“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Southcorp Wines Pty Limited

[2016] FWC 586

[2016] FWC 586

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
Southcorp Wines Pty Limited
(C2015/5093)

COMMISSIONER BISSETT MELBOURNE, 1 FEBRUARY 2016

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] On 10 August 2015 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) notified the Fair Work Commission of a dispute in accordance with the dispute settling procedure of the Treasury Wine Estates Vintners Ltd – Great Western Maintenance and Laboratory Collective Agreement 2014 (the Agreement). The dispute relates to redundancy provisions arising under clause 23 and Appendix 2 of the Agreement.

[2] The dispute was subject to conciliation before the Commission where it failed to settle. Southcorp Wines Pty Limited (Southcorp Wines) indicated that it had a jurisdictional objection to the matter which it would seek to have determined if the matter was to proceed to arbitration. Accordingly, directions were issued for the filing of submissions and witness statements, including in relation to jurisdiction.

[3] This decision deals with jurisdiction only. The AMWU and Southcorp Wines have agreed that this matter can be dealt with on the basis of the written submissions of the parties.

The Agreement

[4] Clause 4 of the Agreement states:

4. Parties Bound

This Agreement will be binding on:

4.1 Southcorp Wines Pty Limited, Moyston Road, Great Western, Victoria;

4.2 All employees who undertake work within the scope of coverage of the classifications contained in the Metal Award and the Technical Award as incorporated into this Agreement in clause 6.

4.3 The Union (subject to meeting the requirements of the Fair Work Act 2009).

[5] The dispute resolution procedures of the Agreement provides as follows:

19. Disputes Settling Procedure

19.1 This clause sets out the procedures for resolving disputes arising over:

19.1.1 a term or terms of this Collective Agreement, including the incorporated Award provisions; and/or

19.1.2 the National Employment Standards.

19.2 The following process will apply for all matters.

Step 1 The employee/s concerned will first meet and confer with their immediate supervisor. A party to the dispute may appoint another person, organisation or association (including the union) to accompany or represent them in relation to the dispute.

Step 2 If the matter is not resolved at Step 1 the parties will arrange further discussions involving more senior site management, which may involve management representatives from other Company offices.

Step 3 In the event of a dispute between the union covered by this Agreement and the employer/company, in the first instance the parties will attempt to resolve the matter at the workplace by discussions between a union representative(s) concerned and the relevant management personnel and, if such discussions do not resolve the dispute, by discussions between union representative(s) and more senior levels of management as appropriate. This union representative(s) may be delegate/shop steward or other official at any stage of the dispute.

Step 4 If a dispute is unable to be resolved at the workplace under Step 2 or Step 3 as appropriate, the dispute may be referred to FWA for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration. If arbitration is necessary FWA may exercise procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make arbitration effective.

19.3 In order to facilitate this procedure:

19.3.1 the party with the grievance must notify the other party at the earliest opportunity of the problem;

19.3.2 throughout all stages of the procedure all relevant facts must be clearly identified and recorded; and

19.3.3 sensible time limits must be allowed for completion of the various stages of discussion. However, the parties must co-operate to ensure that the disputes resolution procedures are carried out as quickly as possible.

19.4 During a dispute the status quo existing immediately prior to the circumstances giving rise to the dispute shall remain. Subject to the maintenance of safe working practices and conditions every effort shall be made by the parties to ensure that work proceeds while following the stages of the agreed disputes procedure.

19.5 No party to a dispute may make application to FWA for costs.

The dispute as notified

[6] In notifying the dispute the AMWU indicated that ‘two employees were made redundant, despite Clause 23 and Appendix 2 of the agreement, the employer has not paid notice period for either employee.’ The relief sought was that the notice period be paid to each redundant employee.

[7] It is not disputed who the two employees are, nor that they are represented by the AMWU in this matter.

The jurisdictional objection

[8] Southcorp Wines submits that the Commission does not have jurisdiction to deal with the matter in dispute because:

• Southcorp Wines has not employed either of the employees since 26 June 2015;



• The AMWU initiated the dispute after that date;



• At all relevant times the AMWU has been acting on behalf of the employees;



• For a dispute of this kind to be progressed it had to be initiated by the employees when they were employment and this did not occur.

[9] Southcorp Wines relies on the decisions in King & Ors v Patrick Projects Pty Ltd 1(King) and Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd2 (North Goonyella), in support of its contention that the Commission does not have jurisdiction to deal with a dispute in relation to people who are no longer covered by the relevant agreement. As the individuals in this instance are no longer employees of Southcorp Wines it submits the Commission cannot deal with the dispute.

[10] Southcorp Wines also submits that the alternative proposition put by the AMWU to re-characterise the dispute must fail because:

• The real question is whether there is a real dispute (as opposed to if there may be a real dispute) in relation to existing employees. There is no evidence or suggestion from the AMWU that there is such a dispute and there is no evidence that there is any proposal or intention of Southcorp Wines to implement any further redundancies;



• The late attempt to re-characterise the dispute cannot change the character of the dispute as disclosed in the dispute notification;



• Most, if not all disputes, could be characterised as being of general application. However, that is a ‘hollow description’ if the dispute is put in the abstract without any real context (see North Goonyella);



• The AMWU has no power to bring a dispute as a party principal except in relation to matters that affect it in its capacity as a union (eg on-site representation, consultation etc).

[11] The AMWU says that there is no limitation, explicit or implicit, in clause 19 of the Agreement that suggests that the AMWU, as a party to the Agreement, cannot initiate a dispute in relation to the Agreement. It also says that whilst the dispute may be characterised as concerning the entitlements of two individuals it may equally be characterised as a dispute over the current application of clause 23 and Appendix 2 of the Agreement in general. The fact that the two employees may be used ‘as a practical vehicle’ is, it says, immaterial.

[12] The AMWU seek to distinguish the facts surrounding this case from those in King relied on by Southcorp Wines. It says that the excerpt of the decision in King relied on provides no analysis as to why the Full Bench reached its conclusion, but are general in nature and do no more than approve the decision of the member below.

[13] The AMWU says that the relevant principle to be taken from the decision in North Goonyella, also relied on by Southcorp Wines, is that the powers of the Commission to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) derive from the terms of the dispute resolution procedure itself.

[14] The AMWU says that the current dispute can be distinguished from the circumstances of North Goonyella as the dispute settlement procedure at clause 19 of the Agreement allows the AMWU to initiate disputes in its own right and allows such disputes to be escalated to the point of arbitration by the Commission. Further, the AMWU says that the decision in North Goonyella stands for the position that the resolution of a dispute in relation to past employees may benefit existing employees.

[15] The AMWU relies on the decision of the Full Bench of the Commission in Bechtel Construction (Australia) Pty Ltd v The Maritime Union of Australia 3 (Bechtel) in support of its proposition that a dispute is not necessarily static and can evolve over time. For this reason, the emails and dispute notification should not be seen to confine the nature of the dispute.

Characterisation of the dispute

[16] I agree with the submissions of the AMWU that an industrial dispute may change over time. However, it is generally the case (as supported by the passage from United Firefighters’ Union of Australia v Melbourne Fire and Emergency Services Board quoted in Bechtel) that this will normally occur as the Commission engages with the parties following the notification of dispute by one of the parties. The ‘evolution of the dispute over time’ cannot be in the hands of either party to the dispute but must be through some process that both have engaged in. Whilst the Commission was involved in some conciliation with respect to this dispute there is nothing to suggest that the dispute as notified by the AMWU under s.739 of the Act has changed in any substantive manner.

[17] Bechtel does not stand for the proposition that the character of the dispute can change on the instigation of one party to the dispute. Such a change must be meaningful.

[18] I am satisfied that the dispute is about the application of clause 23 and Appendix 2 of the Agreement. Whilst there is nothing to suggest that Southcorp Wines is considering seeking any further voluntary redundancies such that there could be a concern that the same issue confronting these two employees might confront other employees in the near future, I am satisfied that it has arisen in circumstances where two employees accepted voluntary redundancy but did not receive any payment of notice

[19] The dispute can be characterised as one relating to the payment of notice on acceptance of voluntary redundancy. The matter arises under clause 23 and Appendix 2 of the Agreement.

Does the AMWU have the right to initiate a dispute in its own right?

[20] I am satisfied that the AMWU has the right to initiate a dispute with Southcorp Wines and the power to notify such a dispute to the Commission in its own right.

[21] It is apparent from the words of the dispute settlement procedure that Steps 1 and 2 apply in circumstances where an individual employee or group of employees raise a dispute (as is their right). Step 1 says ‘The employee/s concerned will first meet and confer with their immediate supervisor…’ Step 2 logically follows from Step 1.

[22] The wording of Step 3 makes it abundantly clear that this is the first step in a separate process. Step 3 says ‘In the event of a dispute between the union covered by this Agreement and the employer/company, in the first instance the parties will attempt to resolve the matter at the workplace…’ (emphasis added). The words ‘in the first instance’ indicate that this is the first step where the union is the party raising the matter. This is to be contrasted to Step 2 where the union is a representative of another party who raised the dispute.

[23] The wording of Step 4 in the process supports this view. It says that ‘if a dispute is unable to be resolved at the workplace under Step 2 or Step 3…’, clearly indicating that at the conclusion of one or the other of Steps at 2 or 3, not both, the matter may be escalated.

[24] There is nothing in the dispute settlement procedure at Step 3 or otherwise to suggest that the AMWU, in notifying a dispute, is limited to matters relating to its capacity as a union. Further, there is nothing in the dispute settlement procedure to suggest that, where the AMWU initiates a dispute it cannot by-pass steps 1 and 2 of the procedure.

[25] Clause 19.1 says that the clause sets out the procedures for resolving disputes arising over a term or terms of this Collective Agreement. It does not restrict those matters over which a dispute might be raised.

[26] To make it abundantly clear clause 19.2 then says that ‘The following process will apply for all matters.’ There is no limitation on the matters based on which party notifies the matter of whether it commences at Step 1 or Step 3.

[27] The submissions of Southcorp Wines on what matters the AMWU may raise are rejected.

[28] For these reasons, I am satisfied that the AMWU as a party has power to notify a dispute to the Commission under the dispute settlement procedure and the scope of the dispute is not confined because the AMWU notified it.

[29] Further, I am satisfied that the requirements of the dispute settlement procedure have been met.

When was the dispute initiated?

[30] I am satisfied that this dispute was first raised with Southcorp Wines by Colin Muir of the AMWU by email on 29 June 2015. Whilst there was some exchange between the AMWU and Southcorp Wines about redundancies and the exploration of some part time employment opportunities, these discussions were not of a form that would suggest there was any dispute between the two parties about the voluntary redundancies per se.

[31] The material before the Commission suggests that the two employees concerned left employment with Southcorp Wines prior to this date.

Does the Commission have jurisdiction to deal with this dispute?

[32] In North Goonyella the Full Bench considered an appeal against a decision in which Richards SDP found that he did not have jurisdiction to deal with a matter as the individuals named in the dispute were no longer employees of the employer. The Senior Deputy President found that ‘the persons who may have access to the dispute settlement procedure were those identified in the dispute settlement procedure clause of the agreement – in this case the employee and employer.’ In the agreement the dispute settlement procedure did not allow the CFMEU to initiate a dispute although it could act as a representative in a matter.

[33] In its decision the Full Bench found:

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

[40] We accept (as did the Commissioner) that clause 41 may potentially have application to a dispute between current employees and North Goonyella concerning the application of the Agreement and selection criteria for involuntary redundancy to former employees. For example, current employees who are facing an upcoming round of redundancies may have legitimate concerns for their own future treatment based on the way in which their employer has treated former employees in a previous round of redundancies. The question here is whether the dispute identified in the October 2013 application was a dispute of that nature, as distinct from a dispute about former employees.

[34] I am satisfied that the matter before me can be distinguished from the circumstances in North Goonyella. The dispute settlement procedure in this matter does explicitly allow for disputes between Southcorp Wines and the AMWU – this is explicit at Step 3 of the dispute settlement procedure set out above. In North Goonyella it is evident that the CFMEU could not, under the agreement, raise a dispute in its own right.

[35] For this reason I do not consider myself bound by the reasoning in North Goonyella in deciding this matter.

[36] In King, the Full Bench heard a number of appeals in relation to a number of separate but related matters. One of those matters was a decision at first instance where the Commission found it did not have jurisdiction to deal with the dispute. 4 The relevant enterprise agreement defined an employee as a person engaged by the company (the employer). The dispute resolution procedure required, as a first step, that an employee should discuss the dispute with his or her employer. All steps of the dispute resolution procedure required that the employee take certain steps or do certain things.

[37] The initial dispute in King was notified to the Commission on 28 April 2014. The employees notifying the dispute had ceased employment on 20 March 2014. On this basis the Commissioner found that, as the persons notifying the dispute were not employees at the time they did so, the Commission had no jurisdiction to deal with the matter.

[38] The Full Bench ultimately held that:

[43] Further and in relation to A3, we consider that the Commissioner correctly identified that he had no jurisdiction to hear a s.739 matter in circumstances where the applicants were no longer employed. An application for the Commission to deal with a dispute in accordance with a dispute settlement procedure of an Enterprise Agreement pursuant to s.739 of the Act can only be heard when the applicants are employed. This is an uncontroversial jurisdictional point supported by manifold authorities and the express provisions of the Act. There was no error in the Commissioner’s approach in that regard and it was not unreasonable for the matter to be heard by way of written submissions in the particular circumstances. In any event, we note that it was heard by way of written submissions by consent of both parties. The outcome reached was within the range of outcomes reasonably available to the Commissioner and does not demonstrate any manifest injustice or counter-intuitive result.

[39] The dispute currently before the Commission varies in a substantial way from that in King. In this matter the dispute was notified by the AMWU. This is not affected by the fact that the employees in question had left employment at the time the dispute was notified.

[40] Again, I am satisfied that the matter before me can be distinguished from the circumstances in King. In this case the AMWU notified the dispute in its own right. If it was that the AMWU could only represent employees in a dispute they had with the employer the reasoning in King would undoubtedly apply. But the AMWU is not present as a representative but as a party.

[41] Neither of these Full Bench decisions stands for the proposition that the dispute before me is not properly notified nor that the AMWU does not have standing to bring the dispute before the Commission and have the matter dealt with.

Conclusion

[42] I am satisfied that the AMWU can initiate a dispute in respect of the dispute settlement procedure of the Agreement in its own right. The dispute before me goes to the application of clause 23 and Appendix 2 of the Agreement. The circumstances giving rise to the dispute relate to voluntary redundancy.

[43] Whilst the relief sought by the AMWU may relate to previous employees of the employer, this does not mean the Commission does not have jurisdiction to deal with the dispute. In any event, the Commission is not bound to only consider the relief sought by an applicant.

[44] For the above reasons given, I am satisfied that the Commission has jurisdiction to deal with the dispute.
 
[45] Southcorp Wines is therefore directed to file with the Commission and serve on the AMWU an outline of submissions and any witness evidence on which it intends to rely for the merit submissions by 4.00pm 19 February 2016. The application will be listed for hearing at 2.00pm Thursday 3 March 2016 in Melbourne.

COMMISSIONER

Final written submissions:

Applicant, 11 December 2015.

Respondent, 27 November 2015.

 1   [2015] FWCFB 6323.

 2   [2015] FWCFB 5619.

 3   [2013] FWCFB 4250.

 4   Seiffert & Ors v Patrick Projects Pty Ltd [2014] FWC 7019.

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