Chubb Security Services Ltd v Transport Workers' Union of Australia
[2010] FWA 2814
•17 MAY 2010
[2010] FWA 2814 |
|
DECISION |
Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)
Chubb Security Services Ltd
v
Transport Workers' Union of Australia
(C2009/2642)
COMMISSIONER LEWIN | MELBOURNE, 17 MAY 2010 |
Dispute relates to the Introduction of compulsory wearing of Personal body armour (PBA) for all Armoured Vehicle Operators (AVOs).
The Application
[1] This decisions concerns an application for the conduct of a dispute resolution process in respect of the Transport Workers Chubb Security Services Limited Armoured Vehicle and Other Operations (Victoria) Enterprise Agreement 2005-2008 (AG848412) (the Agreement) in relation to the introduction by Chubb Security Services of the Chubb Cash in Transit Personal Body Armour Policy (the Policy) and the Chubb Cash in Transit National AVO Procedures (the Procedures). Application was made to the Australian Industrial Relations Commission (AIRC) on 30 June 2009 for the dispute resolution process to be conducted.
[2] On 8 July 2009 the application was listed for conciliation conference on 24 July 2009. The matter was listed for a second conference on 11 August 2009 by video link between Melbourne and Sydney. A subsequent conference was listed on 3 September 2009 also by video link between Melbourne and Sydney. It became clear at the conferences that the matter would not settle. On 6 October 2009, a request was received from the applicant that the application be listed for Hearing and determination. At the request of the applicant and due to the foreshadowed amount of material which it was envisaged would be filed the application was listed for Hearing between 15 and 19 February 2010. Directions in respect of the Hearing were issued on 28 October 2009. The matter was further adjourned and the Directions reissued to accommodate the convenience of the parties, on 10 February 2010. The application was re-listed for Hearing between 13 and 24 May 2010.
[3] At the Hearing on 13 May, Mr S Horneman-Wren of Counsel appeared on behalf of Chubb Security Services Limited (Chubb). Mr A Hatcher of Counsel appeared on behalf of the Transport Workers’ Union of Australia.
Jurisdiction
[4] A number of jurisdictional issues were raised by the Transport Workers’ Union in the case filed on its behalf pursuant to the Directions issued. I am satisfied that Fair Work Australia (FWA) has jurisdiction to resolve this dispute.
[5] The Applicant applied on 30 June 2009, to have a dispute resolution process conducted in respect of a pre-reform certified agreement.
[6] The Agreement was made under s.170LJ of the Workplace Relations Act 1996 (the WR Act). Although certified by the AIRC on 10 April 2006 with an operative date of 5 April 2006 (that is, after the amendment of the WR Act by the Workplace Relations Amendment (Work Choices) Act 2005 (Work Choices), application for certification of the Agreement had been made pursuant to s.170LM of the WR Act on 24 March 2006 (that is, prior to the Work Choices amendments to the WR Act). Therefore, by operation of item 31 of Schedule 7 to the post-reform WR Act, the pre-reform WR Act continued to apply to the application for certification.
[7] The WR Act was repealed by the Fair Work Act 2009 (the FW Act) with effect from 1 July 2009 (the WR Act repeal day). Notwithstanding the repeal of the WR Act, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) has operation.
[8] Schedule 19, sub-item 1(1) of the Transitional Act provides that the WR Act continues to apply on or after the date of its repeal for the purpose of dealing with disputes in relation to a matter arising under a transitional instrument. By sub-item 1(2) the Transitional Act, the WR Act applies in relation to such a dispute in the way that it applied before its repeal in relation to a like dispute.
[9] A “transitional instrument” to which the provisions of Schedule 19 apply is one defined by item 2 of Schedule 2 of the Transitional Act. That provision defines a transitional instrument by reference to sub-items 2(3) and (4) of Schedule 3 to the Transitional Act. Item 2(1) to Schedule 3 of the Transitional Act provides that each Workplace Relations Act instrument that becomes a transitional instrument continues in existence in accordance with Schedule 3 from and when it becomes a transitional instrument despite the repeal of the WR Act. Sub-item 2(1)(c) provides that a Workplace Relations Act instrument includes a pre-reform certified agreement.
[10] A pre-reform certified agreement is not defined, in terms, by either the FW Act or the Transitional Act. However, sub-item 4(1) of Schedule 2 to the Transitional Act provides that, unless a contrary intention appears, expressions used in the Transitional Schedules that were defined by the WR Act have the same meanings in the Transitional Schedules as they had in that Act.
[11] A pre-reform certified agreement was defined by item 1 of Schedule 7 to the WR Act to include an agreement made under Division 2 of Part VIB of the pre-reform WR Act. The Agreement, having been made under s.170LJ of the pre-reform WR Act, was such an agreement. It was therefore a pre-reform certified agreement under both the post-reform WR Act and the FW Act.
[12] The Agreement was therefore a WR Act instrument under item 2(2) of Schedule 3 to the FW Act. By operation of sub-item 2(3) of Schedule 3, the Agreement, being a WR Act instrument that was in operation immediately before the repeal of the Workplace Relations Act on 1 July 2009, became a transitional instrument upon that repeal. Therefore, by operation of sub-item 2(1) of the Transitional Act, it continued to exist despite the repeal of the Workplace Relations Act.
[13] By item 2 of Schedule 19 the powers of the AIRC to deal with a dispute as conferred under the Workplace Relations Act were conferred upon Fair Work Australia to deal with the dispute. However, that provision did not apply to a dispute in respect of which an application had been made to the AIRC before the WR Act repeal day and the AIRC was dealing with the dispute: Schedule 19, Item 2(3).
[14] Notwithstanding Item 2(3) of Schedule 19 by operation of which the AIRC remained seized of jurisdiction to deal with the dispute, the cessation time for the continued existence of the AIRC, namely 31 December 2009, has passed: Schedule 18, Item 7(1) of the Transitional Act.
[15] Therefore, from 1 January 2010 the powers, functions and duties of the AIRC in respect of the dispute are now to be exercised by FWA: Item 11(1) of the Transitional Act.
[16] By operation of sub-item 1(1)(a) of Schedule 19 of the Transitional Act, the WR Actcontinues to apply for the purposes of dealing with disputes in relation to a matter arising under the Agreement.
[17] Clause 2(1)(e) of Schedule 7 to the WR Act, after its amendment by Work Choices, provided that s.170LW of the pre-reform WR Act continued to apply in relation to the Agreement.
[18] Section 170LW provided:
“Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement made, if the Commission so approves, empower the Commission to do either or both of the following:
to settle disputes over the application of the agreement;
…”
The Agreement has a dispute settling procedure at clause 17. It, relevantly, provides:
“17. SETTLEMENT OF DISPUTES
The parties agree to the implementation of a Disputes Settlement Procedure as follows:
...
If the matter is still not settled it may be submitted to the Australian Industrial Relations Commission for conciliation and if necessary, arbitration.
...
The Australian Industrial Relations Commission shall have all of the powers contained in Section 111 of the Workplace Relations Act as at 30th November 2005 to resolve any dispute referred to it under this Agreement.”
[19] This dispute is about the application of clause 7 “Employees’ Duties” of the Agreement. Clause 7 of the Agreement, relevantly, provides:
“Every employee must at all times:
…
ii. Comply with lawful instructions of management;
…
iv. Comply with policies, procedures and rules in operation from time to time.
In respect of policies, procedures and rules, subject to the law these may deal with such matters as safe work practices … clothing … and specific work practices.
…
All grievances and disputes about industrial matters or any difficulty in relation to the content or application Chubb Security Services policy must be handled in accordance with the steps set out in the Settlement of Disputes Procedure contained in this Agreement.”
[20] I am satisfied that Fair Work Australia has jurisdiction to conduct a dispute resolution process under s170LW of the pre-reform WR Act as preserved by operation of Part 2 of Schedule 7 of the WR Act and Schedule 19 of the Transitional Act.
[21] Further, I am satisfied that the dispute concerns whether clause 7 of the Agreement applies to the Policy and the Procedures. Chubb contends that the Policy and the Procedures are covered by clause 7 of the Agreement such that employees are required to comply with them. The TWU contends, amongst other things, that compliance with the Policy and the Procedures is not required by clause 7 because they are not lawful by reason of safety considerations.
Determination
Fair Work Australia makes the following determinations in respect of the dispute:
- There is a dispute arising under the Agreement as to whether clause 7 applies to the Policy and the Procedures such as to require employees to comply with them;
- Clause 7 of the Agreement does apply to the Policy and the Procedures, provided they are lawful;
- Employees are required to comply with the Policy and the Procedures, and any instructions issued by Chubb consistent with the Policy and the Procedures, provided they are lawful;
- In making these determinations Fair Work Australia has not determined whether the Policy or the Procedures are lawful or safe.
COMMISSIONER
Appearances:
Mr S. Horneman-Wren, of Counsel, for Chubb Security Services Pty Ltd
Mr A Hatcher, of Counsel, for the Transport Workers’ Union of Australia
Hearing details:
2009
Melbourne
13 May
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