"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Opal Packaging Australia Pty Ltd T/A Opal Fibre Packaging
[2024] FWC 5
•2 JANUARY 2024
| [2024] FWC 5 |
| 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
Opal Packaging Australia Pty Ltd T/A Opal Fibre Packaging
(C2022/8256)
| COMMISSIONER ALLISON | MELBOURNE, 2 JANUARY 2024 |
Application to deal with a dispute arising under an enterprise agreement – jurisdictional objection – compliance with a dispute settlement procedure
What is this decision about?
On 14 December 2022, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) made an application (the Application) for the Fair Work Commission to deal with a dispute under an agreement, involving Opal Packaging Australia Pty Ltd (Opal). The relevant agreement is the Orora Fibre Packaging National Enterprise Agreement 2019 (the Agreement). The dispute concerned an investigation process that occurred prior to an employee being issued a first and final warning.
Opal raised two substantial jurisdictional objections which it argued prevented the Commission from arbitrating the dispute, namely:
a. The AMWU did not comply with the Disputes Resolution Procedure (DRP) prior to filing the Application, and,
b. The dispute, which is the subject of the Application, has been resolved.
In the alternative Opal argued, that if the Commission did have jurisdiction to hear the dispute, the dispute should be limited in scope to the original Application, and not take into account the warning that was issued post the filing of the dispute.
This decision considers the jurisdictional objections raised by Opal and determines whether one or more of the objections prevents the Commission from arbitrating the dispute under s.739 of the Fair Work Act2009.
Outcome and Preliminary Observations
After considering all the circumstances surrounding this matter and the evidence and submissions before me, I have reluctantly determined that the DRP was not complied with prior to the AMWU filing a dispute and consequently the Commission does not have jurisdiction to deal with the dispute. I have set out the reasons for my decision below, but note that while some of the DRP steps were met, ultimately the four interactions the AMWU sought to rely on between 5-7 December 2022 could not establish that all the steps in the DRP had been complied with.
I have come to this decision reluctantly as the original dispute was raised over 12 months ago and it is quite clear on the evidence that there remains a dispute between the parties as to how the investigation process was implemented. Both parties are experienced industrial players, and it is bewildering why they have not worked together to move through the DRP over the last 12 months. Instead, the parties have preferred to argue about jurisdiction and allow the dispute to drag on. This approach appears to undermine the value and spirit of the DRP in the Agreement which requires that the parties “…co-operate to ensure that the disputes resolution procedures are carried out as quickly as possible.”
I note that by the time this decision is issued, the warning which arose out of the disputed investigation process, will have expired.[1] There appears little utility in the AMWU now pursuing a new dispute over an expired warning. However, if Opal were to rely on that warning in the future, it would be open to the AMWU to follow the disputes procedure, and if there is no resolution between the parties, to file a new dispute application relating to the investigation process and warning.
Background and Observations on Evidence
The dispute in question relates to the investigation process carried out by Opal regarding a complaint against Mr Grant Horan. Mr Horan is an employee of Opal, and an experienced, longstanding union delegate on site.
On or around 8 November 2022, Mr Horan witnessed a safety issue, which he then reported to a number of managers, including Ms Jenny McLean, Head of Health and Safety.
On 17 November 2022, Ms McLean made a complaint against Mr Horan, alleging that Mr Horan verbally raised the safety issue with her in a threatening and intimidating manner. The complaint initiated an investigation by Opal.
In the following paragraphs, the meetings/exchanges that occurred between Mr Horan and/or the AMWU with Opal in early December 2022 are set out. These meetings/exchanges are important in terms of the submissions relating to compliance with the DRP.
5th December 2022 – Discussions/ meetings with Mr Horan
On 5 December 2022, at approximately 7.05am, Mr Steven Hutchinson, the then Business Manager (and Mr Horan’s manager), approached Mr Horan and requested that he attend a meeting with Mr Justin Edwards, Regional General Manager (Vic/Tas) and Melissa Chew, HR Business Partner. (The Horan/Hutchinson Discussion)
Mr Horan made it clear to Mr Hutchinson that he did not want to attend a meeting without union representation.
Mr Hutchinson then went to relay this message to Mr Edwards and Ms Chew. Mr Edwards told Mr Hutchinson that the meeting would proceed and if Mr Horan did not attend he would be stood down on pay.[2] Mr Hutchinson returned to Mr Horan and conveyed this message.
The parties have given contested evidence about what Mr Horan said in response. During the hearing, Mr Horan gave evidence that he repeated his refusal to attend the meeting without representation as follows:[3]
“I said again ‘I’m not going upstairs without representation, this is not how its done in the EA. I’m entitled to representation.’ [Mr Hutchinson] then said 'If you don’t go, you will be stood down.’ So then I thought, well, I’ll try and deescalate the situation, I’ll go to the meeting.”
In contrast, Mr Hutchinson gave evidence that when he returned and told Mr Horan he would be stood down if he didn’t attend the meeting, Mr Horan did not oppose the request to attend the meeting, and “made no other comment to me.”[4]
Both witnesses appeared to believe their version of events, noting that this short discussion occurred over 12 months ago now. However, on the balance of probabilities I prefer Mr Horan’s evidence. This is because it appears unlikely that Mr Horan, an experienced union delegate who was accustomed to raising concerns, would have agreed to attend a meeting without representation. I find it more likely that Mr Horan had no choice but to attend the meeting given he would be stood down in any event.
Following this interaction Mr Hutchinson returned to his regular duties, and gave evidence, which I accept, that he did not believe there was any further action he needed to take in relation to a dispute concerning Mr Horan.[5]
At approximately 7.11am on 5 December 2022, Mr Horan attended the meeting with Mr Edwards and Ms Chew. (The Horan/Edwards/Chew Meeting)
I note that the parties are in dispute about whether this meeting was part of a disciplinary process as per the warning process in the Agreement or part of a separate investigation process prior to a warning process. This matter does not need to be addressed for the purposes of this decision. However, I accept Mr Horan’s evidence that he believed the meeting was a disciplinary meeting, and I am of the view this is an understandable position.
At this meeting Mr Horan was informed that allegations of misconduct had been made against him and that a preliminary investigation had commenced. Mr Horan was advised he would be stood down with pay as the investigation continued and would be contacted on next steps within 24 hours.
It is contested whether at this meeting Mr Horan raised a dispute relating to the investigation process.
Mr Horan’s evidence is that he “immediately disputed … that this is not the correct process that should be taken under the Agreement.”[6]
Ms Chew provided evidence that she attended the meeting to be a witness and take notes.[7] Her file note of the meeting is attached to her witness statement. Her file note indicates that the meeting went from 7.11am – 7.14am and that Mr Horan did not raise a dispute regarding the investigation or disciplinary process. Ms Chew’s notes indicate that after Mr Edwards had informed Mr Horan he would be stood down, Mr Horan responded as follows:
“Yup, all right no worries.’ [Mr Horan] then left the room and slammed the door upon his exit at around 7.14am.”[8]
I note that Ms Chew also took contemporaneous notes of a later meeting on 9 December 2022,[9] and it appears these notes accurately reflect matters covered in that meeting (see paragraph [38] below). Given this, I am satisfied that on the balance of probabilities Ms Chew’s evidence and contemporaneous notes taken on 5 December 2022 reflect what occurred in the meeting.
Following this meeting, Mr Matthew Wilmore, Workplace Relations Specialist, sent a letter to Mr Horan.[10] The letter refers to an allegation of misconduct against Mr Horan, specifically “Engaging in a verbal altercation with a female employee in a threatening and intimidating manner.” It then directs Mr Horan to attend a meeting at 10am on Wednesday 7 December 2023 to “outline the specifics of these allegations and our intended investigative process.” The letter indicates Mr Horan can bring a support person.
6th December 2022 – Email from Ms Devasia
At 11.33am on 6 December 2022, Ms Abha Devasia, AMWU Legal Coordinator sent an email to Mr Rod Beales, General Manager, Workplace Relations titled “Improper disciplinary action – Opal Scoresby.”[11] (The Devasia/Beales Email) The email is set out below:
“Dear Rod,
We refer to the above matter and to the correspondence sent to our member dated 5th December 2022, letter attached. .
The letter states that Grant is required to attend a meeting via MS Teams on 7" December to "outline the specifics of allegations and the intended investigative process" . The email accompanying the letter is form Mathew Wilmore, a Workplace Relations Specialist, whose role, he states is to conduct in (sic) investigation into an incident on the 9th of November 2022. We are instructed that this is not the relevant manager or supervisor of Grant.
This is matter of concern to the AMWU and Grant as it appears that Opal has failed to adhere to the requirements in the Oraora Fibre National Enterprise Agreement in the process of how disciplinary matters are dealt with.
As you would be aware Annexure 4 of Agreement ( warning procedure) and Clause 17.3 require that the first discussions with an employee subject to disciplinary action is to be a manager/supervisor. We are instructed that this has not occurred as Grant was unable to nominate a relevant support person when asked to attend a meeting with his manager, Mr Hutchinson on 5th December. No alternative arrangements were put in place by the manager and he was sent home. The email and attached letter later that day is the first notice that Grant has had of this matter.
A letter from the investigator looking into "allegations" are premature and pre-emptive of the process. It contains no details of the alleged events being investigated ( which we maintain should not be occurring at this early stage) including the place, time, date of the incident.
This step by the company indicates that the Opal has potentially breached the disciplinary procedure set out clause 17.3 in addition to the Warning Procedure.
Clause 17.3 (b) requires that the relevant delegate at the site be informed of the purpose of the meeting be informed (sic) immediately after the employee is notified of any disciplinary action. Given that Grant is the relevant delegate at site and has been improperly notified of the potential disciplinary action being taken against him, it is necessary to ensure that he is able to have an appropriate support person with him during this process.
We advise that Grant will not be attending the meeting scheduled for the 7th November:
1. As he is unable to secure a support person to be available and;
2. Because Opal has not adhered to the Warning procedure, which require that the first discussions should be with his manager or supervisor so that he may understand the allegations made against him in a fair and transparent manner.
The Warning Procedure requires that managers/supervisors remain accountable for the using a consistent method to discipline employees. We are concerned that the steps taken by Opal against Grant, along with other employees who have been subject to truncated or non-existent disciplinary processes, indicate an attempt by Opal not just to circumvent the binding requirements of the enterprise agreement, but also serves only to send mixed messages to managers and supervisors about what the process should be.
Please inform your relevant employees of the requirement to adhere to the Warning Procedure. Michael Bull, organiser at the AMWU, cc'd into this email, may be contacted along with Grant to arrange an alternative date for the initial discussion with Grant's relevant manager.
Should Opal persist in actions that constitute a breach of the enterprise agreement, the AMWU reserves all of its rights to commence action in a court of competent jurisdiction.
Kind regards,”
Mr Beales did not respond to this email.
Sometime between 6 - 7 December 2022, Opal agreed to postpone the meeting from 7 December to 9 December 2022.
7th December 2022 – phone conversation/email between Ms Cassin and Mr Hinds
It is contested between the parties whether Ms Lorraine Cassin, National Assistant State Secretary, AMWU and Mr Brad Hinds, Group General Manager, Opal had a telephone conversation regarding this matter on 7 December 2022.
Ms Cassin gave evidence that she clearly recalled a telephone conversation with Mr Hinds. She stated:[12]
“I recall the conversation. I was in another pretty extensive negotiation and I stepped out of it to take the call, and I recall the conversation because I was quite alarmed for Mr Horan not being provided with the information he needed to be provided.”
Ms Cassin stated that during this call, she explained to Mr Hinds that if Mr Horan does not receive full disclosure of relevant information prior to the meeting on 9 December 2022, then Opal would be in breach of the Agreement.[13]
In contrast, Mr Hinds initially gave evidence that he could not “specifically recall having any discussion with Ms Cassin.”[14] However, I note the following relevant exchange in cross examination in which Mr Hinds appears to concede that a telephone call with Ms Cassin did in fact occur:[15]
“Mr Bonello, for the AMWU: Mr Hinds, on 7 December, you had an earlier discussion with Ms Cassin, before that email correspondence, didn’t you?
Mr Hinds: As I recall, yes, I did. Brief, albeit.
Mr Bonello: And, Mr Hinds, it is the case that Ms Cassin, in the discussion earlier on that day, prior to the email correspondence, raised the issue with Mr Horan, didn't she?
Mr Hinds: This is a discussion that happened 12 months ago. I mean, I get about 50-odd phone calls a day. I cannot remember, verbatim, every phone call that I receive other than I know what my response is when I am called for such matters which is that we will follow the disciplinary process. So, I am the last person in that disciplinary process chain and, to my knowledge, the process wasn't followed, and I would have directed Ms Cassin back to the original process… that is not the first time that I’ve redirected it back to the commencement of the disputes resolution process.
Mr Bonello: So, Mr Hinds, it could be the case then that Ms Cassin did raise the dispute with you with regards to Mr Horan and you directed her to go back to the site level; is that correct?
Mr Hinds: If she raised it with me - like I said, I get multiple phone calls a day, this is 12 months ago. If she raised it with me, I would have redirected her back to the site so that we follow the disciplinary process.
…
Mr Bonello: So, it was clear to you, Mr Hinds, that Ms Cassin didn't share your views? She had different views to you?
Mr Hinds: I can't remember the phone call verbatim, but it's highly probable.”
(emphasis added)
At 5:12PM on 7 December 2022, Ms Cassin emailed Mr Hinds as follows:[16]
“Hi Brad,
As discussed today. Just want to confirm that the company will send all allegations in writing to amwu and evidence/statements before meeting with Grant Horan”
Regards…”
(emphasis added)
At 5:26PM, Mr Hinds replied to Ms Cassin as follows:
“Hi Lorraine,
“The purpose of tomorrow’s meeting with Grant is to get Grant’s version of what occurred.
Once the investigator collects Grants version and asseses (sic) the matter, we will then provide Grant… with all the evidence and statements.
Regards…”
In relation to the phone conversation, I prefer Ms Cassin’s evidence and find a telephone discussion did occur on 7 December 2022, and that in the discussion she raised concerns about the investigation process, and in particular concerns regarding the information provided to Mr Horan. This is both supported by Ms Cassin’s witness evidence and the contemporaneous email.
Both Ms Cassin and Mr Hinds gave evidence that they were the relevant person to engage in discussions under the final step of the DRP in the Agreement.[17]
7 – 14 December 2022
On 9 December 2022, Mr Horan, and his union representative Mr Michael Bull attended a meeting with Mr Willmore and Ms Chew. During the meeting Mr Bull pointed out numerous concerns regarding the investigation procedure, including claiming the process was not in accordance with the Agreement. Mr Wilmore refused to discuss the issues raised by Mr Bull and responded that the purpose of the meeting was to get Mr Horan’s version of the story. Mr Bull and Mr Horan indicated they would attempt to provide a written statement by close of business Tuesday 13 December 2022.[18]
On 13 December 2022, Mr Horan provided a written statement to Mr Wilmore. Mr Wilmore confirmed receipt of the statement by return email and noted:[19]
“I will now review your statement and meet with Management to discuss what has transpired and what we believe is a fair outcome.
I will then forward on the investigation report and supporting documents.
I will be in touch soon.”
At 12.20 pm on 13 December 2022, Ms Devasia emailed Mr Wilmore.[20] In the email Ms Devasia raises concerns regarding the investigation process and Opal’s failure to act in accordance with the Agreement. In particular, Ms Devasia states that 4.1e of the warning procedure in the Agreement requires Mr Horan be provided with full disclosure of all relevant details and information. The email goes on to state:
“Please provide all the relevant information and details of the matters that are related to this disciplinary issue by COB tomorrow to permit [Mr Horan] and his representatives to assess and provide a response, if necessary. Please note that the investigation and the findings must not be finalised until consideration is given to the matters raised by [Mr Horan]…
AWMU (sic) considers the failure to adhere the(sic) disciplinary process constitutes a breach of the provision of the enterprise agreement and reserve our rights to commence action without further notice to you.”
At 4:19pm on 14 December 2022, Mr Wilmore emailed Mr Horan with an update on the progress of the investigation.[21] The email proposed a meeting for Monday 20 December 2022 and noted that “at this point we will be in a position to deliver the investigation outcome.
At this meeting you will be supplied with the relevant documentation relied upon in the investigation and you will be given the opportunity to review the documents.”
At 4:58pm on 14 December 2022, the AMWU lodged an application with the Commission contending that Opal had breached a number of provisions under the Agreement including the warning procedure and 17.3 of the Agreement.
Progress of the Dispute in the Commission
On 15 December 2022, Commissioner Bissett held a conciliation conference in attempt to resolve the dispute. Notwithstanding its jurisdictional objection, Opal agreed to participate in the conference before the Commission. The parties agreed to some steps forward to resolve the dispute and the Application file was subsequently closed.
On 22 December 22, Opal determined allegations against Mr Horan were substantiated and issued Mr Horan a first and final warning. The AMWU disputed the issuing of a warning.
On 14 March 2023, the AMWU wrote to the Commission seeking that the dispute file be reopened. On 15 March 2023, Commissioner Bissett wrote to the parties stating it was open to the AMWU to commence a new application or indicate if they wanted the dispute file reopened. The AMWU initially commenced a new application on 17 April 2023 (C2023/2081), but discontinued this proceeding approximately a month later.
On 23 June 2023, the AMWU wrote to the Commission seeking that the current dispute be reopened. Commissioner Bissett reopened the file and after further attempts to conciliate the matter, the dispute was listed for hearing to determine the jurisdictional objection.
Having set out the background to this matter I will now consider the first jurisdictional objection raised by Opal, namely that the AMWU did not comply with the DRP prior to filing the dispute in the Commission.
Was the DRP Complied with?
The Dispute Resolution Procedure and Relevant Legal Principles
The Commission can only arbitrate a dispute under s.739 if a dispute resolution procedure in an agreement provides it with the ability to do so. Where a DRP sets out steps to deal with a dispute prior to the matter being referred to the Commission, these steps need to be complied with before the matter can be dealt with by the Commission. Ultimately, the Commission only has powers to determine the matter if the disputes procedure has been complied with.[22]
The relevant DRP in relation to this matter is contained at clause 15 of the Agreement and provides as follows:
15. Dispute resolution procedures
15.1 Scope
The dispute resolution clause will be used if there is a dispute in relation to all matters which pertain to the relationship between the parties and the Union/s covered by this Agreement. For the sake of clarity this may include any dispute arising in relation to the following:
(a) a dispute in relation to a matter under this Agreement;
(b) a dispute in relation to any workplace industrial policy, practice or procedure
(c) a dispute in relation to any amendment or termination, or proposed amendment or termination of this Agreement or workplace policy or procedure, or any bargaining or negotiating for, or making of, a new agreement or workplace policy or procedure;
(d) the Awards referred to at sub-clause 3 (b) and any other incorporated instrument;
(e) the NES.
15.2 Procedures to be used:
The following procedure for the avoidance or resolution of a dispute shall apply:
(a) At any stage during this dispute’s process an employee is entitled to appoint a Union representative, including a Union delegate, or any other representative as requested by the employee, to act on their behalf.
(b) In the first instance the parties will attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor/manager.
(c) If such discussions do not resolve the dispute, discussions between the employee or employees concerned with the Regional or Branch Secretary or their nominated representative and more senior levels of management will take place.
(d) If the dispute cannot be resolved at a workplace level, the National Secretary or their nominated representative will have discussions with a more senior representative of the Company.
(e) If a dispute is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to the FWC for resolution by mediation and/or conciliation.
(f) If FWC is unable to resolve the dispute by way of mediation and/or conciliation and where the matter in dispute remains unresolved, the parties will have the matter heard by the FWC by way of arbitration.
15.3 Work to continue as normal:
(a) It is a term of this agreement that while the dispute resolution procedure is being followed work shall continue normally and the status quo remain unless an employee has a reasonable concern about an imminent risk to his or her health or safety or the company has a concern about an imminent risk to the health or safety of any employee.
(b) While the dispute resolution procedure is being followed, work in the area affected will remain as it was at the initiation of the dispute.
(c) For the avoidance of doubt, no employee’s duties, shift, occupation or income will be changed during this process.
15.4 Timing
The parties must co-operate to ensure that the disputes resolution procedures are carried out as quickly as possible. Additionally, the parties agree that should the matter be notified in FWC, the parties will jointly seek to expedite the matter, by requesting FWC to give it priority.
The DRP has a broad scope covering “all matters which pertain to the relationship between the parties and the Union/s covered by this Agreement.” (see 15.1) I note that the current dispute, relating to investigation processes and warning procedures, is clearly covered by the DRP.
For the purposes of the jurisdictional objection the key question is whether the steps outlined at clause 15.2 (b) to (d) have been complied with before the matter has been referred to the Commission. In summary these steps are:
· 15.2(b) – discussions between the employee and the relevant supervisor/manager (Step 1)
· 15.2(c) – discussions between the employee with the Regional or Branch Secretary or their nominated representative and more senior levels of management (Step 2)
· 15.2(d) – discussions between the National Secretary or their nominated representative and a more senior representative of the Company (Step 3)
While each step in a DRP needs to be complied with prior to escalating to the next step and ultimately if the matter remains unresolved, prior to referring the matter to the Commission, the provisions in a dispute resolution procedure should not be interpreted in a narrow or pedantic way, but rather with an emphasis on practicality and industrial reality. In Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union[23] (Maersk) Colvin J summarised the authorities on this matter as follows at [86]:
“The terms of a procedure for resolving disputes should not themselves be construed in a manner that turns them into an instrument for generating disputes as to whether the procedure itself has been followed. Such provisions must be construed having regard to their evident purpose as providing a mechanism by which to encourage discussion and resolution. They should be interpreted ‘practically and with an eye to common sense’ having regard to the context in which they will be applied so that they can be implemented ‘in a clear way on a day-to-day basis at work sites’.”
The flexible and practical implementation of dispute resolution procedures may mean that a “discussion” is not necessarily required to be a face-to-face meeting, but could be by other forms of communication such as a phone call, exchange of emails or text messages.[24]
In Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2)[25] (Qantas) - a decision that was upheld by a Full Federal Court on appeal[26] - the primary judge, Flick J contemplated the minimum requirements for meeting a step in a disputes procedure and concluded as follows:
“That minimum content, it is concluded, is that there needed to be an occasion on which those participating in the meetings had to know that there were opposing views being expressed and that those opposing views needed to be resolved. It is not necessary, with respect, for those participating in the meeting or discussion to know that they were participating in a meeting which formed part of a dispute resolution procedure.”
With these key legal authorities in mind, I now turn to the parties’ submissions and consideration of whether the steps of the DRP have been complied with.
Overview of Parties’ Submissions in Relation to Compliance with the DRP
The AMWU submitted that the steps of the DRP had been met by the meetings/exchanges between Mr Horan and/or the AMWU with representatives from Opal between 5 to 7 December 2022. In particular the AMWU submitted:[27]
Step 1 was met by the Horan/Hutchinson discussion on 5th December 2022 and/or the Horan/Edward/Chew Meeting on 5th December 2022.
Step 2 was met the Horan/Edward/Chew Meeting on 5th December 2022 and/or by the Devasia/Beales email on 6th December 2022.
Step 3 was met by the Devasia/Beales email on 6th December and/or the Cassin/Hinds phone conversation and email on 7th December 2022.
I note that the AMWU explicitly did not rely on any discussions after 7 December 2022.[28]
The AMWU submitted that the dispute was urgent in nature as the investigation process, which it had significant concerns with, may have led to serious disciplinary action up to and including the termination of Mr Horan. The urgency of the dispute should be taken into account when determining the appropriate time frames for each step of the DRP.[29]
The AMWU relied on Qantas to argue that it did not matter if Opal representatives were unaware of the fact that discussions they were engaged in were part of the DRP. It was enough that there were clearly opposing views, and it should have been reasonably clear to the parties that there was a dispute that needed to be resolved.[30]
In contrast Opal argued that none of the meetings/exchanges between Mr Horan and/or the AMWU and representatives of Opal between 5 to 7 December 2022 could be seen as meeting the requirements of the DRP.
Opal argued that following the DRP is not a “tick and flick”[31] exercise, but must be understood in the context of the Fair Work Act 2009 and accordingly be seen as promoting productive and co-operative workplace relationships.[32] Opal relied on Maersk where Colvin J at [86] held the evident purpose of a DRP is to provide a mechanism “by which to encourage discussion and resolution.”[33]
While Opal acknowledged that the authorities allowed for some flexibility in applying the steps of the DRP, Opal argued that to say the AMWU had fulfilled the DRP steps was stretching the concept of that flexibility too far.[34]
In particular, Opal argued that Qantas (and the subsequent Full Court appeal) established a two limbed test for meeting minimum requirements in a dispute procedure.[35] The parties must at least understand firstly, that they have opposing views, and secondly, that there is a dispute that requires resolving.
Opal submitted that the authorities establish the second component of this test is subjective – albeit that the Commission or Court may reasonably infer what is in a party’s mind based on the surrounding evidence.[36]
Opal submitted that while the first limb of the test may have been met in some of the meetings/exchanges between Mr Horan and/or the AMWU and Opal representatives, the second limb had not been met.
I will now turn to consider the parties specific submissions in relation to each step of the DRP and consider whether the specific steps in the DRP were met.
Was Step 1 of the DRP complied with?
15.2(b) In the first instance the parties will attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor/manager.
Did the Horan/Hutchinson Discussion meet Step 1 of the DRP?
Opal argued that the interaction between Mr Horan and Mr Hutchinson on 5 December 2022 did not meet the requirements of 15.2(b). This is because, Opal submitted, the interaction was not to “initiate” or “discuss” a dispute, but rather was communication around attending a meeting. Opal argued that even if the Commission found the parties had opposing views, the interaction did not meet the second limb of Qantas in that Mr Hutchinson was not aware that there was a dispute that needed to be resolved. Opal pointed to Mr Hutchinson’s evidence that he did not think there was anything further he was required to do in relation to the matter with Mr Horan.[37] This was contrasted with other disputes raised by Mr Horan via email, where Mr Hutchinson was aware he needed to follow up the raised issue.[38]
The AMWU submitted that Mr Horan, an experienced delegate, raised a dispute with his manager, Mr Hutchinson, by opposing his attendance at the meeting without a union representative. The AMWU relied on Maersk to argue that there was no need for Mr Horan to raise a “fully-fledged dispute” and that a dispute may begin with “a question or an inquiry.”[39] The AMWU argued there was no requirement for Mr Horan to say “we are in dispute”, and pointed to email correspondence between Mr Horan and Mr Hutchinson regarding disputes which did not use that wording.[40]
I observe that clause 15.2(b) refers to “matter” rather than “dispute” which is used in the following two steps of the DRP. In Maersk Colvin J, in reflecting on the disputes procedure before him noted that the reference to “matter” at a number of stages in the dispute resolution procedure as opposed to “dispute” was relevant as it indicated there may not be a “fully-fledged dispute” at those stages of the procedure. Relevantly, Colvin J stated:[41]
“…. it is possible that [the process] may begin with a question or an inquiry. It is not the case that the dispute resolution procedure is confined to what is to occur if the parties are already in dispute. Nor does it contemplate the articulation of a point in the form of a claim and response at each step in the process.”
At the time of the discussion between Mr Horan and Mr Hutchinson, the matter concerning Mr Horan receiving representation was not a “fully fledged” dispute. While on the evidence it is clear both parties understood there were “opposing views” over whether Mr Horan should have representation, it was not at this stage articulated as a dispute over whether Opal was following the correct process under cl 17.3 or Annexure 4 of the Agreement. This is in part because the subject matter of the final dispute - i.e., the investigation process - was contemporaneously happening at the same time as Mr Horan was attempting to “resolve the matter” under the DRP.
While attempting to dispute a process under a DRP at the same time as the process is occurring poses some challenges, it is not unusual in an industrial context. In fact it is quite common for an employee or union to dispute an investigative, disciplinary or consultative process, at the same time as the investigation, disciplinary action or consultation process is taking place. There is no requirement to wait until after an employee has gone through a faulty investigation, disciplinary or consultation process before a dispute is raised.
Therefore, I find that Mr Horan did attempt to “resolve a matter” by raising it with his manager, Mr Hutchinson.
Opal argued that the interaction between Mr Horan and Mr Hutchinson cannot meet the requirements of cl 15.2 (b) because even if there were “opposing views” as to the representation issue, the second limb of the test in Qantas requires that both parties must understand that there is a dispute in need of resolution. Opal argued Mr Hutchinson did not know there was a dispute in need of resolution and therefore Step 1 could not be met.
With respect, I do not agree with Opal’s analysis of the evidence. I find both parties knew that there were opposing views regarding whether Mr Horan should have representation and both parties knew that this matter needed to be resolved. Mr Hutchinson was not able to resolve the matter regarding representation when it was raised with him and in effect escalated the dispute to the next level by raising it with Mr Edwards, Regional General Manager. In this instance, I have not had to determine whether the second limb of Qantas is a subjective or objective test, as it is quite clear that Mr Hutchinson understood there were opposing views regarding representation and took steps to address the matter, there and then, by reporting the matter to Mr Edwards. Mr Edwards’ response was that Mr Horan needed to attend the meeting regardless of representation or he would be stood down. From Mr Hutchinson’s point of view, he had exhausted his part in the dispute procedure and had no further role to play. From Mr Horan’s point of view, the dispute was not resolved, but he had no choice but to attend the meeting.
Accordingly, I find that the interaction between Mr Horan and Mr Hutchinson on 5 December 2022 met the requirements of cl 15.2(b), and Step 1 of the DRP was satisfied. Given I have found Step 1 was satisfied, I do not need to consider whether the Horan/Edwards/Chew Meeting also met the requirements of Step 1. I now turn to Step 2.
Was Step 2 of the DRP complied with?
15.2(c) If such discussions do not resolve the dispute, discussions between the employee or employees concerned with the Regional or Branch Secretary or their nominated representative and more senior levels of management will take place.
Did the Horan/Edwards/Chew Meeting meet Step 2 of the DRP?
The AMWU submitted the Horan/Edwards/Chew Meeting of 5 December 2022 met the requirements of 15.2(c) of the Agreement. The AMWU submitted the meeting was with a more senior level of management and that there was no requirement for Mr Horan to have a union representative with him. The AMWU submitted Mr Horan’s evidence that he raised a dispute should be accepted.
Opal argued the Horan/Edwards/Chew Meeting of 5 December 2022 did not fulfil the requirements of 15.2(c) because:
Mr Horan did not raise a dispute at any time during the meeting.[42]
Even if the participants in the meeting held opposing views, the parties did not know there was a dispute that required resolving, and the second limb of Qantas had therefore not been satisfied.
In addition, the Regional or Branch Secretary of the Union or their nominated representative was not present. This was not a scenario where the employee voluntarily elected not to have the Union as a representative. Indeed, the subject of the dispute was Mr Horan’s election to have, and Opal’s refusal to allow, union representation.[43]
Opal’s behaviour in denying Mr Horan a representative prior to attending a meeting where he is notified that he is stood down is, in my view, reprehensible and may appear to be aimed at avoiding the DRP. It is far less likely that an unrepresented employee whose employment is under threat, will be willing to raise a dispute on their own behalf. It is also difficult to see how Opal, in good faith, can argue that the Horan/Edwards/Chew meeting did not meet Step 2 because Mr Horan did not have union representation, when it was Opal who refused Mr Horan representation in that meeting.
In any event, I accept the AMWU’s submission that Step 2 of the DRP does not require the involvement of the Regional or Branch Secretary. Clause 15.2(c) clearly allows for discussions to take place “between the employee or employees concerned with the Regional or Branch Secretary or their nominated representative and more senior levels of management.” It was open for discussions to take place between Mr Horan and Mr Edwards, the latter of whom was from “more senior levels of management.”
However, despite these observations, I am unable to find that the meeting on 5 December 2022 between Mr Horan, Mr Edwards and Ms Chew was a step in the DRP. Section 15.2(c) requires discussions to resolve a “dispute”. As indicated above at [25], I accept Ms Chew’s evidence that very little was said by Mr Horan in this meeting. Nor is there any evidence that Mr Horan raised anything to do with Opal not providing him information regarding the allegations against him at this stage. While it was clear and understandable that Mr Horan was not happy with Opal standing him down, I do not find that a dispute about the investigation process was discussed as required by the DRP at 15.2(c).
Did the Devasia/Beales email 6 December 2022 meet Step 2 of the DRP?
The AMWU submitted that the email from Ms Devasia to Mr Beales, and Mr Beales failure to answer the email satisfied the requirements of a discussion for the purposes of 15.2(c). The AMWU sought to rely on Colvin J’s decision in Maersk to argue that when a party fails to respond, or meets a request for discussion of a dispute with a “blank wall”, the other party is entitled to escalate the dispute to the next level.
Opal submitted that the email could not be seen as meeting a step in the DRP. To accept that the email alone constituted a step in the DRP would reduce the DRP to a “tick and flick” exercise. Opal submitted that the email was not a “discussion” and not even an attempt to resolve the dispute as there was no request for a response. Rather the email was no more than a “statement of concern or issues” from the AMWU.[44] Given this, Opal submitted, Mr Beales had no understanding there was a dispute to resolve, and therefore the second limb in Qantas was not met.
In the alternative, Opal argued that the current case should be distinguished from Maersk, on the basis that in Maersk the relevant email made reference to the dispute resolution procedure, sought a response and occurred in conjunction with other discussions at the worksite.
Furthermore, Opal argued this was not a case where the Union’s request for a discussion was met with a “blank wall” and therefore the Union could opt to move to the next step of the DRP. In this case Mr Beales was given no reasonable opportunity to respond before the AMWU escalated the dispute to Step 3 of the DRP where Ms Cassin and Mr Hinds took up the dispute. Opal submitted that “events overtook the 6 December email before any sensible period of time had elapsed for a stonewall or blank wall conclusion to be reached”[45] and contrasted this period to Maersk where a number of months passed before the next step of the dispute procedure was initiated.
In my view, the email suffices to put Opal on notice that there is a dispute between the parties and the AMWU is initiating discussions under Step 2 of the DRP. The email clearly sets out the AMWU’s concerns that Opal is acting in breach of Annexure 4 and clause 17.3 of the Agreement. It also sets out what will resolve the dispute from the AMWU’s point of view – ie. a postponement of the meeting so Mr Horan can have representation, that the initial disciplinary meeting is held with Mr Horan’s manager/supervisor and that Opal abide by the Agreement. In this regard I reject Opal’s submissions that the email is just a “statement of concern or issues”.
I am also satisfied that Ms Devasia, as the National Legal Co-ordinator is the nominated representative of the Regional or Branch Secretary, and Mr Beales is the relevant level of management to meet the requirements of Step 2 of the DRP.
However, raising a dispute is not enough to meet the requirements of Step 2. There must be discussions to resolve the dispute.
As indicated above the AMWU sought to rely on Maersk to establish that the email, and Mr Beales subsequent failure to respond to the email, constituted a discussion. In MaerskColvin J considered a situation where the Master of a Ship was sent an email from the ship’s crew regarding a dispute. The relevant email concluded as follows[46]:
“We hereby start the process of the dispute resolution according to section 45 of the EBA.
We hereby await your response
Mariner MUA Crew”
Neither the Master of the Ship, nor any other representative of the employer responded to the email. The dispute continued unresolved. Colvin J considered whether the email satisfied the first step of the relevant dispute procedure. Colvin J reflected that[47]:
“from the perspective of the party who has raised a matter for discussion but meets a blank wall, the matter is unresolved and that party may move to step two….
It could hardly be the case that, for the employees or the Union acting on their behalf, the process languishes at step one unless and until the [Company] communicates in some way with the employees….”
However, the Maersk situation differed considerably to the matter before me. In particular, the email relied on in Maersk states it is part of the dispute resolution process and requests a response. The Respondent in Maersk was given considerable time (months) to respond but did not. In addition, contemporaneous discussions regarding the dispute continued at the worksite.
In the case before me Mr Beales was given just over a day to respond before the AMWU escalated the matter under the DRP. In urgent matters such as disciplinary proceedings, it is quite reasonable for the parties to want to move through the dispute procedure quickly. However, it is important the party seeking to fast track the disputes process makes this clear. In this case this could have been done by either Ms Devasia’s original email including a request for a response within a reasonable timeframe, or by Ms Devasia following up Mr Beales with a phone call. Neither of these things occurred. Without these measures, it is unclear how the AMWU came to the conclusion they were being met with a “blank wall”, and that 15.2(c) had been exhausted.
In addition, while Mr Beales did not respond directly to Ms Devasia’s email, Opal did respond by rescheduling the December 7 meeting with Mr Horan and Mr Bull. In rescheduling the meeting so Mr Bull could attend with Mr Horan, Opal partly acceded to the requests in Ms Devasia’s email. By accepting the meeting on 9th December 2022, rather than relying on the status quo provision in the DRP, the AMWU was sending mixed messages about whether the matter remained in dispute.
While I understand that Mr Horan and the AMWU were trying to promptly escalate a dispute through the DRP in an urgent situation, I do not believe the Devasia/Beales email can alone be held to be “discussions” under Step 2 of the DRP. To say it was, would be to undermine the purpose of the DRP to encourage real discussion and resolution at the workplace.
Did the phone conversation and/or emails between Ms Cassin and Mr Hinds meet any steps in the DRP?
It remained open to the AMWU to argue that the telephone call and follow up email communication between Ms Cassin and Mr Hinds on 7 December 2022 satisfied Step 2 of the DRP, and then rely on later discussions between the parties to satisfy Step 3 of the DRP. This approach would not be without complication because it was clear on the evidence that Ms Cassin and Mr Hinds were usually considered the relevant parties to undertake discussions at Step 3 of the DRP. In any event, the AMWU chose not to pursue this argument and explicitly excluded reliance on any communications after 7 December 2022.
Accordingly, I find that Step 2 of the DRP was not complied with.
As I have found Step 2 in the DRP was not satisfied, I do not need to determine whether Step 3 of the of the DRP was satisfied. However, if Step 2 had been satisfied, I am likely to have determined the phone conversations/email between Ms Cassin and Mr Hinds satisfied Step 3. As discussed above at [36] I have found that on 7 December 2022 Ms Cassin and Mr Hinds spoke on the phone about the dispute and this was followed up with email correspondence from Ms Cassin seeking confirmation from Mr Hinds that Opal would send Mr Horan and the AMWU all relevant information before the meeting with Mr Wilmore. Mr Hinds’ response makes clear Opal’s position that they will not provide this information until after the meeting. In my view, and particularly in light of the urgent nature of the dispute, this communication would have met the requirements of Step 3.
Opal’s other arguments relating to jurisdiction and scope of the dispute
Given I have found that the Commission has no jurisdiction to hear the dispute as the DRP was not complied with, I do not need to consider Opal’s second jurisdictional objection and argument relating to scope of the dispute. However, I make the following observations.
I am unlikely to have upheld Opal’s second jurisdictional objection that the dispute was already resolved. While the parties may have taken steps towards resolution in a conciliation before the Commission, no settlement document was signed, the Application was never discontinued and the file was reopened by the Commission. Prima facie there remains a live dispute.
In relation to Opal’s argument that the scope should be restricted to the matter outlined in the original application and not include a dispute about the validity of a warning received by Mr Horan after the filing of the dispute, I am inclined, in these particular circumstances, to have agreed with Opal. I note that in some circumstances an investigation process may be so deeply flawed that the warning will necessarily be invalid. However, on the evidence before me in this matter, the primary concern related to procedural fairness defects. Procedural fairness defects in the investigation may not necessarily render a warning invalid. In this instance, the option has always been open to the AMWU to file a dispute specifically relating to the warning.
Conclusion
For reasons given above I have determined that the Commission does not have jurisdiction to deal with this dispute. Accordingly, the application is dismissed.
As noted above, I understand that the warning issued to Mr Horan has now expired, and there is little utility in the AMWU pursuing a dispute about an expired warning. However, in the event Opal seeks to rely on that warning in the future, it is open to the AMWU to follow the DRP, and if resolution is not reached to file a new dispute in the Commission relating to the validity of the warning.
Both parties have spent considerable resources arguing this jurisdictional matter. In my view, in the future, it would be a better use of time and energy for both parties to engage in good faith in discussions with a view to resolving matters.
COMMISSIONER
Appearances:
A Bonello for the Applicant.
C Yuen for the Respondent
Hearing details:
2023
25 August
Melbourne
31 August
Melbourne
20 November
Melbourne
28 November
Video via Microsoft Teams, Melbourne
[1] Agreement Annexure 4 Clause 3(d).
[2] Witness Statement of Steven Hutchinson, paragraph 6.
[3] Transcript 25 August 2023, PN47.
[4] Witness Statement of Steven Hutchinson, paragraph 7.
[5] Transcript 20 November 2023, PN61.
[6] Witness Statement of Grant Horan, paragraph 8.
[7] Witness Statement of Melissa Chew, paragraph 7.
[8] Annexure MC-1.
[9] Annexure MC-2.
[10] Annexure RB-1.
[11] Annexure AD-1.
[12] Transcript 28 November 2023, PN302.
[13] Supplementary Witness Statement of Lorraine Cassin, paragraph 3. See also Transcript 28 November 2023, PN298.
[14] Witness Statement of Brad Hinds, paragraph 6.
[15] Transcript 28 November 2023, PN363-358.
[16] Annexure LC-1.
[17] See Transcript 28 November 2023, Cassin at PN307 and Hinds at PN354
[18] Witness Statement of Michael Bull, paragraphs 4-7 and Witness statement of Melissa Chew, Annexure MC-2 –Contemporaneous notes.
[19] Annexure RB-4.
[20] Annexure RB-5.
[21] Annexure RB-6.
[22] The Australian Workers’ Union v MC Labour Services Pty Ltd[2017] FWCFB 5032 at [39]
[23] Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694
[24] See for example in relation to emails Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694 at [101].
[25] Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2) [2020] FCA 951 at 70
[26] Australian Licensed Aircraft Engineers Association v Quantas Airways Limited [2022] FCAFC 50
[27] Transcript 20 November 2023 PN116.
[28] Transcript 20 November 2023 PN 118-120 and PN 128-132.
[29] Transcript 20 November 2023 PN238.
[30] Transcript 20 November 2023 PN233
[31] Transcript 31 August 2023 PN307.
[32] Transcript 31 August 2023 PN290.
[33] Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694 at [86]
[34] Transcript 20 November 2023 PN145.
[35] Transcript 20 November 2023 PN147-150.
[36] Transcript 20 November 2023 PN251
[37] Transcript 20 November 2023 PN155
[38] Witness Statement of Steven Hutchinson, paragraph 9, annexure SH-1.
[39] Maersk at [91]-[92]
[40] Annexure SH-1.
[41] Maersk at [92]
[42] Transcript 20 November 2023, PN159.
[43] Transcript 20 November 2023 PN156-157.
[44] Transcript 20 November 2023 PN178
[45] Transcript 20 November 2023 PN195
[46] Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694 at [18]
[47] Ibid at [95-96]
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