Benjamin Jones v Technological Resources Pty Limited T/A Rio Tinto
[2022] FWC 463
| [2022] FWC 463 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Benjamin Jones
v
Technological Resources Pty Limited T/A Rio Tinto
(C2022/253)
| COMMISSIONER WILLIAMS | PERTH, 2 MARCH 2022 |
Dispute resolution - jurisdiction.
On 5 January 2022 Mr Benjamin Jones (the Applicant) filed an application (the Application) under section 739 of the Fair Work Act 2009 (Cth) (the Act). The Respondent is Technological Resources Pty Ltd T/A Rio Tinto (the Respondent).
The Application says the Applicant is covered by the Professional Employees Award 2020 [MA000065] (the Award). The Application is made under clause 26 - Dispute resolution of the Award and states that the clause of the Award the dispute relates to is clause 25 - Consultation about changes to rosters or hours of work.
The Respondent in its response to the Application filed at the direction of the Commission objects to the Application on the ground that the dispute, it asserts, does not relate to a matter arising under an Award and so the Commission has no jurisdiction to deal with this dispute.
The Commission convened a conference of the parties on 31 January 2022.
The substance of the dispute was discussed at the conference as was the Respondent’s jurisdictional objection.
The conference was adjourned on the basis of that the Commission would issue further directions to the parties, for the Applicant to file any submission explaining why the dispute is about a matter covered by subclause 25.1 of the Award, and the Respondent would file submissions in reply.
Both parties have filed submissions as directed and this decision deals with the Respondent’s jurisdictional objection only.
Clause 25 – Consultation about changes to rosters or hours of work of the Award is set out below.
“25. Consultation about changes to rosters or hours of work
25.1 Clause 25 applies if an employer proposes to change the regular roster or ordinary hours of work of an employee, other than an employee whose working hours are irregular, sporadic or unpredictable.
25.2 The employer must consult with any employees affected by the proposed change and their representatives (if any).
25.3 For the purpose of the consultation, the employer must:
(a) provide to the employees and representatives mentioned in clause 25.2 information about the proposed change (for example, information about the nature of the change and when it is to begin); and
(b) invite the employees to give their views about the impact of the proposed change on them (including any impact on their family or caring responsibilities) and also invite their representative (if any) to give their views about that impact.
25.4 The employer must consider any views given under clause 25.3(b).
25.5 Clause 25 is to be read in conjunction with any other provisions of this award concerning the scheduling of work or the giving of notice.”
Expressly this clause only applies “...if an employer proposes to change the regular roster or ordinary hours of work of an employee...”
On the information provided to the Commission the Applicant’s role requires him to perform duties at the Respondent’s Operations Centre at 11 George Wieneke Drive, Perth Airport.
In November 2021, the Western Australian Government’s Chief Health Officer issued the Resources Industry Worker (Restrictions on Access) Direction (No 2) (the Direction) under the Public Health Act 2016 (WA).
The Direction covers the Respondent’s Operations Centre and in summary requires that a person who is a resources industry worker must not enter or remain at the Operations Centre if the resources industry worker has not been vaccinated against COVID-19.
The Respondent submits that the Applicant is a resources industry worker for the purpose of the Direction. Consequently, the Respondent submits that after 1 December 2021, the Applicant was prohibited from entering the Operations Centre unless he complied with the vaccination requirements or obtained an appropriate exemption.
The Applicant has neither complied with the vaccination requirement nor obtained an appropriate exemption. Consequently, the Respondent’s position is that the Applicant is unable to fulfil his role because he has not met the requirements of the Direction.
The Applicant submits in his application that the Respondent has failed to comply with clause 25 - Consultation about changes to rosters or hours of work.
However, as noted above clause 25 of the Award only operates when an employer proposes to change an employee’s roster or ordinary hours of work. There is however nothing before the Commission that shows the Respondent has proposed to change the Applicant’s regular roster or ordinary hours of work.
Consequently, I am not satisfied at all that this dispute arises about a matter under clause 25 - Consultation about changes to roster or hours of work of the Award.
The dispute between the Applicant and the Respondent concerns the fact that the Applicant has not met the requirements of the Direction and so the Respondent, which is obliged at law to comply with the Direction, is unable to allow him to return to his workplace at the Operations Centre.
My decision is that this dispute does not arise about a matter under the Award or in relation to the National Employment Standards.
Consequently, the Commission does not have jurisdiction to deal with the dispute raised by the Applicant. The application must therefore be dismissed and an order [PR738926] to that effect will be issued
Final written submissions:
Applicant, 16 February 2022.
Respondent, 22 February 2022.
Printed by authority of the Commonwealth Government Printer
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