“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v CBI Constructors Pty Ltd T/A CB&I

[2016] FWC 4896

[2016] FWC 4896

The attached document replaces the document previously issued with the above code on 1 August 2016.

It is amended by deleting the word “by” at the end of the last sentence in paragraph [60].

Associate to Commissioner Ryan

Dated 1 August 2016

[2016] FWC 4896

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
CBI Constructors Pty Ltd T/A CB&I
(C2016/914)

COMMISSIONER RYAN MELBOURNE, 1 AUGUST 2016

Alleged dispute about selection and consultation in relation to redundancy of John Webb.

[1] On 21 April 2016 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) filed an application pursuant to s.739 of the Fair Work Act 2009 (the FW Act) for the Commission to deal with a dispute in accordance with clause 15 – Disputes Resolution Procedure of The Longford Gas Conditioning Plant Project Construction Agreement 2013 between CBI Constructors Pty Ltd and the AMWU, AWU, CEPU and CFMEU. The dispute broadly concerned an exercise of downsizing of the CBI Constructors Pty Ltd (CBI) workforce and more particularly the fact that the AMWU shop steward was dismissed by way of redundancy.

[2] CBI contended that the Commission lacked jurisdiction to deal with the alleged dispute. The parties agreed that the Commission could decide the jurisdictional issues on the papers. Directions were issued to the parties for the filing and serving of material and both parties complied with the Directions.

[3] Clause 15 of the Agreement provides as follows:

“15. DISPUTES RESOLUTION PROCEDURE

15.1 The parties to this Agreement concur that disputes should be resolved on the Construction Site wherever possible, in accordance with the procedure set out in this clause.

15.2 In the event of a dispute between the Employer and an Employee or Employees about any matters (other than disputes concerning safety) arising under this Agreement, or in relation to the NES, the dispute shall be dealt with in the following manner:

15.2.1 In the first instance, the dispute shall be taken up with the supervisor of the Employee(s) involved;

15.2.2 If the dispute cannot be resolved with the supervisor, the matter may be referred to the relevant superintendent;

15.2.3 If the dispute cannot be resolved with the relevant superintendent, the matter may be referred to the site Construction Manager;

15.2.4 If the dispute cannot be resolved with the site Construction Manager, it shall be referred to a senior Company management representative and a senior representative of that Union party to the dispute. Where the dispute involves more than one (1) Union, an agreed representative may be appointed to resolve the dispute on their behalf;

15.2.5 If the dispute cannot be resolved with the involvement of a senior Company management representative and the senior Union representative, the matter may be referred to the FWC by the Company or the Union party to the dispute for conciliation;

15.2.6 If the dispute is not resolved by conciliation the dispute may be arbitrated subject to the normal rights of appeal.

15.2.7 Whilst the above process is being followed, the status quo shall remain (as it was prior to the dispute arising) for a period of 14 days (unless directed otherwise by the Commission) after which time the work may continue normally at the direction of the Employer. The parties agree that disputes relating to safety, termination for misconduct and/or termination related to the normal down-manning required by the completion of stages for the Construction Works shall not be subject to the status quo.

15.3 Employees may appoint a representative of their choice to assist in the resolution of the dispute. The employee representative may be an on-site union delegate, relevant union official or any other person chosen by the Employee.”

[4] CBI’s jurisdictional challenges to the AMWU application were threefold. Firstly, that a dispute could only be referred to the Commission under clause 15.2.5, if, and only if, the steps in clauses 15.2.1 to 15.2.4 had been complied with. Secondly, that the subject matter of the alleged dispute as notified in the application is not a matter that could be dealt with under clause 15. Thirdly, that the Commission lacked jurisdiction to deal with a dispute because the application was filed with the Commission after the affected employee had been dismissed.

[5] I now turn to the first objection.

Does the Commission have jurisdiction to deal with a dispute if the procedural steps for attempting to resolve the dispute at the workplace level have not been followed?

[6] In its first written submissions 1 CBI contended as follows:

“2.2. The power of the Commission to arbitrate a dispute under the Agreement is constrained by the terms of the dispute resolution procedure set out at clause 15 of the Agreement. The preceding procedural steps required to enliven the Commission’s power to arbitrate under clause 15 have not been complied with and, consequently, the Commission does not have the power to arbitrate under the Agreement.”

And

“8. The dispute resolution procedure is clearly set out at clause 15 of the Agreement. Specifically, clause 15.2 sets out the procedural steps that must be followed in dealing with an alleged dispute. Clause 15.2 is a cascading clause, mandating completion of each step prior to enlivenment of the next. The clause is mandatory in this sense because each subsequent step is only applicable if resolution of the dispute was not possible under the preceding step. For example, the dispute may only be referred to Senior Company Management under clause 15.2.4, if the dispute cannot be resolved by the site Construction Manager under clause 15.2.3.

9. Any jurisdiction of the Commission to deal with the dispute by arbitration under clause 15.2.6, requires completion of the following preceding steps:

9.1. taking up of the dispute with the supervisor: clause 15.2.1;
9.2. referral of the dispute to the relevant superintendent: clause 15.2.2;
9.3. referral of the dispute to the site Construction Manager: clause 15.2.3;
9.4. referral of the dispute to a senior Company management representative and a senior representative of the relevant Union: clause 15.3.4; and
9.5. referral of the dispute by either CBI or the relevant Union for conciliation: clause 15.2.5.”

[7] In its reply submissions 2 CBI made further detailed submissions in relation to the need for compliance with the steps in clause 15:

“3. The use of the phrase “wherever possible” at Clause 15.1 of the Agreement is merely a statement of the parties’ intentions regarding their approach to dispute resolution. It is not to be interpreted as rendering compliance with the steps set out in clause 15.2 as somehow optional or mandatory only where the AMWU deems it “possible”.

4. The Parties to the Agreement went to significant lengths expanding upon what was considered the “workplace level” so as to avoid matters being heard in the Commission ‘wherever possible’.

6. Further, clause 15.2, which outlines the steps for dispute resolution prior to escalating the matter to the Commission, requires the parties to deal with a dispute in the following manner leading into the mandatory steps which are jurisdictional prerequisites which must be satisfied prior to referring the matter to the Commission.

7. In construing any perceived inconsistency between clause 15.1 and clause 15.2 the true rule of construction is that the specific term must displace the general term.1 Accordingly, clause 15.1 must give way to clause 15.2 thereby elevating clause 15.2 to be read as requiring mandatory compliance, whereas clause 15.1 is to be regarded as statement of intention as to the parties’ commitment to resolve disputes at the workplace level.”

[8] CBI also relied on the presence of s.737 of the Act and contended as follows:

“8. Section 737 of the FW Act requires that every registered enterprise agreement have at least the minimum dispute resolution procedure found in Schedule 6.1 of the FW Regulations (Reg. 6.01), which provides that, in the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management: Reg. 6.01(3).

9. The AMWU submits that an appropriate interpretation of clause 15.2 is that compliance is only required where resolution is ‘possible’. This interpretation is at odds with the requirements of the FW Act. Even if this interpretation is accepted, there is no evidence or argument offered by the AMWU as to why it was not ‘possible’ to resolve the alleged dispute in accordance with the procedure set out in clause 15.2 in this instance.

11. The AMWU’s interpretation of clause 15.2 requires the Commission to therefore accept that an aggrieved party’s first port of call can legitimately be the filing of an application in the Commission. This interpretation renders the Agreement’s entire dispute resolution clause as pointless, and that it does not comply with the FW Act.”

[9] Having stressed the mandatory nature of the precursor steps to referral of a dispute to the Commission CBI qualifies that by contending:

“12. The AMWU states that compliance with the steps set out in 15.2 was not required because the dispute was agitated at a sufficiently high level – between Dodd and Boothman. This is middle-management at project level. Clause 15.2 contemplates it then proceeding to upper management at project level, and then management levels at a corporate level.

13. CBI agrees that clause 15.2 ought not be interpreted as requiring the Parties to return the dispute to, say supervisor level, when (due to their nature) they arise at a higher level. However, it does not follow that subsequent steps in the procedure that are still applicable be abandoned on the AMWU’s own assessment that the dispute had been agitated at a sufficiently high level. That is not the purpose of the clause and the Parties to the Agreement have certainly not operated in that matter during its term.”

[10] The contention of CBI that the FW Act requires that the procedural steps of an enterprise agreement’s disputes procedure must be followed before the Commission has jurisdiction to deal with a dispute must be rejected. Such a contention is not supported by any provision of the FW Act.

[11] Whilst CBI has referred to both s.595 and s.737 in its submissions, the answer is not found in these two sections but in considering the FW Act and its predecessor, the Workplace Relations Act1996 (WR Act).

[12] The starting point must be s.186(6) which requires an enterprise agreement to have a term relating to the settlement of disputes. The language of s.186(6) is very specific.

“(6) The FWC must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.”

[13] Section 737 of the FW Act requires that the “regulations must prescribe a model term for dealing with disputes for enterprise agreements.” However the Act does not require that the model term be used in enterprise agreements and if an enterprise agreement does not contain a dispute settlement term as required by s.186(6) the model term does not become a term of the agreement.

[14] The FW Act and the Fair Work Regulations provide for three model clauses for enterprise agreements: a Consultation term, a Flexibility term and a Disputes procedure term. The specific treatment within the FW Act of enterprise agreements which do not contain a flexibility term or a consultation term, contrasts starkly with how the FW Act treats an enterprise agreement which does not contain a disputes procedure term. In the case of enterprise agreements which do not contain a consultation term or a flexibility term as required by the FW Act then the FW Act mandates that the model flexibility term and/or the model consultation term are taken to be terms of the enterprise agreement. In the case of an enterprise agreement which does not contain a disputes settlement term as required by s.186(6) of the FW Act, the enterprise agreement cannot be approved by the Commission. There is nothing in the FW Act which would either permit or require the Commission to treat the model disputes procedure term as being part of an enterprise agreement.

[15] The first thing to note about s.186(6) is that it does not require enterprise agreements to include a term that provides a procedure which requires that disputes be dealt with at the workplace or enterprise level. Section 186(6) only requires that an enterprise agreement contain a term which allows the Commission or another independent third party to settle disputes.

[16] The Act clearly permits an enterprise agreement to contain a term which goes beyond the minimum requirement of s.186(6)(a). Such is clear from s.172 which permits enterprise agreements to be made about one or more of the following matters:

“(a)  matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;

(b)  matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;   

(c)  deductions from wages for any purpose authorised by an employee who will be covered by the agreement;

(d)  how the agreement will operate.”

[17] Whilst s.186(6)(a) only requires a dispute settlement term that deals with settlement of disputes about any matters arising under the agreement; and/or in relation to the National Employment Standards, s.172 permits an enterprise agreement to contain a disputes settlement term which deals with the settlement of disputes about any matter than can be contained within an enterprise agreement. Section 738 makes this very clear when it provides that Division 2 of Part 6-2 applies if:

“(b)  an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6).”

[18] When considered in light of the operation of ss.186(6) and 172 and 738 it is clear that the model disputes procedure term as set out in Schedule 6.1 of the Regulations does more than is required by s.186(6) and provides a procedure for dispute resolution at the workplace level as permitted by s.172 and as recognised by s.738.

[19] The reliance by CBI on the presence of the model disputes procedure clause is misplaced. As the Full Bench in Woolworths Ltd trading as Produce and Recycling Distribution Centre 3at [29] said:

“[29] In our view the model term does no more than illustrate the types of procedures and powers that may be dealt with in a dispute resolution term. There is no basis for an implication that all of them must be included in every term. Such an implication would, in any event, be inconsistent with the express terms of s.739(3).”

[20] The second matter that is relevant is the difference which exists between the FW Act and the WR Act approaches to dispute resolution.

[21] Under the WR Act there was a strong emphasis on having disputes resolved at the enterprise level. Furthermore, the WR Act required workplace agreements to contain a term which included procedures for settling disputes (dispute settlement procedures) about matters arising under the agreement between:

(a) the employer; and
(b) the employees whose employment will be subject to the agreement.

[22] The Commission could not deal with some disputes unless all of the procedures of the dispute resolution process had been complied with and in the case of some disputes the Commission was specifically empowered to refuse to deal with the dispute if all of the dispute resolution procedures were not complied with

[23] The principal object of the WR Actwas set out in s.3 and two of the means for achieving the principal object of the Act were:

“(d) ensuring that, as far as possible, the primary responsibility for determining matters affecting the employment relationship rests with the employer and employees at the workplace or enterprise level; and

(h) supporting harmonious and productive workplace relations by providing flexible mechanisms for the voluntary settlement of disputes.”

[24] Section 353 of WR Act provided as follows:

“(1) A workplace agreement must include procedures for settling disputes (dispute settlement procedures) about matters arising under the agreement between:

(a) the employer; and
(b) the employees whose employment will be subject to the agreement.

(2) If a workplace agreement does not include dispute settlement procedures, the agreement is taken to include the model dispute resolution process mentioned in Part 13.”

[25] As can be seen there was a very strong difference between s.186(6) of the FW Act and s.353 of the WR Act. The latter requires a procedure for settling disputes and that procedure does not have to involve the Commission or an independent third party. Under the latter provision if no disputes procedure was included in the workplace agreement then the model term was included.

[26] The comparison between s.186(6) of the FW Act and s.353 of the WR Act makes it very clear that Parliament, in enacting the FW Act, significantly changed the requirements in relation to dispute settlement terms to be included in an enterprise agreement.

[27] Part 13 of the WR Act dealt with dispute resolution processes including the role of the Commission in dealing with disputes. Division 1 included the objects of the Part. Division 2 dealt with the Model Dispute Resolution Process. Division 3 dealt with alternative dispute resolution processes conducted by the Commission under the model dispute resolution process. Division 5 dealt with dispute resolution processes conducted by the Commission under a workplace agreement. Division 6 dealt with dispute resolution process conducted by a provider other than the Commission.

[28] Section 692 in Division 1 provided as follows:

“692. Object

The objects of this Part are:

(a) to encourage employers and employees who are parties to a dispute to resolve it at the workplace level; and

(b) to introduce greater flexibility for the resolution of disputes by allowing the parties to determine the best forum in which to resolve them.”

[29] Division 2 contained s.695 which provided as follows:

“695. Resolving dispute at workplace level

The parties to a dispute must genuinely attempt to resolve the dispute at the workplace level.

Note: This may involve an affected employee first discussing the matter in dispute with his or her supervisor, then with more senior management.”

[30] Division 3 dealt with alternative dispute resolution processes conducted by the Commission under the model dispute resolution process.

[31] Disputes about maximum ordinary hours of work, annual leave, personal and carers leave and parental leave entitlements which were part of the Australian Pay and Conditions Standards could only be dealt with under the model dispute resolution process (s.175 of the Workplace Relations Act). This meant that Division 3 of Part 13 would come into play when a dispute about one of these three APCS matters could not be resolved at the workplace. S700(2) which was part of Division 3 provided that:

“700(2) The Commission may refuse to conduct an alternative dispute resolution process under this Division if the parties in dispute on the matter have not made a genuine attempt:

(a) to resolve the dispute at the workplace level; or

(b) to reach agreement on who would conduct the alternative dispute resolution process.”

[32] Division 5 contained s.710 which provided as follows:

“710. Grounds on which Commission must refuse application

The Commission must refuse to conduct a dispute resolution process under this Division in relation to a matter in dispute if:

(a) the dispute is not one that, under the terms of the workplace agreement, may be resolved using a dispute resolution process conducted by the Commission; or

(b)  any of the steps that, under the terms of agreement, must be taken before the matter is referred to the Commission have not been taken.”

[33] Division 6 of Part 13 did not contain any prohibition on a provider other than the Commission from dealing with a dispute if the parties to the dispute had not taken all of the steps that, under the terms of agreement, must be taken before the matter is referred to the other provider.

[34] The strict prohibition which applied to the Commission under s.710(b) not to deal with a dispute under a workplace agreement unless each of the steps which had to be taken under the dispute resolution process in the workplace agreement before the dispute could be referred to the Commission had been taken, was not included by Parliament in the FW Act.

[35] The jurisdiction of the Commission to deal with a dispute arising under the terms of an enterprise agreement arises through a term of the enterprise agreement which meets the statutory requirements of s.186(6) of the Act. That term must provide a procedure which requires or allows the Commission, or another person who is independent of the employers, employees or employee organisations covered by the agreement to settle the dispute. The jurisdiction of the Commission is not dependent upon a term of an enterprise agreement that provides for a dispute resolution process at the workplace or enterprise level.

[36] It is not possible for a dispute resolution term in an enterprise agreement to operate so as to prevent a dispute from being referred to the Commission, or another person who is independent of the employers, employees or employee organisations covered by the agreement to settle the dispute.

[37] Where a term of an enterprise agreement contains a dispute resolution process which has several steps for dealing with the dispute at the workplace and lastly provides for the dispute to be referred to the Commission, or another person who is independent of the employers, employees or employee organisations covered by the agreement to settle the dispute, the steps for dealing with the dispute at the workplace cannot operate as a bar to the Commission, or another person who is independent of the employers, employees or employee organisations covered by the agreement, having jurisdiction to settle the dispute. If such was allowed to occur then the term would not be a term that met the requirements of s.186(6) of the Act.

[38] Whereas, in the present matter, clause 15 provides for four internal steps to the dispute resolution process before the dispute can be referred to the Commission the four internal steps of the dispute resolution process must have some work to do and the clause must be understood and applied so as to give effect to the intention of the parties in creating a four step internal dispute resolution process. However, the key elements of clause 15 are sub-clause 15.2.5 and 15.2.6 which relevantly provide as follows:

“15.2.5. If the dispute cannot be resolved ……the matter may be referred to the FWC by the Company or the Union party to the dispute for conciliation;

15.2.6If the dispute is not resolved by conciliation the dispute may be arbitrated subject to the normal rights of appeal.”

[39] It is these two provisions which clearly meet the requirements of s.186(6) and thus create the jurisdiction for the Commission to deal with unresolved disputes.

[40] Non-compliance with any or all of subclauses 15.2.1 to 15.2.4 cannot deny the Commission jurisdiction to deal with a dispute under sub clause 15.2.5 and 15.2.6.

[41] It is to be noted that the very structure of clause 15 makes compliance with each of the steps in subclauses 15.2.1 to 15.2.4 impossible in some circumstances. For example the Agreement contains a contractors clause which requires CBI to only use contractors who apply wages and conditions to their employees that are no less favourable than the wages and conditions provided by the Agreement. A dispute about the operation of this clause is most likely to be raised by one or all of the unions covered by the Agreement and not by an individual employee of CBI. In such a case a union which raises the dispute could not comply with the procedural step in clause 15.2.1 where no individual employee of CBI has raised the dispute. Equally where CBI raises a dispute with employees, either individually or collectively or with a union or unions covered by the Agreement, it makes a nonsense to suggest that CBI has to comply with clause 15.2.1. What would be the utility of requiring CBI to take up the dispute with the supervisor of the employee or employees involved. Little would be achieved by having CBI talk to itself. The very structure of clause 15 seems to be predicated upon the concept that a dispute can never or would never be identified and raised by CBI with its employees or the unions covered by the Agreement. Yet if CBI raises a dispute about a matter arising under the Agreement clause 15 will apply to that dispute and as required by s.186(6) the Agreement must contain a term which requires or allows the Commission, or another person who is independent of the employers, employees or employee organisations covered by the agreement to settle the dispute.

[42] Where CBI raises the dispute about a matter arising under the Agreement a modified operation of clause 15 would be appropriate. If CBI raises a dispute with an individual employee then clause 15.2.1 would be applied as if the requirement to take the matter up with an employee’s supervisor was taken to require CBI to take the matter up with the employee. If not resolved at that level any attempt to translate clauses 15.2.2 and 15.2.3 to allow CBI to further progress the dispute appears problematic. However, clause 15.2.4 would permit CBI to take up the dispute with a senior representative of the union party to the dispute (if there is a union party to the dispute).

[43] I note that there are a number of decisions of members of the Commission where the Commission has refused to deal with a dispute arising under the dispute resolution process of an enterprise agreement because the applicant has not complied with the procedural steps for trying to resolve the dispute at the workplace or enterprise level. I am not aware of any decision which says that the Commission’s jurisdiction to deal with a dispute under the dispute resolution process of an enterprise agreement is dependent upon the applicant complying with each step of the dispute resolution process at the enterprise or workplace level.

[44] Even though the Commission’s jurisdiction to deal with a dispute under the dispute resolution term in an enterprise agreement is not dependent upon the applicant having complied with each or any of the steps for attempting to resolve the dispute at the workplace or enterprise level there are still good reasons why the Commission should not, on occasions, exercise its jurisdiction where the applicant has failed to follow all of the steps of the dispute resolution term.

[45] In Boral Cement Ltd v AWU 4 a Full Bench of the Commission observed as follows:

“[6] We do not think this is an appropriate case in which to grant permission to appeal. The underlying industrial issue which led to the s.418 application is capable of being resolved using the agreed procedures in the enterprise agreement. It seems to us that if we were to grant permission to appeal we could be seen as encouraging Boral, or both parties, to continue to ignore their obligations under clause 41 of the enterprise agreement. This is an important question of principle.”

[46] I agree that there is an important question of principle involved in not encouraging parties to an enterprise agreement to ignore their obligations under the enterprise agreement. In the present matter the parties to the Agreement (CBI, AMWU, AWU, CEPU and CFMEU and employees) have all agreed to the dispute resolution term as part of the process of making the Agreement. Where a party could have, and should have, followed the steps set out in clause 15 of the Agreement but chose not to, the Commission could be seen to be encouraging the parties to ignore their obligations under the dispute resolution term of the enterprise agreement by proceeding to deal with a dispute referred directly to the Commission.

[47] The important question of principle would suggest that there are times when the Commission should decline to exercise its jurisdiction under the dispute resolution term of an enterprise agreement when the applicant has failed to comply with a procedural step for attempting to resolve the dispute at the workplace or enterprise level.

[48] In the present matter CBI complains that even though the AMWU took up the dispute with Mr Boothman, whom CBI describe as “middle management at project level”, the AMWU should have proceeded to take up the dispute with “upper management at project level, and then management levels at a corporate level” as required by clauses 15.2.3 and 15.2.4.

[49] In the present matter the AMWU initiated the raising of a dispute by writing to Mr Boothman, Employee Relations Manager Engineering & Construction Oil and Gas. Mr Boothman declined to meet with the AMWU over the alleged dispute on the basis that CBI did not consider the dispute raised by the AMWU was a dispute to which the dispute resolution process of clause 15 applied.

[50] Given that CBI did not consider that the AMWU was raising a dispute to which clause 15 applied it is nonsensical for CBI to contend that the AMWU has failed to properly escalate the dispute through the internal dispute resolution processes set out in clauses 15.2.3 and 15.2.4. It simply would not have mattered whether the AMWU tried to use the processes in clauses 15.2.3 and 15.2.4 given that CBI held the view (and still holds the view) that the subject matter of the dispute is not about any matter arising under the Agreement.

[51] In the circumstances of the present matter the AMWU took up a dispute at the appropriate start point, namely by writing to Mr Boothman identifying the nature of the matter in dispute. Once having done this the further processing of the dispute required CBI to accept that the matter in dispute was a matter capable of being dealt with under clause 15 and having both the AMWU and CBI work through the steps set out in clause 15. Once CBI took the view that the matter identified by the AMWU was not capable of being dealt with under clause 15 it was both reasonable and proper for the AMWU to refer the unresolved matter in dispute to the Commission for settlement.

The subject matter of the dispute as identified by the AMWU is not a matter than can be dealt with under clause 15.

[52] CBI contend that the “AMWU argue that the dispute is in relation to an alleged failure to consult.” 5 CBI then contend that “(a)s there is no requirement to consult in relation to termination of employment due to down-manning, the basis of the AMWU’s alleged dispute fails and there cannot be any dispute to which the dispute resolution procedure of the Agreement applies in any event.”6

[53] In its final response submissions CBI contended that the email communication from Mr Dodd of the AMWU to CBI which identified a dispute expressly stated “that the dispute was in relation to the announced intention to terminate the employment of John Webb”. 7 CBI contended that it was “not open to the AMWU to argue that the dispute, as notified, was broader than an alleged failure to consult merely because the AMWU had a throwaway line at the end of the Email, reserving a right to rely on other clauses not yet communicated to CBI or other disputes and grievances which have not been the subject of the mandatory steps set out in clause 15.2.”8

[54] The email sent by Mr Dodd of the AMWU to Mr Boothman at CBI on 14 April 2016 was as follows:

“Rohan this is to officially inform you that the AMWU is in Dispute with CBI in regards to your announced intention to terminate the employment of John Webb and seek to have a urgent meeting on this matter if not we will be following the Disputes Procedure contained in The Longford Gas Conditioning Plant Project Construction Agreement 2013 between CBI Constructors Pty Ltd and The AMWU,AWU,CEPU and CFMEU and in particular Clause 15 Disputes Resolution Procedure and we also have concerns in regards to Clause 14 Consultation and these may not be the only parts of the EBA we rely upon , if you have any Questions then please feel free to contact me on 0425 741 962 Regards Steve Dodd.”

[55] At the very least the poorly written email from Mr Dodd identifies two matters in dispute: (1) CBI’s intention to terminate the employment of John Webb and (2) concerns in regards to clause 14 Consultation. The email also puts CBI on notice that “these may not be the only parts of the EBA we rely on.”

[56] As the email was sent from Mr Dodd’s I phone at 10.32pm on 14 April 2016 it is not surprising that it lacks the elegance of expression as found in the Form F10 filed with the Commission.

[57] On its face the email identifies at least one matter which would arise under the Agreement and that is the pending termination of John Webb. It is incorrect to characterise that matter as being an unfair dismissal matter as at the time the email was sent John Webb was still employed by CBI.

[58] Mr Dodd in his witness statement identified the existence of a letter of understanding signed by both the AMWU and CBI which, whilst not part of the Agreement, dealt with matters which were part of the Agreement. It is sufficient for the purpose of the present matter to identify that the Agreement provided for employee representatives and that John Webb was an employee representative and that his proposed termination gave rise to a dispute about the employment of an employee representative. At the very least this was a matter which arose under the Agreement.

The Form F10 was filed after the dismissal of Mr Webb took effect and therefore the Commission did not have jurisdiction to deal with the matter.

[59] The AMWU comprehensively dealt with this objection in its submissions filed on 20 June 2016 and CBI made no reply to the AMWU submissions on this point.

It is clear from the authorities that where a dispute arises before an employee is terminated the Commission can deal with the dispute even when the application filed with the Commission is filed after the dismissal takes effect. 9

Conclusion

[60] The application filed in this matter is within the jurisdiction of the Commission and the Commission should exercise its jurisdiction to deal with the dispute.

COMMISSIONER

 1   Respondent’s submissions filed 6 June 2016.

 2   Respondent’s reply submissions filed 4 July 2016.

 3   [2010] FWAFB 1464.

 4   [2012] FWAFB 350.

 5   Respondent’s submissions filed 6 June 2016 para 15.

 6   Ibid at para 17.

 7   Respondent’s reply submissions filed 4 July 2016 at para 14.

 8   ibid at para17.

 9   See Ing Administration P/L v Jajoo, Telstra Corporation Ltd v CEPU and Deakin Uni v Ramett.

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