Carl Parker v Swan Transit Services Pty Limited

[2021] FWC 401

[2021] FWC 401

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Carl Parker
v
Swan Transit Services Pty Limited
(C2020/7452)

DEPUTY PRESIDENT BEAUMONT PERTH, 1 APRIL 2021

Application to deal with contraventions involving dismissal Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

1 Introduction

[1] This decision concerns an application made by Mr Carl Parker under s 739 of the Fair Work Act 2009 (Cth) (Act) and the dispute resolution procedure in clause 20 of the Swan Transit Enterprise Agreement 2017 1 (Agreement).

[2] Mr Parker, a bus driver with the Respondent, contends that there is a dispute about clause 7.18 of the Agreement. Clause 7.18 of the Agreement relevantly provides that ‘[T]he break in a spread shift shall be between 91 minutes and 5 hours’. In short, Mr Parker is of the view that Swan Transit Services Pty Ltd (Respondent) is in breach of the Agreement due to it rostering its part-time bus drivers on ‘spread shifts’ with a break in excess of five hours. The Respondent disagrees with this contention, arguing that the clause in question applies only to full-time drivers, and there is no such restriction regarding part-time and casual drivers.

[3] A conference was convened on 12 November 2020 with a view to resolving the dispute. However, the Respondent objected to Mr Parker’s assertion that he had complied with the dispute resolution clause before filing his application. There were two grounds for the Respondent’s jurisdictional objection. The first, there was no ‘dispute’. The second, if there was a ‘dispute’, the application had been brought prematurely as not all options had been exhausted to resolve the dispute.

[4] For reasons that follow, I have decided to dismiss the application. Mr Parker’s application for the Commission to deal with a dispute surfaced at a time when he was not a ‘party to the dispute’ pursuant to clause 20.4 of the Agreement. Insofar as referring a dispute under s 739 is concerned, it is only a ‘party to the dispute’ who may do so.

[5] Therefore, at the time of filing his application, Mr Parker could not utilise the dispute resolution procedure in clause 20 of the Agreement. It follows that the Commission does not have jurisdiction to deal with Mr Parker’s application and it must therefore be dismissed. An Order 2 to this effect will be issued with this decision.

2 Background

[6] The background to this matter has been drawn from the evidence provided by Mr Parker and Mr Brian Thompson, the General Manager of the Respondent, save where otherwise noted.

2.1 Circumstances giving rise to Mr Parker’s application

[7] The Respondent provides public transport services in metropolitan Perth. It has done so since 1996. It employs approximately 1,100 drivers across its six Perth bus services.

[8] On 19 January 2020, the Respondent commenced the operation of bus services in the Joondalup region of Perth following the award of a bus service contract from the Public Transport Authority of Western Australia.

[9] Mr Parker was previously employed by the former operator of the bus services contract. However, as of 19 January 2020, he commenced part-time employment with the Respondent. The Agreement was said to provide the terms and conditions of his employment. Whilst Mr Parker works on a part-time basis, at least 80% of the shifts operated by the Respondent are performed by full-time employees. The Respondent notes that Mr Parker is one of a small number of bus drivers, believed to be less than six bus drivers, for whom this matter concerning clause 7.18 is an issue.

[10] Mr Thompson gave evidence that following the commencement of the bus services contract on 19 January 2020 and prior to June 2020, a Transport Workers’ Union of Australia (TWU) organiser, Mr Mark Bydder, spoke to him regarding a number of part-time drivers who had enquired about the way they were rostered under clause 7.18 of the Agreement. 3

[11] Mr Thompson said that he and Mr Bydder had undertaken to have further discussions about the issue, but then COVID-19 and its associated events became a priority for the Respondent and Mr Bydder. Consequently, the issue was put to one side for a period. 4

[12] Later in the year, Mr Thompson sought to gain a better understanding about the concerns around shift rostering. He arranged a series of informal information sessions with the part-time and casual drivers in the bus depot for the Joondalup region. 5 The sessions commenced in the week of 29 June 2020, with Mr Thompson providing background to clause 7.18 of the Agreement to the drivers. During those sessions, Mr Thompson listened to the concerns of the drivers.

[13] At the time of the informal information sessions, the Respondent had not received a notice of dispute from either the TWU or Mr Parker, said Mr Thompson.’

[14] Mr Parker confirmed that an informal meeting had been held on or around 29 or 30 June 2020, with Respondent representatives, Mr Thompson and Mr Ritchie. 6 Mr Parker recollects that the drivers voiced their opposition to spread breaks being greater than 5 hours and that the only commitment made by the Respondent was to look at the possibility of part-time drivers swapping shifts with full-time drivers.7 Mr Parker gave evidence that Mr Ritchie had indicated to the drivers that the Respondent was unaware it had a problem until they received a letter.8

[15] Following the initial meeting, Mr Thompson arranged further meetings with the part-time drivers and Mr Bydder, and there was further communication between the parties, including on:

a) 14 August 2020, a working group with part-time drivers, Mr Allan Ritchie, Contract Area Manager, and Mr Bydder, met to discuss part-time driver rostering arrangements and obtain feedback regarding different opportunities to address the drivers’ concerns;

b) 25 August 2020, Mr Bydder put forward a proposal to resolve the issue;

c) 24 September 2020, the working group met, and Mr Thompson provided further information about contract peak period vehicle requirements and the impact of the contract to maintain 80% full-time employment – noting that part-time hours would decrease were rostering arrangements adjusted such that part-time and casual drivers were unable to work both ‘AM’ and ‘PM’ peak periods;

d) 11 September 2020, the working group met, and Mr Thompson provided feedback concerning the Respondent’s discussions with affected part-time drivers and it was agreed that he would arrange a meeting with the bargaining representatives who bargained for the Agreement to provide context on the application of clause 7.18 to full-time employees only; and

e) 18 September 2020, Mr Thompson conducted a teleconference with the bargaining representatives who bargained for the Agreement to provide their view on the issue. 9

[16] As of 18 September 2020, Mr Thompson had not received a notice of dispute pursuant to clause 20 of the Agreement, from Mr Bydder or Mr Parker.

[17] Mr Parker confirmed that it was a ‘Union Representative’ who contacted the Respondent following the meeting on 29 or 30 June 2020 and informed the Respondent that the matter would be taken to the Commission. 10 Mr Parker gave evidence that it is his understanding that the Respondent suggested that the drivers form a working group and offer solutions to the perceived breach.11

[18] Mr Parker confirmed that meetings were held on 4 August 2020, 4 September 2020, and 11 September 2020. In short, Mr Parker’s evidence was that during the course of the meetings the Respondent:

a) continued to deny it was breaching clause 7.18;

b) showed graphs and scheduling results to justify why the Respondent could not comply with the Agreement;

c) was advised by the employees that ‘we’ did have options for them to consider and that the Union Representative would forward:

d) expressed that if it did comply with the Agreement this would give rise to a lower number of hours in the spread breaks culminating in lower shift hours for the part-time employees;

e) facilitated discussion on options for achieving contracted part-time hours; and

f) noted that Mr Thompson would talk to bargaining representatives (in the EBA 2017 Negotiating Committee (Committee)) who had negotiated the Agreement to ascertain their intention regarding clause 7.18.

[19] Mr Parker said that he had been informed by Mr Bydder that Mr Thompson had advised him that the intention of the Committee in relation to clause 7.18 was that it only applied to full-time drivers. 12

[20] According to Mr Parker, as it was his understanding that no further meetings were scheduled and no offers of resolution were forthcoming, he lodged his application for arbitration with the Commission. 13

[21] Mr Parker stated that on 6 October 2020, he was asked by the Depot Coordinator about the shift times he had been allocated for that day so that arrangements could be made to cover for him whilst he attended a meeting. 14 Mr Parker said that he informed the Depot Coordinator that he had filed an application with the Commission and that he would need to confirm whether the meeting was proceeding.15 The Depot Coordinator was said to have informed Mr Parker that the meeting would not go ahead.16

[22] Mr Thompson gave evidence that whilst a further meeting was scheduled for 6 October 2020, where he was to present further options to the part-time drivers of ways to resolve the issue, on 5 October 2020, Mr Parker forwarded a copy of the application to the Respondent’s parent company head office. Following the receipt of the application, the meeting scheduled for 6 October 2020 was cancelled.

[23] It is noted that Mr Allan Ritchie, Area Manager of the Respondent, gave evidence that Mr Parker had never advised him in writing or conversation that he was raising a dispute under clause 20 of the Agreement. 17

[24] It was uncontroversial that whilst an initial conference was set down by the Commission for 19 October 2020, this date was vacated because on 15 October 2020, the TWU also filed an application concerning clause 7.18 of the Agreement. A request was made that the two applications be dealt with together. Given the shared factual matrix and the Respondent being the same named employer for the purpose of each application, the request was accommodated.

2.2 The TWU’s application

[25] In brief, the TWU’s application under s 739 (C2020/7701) sought a declaration regarding clause 7.18 of the Agreement and its application to all bus drivers employed by the Respondent, and also in respect to the rostering of part-time drivers to spread shifts with a break of more than five hours.

[26] A conference was convened on 12 November 2020, at which the Respondent informed both the TWU and Mr Parker it objected to the applications on the basis that the Commission was absent jurisdiction to deal with them. The Respondent disagreed that there was a dispute and that there had been compliance with clause 20 of the Agreement.

[27] The Respondent was provided with leave to amend its response to the applications to include its jurisdictional objection, in addition to being directed to provide both Mr Parker and the TWU with the particulars of the jurisdictional objection.

[28] On 17 November 2020, the Respondent sent to Mr Parker and the TWU correspondence outlining its jurisdictional objection. On or about 26 November 2020, the TWU discontinued its application. However, at a subsequent conference held on 3 December 2020, Mr Parker advised the Commission that he wished to proceed through to arbitration in respect of his application.

3 The Agreement

[29] The Agreement was approved on 28 July 2017. Its nominal expiry date is 28 July 2021. Clause 2 states that it is binding on the Respondent, the employees who are primarily engaged by the Respondent to drive buses and that it was the intent of the TWU to give notice under s 183 of the Act that it wanted the Agreement to cover it.

[30] Relevant to the Respondent’s jurisdictional objection is clause 20 of the Agreement. That clause reads:

20. Dispute Settlement Procedures

20.1 If a dispute relates to:

(a) A matter arising under the agreement; or

(b) The National Employment Standards;

This term sets out procedures to settle the dispute.

20.2 An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.

20.3 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.

20.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may

refer the matter to Fair Work Commission.

20.5 The Fair Work Commission may deal with the dispute in 2 stages:

(a) The Fair Work Commission will first attempt to resolve the dispute as it considers

appropriate, including by mediation, conciliation, expressing an opinion or making a

recommendation; and

(b) If the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:

(1) Arbitrate the dispute; and

(2) Make a determination that is binding on the parties.

Note: If Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act. A decision that Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div. 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.

20.6 While the parties are trying to resolve the dispute using the procedures in this term:

(a) An employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

(b) An employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:

(1) The work is not safe; or

(2) Applicable occupational health and safety legislation would not permit the work to be performed; or

(3) The work is not appropriate for the employee to perform; or

(4) There are other reasonable grounds for the employee to refuse to comply with the direction.

20.7 The parties to the dispute agree to be bound by a decision made by Fair Work Commission in accordance with this term.

4 Legislative framework

[31] The Commission’s power to deal with the current application is purported to have derived from ss 595 and 739 of the Act. Section 595 relevantly provides:

595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.

(2) …

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.

(4) …

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section (underlining my emphasis).

[32] Section 739 of the Act informs the Commission of the disputes it may deal with in particular circumstances and the limitations imposed for dealing with such disputes. 18 It reads:

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

5 Consideration

[33] Section 739 outlines that the Commission’s function (if any) in dealing with a dispute referred to it under an enterprise agreement depends on the terms of that agreement and that the parties to the agreement may structure or limit the role of the Commission (or another person). 19

[34] Therefore, the nature of the wording in the enterprise agreement conferring the power to the Commission is relevant in determining whether the Commission will have jurisdiction to hear the dispute in circumstances where the dispute resolution procedure has not been followed.

[35] In National Tertiary Education Union v Charles Sturt University 20 (NTEU), the Full Bench of the Australian Industrial Relations Commission explained that the power of the Commission as a private arbitrator under a dispute settlement procedure is subject to any limitations in the agreement conferring power on the Commission. In particular, the Full Bench noted:

[11] The emphasised words in clause 58.5 are unambiguous and … represent a condition precedent that must be satisfied before a dispute under clause 58.1, clause 58.2 or clause 58.3 can be referred to the Commission pursuant to clause 58.5. The Commission is obliged to give effect to that condition as part of the agreement of the parties.

[36] The evidence in the NTEU decision established that the procedures in the enterprise agreement had not been followed before the matter was referred to the Commission. On this basis, the Full Bench held that it did not have jurisdiction under clause 58.5 unless that condition precedent to referral had been satisfied. This interpretation has been applied consistently in more recent decisions, with the Commission dismissing applications for lack of jurisdiction.

[37] In Transport Workers’ Union of Australia v Torrens Transit Services Pty Ltd, 21 the consultation process required the dispute to be raised by the employee with the relevant Operations Manager and instead, the union raised the matter directly with the General Manager (as an alleged breach of the General Protections provisions of the Act). The Commission held that there was no jurisdiction to deal with the application as the required procedure within the agreement had not been followed.

[38] In the application before me now, clause 20 of the Agreement establishes a sequential process that is to be observed by the parties, culminating in clause 20.4, with the possibility of referral to the Commission by one of the parties to the dispute.

[39] The first subclause (20.1) identifies that the dispute settlement procedure is only enlivened if the dispute relates to a matter arising under the Agreement or the National Employment Standards. It appears uncontroversial that the matter in issue arises under the Agreement given it pertains to clause 7.18.

[40] The second subclause (20.2) refers to an employee who is a ‘party to the dispute’. Subclause 20.2 allows the employee who is ‘party to the dispute’ to appoint a representative for the purpose of the dispute resolution procedure. The subclause is premised on the employee being a ‘party’ to the ‘dispute’. The Agreement does not provide a definition of ‘party’ or for that matter ‘dispute’, and neither party sought to discern the meaning of either word in their submissions. Although clearly, the Respondent contended there was no ‘dispute’; a view with which that Mr Parker vigorously disagreed.

[41] If the proper meaning of a clause in an enterprise agreement is disputed, the resolution of the disputed construction will begin with the ordinary meaning of the relevant words, considered in context, in accordance with the principles summarised in AMWU v Berri. 22

[42] The Macquarie Concise Dictionary assigns several meanings to the word ‘dispute’. 23 Common amongst all of them (save one), is the word ‘argument’ or ‘argue’, which in its simplest sense refers to presenting reasons for or against a thing. Therefore, when one is in dispute, there is engagement in an argument or discussion.

[43] To recap, the evidence of Mr Parker was that initially a letter was sent to the ‘Minister for Transport’ complaining about the conditions at the Respondent. A copy of the letter was not provided, the author of the letter not identified, and it was unclear when that letter was sent. The author did not appear to be Mr Parker. That letter eventually found itself in the hands of the Respondent.

[44] Mr Parker thereafter speaks of an informal meeting being held on or around 29 or 30 June 2020 in which drivers voiced their opposition to the spread breaks in excess of five hours in addition to other matters. Similarly, Mr Thompson gives evidence that a meeting was held at this time. Mr Thompson, who appears to have arranged the meeting, explained that the meeting's purpose was to obtain a better understanding of the concerns around shift rostering.

[45] While evident that there was an issue percolating in the workplace come the week commencing 29 June 2021, what is not so clear is whether Mr Parker was the one that agitated or otherwise initiated a ‘dispute’. Mr Parker speaks of the ‘[D]rivers voice their opposition to the 5+ Hr spread breaks and other matters’, there is no reference to Mr Parker either verbalising or reducing to writing that he was raising a dispute under clause 20 of the Agreement.

[46] In my view, Mr Parker is portraying the ‘dispute’ as one which commenced on or around 29 June 2021. Although he may consider that the letter to the Minister informed the Respondent there was a ‘dispute’. I am not similarly persuaded. However, the evidence of Mr Thompson and Mr Parker was that the meeting on 29 June 2020 was an ‘informal’ meeting. Further, Mr Thompson appeared to have called the meeting in circumstances where it was Mr Bydder who had informed Mr Thompson of there being concerns amongst the driver group. At this stage, there is no evidence that Mr Parker had brought a ‘dispute’ to the Respondent’s attention.

[47] Mr Parker gave evidence that after the informal meeting on 29 or 30 June 2020, it was presumedly a representative of the TWU who followed-up with the Respondent about the 29 June 2020 meeting:

The Union Representative contacted the Employer to follow up on the previous meeting and was informed by the Employer that they were not in Breach of the EBA and that no further action would be taken. When the Union Representative advised that the matter would be taken to the FWC the Employer suggested that the PPT employees form a working group and offer solutions to the perceived breach.

[48] There was no evidence before me that Mr Parker had appointed the TWU as his representative pursuant to clause 20.2 of the Agreement. While clause 20.3 refers to, in the first instance, the ‘parties to the dispute’ trying to resolve the dispute at the workplace level, again it is not evident that Mr Parker had raised a dispute with the Respondent or that the TWU had raised a dispute on his behalf. As such, it cannot be said that he was therefore trying to resolve the dispute.

[49] What happened thereafter was Mr Parker’s participation in a ‘working group’. That working group made suggestions regarding rostering and achieving contracted hours. While it was evident from Mr Parker’s evidence that he had attended the ‘working group’ meetings, what is not evident –was whether this working group was trying to resolve ‘the dispute’ under the auspices of clause 20 of the Agreement, or more importantly whether Mr Parker was trying to do the same.

[50] Clause 20.4 of the Agreement stipulates that ‘[I]f discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Commission’. It is self-evident that this clause of the Agreement empowers an employee, amongst others, to refer a matter to the Commission. However, the employee is only able to do that if that employee is a ‘party’ to the ‘dispute’. While not expressly incorporated into the agreement that an employee is required to notify the Respondent either verbally or in writing that they are raising a dispute under the Agreement, it is evident that the Agreement requires them to be a ‘party to a dispute’ before being able to refer the matter to the Commission.

[51] The significance of being a ‘party’ to the dispute cannot be underplayed. Section 739(6) of the Act sets out that the Commission may deal with a dispute only on application by ‘a party to the dispute’. The power for the Commission to deal with dispute is therefore only enlivened on application, by the person who has standing to make the application.

[52] There were several employees in attendance at the ‘working group’ meetings. These employees included two or three part-time driver representatives and two depot delegates, in addition to Mr Bydder from the TWU. Whilst these attendees participated in the working group meetings, there is no evidence before me to show that any of the attendees were a ‘party to the dispute’ such as that term is understood in s 739(6) of the Act, or for that matter clause 20. At its highest, Mr Parker was an employee who attended an informal meeting to discuss rostering concerns and thereafter participated in a working group with a view to offering solutions to the rostering concerns. There is no evidence to show that the informal meeting or the working group meetings were conducted under the auspices of clause 20 of the Agreement.

[53] While the TWU had informed the Respondent that the matter would be taken to the Commission if unresolved, the evidence does not reveal that Mr Parker similarly communicated the same. There is no reference in his evidence to him having expressly referenced any part of clause 20 of the Agreement to the Respondent, or for that matter informing the Respondent of a possible referral to the Commission. To proceed on the basis that Mr Parker was a ‘party to the dispute’, would require this Commission to reach that conclusion based on it being implicit because of the topic of concern (clause 7.18) and Mr Parker’s attendance at one informal meeting and a short series of working group meetings to discuss the same. In my view, based on the evidence before me, the matter in dispute has not proceeded in accordance with the requirements of clause 20 of the Agreement.

6 Conclusion

[54] Given that the standing or eligibility to make the application before me now is dependent on a person being a ‘party to the dispute’, it is my view that Mr Parker’s application must be dismissed. In short, Mr Parker has not adduced evidence sufficient to warrant that conclusion for the aforementioned reasons. His application cannot now be brought directly to the Commission under clause 20.4 of the Agreement because the Agreement does not authorise this. Mr Parker’s application under s 739, therefore, asks the Commission to act beyond jurisdiction by making a decision that is inconsistent with an enterprise agreement.

DEPUTY PRESIDENT

Appearances:

Mr Carl Parker, the Applicant;
Mr Michael Kent, for the Respondent;
Mr Brian Thompson, for the Respondent.

Hearing details:

Perth
28 January
2021

Final written submissions:

Monday 25 January 2021

Printed by authority of the Commonwealth Government Printer

<PR726463>

 1   [2017] FWCA 3859; PR594769.

 2   PR728317.

 3 Witness Statement of Brian Thompson [21].

 4 Ibid [22].

 5 Ibid [24].

 6 Witness Statement of Carl Parker [10].

 7   Ibid.

 8   Ibid.

 9 Witness Statement of Brian Thompson [24].

 10 Submissions of Carl Parker [4].

 11   Ibid.

 12 Witness Statement of Carl Parker [15].

 13 Ibid [16].

 14 Ibid [17].

 15   Ibid.

 16   Ibid.

 17 Witness Statement of Allan Ritchie [8].

 18   Fair Work Act 2009 (Cth) s 738.

 19   AWU v MC Labour Services [2017] FWCFB 5032 [25].

 20   PR963494.

 21   [2013] FWC 7318.

 22   [2017] FWCFB 3005, [114].

 23   Macquarie Concise Dictionary Fifth edn. p.356.