Chris Elliot v Stradbroke Ferries Pty Ltd

[2015] FWC 5933

[2015] FWC 5933

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Chris Elliot
v
Stradbroke Ferries Pty Ltd
(C2015/2991)

COMMISSIONER SIMPSON BRISBANE, 25 SEPTEMBER 2015

Alleged dispute about any matters arising under the Stradbroke Ferries Limited Ferry Operations Enterprise Agreement 2010.

[1] This decision concerns an application by Chris Elliot for the Fair Work Commission (the Commission) to deal with a dispute arising under the Stradbroke Ferries Limited Ferry Operations Enterprise Agreement 2010 (the Agreement). The Agreement is an enterprise agreement, and includes a term that provides a procedure for dealing with disputes, for the purposes of s.738(b) of the Fair Work Act 2009 (the Act).

[2] The matter was listed for conference 3 July 2015. Directions regarding the jurisdictional issue were set out at the conference and emailed to the parties 8 July 2015. The Directions were in the following terms:

“Dear parties,

The Respondent (Stradbroke Ferries Pty Ltd) is required to file submissions in the Fair Work Commission, and serve a copy on the Applicant by 2.00pm Monday 27 July 2015.The Applicant (C Elliot) is required to file submissions in response in the Fair Work Commission, and serve a copy on the Respondent by 2.00pm Monday 10 August 2015.

The parties are in agreement this matter will be determined on the papers.
Regards”

Background to the dispute

[3] The Applicant was employed by the Respondent in October 2007 as a casual vessel engineer. The Applicant is now employed as a vessel Master/Engineer on the Respondent’s “Bay Islander” vessel.

[4] On 18 November 2014 the Applicant was issued with a First and Final Warning for allegedly breaching the Inappropriate Behaviour Policy regarding harassment.

[5] The Applicant has disputed this First and Final Warning and maintains that it is unjustified and should be removed from the Applicant’s employment file.

[6] The Respondent issued the First and Final Warning in accordance with its Inappropriate Behaviour Policy (the Policy). The Inappropriate Behaviour Policy sets out the following points which are relevant to this dispute:

“…

Discipline may involve a warning, a transfer, counselling, or dismissal depending on the circumstances.

…

The manager assigned to investigate the complaint will produce a written report and give both parties a copy of an extract of that report containing details to the claim, excluding any material of a confidential nature of either party. This will not normally include statements of the other party or other statements taken from third parties during the course of the investigation.

If the complaint is substantiated the appropriate disciplinary action will be taken in accordance with the workplace agreement’s disciplinary procedures or Transit Systems Ferries Procedures.

…

In the event that a matter is referred for a review, the reviewing person will produce a report which, along with all other details will be forwarded to the company CEO who will make a final determination based on his consideration of the reports available to him. The CEO will then produce a report and a copy, excluding confidential details, which will be given to both parties. The decision of the reviewing person and the CEO will be final and be binding on both parties”

(emphasis added)

[7] The Respondent asserts that the Commission does not have jurisdiction to deal with the dispute as it relates to matters that do not pertain to the Agreement, but rather to a company policy document that is outside of the scope Agreement. The Respondent does not consent to arbitrate the dispute.

[8] Clause 21 of the Agreement relevantly states the following in relation to policies:

“21 Policies

Employees must comply with Company policies as amended from time to time.”

[9] Clause 22 of the Agreement contains the dispute settlement procedure. This clause relevantly states that:

“22 Dispute Resolution Procedure

22.1 In the event of any dispute arising as to the interpretation or application of this Agreement, or any matter arising in the course of employment, the following procedure will apply:

(emphasis added)

…

(f) In the event that the preceding steps have failed to resolve the dispute, either party to this Agreement may refer the dispute to Fair Work Australia (FWA) for conciliation and/or arbitration pursuant to the Act.

(emphasis added)

[10] I have formed the view that the Respondent’s jurisdictional objection must fail, for reasons set out below.

[11] The Dispute Resolution Procedure contained in clause 22 of the Agreement plainly and clearly states that the dispute resolution procedure will apply in the event of a dispute arising under ‘any matter arising in the course of employment’. I am of the view that a dispute concerning the application of a disciplinary procedure would constitute a ‘matter arising in the course of employment’ and that the Dispute Resolution Procedure contained in clause 22 can be enlivened.

[12] Furthermore, Clause 22(f) of the Dispute Resolution Procedure plainly and clearly states that “either party to this Agreement may refer this dispute to Fair Work Australia for conciliation/and or arbitration’....”The Respondent did not make submissions that the Dispute Resolution Procedure has not been followed. I am therefore of the view that there is nothing within clause 22(f) that is ambiguous or controversial and that the Applicant is entitled to refer the dispute for arbitration unilaterally. The jurisdictional objection is dismissed. I have issued with this decision a separate recommendation concerning the substantive issue that is the subject of this application.

COMMISSIONER

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