.”[13]

March e-mails to management, their responses and cross examination on those documents

The statement of Mr. Pantalleresco continues: “On 28 March 2024 I sent another email to Mr. Nicholas and Ms. Hay to provide them with some context. This featured the outcome of the Programmed decision. My objective was to provide them with the relevant information to resolve the matter before I went on leave on 13 May 2024.” [14]

Mr. Pantalleresco in fact sent two e-mails to Mr. Nicholas and Ms. Hay on that day. One at 6:15 PM and one at 9:17 PM. The 6:15 PM e mail was a nine-line link to the Programmed decision.[15] The 9:17 PM e-mail read as follows:

“Under the superannuation clause of the agreement, superannuation is payable while a worker is on any paid leave. The Full Bench of the Commission recently confirmed that long service leave is paid leave even where it is paid by CoInvest/LeavePlus or other entity (Programmed Facility Management Pty Ltd v AMWU [2024] FWCFB 100). If Acciona does not agree, we wish to commence the dispute process to the next stage.”[16]

In cross examination, Mr. Pantalleresco explained his motivations for sending Acciona management the Programmed decision:

“So I sent the Fair Work Commission hearing decision to the company to try to make this a lot easier, and if a company takes the members to the Commission and they lose in the Commission and then it goes to the higher - they appealed and then it went to the Appeals Board, and they lost in the Appeals Board - to me, that's showing, 'Hey, do you really want to argue this because it's going to end up in the Commission, and the Commission ruling will come into play?' So I tried to resolve all this by doing that before I actually went on long service leave and, for some reason, here we are today, six months later, disputing the jurisdiction to it, and I sort of - I'm a little bit confused on where we're at with this jurisdiction business.”[17]

Mr. Pantalleresco was cross examined about whether he wrote the later 28 March e-mail and his motivations for sending it:[18]

FLEETON: That email at 9:17 pm, you didn't draft that, did you?‑‑‑
PANTALLERESCO: What do you mean by draft it?
FLEETON: You didn't write the words yourself?‑‑‑
PANTELLERSCO: No. Sorry, I'm laughing because I'm not very good on the computer, I do everything on my phone because I don't even have a computer myself - I do everything on my phone - so I probably just - I don't even know how I did it, I just brought it up and pressed the 'Send' button and forwarded it to the people what - but, yeah, go on.
THE COMMISSIONER: Hang on a minute. So I'm understanding, this second one on page 107, under the superannuation clause of the agreement, you didn't draft that?‑
PANTALLERESCO: No.

MR FLEETON: So it was a cut and paste from something?
PANTALLERESCO: Yeah. If - I don't even know what cut and paste is, but anyway.
No, no, no, yes, no, I'm with you, I'm with you, okay, but it's - I think he said it's - however it got there, perhaps, you know - - -
FLEETON: Well, it got there because the union drafted it, didn't it?
PANTALLERESCO: What do you mean by 'the union drafted it'?
….
THE COMMISSIONER: Okay, it wasn't your words. Where did they come from? Where do they come from…?‑
PANTALLERESCO‑‑If I said 'the internet', that's not really an appropriate answer, is it, because - - -- - that's where it did come from.
COMMISSIONER See there's text there, there's a paragraph?
PANTALLERESCO: Right.
COMMISSIONER 'Under the superannuation rules', blah, blah, blah, 'next stage'?‑You say that's not your words?‑‑‑
PANTALLERESCO: No.
COMMISSIONER: Where did it come from, those words?‑‑‑
PANTALLERESCO: I don't know. It came from the - whatever I looked up. So I don't know whether that's - that came from the union or whether it came from the Fair Work Commission. I don't know where that come from.
FLEETON: Okay. I will help you out. Look at the last sentence: If the negotiator does not agree, we wish to commence a dispute process to the next stage. So that hasn't come from something you found online?‑

PANTALLERESCO: No, no, no. I did - I'm confused, I'm really confused in your question. So are you asking me did I put that in an email to send to Acciona?
COMMISSIONER Mr. Pantalleresco, we're trying to work out the source. You say that's not your words. Where did it come from? That's the kernel of it?‑‑‑
PANTALLERESCO: I can't recall.
…
FLEETON: I put it to you the only sensible explanation is that that was drafted by the union and you forwarded it on?
PANTALLERESCO: Well, I did ask for advice from the union on how to forward it on because, obviously, I'm a tradesman, I'm not a - I don't have a good knowledge of the internet or of the education process because I did do year 11, then started my trade school, so, no, I'm not a Philadelphia lawyer.

...
MR FLEETON: Maybe I'll put it in a slightly different way. That's not what I'm saying. I think we've been through - the original question was, 'Who drafted the words?' and you've said you can't remember, but it had to be the union, did it not?‑‑‑
PANTALLERESCO: For me to say that this came from the AMWU, I'll assume it did, yes.
FLEETON: And you were sending that to them on behalf of the union, so acting on behalf of the union, weren't you?‑‑‑

PANTALLERESCO: I was sending that to them so they can read the Fair Work Commission hearing on the same issue that I'm raising to make them aware that this has gone to the Commission, and Programmed Maintenance failed in the Commission, and then they appealed it and failed the appeal. So, to me, by me doing that, will highlight to the company that I believe I am entitled to it for these reasons.
FLEETON: …So going back to the last sentence of that email, which is very short If Acciona does not agree, we wish to commence the dispute process to the next stage. So that's saying, 'We', the union, 'wish to commence the dispute process to the next stage', is it not?
PANTALLERESCO‑‑‑We, as members of the union, yes.
FLEETON: Correct, members of the union, that's right?‑
PANTALLERESCO: I thought you meant 'as the union'. We're members of the union.
…
FLEETON: You're saying, 'Yes, the union, on behalf of its members'?
PANTALLERESCO: And that's because when I spoke to other people in the company, they've highlighted the fact that they've been disadvantaged when they go on long service leave. So that's where that probably come from, and, mind you, that was six or eight months ago.

2 and 12 April 2024 e-mail and cross examination on those documents

On 2 April 2024, Ms. Hay emailed Mr. Pantalleresco after he had sent the Programmed e-mails and responded, “I will look into this and get back to you”.[19]

On 12 April 2024, Mr. Pantalleresco wrote to Ms. Hay again “asking for a follow-up on my previous email as it had been 10 days since her response”. That e-mail read.
“Can I get a response on superannuation payments while on long service leave please. If there is no response by COB Friday 19-04-24 we would escalate the dispute to the next stage of the DSP under CL 17 of the agreement (with more senior management) and if they refuse, our intention is to take the matter to the commission for arbitration.”[20]

Once again, Mr. Fleeton cross examined Mr. Pantalleresco on whether he was escalating the dispute on behalf of the AMWU, its members, or himself and whether he in fact composed that e-mail:[21]

FLEETON: So again, you sent that on behalf of the union, didn't you?
PANTALLERESCO: No, I sent that on behalf of all the members involved in this situation.
FLEETON: As a delegate, you sent it on behalf of all the members?
PANTALLERESCO: Correct.
FLEETON: That's why you say 'we' in the email, isn't it?
PANTALLERESCO: Yes, because I'm talking about everybody involved in this situation, not just myself.
…I represent a group of workers, and when I represent them, I'm involved in that group, so if I'm contesting something on my own behalf, I expect that everybody in the business that has the same issue, that, once it's resolved, everybody's situation has been resolved. For example, if I'm underpaid, and I put a question forward that I was underpaid for a particular reason, I don't expect myself to be the only one that gets the back pay, everyone that was underpaid should be getting the back pay.

…So there, when I say 'we', I'm talking about the whole group of members.

FLEETON: That's right. That's what you do as a delegate; correct?
PANTALLERESCO‑‑‑Yes.
FLEETON So when you said in that email 'our intention', you're talking about you, as the union delegate and, slash, the union?
PANTALLERESCO‑‑‑And our members. And our members.

FLEETON: Right. What was foreshadowed in that email then occurred, didn't it? By that I mean the union continued on with the dispute and filed the application here?‑‑‑

PANTALLERESCO: Well, after that, I obviously contacted Luke and the process is started...

There was one further relevant exchange in cross examination:[22]

MR FLEETON: Mr. Pantalleresco, I put it to you that from 21 March, which is the day after the delegate forum that you attended, your interactions with Acciona about the Programmed decision and the implications of that decision were you speaking on behalf of the union out of concern for your fellow members?‑‑‑
PANTALLERESCO: I was speaking on behalf of myself and our fellow members.

FLEETON: That's not what you said before. You said before you were talking on behalf of the union and the members?‑‑‑
PANTALLERESCO: No, I didn't.
FLEETON: You did.
PANTALLERESCO: Okay.

Escalation to the organiser and then to the AMWU

As a result of the failure of Acciona to get back to him, Mr. Pantalleresco contacted Mr. Souvatzis, his organiser, to “advise him that I was due to take long service leave on 13 May and was frustrated that Acciona had failed to respond to my dispute e-mails in a timely matter. Mr. Souvatzis acknowledged Acciona’s failure to respond and the time sensitive nature of the matter”.[23]

The next step according to the Statement of Mr. Pantalleresco was “Mr. Souvatzis referred the matter to the AMWU Industrial Officer Stephen Fodrocy to lodge in the Fair Work Commission. I was hopeful of reaching a resolution before departing on my long service leave.”[24]

Evidence of Luke Souvatzis

The AMWU also filed a statement of Mr. Luke Souvatzis, the organiser “currently responsible for the membership covered by [the Agreement]”[25] dated 22 July 2024. Acciona did not resist the tender of his statement but noted I should give parts of the statement little weight.[26]

Mr. Souvatzis recites the steps Mr. Pantalleresco took in e-mails to Ms. Schroeder, Mr. Nicholas and the Operations Manager Ms. Hay referred to in the evidence of Mr. Pantalleresco.[27] Mr. Souvatzis then went on to explain, because of the delays in the response from Ms. Hay:

“The AMWU was left with no choice but to file with the Fair Work Commission as the company did not provide any response to allow for the dispute settlement procedure clause of the Agreement to be satisfied”.[28]

THE SUBMISSIONS OF THE PARTIES

THE CAPACITY OF THE AMWU TO BRING THE DISPUTE TO THE COMMISSION THROUGH THE DISPUTE SETTLEMENT PROCEDURE

Acciona’s submissions

Acciona argues I have no jurisdiction to deal with this dispute because the AMWU does not have standing to bring an application as a party principal under clause 17.

It relies primarily on a construction of clause 17. More particularly on clause 17.4 and 17.5 which reads (I have included Acciona’s emphasis in bold):

17.4. The Parties are committed to the promotion and development of a harmonious workplace based upon consultation, collaboration and co-operation and it is agreed that the following dispute prevention and settlement procedure will apply to assist the Parties to efficiently resolve issues so that no industrial lost time occurs:

17.4.1. An Employee with a concern or dispute will first meet and confer with their immediate supervisor. The Employee may request that an Employee representative support or represent them at any stage of discussions and/or the dispute procedure to resolve the concern or dispute;
17.4.2. If the matter is not resolved at such a meeting then the Employee will arrange further discussions involving more senior management as appropriate.
17.4.3. If the matter remains unresolved after taking the above steps, the Company may refer it to a more senior level of management or representative.

17.5. In the event that there is no resolution of the dispute after following the steps prescribed in the sub-clause above then either Party to the dispute may refer the matter to the FWC for assistance in resolving the matter first by conciliation, or where the matter in dispute remains unresolved after conciliation, then arbitration. If arbitration is necessary, the FWC may exercise such procedural powers in relation to hearings, witnesses, evidence, and submissions which are necessary to make the arbitration effective.

The definition of the term “Party” in clause 2.4 of the Agreement is those “covered by the Agreement will be referred to as a Party or the Parties.” The decision of Deputy President Bell which approved the Agreement noted that “the Agreement covers the [AMWU].”[29]

Acciona argues the word “Party to the dispute” in clause 17.5 in the dispute settlement procedure has a discrete meaning to the definition of “Party” in clause 2.4.

Under the dispute settlement procedure, the person who must initiate the process is “an Employee with a concern or dispute.” Further, clause 17.4.2 requires the “employee to arrange further discussions with senior management.” Acciona argues in the context of the dispute procedure “either Party to the dispute” in clause 17.5 refers to an employee with a concern on the one hand, and Acciona on the other. Only those parties have a capacity to “refer the matter to the FWC.” It follows the AMWU cannot bring a dispute to the Commission as a Party Principal.

Acciona relies on the Full Bench in Goonyella[30] for the proposition that “a union party to an enterprise agreement may only have standing to make an application under s 739 …if the dispute settlement procedure contemplates the union as a party principal to a dispute”.[31] It argues the enterprise agreement in Goonyella is analogous to the Agreement here because the agreement in Goonyella defined the CFMEU as a party to the Agreement and the Full Bench found (affirming the decision of Lewin C) that it could not bring a dispute to the Commission as a party principal. It relies on the following paragraph from the Full Bench decision:

[39] … Nor does clause 41 contemplate that the dispute resolution procedure could have application to disputes between North Goonyella and the CFMEU in its own right - that is, as a party principal to a dispute and not as a representative of employees. For the reasons already stated, clause 41 only deals with disputes between current employees and North Goonyella, in relation to which the CFMEU may act as a representative. The references in clause 41.3 to a “party” and “parties” are, we consider, to be understood as referring to the parties to the instant dispute - that is, North Goonyella and the relevant employee(s) - and not to the definition of “The parties” in clause 3 of the Agreement.[32]

Acciona therefore argues I have no power to deal with this dispute because it was brought in the name of the AMWU. The AMWU cannot bring an application to the Commission under s 739 under the dispute settlement procedure in the Agreement.

AMWU submissions

The AMWU argues Acciona’s reliance of Goonyella is misconceived. The terms of the Goonyella agreement were “substantially different” because the terms relevant to employee representatives in the Agreement are materially different from the equivalent terms in the Goonyella agreement.

It articulates this argument as follows:

“The Applicant contends that clause 41.2 of the Goonyella Agreement is substantially different in its construction, as it explicitly states: 41.2 The employee may choose to be represented at any stage in this procedure by a representative/s of their choosing.[33] This is in contrast with the wording of clause 17.3.1 of the Agreement, which reads:
“Any reference to Employee also includes any Employee representative or other representative or support person that the Employee has chosen to support or represent the Employee throughout this dispute prevention and settlement process; and 17.3.2. Any reference to the Company also include any person or organisation the Company has chosen to support or represent the Company throughout this dispute prevention and settlement process.”

There is no dispute as to whether “employees” are considered a party to the dispute under clause 17. The wording in clause 17.3.1 provides that the word “employees” will encompass their representatives, as opposed to deliberately isolating representatives from the scope of parties as in Goonyella.”[34]

The AMWU argues clause 17.3.1 should be distinguished from Goonyella as the Agreement specifically includes employee representatives within the definition of employees and provides, they are parties to the agreement.

The AMWU relies on the interpretative principles for enterprise agreements laid out by the Full Court of the Federal Court in Ridd.[35] It relies on two principles. The starting point is the ordinary meaning of the words of the Agreement. Also, a purposive approach should be applied turning on the language of the agreement considering its industrial context and purpose.[36]

AMWU contends, applying these two principles:

· The ordinary meaning principle can be applied to 17.3.1 of the Agreement. The employees mean those employed by the Company. However, the Agreement provides further context by clarifying that an Employee, considered a Party to the dispute resolution clause as per 17.3.1. includes any employee representative.[37]
· Applying a purposive approach which “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose,” provides that clause 17.3.1 is drafted to include the union under the scope of an “employee.”[38]
· The industrial context provides that it is not uncommon for the Union to be a party to a dispute resolution clause.[39]

The AMWU therefore submits:[40]

· Clause 17.3.1 is to the effect that a reference to any employee “includes any employee representative;” a class that includes the AMWU.
· All the steps in 17.4 are steps taken by “an Employee” (a term that includes employer representatives).
· A “Party to the dispute” who has power to bring the proceedings to the Commission under clause 17.5 includes the employer, and the “Employee.” [which by reason of 17.3.1] includes an employee representative such as the AMWU.
· It follows the AMWU can initiate a proceeding under s 739 in its own name as a party principal.

Acciona reply submissions

Acciona made reply submissions in answer to the AMWU submissions on Goonyella:[41]

· The AMWU asserts “clause 17.4 of the Agreement defines employees as parties to the dispute resolution procedure, and clause 17.3.1 of the Agreement defines employee to include representatives, the AMWU is considered a principal party to the instant dispute.^”This argument “misunderstands the impact of Goonyella which clearly separates the circumstances where a union is a party principal to a dispute resolution clause as compared to circumstances where it acts as a "representative of employees”.[42]
· “It is clear” from clause 17.3.1 the extension of the definition of "Employee" to employee representatives only includes such representatives when they have been chosen to represent the Employee. That is when acting in their representative capacity. AMWU will only fall within the definition of Employee in the clause 17.3.1 when acting in their representative capacity, and therefore the effect of North Goonyella remains the same – the Applicant is only able to bring an application under s 739 of the FW Act when acting as a representative.[43]

· The interpretation in which an Employee representative is able to bring a dispute as a party principal, would result in an “absurd outcome” because clause 17.3.1 puts an Employee representative on equal footing with any other representative or support person that an Employee chooses to support or represent them. In circumstances where the ordinary industrial meaning of support person encompasses any family member, friend or acquaintance of an employee, the Applicant's interpretation, reliant as it is on clause 17.3.1, would allow any such individual to bring a claim to the FWC in their own right.[44]

ARGUMENTS ON MY POWER TO AMEND THE APPLICATION UNDER S 586

In the first mention of this matter on 24 June 2024, Mr. Munroe represented Acciona and Ms. Simmons represented the AWMU.

During the mention, Mr. Munroe outlined the jurisdictional objection of Acciona. I asked Mr. Munroe if I could cure a defect in the application by using my power to correct and amend an application under s 586. I referred the parties to the decision of Deputy President Asbury (as she then was) in WorkPac.[45] Mr. Munroe then sought to make written submissions on that issue.[46] On the same day, I issued directions on the jurisdictional objection of Acciona and on “my capacity to amend the application under s 586”.[47]

AMWU submissions

The AMWU has made an application that I “should amend” the application using the powers I have “under s 568 (sic.) to name AMWU delegate Mario Pantalleresco as the Applicant to satisfy clause 17 of the Agreement”.[48] It submits:

· I have power to amend the application as it is not made fundamentally different by amending the AMWU’s error and naming Mr. Pantalleresco as the applicant.[49]
· Mr. Pantalleresco was named in its Form 10. There is no dispute as to whether the identity of the party principal had been deliberately concealed.[50]
· Mr. Pantalleresco was “always a party principal to this dispute”.[51]

AMWU also argues:

· Acciona was “always aware” Mr. Pantalleresco had raised the dispute at the workplace level, and that he was an AMWU delegate and “would logically seek union representation if the dispute could not be resolved at workplace level.”[52]
· It erred in naming AMWU as the applicant. It is evident Mario Pantalleresco was the intended applicant upon filing of the originating application.[53]

The AMWU sets out the factual basis for its claim that Mr. Pantalleresco “was always a party principal to this dispute” in its first submissions of fact and law dated 22 July 2024.[54]

· AMWU delegate Mario Pantalleresco was identified as an affected party in the originating application.
· Mr. Pantalleresco noticed a discrepancy in the payment of long service leave in the relevant internal system and subsequently noticed that the long service leave had not been paid for the purposes of clause 16 of the Agreement.
· In March 2024, Mr. Pantalleresco had attempted to raise the matter internally with Daniela Schroeder of payroll, Craig Nicholas, and Julia Hay the Operations Manager on 3 occasions.
· On 2 April 2024, Mr. Pantalleresco sought an update from Mr. Nicholas and Ms. Hay regarding the status of the matter with the business.
· Mr. Pantalleresco exercised his workplace right to raise a dispute pursuant to clause 17 of the Agreement. Mr. Pantalleresco was impacted by Acciona’s alleged breach of clause 16 and can raise a matter that may impact him concurrently as an individual employee and an AMWU delegate.
· Mr. Pantalleresco raised the matter with AMWU Organiser, Mr. Souvatzis after 2 April 2024. Acciona had failed to provide a response to his initial requests.

The dispute will not be fundamentally different if Mr. Pantalleresco is substituted as applicant.

The AMWU elaborates on its submission the dispute would not be fundamentally different if I made the amendment relying on the decision in WorkPac.[55] The AMWU argues Deputy President Asbury accepted that the Commission could use its power under s 586 to correct an application and the power “specifically extends to changing the identity of an applicant”. It referred to a passage in that decision where the then Deputy President articulates the elements that would make an application “fundamentally different”:

“For the reasons set out above, I accept that at all times there are members of the CFMEU who are employed by WorkPac as FTMs at Hail Creek, and who are covered by the Agreement, who are in dispute with WorkPac in relation to this matter. I also accept that the CFMEU has represented those employees from the point the dispute was articulated by the CFMEU. The nature or character of the dispute will not be affected by an amendment to the effect that the application will be taken to be made by employees who are represented by the CFMEU and not the CFMEU as party principal.”[56]

Efficiency and Natural Justice

The AMWU also argues I should “choose to alter the application in the interests of efficiency and natural justice.[57]” It relies on the Full Bench decision in RTBU v Asciano Services trading as Pacific National.[58] Asciano Services was an appeal from a decision of Deputy President Sams where he dismissed an application because the RTBU had not identified the workers or class of workers who were affected by workplace change as required by the DSP. It did not concern an exercise of the power to amend an application under s 586.

The Full Bench made some observations that a failure to identify particular employees or class of employees could have been dealt with procedurally in dealing with the application.[59] The Full Bench went on:

We consider that dealing with disputes in the manner set out in the previous paragraph is consistent with the duty imposed on the Commission to perform its functions and exercise its powers in a manner that is, amongst other things, “quick, informal and avoids unnecessary technicalities.” In our view, it would be contrary to the obligations imposed on the Commission pursuant to s.577 of the FW Act for s.739 applications to be automatically dismissed on the basis that every employee party to the dispute was not identified by name in the application.[60]

The AMWU argues that Asciano Services supports an argument that an application can be varied “via directions at any point, including for the addition of names to an application at any point, including the addition of names to an application.”[61]

The AMWU argues I should exercise my discretion under s 586 in a manner consistent with the requirement that the Commission perform its functions in a manner that is “quick, informal and avoiding unnecessary technicalities”. It argues it would contradict with these objectives to “uphold the jurisdictional objection of Acciona” on the “basis of a technicality”[62] and it would be “prudent to allow the alteration of the application in the interests of efficiency”.[63]

Acciona Submissions

Acciona argues the AMWU bears the onus of demonstrating that the Commission ought to exercise its discretion to amend and that onus has not been met.

This case is analogous to Global Product Search

Acciona relies on AMWU v Global Product Search Pty Ltd[64] to argue the application does not reflect a genuine dispute by the AMWU in it’s representative capacity at all. In Global Product Search the applicant sought to agitate a dispute in which there was no evidence that it was acting on behalf of or with the authority of an employee at the time it initiated a dispute, and the discretion to amend an application was not exercised by the Deputy President.[65]

In response to the AMWU reliance on Asciano for the proposition that an amendment may be made if a class of employees can be identified with sufficient particularity, Acciona notes in Global Product Search, Deputy President Lake distinguished the matter of Asciano in circumstances where there was no evidence of the Applicant “acting on behalf of, or with the authority of, any employee” at the time it initiated a dispute, “as is the case here.”[66]

Acciona therefore argues:

· The AMWU clearly does not have capacity to bring the Application in its own right as it is not a party principal to the dispute; and
· the Commission should not exercise its discretion to amend the Application under s 586 to substitute one or more employees in circumstances where the AMWU has not established that it has acted in its representative capacity.[67]

WorkPac can be distinguished

Acciona argues I cannot rely on WorkPac as a basis for exercising my power to amend the application. It argues WorkPac stands for the proposition that s 586 cannot be used to amend an application in any that would result in the application being “fundamentally different”.

In WorkPac it was determined that “changing the identity of the applicant from the CFMEU to its member did not alter that fundamental nature of the application”. The circumstances of the present application, it argues, can be “contrasted with the circumstances of WorkPac”.[68] Acciona describes the contrast as follows:

· There was evidence before the Commission that there were persons who were said to be employees of the employer, who had been adversely affected by the employer's actions in respect of the relevant agreement; and
· The Commission received declarations (on a confidential basis) to the effect that the relevant union was authorised to represent them in the dispute.[69]

On that basis Acciona submits in WorkPac, Deputy President Asbury relevantly found that:

· There were members of the CFMEU who were employed by WorkPac and covered by the relevant agreement.
· Those employees were in dispute with WorkPac in relation to the matter.
· The CFMEU had “represented those employees from the point the dispute was articulated by the CFMEU”.[70]

Acciona argues in contrast to the circumstances in WorkPac, the AMWU has not established that it is representing an affected employee or employees and is authorised to do so. Rather, it argues in circumstances where the AMWU, through its delegate, raised this issue within a month of the Programmed decision being made, the Application does not reflect a genuine dispute brought by the AMWU in its representative capacity on behalf of an employee or employees.[71]

Pantalleresco was acting in his capacity as a delegate[72]

In Acciona’s further submissions, it clarifies its argument that an amendment should not be made because Mr. Pantalleresco was at all times acting as a delegate, and therefore as an agent of the AMWU rather than for himself.[73] According to Acciona, this means that the AMWU cannot act in a representative capacity in this proceeding. It argues:

· Both witness statements filed by the AMWU make clear that Mr. Pantalleresco was agitating in his capacity as a delegate. The statements indicate that the dispute was raised by Mr. Pantalleresco in his capacity as a delegate; and Mr. Pantalleresco was seeking to raise an issue that impacted his fellow members.[74]
· The evidence, “when considered in its entirety, demonstrates this dispute has not been brought by the union in its representative capacity at all. Rather, the evidence relied upon by the AMWU makes clear that Mr. Pantalleresco was at the relevant times acting in his capacity as a delegate. That is why AMWU made the forensic choice to institute this proceeding in its own name. Had AMWU been acting as a representative of Mr. Pantalleresco, it would have been the simplest of matters, particular for a union with such experience in conducting litigation in the Commission, to draft the Application accordingly. It deliberately chose not to do so.”[75]

Acciona also relies on the e-mail correspondence from Mr. Pantalleresco which was the source of the rigorous cross examination by Mr. Fleeton which I have quoted earlier, namely:

The e-mail sent on 28 March 2024 at 6.15 PM which Mr. Pantalleresco wrote to Mr. Craig Nicholas that was a nine-line link to the Programmed decision; and
The subsequent e-mail sent to Mr. Nicholas and Ms. Hay that night at 9:17 PM (which Mr. Pantalleresco clearly did not draft) which read as follows:

“Under the superannuation clause of the agreement, superannuation is payable while a worker is on any paid leave. The Full Bench of the Commission recently confirmed that long service leave is paid leave even where it is paid by CoInvest/LeavePlus or other entity (Programmed Facility Management Pty Ltd v AMWU [2024] FWCFB 100). If Acciona does not agree, we wish to commence the dispute process to the next stage.

Acciona submits the second email demonstrates Mr. Pantalleresco “was clearly aware of the decision in Programmed, and was acting in his role as a delegate, noting he says “we wish” to commence the dispute (this is, the AMWU wishes to do so).[76] “It is implausible that Mr. Pantalleresco independently became aware of such decision at the time he happened to be inquiring about the entitlements at the heart of that dispute, or that he happened to be inquiring about said entitlements a month after that decision was published.”[77]

Acciona therefore argues “in light of the timing of the Programmed decision and Mr. Pantalleresco's purported concerns, and the absence of direct evidence from Mr. Pantalleresco, the Application does not reflect a genuine dispute brought by the AMWU in its representative capacity.”[78]

AMWU’s conduct counts against an exercise of discretion under s 586[79]

Acciona argues the conduct of the AMWU during the proceeding should count against me exercising my power to amend the application because:

· The AMWU has changed its reasons for filing the application in its own name. Acciona argues that later in the proceedings AMWU stated it had filed the application in error when, earlier in the proceedings, it had submitted the application was filed in the name of the AMWU in accordance with its “standard practice.”
· The AMWU’s primary position in this proceeding has been that it has standing, pursuant to clause 17 of the Agreement, to bring this dispute in its own name. In other words, having previously asserted that it had made a forensic decision to bring this Application in its own name, it is “now seeking to argue that the Application was, in fact, brought in its name by mistake.”
· These “propositions are entirely contradictory; only one of them can be accurate. In the Respondent's submission, it is clear that the Applicant is now seeking to argue that it acted mistakenly in order to support the amendment application.”

Based on these arguments, Acciona argues the AMWU’s conduct should heavily inform my determination whether it is appropriate to exercise its discretion under s 586 of the Act. Acciona submits the AMWU's “disingenuous attempt to belatedly characterise” its conduct as mistaken weighs heavily against the exercise of the discretion. Rather, the appropriate course would be for the AMWU to withdraw the Application.[80]

CONSIDERATION OF THE JURISDICTION POINT

My capacity to deal with the dispute under s 739 brought to the Commission by an application of the AMWU as party principal is dependent on an interpretation of the Agreement. In undertaking this task, I adopt and seek to apply the fifteen principles of interpretation for agreements elaborated by the Full Bench in Berri[81] which I do not rehearse here. It is trite the starting point is the plain English words of the Agreement on the whole and in context.

Clause 2 describes who the Agreement “covers”. Clause 2.4 defines those covered as a “Party or Parties”. The “Party or Parties” covered by the Agreement are:

· Acciona.
· Persons employed by Acciona in classifications provided for an appendix to the Agreement who perform certain categories of work.
· The AMWU once it notified the Commission that it wanted to be covered by the Agreement. Deputy President Bell in the decision approving the Agreement noted
the Agreement covers the AMWU.[82]

The expression “Parties” is frequently used in the dispute settlement procedure in Clause 17:
· In cl 17.2, “the Parties” must ensure the pre dispute status quo prevails.
· In cl 17.4, “the Parties” commit to the promotion and development of a harmonious workplace and that agree that the “following dispute prevention and settlement procedure will apply to assist the Parties” to efficiently resolve issues so that no lost time occurs.
The clear meaning of Parties in the first part of the dispute settlement procedure [ clause 17.1 and 17.2] is the Parties to the Agreement (as defined in clause 2). The parties to the Agreement commit to the pre dispute status quo and to using the procedure elaborated in the sub-clauses of cl 17.4.

The steps of the dispute settlement procedure are then laid out:

Clause 17.4.1 An Employee with a concern or dispute will first meet and confer with their immediate supervisor. The Employee may request that an Employee Representative support or represent them at any state of the discussions or the dispute procedure to resolve the dispute or concern.
Clause 17.4.2 If the matter is not resolved at such a meeting, then the Employee will arrange for further discussions involving more senior management as appropriate.
Clause 17.4.3 If the matter is unresolved after taking the above steps, the Company may refer it to a more senior level management representative.

The escalating steps provide:

· An obligation on an employee to confer with their immediate supervisor and power to request a representative to “support or represent them”.
· An obligation on an employee to escalate the discussions with senior management should the matter not be resolved.
· A right of Acciona should the concern or dispute remain unresolved to refer it to more senior level management.

The words “Employee” and “Company” are given an extended meaning in the dispute settlement procedure by clause 17.3 (with emphasis added):

· Clause 17.3.1 Any reference to an Employee includes any employee representative, other representative, or support person that the Employee has chosen to support or represent the employee at any stage of the discussions or the dispute settlement procedure.
· Clause 17.3.2 A reference to the Company includes “any person or organisation the Company has chosen to support or represent the Employee throughout this dispute prevention and settlement procedure.

Under cl 17.5, after following the steps of cl 17.4 and there being “no resolution to the dispute” then either Party to the dispute may refer the matter to the FWC for assistance.

Obviously, the word “Party” is given a more confined meaning by the words “to the dispute.” In the context and following 17.4, it refers to the parties mentioned in the steps prescribed in 17.4. Namely, an Employee and the Company.

The AMWU argues the extended meaning of “Employees” means the AMWU are Parties to the dispute in the present case and can therefore bring an application to the Commission under s 739.

Acciona argues this interpretation, in which an employee representative can bring a dispute as a party principal, would result in “an absurd outcome”. This is because clause 17.3.1 puts an employee representative on equal footing with any other representative or support person that an Employee chooses to support or represent them. In circumstances where the ordinary industrial meaning of support person encompasses any family member, friend or acquaintance of an employee, the Applicant's interpretation, reliant as it is on clause 17.3.1, would allow any such individual to bring a claim to the FWC in their own right.

The plain meaning of the extended definition of Employee and Company is that a reference to an Employee included “an employee representative, other representative or a support person”. The reference to the Company is broader, it includes “any person or organisation”.

The extended meaning requires a condition precedent. The representatives must be chosen to “support or represent’ the Employee or the Company. The word “chosen” by an employee is given a gloss by the terms of clause 17.4.1 which prescribes that an Employee may request a representative to “support and represent” them at any stage.

If the Company had chosen K & L Gates to represent it after Mr. Pantalleresco sent his first e-mail to Ms. Schroeder from Payroll, then Mr. Fleeton could have taken steps to move through the dispute settlement procedure including bringing the matter to the Commission. Mr. Fleeton is the “Company” and therefore a “Party to the dispute” for the purposes of the dispute settlement procedure through the operation of clause 17.3.2.

Similarly, if Mr. Pantalleresco had chosen the AMWU or a support person to represent him and notified the Company as required under clause 17.3.1 then the AMWU or the support person is “the Employee” for the purposes of the dispute settlement procedure. It follows as the representative is the “Employee” and therefore a “Party to the dispute”, it can take steps to escalate through the dispute settlement procedure, including bringing the matter to the Commission.

I disagree with Acciona’s assertion this is absurd because it would mean a support person, which could be “friend, family member or acquaintance,” can bring a matter to the Commission on behalf of an Employee. This is a consequence of the plain English meaning of the extended definition of Employee in clause 17.3.1. An “Employee” (and therefore a Party to the dispute) is bringing the matter to the Commission. As a person from a non-English speaking background, it is not difficult to envision a situation where a support person who is more conversant with the English language could bring a matter to the Commission on behalf of a person who struggles with English.

If the construction I contend for here, that is a chosen representative can stand in the shoes of an Employee or the Company and take steps through the dispute settlement procedure as an “Employee” or the “Company” is not correct, what is the point of the extended definition?

I rely on an analogy to the presumption against futility applied to the construction of statutes best expressed by Bowen LJ in Curtis v Stoven: “if it is possible a statute must be construed as to give sensible meaning to them.”[83] To render the extended definition of “Employee” or “Company” sensible in the dispute settlement procedure, it must be construed to mean that the representatives can takes steps as if they were the Employees or the Company and therefore a Party to the dispute. The effect of the definition is to make representatives “Employees” or “the Company” and therefore a “Party to the dispute.” Under clause 17.5 either Party to the dispute (including chosen representatives) may refer the matter to the Commission.

The problem for the AMWU is that at no stage of the dispute settlement procedure did Mr. Pantalleresco “choose” the AMWU to represent him on the question of whether he was entitled to superannuation on long service leave as he escalated it through the steps prescribed by clause 17.4. The steps Mr. Pantalleresco took to raise his “dispute or concern” were:

· On 21 March 2024 at 4:50 PM, Mr. Pantalleresco sent an e-mail to Ms. Schroeder from payroll with a “question about superannuation payments while on long service leave.” Ms. Schroeder responded on 25 March where she said, “there was no super payable at this stage when you are on long service leave.” He disagreed with Ms. Schroeder’s view.
· On 28 March 2024 at 6:15 PM and 9:17 PM, he sent two e-mails to Mr. Nicholas and Ms. Hay. First sending a link to the Programmed decision and then sending what might be described as a “case note” on Programmed noting “If Acciona does not agree, we wish to commence the dispute process to the next level.”
· On 2 April 2024, Ms. Hay e-mailed Mr. Pantalleresco and said, “I will look at this and get back to you.”
· On 12 April he sent a further e-mail to Ms. Hay again noting “can I get a response on superannuation payments will on long service leave” and pointed to the provisions of the dispute settlement procedure where the matter can be escalated to senior management, and if they disagree, take the matter to the Commission for arbitration.
· It is clear from the evidence of Mr. Souvatzis, his organiser, and the evidence of Mr. Pantalleresco himself, that at no time did the AMWU engage with management on his “concern.”

Mr. Pantalleresco directly engaged with management on his concern about his entitlement to superannuation payments on long service leave. At no time did he choose the AMWU to represent him, either at the initial raising of the dispute under clause 17.4.1 or while escalating it through clause 17.4.2 with Mr. Nicholas and Ms. Hay.

As he did not “choose” to be represented by the AMWU through the escalating steps, the AMWU was not a “Party to the dispute” under clause 17.5.

The AMWU could not rely on the extended definition of “Employee” as Mr. Pantalleresco did not “choose” the AMWU to support or represent him throughout the dispute settlement procedure. The condition precedent by which the AMWU could be regarded as an “Employee” during the dispute settlement procedure had not been made out. Mr. Pantalleresco did not “choose” to be represented by the AMWU while engaging with management.

I am fortified in this view by the decision of the Full Bench in Goonyella where they found:[84]

There was therefore no capacity under clause 41 for a former employee, or a representative acting on a former employee’s behalf, to initiate a dispute resolution process under clause 41. Nor does clause 41 contemplate that the dispute resolution procedure could have application to disputes between North Goonyella and the CFMEU in its own right - that is, as a party principal to a dispute and not as a representative of employees. For the reasons already stated, clause 41 only deals with disputes between current employees and North Goonyella, in relation to which the CFMEU may act as a representative. The references in clause 41.3 to a “party” and “parties” are, we consider, to be understood as referring to the parties to the instant dispute - that is, North Goonyella and the relevant employee(s) - and not to the definition of “The parties” in clause 3 of the Agreement.

I agree with Acciona. Goonyella is analogous to the situation here. The AMWU is a party to the Agreement under clause 2 but is not a “Party to the dispute” under clause 17.5. The AMWU cannot benefit from the extended definition under clause 17.3 because Mr. Pantalleresco ran his own show through the dispute settlement procedure and did not “choose” the AMWU to represent him.

It follows the AMWU cannot bring an application as a party principal under the dispute settlement procedure in the circumstances of this case.

SHOULD I AMEND THE APPLICATION TO SUBSTITUTE MR. PANTALLERESCO AS THE APPLICANT?

Acciona argues Mr. Pantalleresco was not himself in this dispute. He was a Trojan horse for the AMWU. It argues the evidence establishes he was always acting as a delegate and agent of the AMWU and for its interests. Consequently, it argues I should not amend the application because:

· The dispute between Mr. Pantalleresco and Acciona is not “genuine” because it was really a dispute raised and prosecuted by the AMWU. It does not represent a genuine dispute brought by the AMWU in its representative capacity.
· If I amend the application to the name of Mr. Pantalleresco it would render the dispute “fundamentally different” because the AMWU will transform itself from a party principal to a representative of Mr. Pantalleresco.

The AMWU bears the onus of demonstrating that I should exercise my discretion to amend. Acciona considers it has not met that onus.

Was Mr. Pantalleresco always acting as an agent for the AMWU?

According to Acciona, the evidence “when viewed in its entirety demonstrates this dispute has not been brought by the union in a representative capacity at all. Rather the evidence makes clear that at the relevant times Mr. Pantalleresco was acting in his capacity as a delegate.” Acciona relies on the following evidence and submissions in support of this proposition.
On 18 March 2024, the AMWU through its delegate raised the issue of his entitlements to superannuation on long service leave “a month after the Programmed decision”.[85]

On 20 March 2024, Mr. Pantalleresco was informed about the Programmed decision at a Delegates Forum.[86]
On 28 March 2024, Mr. Pantalleresco sent the link to the Programmed decision and subsequently sent the e-mail which referred to the Programmed decision and ended with the words “If Acciona does not agree we wish to commence the dispute process to the next stage.”

According to Acciona, this establishes that Mr. Pantalleresco “was aware of the Programmed decision and was acting in his role as delegate”.[87] Acciona argues that it is “implausible that he independently became aware of this decision at the time he happened to be enquiring about entitlements at the heart of the dispute or that he happened to be inquiring about these entitlements a month after the decision was published.”[88]

It should be noted in cross examination Mr. Pantalleresco accepted that “we” meant “members of the union.” When asked if the Union drafted this e-mail, he said: “Well I did ask for advice from the union on how to forward it on because, obviously, I'm a tradesman, I'm not a - I don't have a good knowledge of the internet or of the education process because I did do year 11, then started my trade school, so, no, I'm not a Philadelphia lawyer.”[89]

On 29 April 2024, the AMWU filed the application as party principal. It made a “forensic choice” to institute proceedings in its own right. Had the AMWU been acting as a representative of Mr. Pantalleresco it would have been a simple matter for an experienced industrial officer to draft the application in that way.[90]
On 22 July 2024, Mr. Souvatzis signed a witness statement, subsequently tendered into evidence, that the dispute was raised by Mr. Pantalleresco in his capacity as a delegate.[91] Mr. Pantalleresco in his Statement stated he was seeking to raise an issue which impacted fellow members at Acciona.[92]

According to Acciona, in my Notice to Produce decision dated 4 October 2024, I withheld production of documents on the basis that Mr. Pantalleresco was acting in a capacity of a delegate.[93] It gives examples from the following passages in that decision:[94]
[56] After examining the documents, the documents could serve a forensic purpose in support an argument whether the dispute was initiated by the AMWU rather than in his capacity as a delegate of the AMWU. It follows a fishing objection to the production of documents is not sustained.
[61] There are compelling arguments the 30 August order may have an oppressive impact on Mr. Pantalleresco and the AMWU. I accept the argument it may not be in the public interest that communications between industrial staff of unions and their delegates to be disclosed based on the chilling effect that such an order might have on these communications which are made in private.
[72] Some of the text messages and all the e-mails in the documents that fall within Class One have been prepared for the purposes of giving advice to its delegate or in anticipation of a Commission proceeding. On my assessment, it is precisely the kind of documents that, if it had passed between Acciona’s solicitors and the management of Acciona, it would be protected from disclosure either through advice or litigation privilege.
[74] The rationale for legal professional privilege is to “promote an effective adversarial system by fostering candour and trust in the lawyer client relationship and by protecting the information of each party to adjudication from disclosure to the other side”. It would be passing strange in this jurisdiction if, for these policy reasons, private advice from an industrial officer or organiser to a delegate were not protected from disclosure in some circumstances. It would be equally strange if the reluctance the Commission has shown to disclosing internal strategy deliberations would not extend to advice in these circumstances.
[78] I accept the production of some of the documents would be oppressive of both the AMWU and Mr. Pantalleresco. My examination reveals some of the text messages and the email correspondence were created for the dominant purpose of providing advice to Mr. Pantalleresco or in anticipation of a Commission proceeding. It would interfere with his right to privacy and his right to perform his duties as a union delegate. The order would also be oppressive in its impact on the AMWU and the rights of its members more broadly by violating their ability to communicate with the union without fear of employer intrusion. It is not in the public interest for these documents to be disclosed for this reason.
[79] The e-mails and some of the text messages are of a kind that the Commission has cautioned about disclosing. The Full Bench in Great Southern Energy considered both the claim of legal professional privilege and the reluctance the Commission has shown to the compelled production of documents that reveal internal deliberations of industrial strategy. Individual advice between a delegate and staff of a registered organisation could fall within this category. The logic of the cautionary approach of the Commission applies to both internal deliberations of grand strategy and to advice between a member and their registered organisation.

Consideration of this argument

Mr. Pantalleresco is both an employee and a delegate. He made an application to take long service leave on 18 March. No one disputes that he ended up taking a combination of long service leave and annual leave. His absence on that leave disrupted this proceeding.

Mr. Pantalleresco is a tradesman, employed by Acciona as a mechanical fitter. He admitted in the proceeding he is not a “Philadelphia Lawyer” and was not familiar with the internet. I suspect Mr. Pantalleresco does not have a subscription to Workplace Express or access to copies of the Industrial Reports. He relied on his union to inform him of a recent authority, in this case the Full Bench decision in Programmed, that may affect his rights or the rights of his members. This fact is the plainest vanilla.

It is clear to me Mr. Pantalleresco did not draft the e-mail he sent at 9:17 PM on 28 March 2024 which contained the case note and the link to Programmed decision which ended with “we wish to commence the dispute settlement process to the next stage”.

This was obviously drafted by the AMWU. Mr. Pantalleresco was being advised as to how to navigate the dispute settlement procedure. It is not unusual for legal advisers to draft correspondence on behalf of persons they advise. It does not follow that because it was drafted by the AMWU, he was not interested in pursuing his personal concern through the dispute settlement procedure.

The fact the person that drafted the second e-mail used the pronoun “we” does not take the matter further. To quote Walt Whitman’s famous poem Song of Myself: “I contain multitudes.” It is possible Mr. Pantalleresco, as a long-time delegate, was concurrently pursuing:

· his own interests in obtaining superannuation payments on long service leave.
· the interests of the members on site who have taken or will take long service leave; and
· the broader interests of the AMWU in seeking to flow the result in Programmed.

The concurrent pursuit of these interests does not foreclose Mr. Pantalleresco’s ability to pursue a personal concern and the use of the word “we” in correspondence does not detract from that position. In cross examination, Mr. Pantalleresco articulated this:

“…I represent a group of workers, and when I represent them, I'm involved in that group, so if I'm contesting something on my own behalf, I expect that everybody in the business that has the same issue, that, once it's resolved, everybody's situation has been resolved. For example, if I'm underpaid, and I put a question forward that I was underpaid for a particular reason, I don't expect myself to be the only one that gets the back pay, everyone that was underpaid should be getting the back pay.”[95]

Similarly, the evidence of Mr. Pantalleresco, in his statement and in cross examination, and the evidence of Mr. Souvatzis in his statement that Mr. Pantalleresco was raising the dispute “for the members” does not diminish his rights to pursue a dispute through the dispute settlement procedure as an employee with a concern.

As to my various findings in the Notice to Produce decision, the gravamen of that decision was that a delegate making an enquiry of the industrial staff of a union should be protected in the manner of legal professional privilege. To quote one of the passages relied on by Acciona with emphasis added:

[79] The e-mails and some of the text messages are of a kind that the Commission has cautioned about disclosing. The Full Bench in Great Southern Energy considered both the claim of legal professional privilege and the reluctance the Commission has shown to the compelled production of documents that reveal internal deliberations of industrial strategy. Individual advice between a delegate and staff of a registered organisation could fall within this category. The logic of the cautionary approach of the Commission applies to both internal deliberations of grand strategy and to advice between a member and their registered organisation.

It is possible for Mr. Pantalleresco to make a legal enquiry of the industrial staff of the AMWU as a delegate involving a dispute in which he had a personal stake. The fact he held the office of delegate does not foreclose the possibility that he was seeking advice on a concern that affected him personally. The policy reasons for withholding documents from production are the same whether the advice was in relation to his individual rights or on behalf of the collective.

If I were to find Mr. Pantalleresco was not raising a matter on his own behalf because he is a delegate, it may impede the capacity of delegates to raise personal concerns through dispute settlement procedures. It would invite an examination of whether the delegate is genuinely bringing the dispute as an employee or as the union each time a delegate raised a matter in which she/he has a personal stake.

Even if the dispute here had been brought to the Commission by Mr. Pantalleresco in his own name through the dispute settlement procedure, Acciona could make the objection with respect to genuineness: “he was really bringing it as an agent of the union.” This cannot be in the public interest.

The Commission has an obligation under s 577 to perform its functions in a way that avoids unnecessary technicalities. Inviting a forensic investigation whether a delegate raised a concern as an employee or as a delegate and agent of a union is fraught with unnecessary technicalities. The jurisdiction of the Commission under s 739 requires quick and informal resolution of disputes under a dispute settlement procedure. It is not the Equity List of the Supreme Court of Victoria where arcane arguments on implied agency are often made.

There is an air of unreality about this delegate argument. The fact is Mr. Pantalleresco made an application to take long service leave. He raised a concern about the payment of superannuation during that leave. He then pursued it through payroll and then to more senior management under clauses 17.4.1 and 17.4.2. The fact he held the office of delegate does not take away the plain English meaning of the words “an Employee with a concern.” Mr. Pantalleresco plainly was an Employee who had a concern about payments on a class of leave. He is therefore a Party to the dispute under clause 17.5.

For these reasons I do not find Mr. Pantalleresco raised the dispute as an agent for the AMWU but in a personal capacity. He raised a concern about superannuation payments on long service leave after he applied for long service leave. It is not disputed he subsequently took long service leave. The fact that raising this concern may have had collateral benefits for the AMWU members on site, or the AMWU membership more broadly does not change the fact he was an “employee with a concern” under plain words of the Agreement.

WorkPac

I alerted the parties to Deputy President Asbury’s decision in WorkPac where the Deputy President made an order to amend an application which had been made by the CFMEU as party principal to named individuals. I did so on the basis that it may guide my decision in this case.

The dispute in WorkPac was whether Field Team Members (FTM) employed by WorkPac were entitled to be paid afternoon and night shift rates for all hours worked where they worked under a rotating roster. The steps taken under the dispute settlement procedure were correspondence from the CFMEU on 14^th and 18 April 2016. No employee of WorkPac was involved in this correspondence.

Acciona says the decision in WorkPac is distinguishable because in that decision:

There was evidence there were persons who were said to be employees of the employer who had been adversely affected by the employer’s actions in respect of the relevant agreement.
The Commission received declarations to the effect that the CFMEU was authorised to represent them in the dispute (unlike in this case)
The Deputy President found (amongst other things) that the CFMEU had “represented those employees from the point the dispute was articulated by the CFMEU.”

Acciona submits the distinguishing characteristic between the situation in WorkPac and the situation here is “the AMWU has not established that it is representing an affected employee and is authorised to do so.” Acciona argues that without evidence the AMWU was representing Mr. Pantalleresco, I cannot amend the application under s 586.

The situation here is different from WorkPac because the first two steps of the dispute settlement procedure were not undertaken by the AMWU but by an “Employee with a concern.” In those circumstances there is no necessity to ask whether the AMWU was authorised to act because Mr. Pantalleresco was acting on his own behalf in prosecuting the first two steps.

Amending the application is not amending the application to resolve the status of the Union which had initially raised the dispute as in WorkPac. It is to allow Mr. Pantalleresco to pursue the dispute he raised through the dispute settlement procedure as an “Employee with a concern” and therefore as a “Party to the dispute”.

Global Product Search and the lack of a “genuine dispute”

Another argument raised by Acciona is that the situation of the AMWU here is “more akin” to circumstances in Global Product Search in which the AMWU sought to agitate a dispute in which there was no evidence it was acting on behalf of or with the authority of the employees at the time it initiated the dispute, and the discretion was not exercised by Deputy President Lake.

The facts of that case were:

· The AMWU wrote to the Global Product Search to notify of a dispute, and Global Product Search replied on 20 December 2021. On 23 December 2021, the Union filed an F10 notifying the Commission of a dispute under s 739.[96]
· The Union subsequently provided 25 letters signed by employees to act as a representative in the dispute and that they had instructed the Union to commence the current dispute.[97]

Deputy President Lake relevantly found (with emphasis added):[98]

[44] The DRP provides that representation is available and that it is an “employee who is party to the dispute may appoint a representative for the purposes of the procedures in this term”. There are no qualifiers in this statement, it stands alone and prior to the escalation pathway required in the DRP. The plain and ordinary view of this is that a representative can be appointed at any stage of the dispute. There is no mention that a dispute must be created as a pre-condition to the engagement of the representatives. The clause does not specify how or when the appointment must occur.
[45] However, the issue of whether the disputes procedure was followed has another leg and that is – was the escalation process followed, the AMWU provided no evidence to the Respondent that at the time of the discussions prior to the notification of a dispute to the Commission that they were acting with authority as representatives of any employee.
[46] However, at the time of the discussion no employee had notified or engaged with the Respondent that they either had an issue or had someone representing themselves. They engaged with the Union in good faith and outlined the circumstances where the employees and the Respondent had consulted regarding the shutdown roster and the Respondent had agreed to the proposal put forth by the employees. Further that an agreement was reached at the time with employees which in their view and the employees was consistent with the Agreement’s application, and the roster was implemented.
[47] The Commission is allowed to deal with a dispute under s.739 to the extent that the relevant agreement allows for and that the parties to the Agreement set the parameters for the involvement and actions the Commission may take. The Agreement provides the framework within which the Commission can exercise a role and its powers.
[48] This is not a case where the DRP was difficult or impossible to follow. The AMWU has filed no evidence to establish jurisdiction. There is no evidence that at the time of the 2021 discussions, the AMWU were acting on behalf of, or with the authority of, any employee. The AMWU is not covered by the Agreement and has no ability, under the DRP to agitate disputes generally. It may act as a representative of an employee/employees, but it gives no evidence that in fact was what it did in 2021.
[49] The dispute did not follow the DRP and attempts at post application fixes by providing letters of authorisation and framing the matter as a dispute when the first step in the process was not adhered to does not respect the process agreed to by the parties and set down in the Agreement.

The issue for Deputy President Lake was that, at the time the dispute was initiated by the union with management, no employee had notified or engaged with Global Product Search that they had an issue, or they had someone representing them. Also, there was no evidence, when the dispute was first raised by the AMWU with management, it was acting on behalf of anybody.

This is distinguishable from the case here. In Global Product Search, the AMWU had initiated the dispute with management and then brought it to the Commission. Deputy President Lake found that what was “relevant” and “necessary” was “for the AMWU to “establish at the time discussions were had it acted as a representative of an employee that was raising the dispute with the employer”.

This is not the case here. Mr. Pantalleresco, an employee with a concern, was acting for himself for the first two steps of the dispute settlement procedure. The AMWU first inserted itself by making the application to the Commission as a party principal.

Does an amendment to the application to substitute Mr. Pantalleresco as applicant “fundamentally change” it?

Acciona argues to change the AMWU from a party principal to a representative of Mr. Pantalleresco changes the fundamental nature of the application.

The limitation on power to amend in s 586 not to “fundamentally change” an application derives from a Full Bench of the Commission in Djula v Centurion Transport Company Ltd[99] which concerned an application to amend an unfair dismissal proceeding to change the corporate person named as the Respondent. The Full Bench gave some context as to what exactly “fundamentally different application” was:

[29] The facts in this matter are also distinguishable to those considered in Ioannou v Northern Belting Services Pty Ltd (Ioannou). 16 The Full Bench there considered whether it could permit an amendment of an unfair dismissal application to make it a general protections application. It said that the power in s.586 of the Act cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made. The amendment sought by the applicant in that matter would have resulted in transforming an unfair dismissal application into an application under s.365 and, for this to be done, without the applicant meeting the procedural and other requirements set out in the Act for making of a general protections application. The amendment sought here by Mr. Djula is not of the same kind as dealt with by the Full Bench in Ioannou.

The amendment sought by the AMWU here does create a new application. It does not transform a dispute raised by the AMWU from the first discussions with management to a dispute where it represents named employees (as was the case with Global Product Search).

The dispute was initially raised by an Employee with a concern who happened to be an AMWU delegate. If I made the proposed amendment, it would allow Mr. Pantalleresco to continue to pursue his dispute at the Commission consistent with the dispute settlement procedure. The fact the AMWU continues in a representative capacity is a collateral effect of correcting the error it made in naming itself as the applicant. The Party to the dispute was Mr. Pantalleresco.

In Workpac, Deputy President Asbury rejected the argument that to amend the application by changing the identity of the applicant would “fundamentally change” the nature of the application. She found (with emphasis added):

[55] WorkPac contends that the non-identification of employees who are in dispute is a jurisdictional barrier to the Commission dealing with the dispute that cannot be cured by an amendment to the application pursuant to s. 586 of the Act. WorkPac contends that s. 586 of the Act is not a source of power to amend the application on the basis that such an amendment would fundamentally change the nature of the application. In support of that proposition, WorkPac refers to a number of Full Bench Decisions which have considered the scope of the power under s. 586 of the Act and previous iterations of this power.
[56] I do not accept that submission. The decisions referred to by WorkPac relevantly establish that s. 586 of the Act provides a power to correct or amend an application but does not empower the Commission create a new application. This is not a case where the amendment sought by the CFMEU would create a new application. It is well established that the Commission can amend an application using the power in s. 586 of the Act by changing the identity of the respondent to an application without creating a new application. I can see no reason why, in the circumstances of the present case, the power in s. 586 cannot be used to change the identity of the applicant.
[57] In the present case, an amendment to the effect that the application is made on behalf of members of the CFMEU rather than the CFMEU as party principal to the dispute, will not alter the fundamental nature of the application. The application seeks that the Commission deal with a dispute arising under an enterprise agreement in accordance with a dispute settlement procedure in the Agreement. The dispute is in relation to an interpretation of the Agreement adopted by WorkPac which it asserted is wrong and has resulted in a reduction in the income of employees of WorkPac employed at Hail Creek Mine as FTMs under the Agreement. The same issue will be in dispute regardless of whether the applicant is the CFMEU or an employee or employees of WorkPac are represented by the CFMEU.

The amendment sought in this case, from the AMWU to Mario Pantalleresco, is on all fours with the logic of Deputy President Asbury in WorkPac. The application seeks for the Commission to deal with a dispute whether clause 16 of the Agreement entitles employees to superannuation payments for the period they are on long service leave. Like WorkPac, the same issue will be in dispute regardless of whether the applicant is the AMWU or Mr. Pantalleresco.

For these reasons I do not consider the amendment changes the fundamental nature of the application.

Does the AMWU’s conduct “weigh heavily” against the exercise of the discretion to amend?

Acciona argues I should not exercise my discretion under s 586 by reason of the conduct of the AMWU:

· Earlier on in the proceeding, the AMWU argued it was its “standard practice” to file applications in its own name and having “previously asserted it made a forensic decision to bring the application in its own name it is now seeking to argue that the application brought in its own name is a mistake”.
· These propositions are “entirely contradictory.” Only one of them can be accurate. The AMWU is now seeking to argue that it acted mistakenly in order to support the amendment application.
· This conduct is significant and should heavily inform the Commission in determining whether it is appropriate to exercise its discretion under s 586 of the Act.
· The “disingenuous attempt” to belatedly characterise its conduct as mistaken weighs heavily against the exercise of the discretion. Rather, the appropriate course would be for the Applicant to withdraw the Application.

My understanding of the position of Acciona is that the dispute settlement procedure in the Agreement does not allow for the AMWU to make an application as party principal. It follows that as the AMWU made an application in its own name it made a mistake. If it was not mistaken, why take a jurisdictional objection?

The AMWU’s argument supporting an amendment are not expressed as “in the alternative,” but they clearly must be alternatives. Either the AMWU has a capacity to bring a dispute to the Commission as a party principal and no amendment is required, or I should amend the application. I would not need to amend the application if the AMWU was a Party to the dispute under the dispute settlement procedure.

This case has been sidetracked: first by the unavailability of Mr. Pantalleresco (who was on long service and annual leave); then by the time it took to write the Notice to Produce decision, and then by the listing of the final hearing. As a result, the parties made initial submissions, further submissions, and submissions in reply. In those circumstances it is understandable the position of the AMWU developed over time. I do not consider their failure to expressly style their submissions on the amendment power as “in the alternative” should count against it in the exercise of my discretion under s 586.

DISPOSITION

For these reasons I find:

· The AMWU was not a Party to the dispute under clause 17.5 of the dispute settlement procedure in the Agreement and could not therefore bring an application to the Commission in its own name.

· Mr. Pantalleresco as an “Employee with a concern” under clause 17.4.1, and as an “Employee” under clause 17.4.2 was a Party to the dispute and can therefore bring a dispute to the Commission under clause 17.5.

· I exercise my discretion to amend the application under s 586 (a) by deleting AMWU as the Applicant in this proceeding and inserting in its place the name “Mario Pantalleresco” as Applicant. I will publish an order to that effect with this decision.[100]

FURTHER CONDUCT OF THIS MATTER

I wish to program the matter for arbitration in order to settle the dispute between Mr. Pantalleresco and Acciona. I will list a mention with the aim of discussing the programming and eventual hearing of the dispute.

COMMISSIONER

Appearances:

Ms. Chloe Simmons on behalf of the Applicant.
Mr. Dominic Fleeton on behalf of the Respondent.

Hearing details:

6 August 2024, 15 November 2024
Melbourne

[1] PN 67. He explained his absence in a subsequent hearing on 15 November 2024.

[2] PN 177 - 6 August hearing.

[3] AMWU v Acciona[2024] FWC 2780 from here on referred to as the “Notice to Produce decision”.

[4] Digital Court Book (from hereon referred to as the DCB at) at pp. 1-7

[5] Programmed Facility Management v AMWU[2024] FWCFB 100 a Full Bench decision of Deputy President Gostencnik, Deputy President Masson and Deputy President Hampton dated 23 February 2024.

[6] DCB at 5.

[7] DCB at 6.

[8] DCB at 78-79

[9] DCB at 78.

[10] DCB at 84-85.

[11] DCB at 78 at paragraph 7.

[12] DCB at 78 at paragraph 8.

[13] DCB at 86.

[14] DCB at 79 at paragraph 9.

[15] DCB at 106 in the material filed by the Respondent

[16] DCB at 107.

[17] PN 123 – 15 November hearing.

[18] Ibid PN 133-179.

[19] DCB at 88.

[20] DCB at 90.

[21] This exchange is in the transcript of 15 November at PN 208-214.

[22] Ibid PN 221-224.

[23] DCB at 79 from paragraph 11 of the Statement of Mario Pantalleresco.

[24] Ibid paragraph 12.

[25] DCB at 76 – paragraph 1 of the Statement of Luke Souvatzis.

[26] PN 275 – 15 November hearing.

[27] DCB at 76, paragraphs 4 and 5.

[28] Ibid paragraph 6.

[29] [2022] FWCA 1633, [3].

[30] CFMEU v North Goonyella Coal Mines Pty Ltd[2015] FWCFB 5619.

[31] DCB at 97 Acciona’s Submissions of Fact and Law at paragraph 15.

[32] Goonyella, [39].

[33] DCB at 70-71, the AMWU’s Submissions of Fact and Law at paragraphs 10 to 22.

[34] Ibid paragraphs 14-16.

[35] James Cook University v Ridd [2020] FCAFC 123.

[36] Ibid [65].

[37] DCB at 71, the AMWU’s Submissions of Fact and Law at paragraph 19.

[38] Ibid at paragraph 20.

[39] Ibid at paragraph 21.

[40] Ibid at paragraph 22.

[41] DCB at 101 in Acciona’s Submissions of Fact and Law in Reply.

[42] DCB at 102 in Acciona’s Reply Submissions at paragraphs 7-8.

[43] Ibid.

[44] Ibid paragraph 9.

[45] CFMEU v WorkPac Pty Ltd[2017] FWC 1735.

[46] DCB at 113, Statement and Directions dated 24 June 2024.

[47] Ibid.

[48] DCB at 80, the application was formally made late in the piece in the AMWUs’ Further Submissions of Fact and Law at paragraph 2.

[49] Ibid paragraph 3.

[50] Ibid paragraph 4.

[51] Ibid paragraph 5.

[52] DCB at 82, paragraph 17.

[53] Ibid paragraph 19.

[54] DCB at 69-74.

[55] DCB at 81.

[56] WorkPac, [58].

[57] DCB at 73, paragraphs 33-39.

[58] RTBU v Asciano Services Pty Ltd trading as Pacific National[2017] FWCFB 1702.

[59] Ibid [15].

[60] Ibid [16].

[61] DCB at 74, the AMWU’s Submissions of Fact and Law at paragraph 38.

[62] DCB at 74.

[63] Ibid.

[64] [2022] FWC 1255, a decision of Deputy President Lake.

[65] DCB at 99, Acciona’s Submissions of Fact and Law at paragraph 23.

[66] DCB at 105, Acciona’s Submissions of Fact and Law in Reply at paragraphs 18-19.

[67] As I have noted earlier it clearly has made an application its Further Submissions of Fact and Law.

[68] DCB at 98-99, Acciona’s Submissions of Fact and Law at paragraph 20.

[69] Ibid paragraph 21.

[70] Ibid paragraph 22.

[71] Ibid paragraph 23.

[72] DCB at 109-10. These submissions are made in Acciona’s Further Submissions at paragraphs 6-10.

[73] DCB at 108-111.

[74] DCB at 109, Acciona’s Further Submissions at paragraph 7.

[75] DCB at 110, paragraph 14.

[76] DCB at 104, Acciona’s Reply Submissions at paragraph 16.

[77] Ibid.

[78] Ibid paragraph 17.

[79] DCB at 110-111, Acciona’s Further Submissions at paragraphs 15-17.

[80] Ibid paragraph 17.

[81] AMWU v Berri Pty Ltd[2017] FWCFB 3004, [114].

[82] [2022] FWCA 1633, [3].

[83] (1889) LR QBD 513 at 517.

[84] [2015] FWCFB 5619, [39].

[85] DCB at 104, Acciona’s Submissions of Fact and Law in reply at paragraph 16.

[86] DCB at 78, Statement of Mario Pantalleresco at paragraph 5.

[87] DCB at 103.

[88] DCB at 104.

[89] PN 160.

[90] DCB at 110 Acciona’s Further Submissions at paragraph 14.

[91] DCB at 19.

[92] DCB at 79, Statement of Mario Pantalleresco at paragraph 16.

[93] DCB at 109, Acciona’s Further Submissions at paragraphs 8-9.

[94] [2024] FWC 2980.

[95] PN 210 – 15 November hearing.

[96] [2022] FWC 1255, [11].

[97] Ibid [13].

[98] [2022] FWC 1255, [45]-[49].

[99] [2015] FWCFB 2371. A decision of Catanzariti VP, Harrison SDP, and Bull C. This decision is referred to by Deputy President Asbury in WorkPac at [25].

[100] PR787442.

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