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

[2014] FWC 1005

[2014] FWC 1005

FAIR WORK COMMISSION

DECISION

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

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Agilent Technologies Australia Pty Ltd
(C2013/1106)

COMMISSIONER ROE MELBOURNE, 10 FEBRUARY 2014

Representation by counsel - arbitration under disputes settlement procedure of Agreement.

[1] The Australian Industry Group on behalf of Agilent Technologies of Australia (M) Pty Ltd (Aglient) have sought that permission be granted for counsel to appear in the proceedings listed for 26, 27 and 28 February 2014. The proceedings relate to the arbitration of a classification dispute under the Agilent Technologies Australia (M) Pty Ltd Enterprise Agreement 2012 (the Agreement).

[2] The provisions of the Agreement in respect to disputes settlement provide at Clause 34(5) and (6) as follows:

“(5) If the discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Australia.

(6) Fair Work Australia may deal with the dispute in 2 stages:

(Stage 1) Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including mediation, conciliation, expressing an opinion or making a recommendation; and

(Stage 2) if Fair Work Australia is unable to resolve the dispute at the first stage, either party can apply to Fair Work for arbitration Fair Work Australia will:

(i) Arbitrate the dispute; and

(ii) Make a determination that is binding on the parties.

Either party has the right to appeal subject to the FWA.”

[3] The dispute in this matter is covered by a specific clause in the Agreement as follows:

“35.a Metals 2 Line Technician Classification Dispute Resolution

Competency and classification assessment of Technical Part 2 Employees

The parties recognize this has been a matter of long standing dispute and has not been resolved as intended by Clause 3.31 of the Varian Australia Enterprise Agreement 2009.

The parties have agreed to the following process of review to resolve the matter:

1. The Metals Competency framework will be utilized;

2. Nominated representatives, including the employees affected, will confirm the tasks undertaken;

3. An assessment will be undertaken by the respective nominated parties appointed representatives;

4. The process will identify the current tasks and position and review the position tasks from a historical perspective;

5. Those positions to be included in the review are Part 2 technical employees.

In the event that the parties cannot reach agreement or have not resolved the matter within the first 3 months of the operation of the Agreement, the matter will be referred to Fair Work Australia for resolution in accordance with the disputes procedure to be heard by Commissioner Roe.

Backpayment for any named employee who is reclassified as a result of the above process will be made to 1 January 2007. Employees not party to the dispute will have their back payment to 1 October 2009 per the Varian Enterprise Agreement 2009.

The parties affected by this dispute are listed in the attached Appendix 1.”

[4] The private arbitration function conferred on FWC as a result of this disputes settlement clause must be conducted in accordance with Section 739 of the Act. This is because the term or clause fits the description in Section 738(b) of the Act and Section 595. Section 739 prevents the Fair Work Commission from:

● Dealing in some cases with matters covered by Section 65(5) and 76(4). This is not relevant in this case.
● Exercising powers limited by the disputes settlement term of the Agreement.
● Making a decision which is inconsistent with the Act or the Agreement.

[5] Section 596 applies to the private arbitration function exercised by the Fair Work Commission.

[6] The parties agree that the relevant part of Section 596 is as follows:

“(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter”

[7] Section 596(2)(b) and (c) are not relevant in the circumstances of this case as the employer is able to represent itself effectively including through the Australian Industry Group and the AMWU is represented by competent and experienced advocates.

[8] The AMWU strongly oppose the granting of representation. The main concerns of the AMWU are that the process may be frustrated by unnecessary and time consuming technical objections if permission is granted and that the Respondent is attempting to make the process much more complex than it needs to be and that granting permission for representation by counsel would add to this appearance of unnecessary complexity.

[9] I have considered the written submissions of the parties.

[10] I agree with the AMWU that there are no complex jurisdictional issues in this matter. The matter will be largely determined by reference to the evidence. There is no dispute about the stage of the classification process and the nature of the matter to be determined at this stage of the classification process.

[11] I agree with the Australian Industry Group that this matter has an extraordinarily long history. The matter in dispute has been the subject of specific provisions in earlier collective agreements. Clause 35.a of the Agreement acknowledges that the classification claims of some of the employees date from 1 January 2007 and that there was a provision in the 2009 collective agreement that the processes for other employees would be completed and would be operative from 1 October 2009. I also agree with the Australian Industry Group that the stakes in this matter are high for both parties given the long period over which any entitlement to back payment of reclassification would operate in the event that the AMWU is successful in their case in whole or in part.

[12] In these circumstances it is unsurprising that both the AMWU and the Australian Industry Group on behalf of Agilent are devoting considerable time and resources to making sure that their case has the best prospects of success.

[13] The provisions of the Agreement, read in context, make it clear that this long running dispute is to be resolved through this arbitration before me. It is not consistent with the provisions of the Agreement for this to be unnecessarily delayed or frustrated. Whether or not permission to be represented by counsel is granted I intend to conduct the proceedings accordingly.

[14] In this respect I intend to seek to conduct this matter consistent with the obligations under Sections 577 and 578 and 591 of the Act:

“577Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

591 FWC not bound by rules of evidence and procedure

The FWC is not bound by the rules of evidence and procedurein relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter).”

[15] I agree with the Australian Industry Group that taking into account the history of this matter the task of determining which units of competency best align with the agreed scope of work does involve some complexity.

[16] I suspect that if permission to be represented by counsel is not granted the Australian Industry Group on behalf of Agilent will be less confident in dealing with the evidence in chief and the cross examination. This could potentially lead to delays and inefficiencies in the conduct of this matter.

[17] For this reason I will grant permission for Agilent to be represented by counsel as I consider, taking into account the complexity of the matter, that it will enable the matter to be dealt with more efficiently.

[18] However, should it become clear during the conduct of proceedings that this is not the case and if the concerns raised by the AMWU are realised then permission may be withdrawn.

COMMISSIONER

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