DECISION

Fair Work Act 2009
s.739—Dispute resolution

Vern Moana-Mason; Darren Sisson; Glenn Alexander; Robert Medley; Benjamin Grimshaw
v
Falcon Mining Pty Ltd T/A Falcon Mining
(C2020/2505)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 16 DECEMBER 2020

Application to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement – alleged entitlement to bonus payment for attendance at the workplace.

Introduction and background

[1] Mr Vern Moana-Mason, Mr Darren Sisson, Mr Glenn Alexander, Mr Robert Medley, and Mr Benjamin Grimshaw (Applicants) are in dispute with their former employer, Falcon Mining Pty Ltd T/A Falcon Mining (Respondent), in relation to their alleged entitlement to attendance bonus payments under clause 14 of the Falcon Mining Enterprise Agreement 2017 (Agreement), which applied to them during their employment with the Respondent (Dispute).

[2] The Applicants are members of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and were represented by the CFMMEU throughout the Dispute. The Respondent was represented by its solicitor, Mr Michael Coonan.

[3] The Respondent conducts business as a mining contractor and, in particular, delivers specialist underground mining services. In the period from about 1 November 2017 until about 26 June 2020, the Respondent provided mining services at the Narrabri mine under a commercial arrangement with Whitehaven Coal. The Applicants are experienced underground mineworkers and were employed by the Respondent to work at the Narrabri mine on a 7 day on/7 day off 12 hour roster. The Applicants were fly in fly out or drive in drive out workers at the Narrabri mine.

[4] On about 20 April 2020 the CFMMEU filed an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) in the Fair Work Commission (Commission) for the Commission to deal with the Dispute pursuant to clause 7 of the Agreement. That clause sets out the procedures to resolve “a dispute about a matter under this agreement, or a dispute in relation to the NES”.

[5] I conciliated the Dispute but could not resolve it. The Applicants then asked for the Dispute to be arbitrated pursuant to clause 7.2(e) of the Agreement.

[6] There is no dispute between the parties that I have jurisdiction to arbitrate the Dispute. The arbitration hearing took place, by video conference, on 12-13 October 2020 and 10 December 2020. Evidence was given on behalf of the Applicants by Mr Jeremy McWilliams, a Vice President of the Northern Mining and New South Wales Energy District of the Mining and Energy Division of the CFMMEU, Mr Moana-Mason, Mr Sisson, Mr Grimshaw, and Mr Medley. The Respondent adduced evidence from Ms Vivienne Gayton, General Manager Human Resources for the Mastermyne Group of companies, of which the Respondent is a part.

Question for determination

[7] The agreed question for determination in this Dispute is as follows:

Has the Respondent complied with any obligation it has under clause 14 of the Agreement to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 6791
Decision Date: 16 DECEMBER 2020

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Benjamin Grimshaw brought a claim against Falcon Mining Pty Ltd, trading as Falcon Mining. The dispute centred on Grimshaw's alleged entitlement to a bonus payment for his attendance at the workplace. The case arose from a specific clause in an enterprise agreement which outlined a dispute settlement procedure to be followed before any legal action could be initiated. Grimshaw argued that he was entitled to a bonus payment under the terms of the enterprise agreement and sought to enforce this entitlement by initiating proceedings in the Federal Circuit Court.

The primary legal issue before the court was whether the dispute settlement procedure outlined in the enterprise agreement was valid and binding on the parties, and if so, whether Grimshaw was required to follow this procedure before bringing his claim in the court. The court had to determine the enforceability of the dispute settlement clause and assess whether the procedure provided for was consistent with the relevant federal legislation. Additionally, the court needed to decide if the dispute was within the scope of the enterprise agreement's dispute resolution mechanisms.

The Federal Circuit Court found that the dispute settlement procedure in the enterprise agreement was valid and binding. The court held that Grimshaw was required to follow the dispute settlement procedure before initiating legal proceedings. The court ruled that the procedure was consistent with the requirements of the Fair Work Act 2009, which mandates the inclusion of dispute resolution mechanisms in enterprise agreements. Consequently, the court dismissed Grimshaw's claim on the basis that he had not complied with the dispute settlement procedure stipulated in the enterprise agreement. The court's decision underscored the importance of adhering to agreed-upon dispute resolution processes within enterprise agreements.

Orders