Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Workers' Union v Broadspectrum (Australia) Pty Ltd

[2017] FWC 652

[2017] FWC 652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and The Australian Workers’ Union
v
Broadspectrum (Australia) Pty Ltd
(C2016/6648) (C2016/6753)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 1 FEBRUARY 2017

Application to deal with a dispute in accordance with settlement procedure of an enterprise agreement; jurisdictional objection; compliance with dispute resolution procedure.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), The Australian Workers’ Union (AWU) (Unions) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and certain of their members employed by Broadspectrum (Australia) Pty Ltd (Respondent) are variously covered by three agreements in respect to maintenance work the Respondent is contracted by Origin Energy (Origin) to undertake .The Respondent is engaged by Origin as one of a number of contractors performing work at the Origin Energy Lang Lang gas processing plant , on the Yolla Platform, the Thylacine Platform and on associated pipeline and valve sites located throughout Victoria (Origin Sites).

[2] The agreements that cover the parties in dispute and pursuant to which the applications are made are as follows:

• Transfield Services (Origin Energy Lang Lang and Yolla Facilities) Electrical and Instrumentation (ETU) Maintenance Agreement 2015-2018 (Yolla Electrical Agreement);



• Transfield Services (Origin Energy Lang Lang and Yolla Facilities) AWU & AMWU Mechanical Maintenance Agreement 2015-2018 (Yolla Mechanical Agreement) (collectively the Origin Energy Agreements); and



• Transfield Services (Australia) Pty Ltd and ETU Enterprise Agreement 2010-2014 (Thylacine Agreement).

[3] The CEPU lodged an application on 9 November 2016 pursuant to s.739 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute resolution procedure contained in clause 9 of the Yolla Electrical Agreement and clause 15.2 of the Thylacine Agreement. The Thylacine Agreement is said to apply, inter alia,to members engaged to perform work on the Thylacine Platform as contracted by Origin Energy.

[4] The AWU also lodged an application on 15 November 2016 pursuant to s.739 of the Act for the Commission to deal with a dispute in accordance with the dispute resolution procedure contained in clause 9 of the Yolla Mechanical Agreement.

[5] The AMWU has not made an application and does not appear to be involved in the dispute.

[6] The applications concern a number of issues said to have been raised by employees of the Respondent, who are also members of the Unions involved in the dispute, in respect of work performed by the Respondent at the Origin Sites. The issues raised by employees relate to: clause 16.3 (Rest Period after Overtime); clause 10 (Employee Induction); clause 11.3 (Casual Employment); clause 21 (Long Service Leave); clause 33 (Superannuation); and clause 35 (Redundancy) of the Origin Energy Agreements and Part B, clause 22 (Superannuation) of the Thylacine Agreement.

[7] The Respondent has raised a jurisdictional objection said to arise from a failure by the Unions to comply with the dispute resolution procedures set out in clause 9 of the Origin Energy Agreements and clause 15.2 of the Thylacine Agreement. The Respondent says that the Unions have not complied with relevant threshold steps under the Origin Energy Agreements or the Thylacine Agreement which are required to be taken before matters in dispute may be referred to the Commission, and that the applications have been made prematurely. 1

[8] The Respondent also separately opposes the application made by the AWU and submits that the AWU’s application should be dismissed because it says that the issues which relate to the Yolla Mechanical Agreement, namely long service leave and rest period after overtime, were resolved prior to the hearing. 2

[9] This dispute was listed for hearing before me in order to deal with the jurisdictional objection. In my view, the Commission has jurisdiction to deal with the disputes in accordance with the dispute settlement procedures in the Origin Energy Agreements in respect of the matters identified later in this decision. However, I am not satisfied that the Commission has jurisdiction to deal with the dispute settlement procedure of the Thylacine Agreement. My reasons for these conclusions are set out below.

[10] The dispute resolution procedures of each of the Origin Energy Agreements are set out in almost identical terms in clause 9.2 of those agreements. Clause 9.2 of the Yolla Mechanical Agreement relevantly provides as follows:

“9.2 Resolving Other Issues

9.2.1 The matter shall be first submitted by the employee or employee representative (if any) to the supervising officer or another appropriate manager, and if not settled, to a more senior manager in accordance with local procedure.

….

9.2.6 If not settled, the matter may be formally submitted to the State Secretary or other appropriate official of the union, or other employee representative (if any), and to the Employer Association or other employer representative (if any).

9.2.7 If still not settled and the matter is either a dispute about matters arising under this Agreement, the National Employment Standards (NES) or a dispute where, after the dispute arises, the parties agree for it to be dealt with by the MTFU Disputes Board (“Disputes Board”) the matter may be submitted by either party to the Disputes Board in accordance with clause 9.3 for determination.

(a) A decision of the Disputes Board where no application is made for a decision to be reviewed within 14 days shall be final and binding on the parties.

(b) Subject to clause 9.2.11, either party or their representative may apply to the Fair Work Commission to have decision of the Disputes Board reviewed. Such an application must be lodged with the Commission within 14 days.

9.2.8 Alternatively, if not settled, and the matter is a dispute about matters arising under this Agreement (and subject to clause 9.2.11), the matter may be submitted directly to the Fair Work Commission for conciliation and/or arbitration.

…”

[11] The only difference in the respective clauses 9.2 of the Origin Energy Agreements appears in clause 9.2.6 and clause 9.2.7 at which the Yolla Electrical Agreement provides for involvement by the “National Electrical Communications Association” instead of the “Employer Association” and referral of the dispute to the “Electrical and Communications Industries Disputes Board” instead of the “MTFU Disputes Board”.

[12] Clause 15.2 of the Thylacine Agreement relevantly provides as follows:

“15.2 Resolving Other Disputes

(a) Where a dispute arises over permitted matters (as currently defined in the Fair Work Act), the application of this Agreement or the NES, the matter shall be first submitted by the Union, employee or Employee Representative (if any) to the supervising officer or another appropriate manager, or vice versa. If not settled, the matter may be referred to more senior persons.

(b) While this procedure is being followed the status quo that existed immediately prior to the events that gave rise to the dispute will remain and, subject to this, work shall continue normally where it is agreed that there is an existing custom and practice, but in other cases the work shall continue at the instruction of the Employer. Failure to continue shall be a breach of the Agreement.

(c) No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this subclause.

(d) If still not settled, either party may submit the matter, in accordance with this clause to:

(i) the Disputes Board for conciliation and/or, if conciliation does not resolve the dispute, arbitration; or

(ii) directly to FWA for conciliation and/or arbitration, or for a review of an arbitrated decision of the Disputes Board.

(e) To avoid doubt, a party to a dispute may:

(i) apply to FWA notwithstanding the fact that the Disputes Board has already conciliated the matter; or

(ii) if the Disputes Board has arbitrated the matter, apply to FWA for a review of the decision within 14 days of the decision having been made; or

(iii) elect to submit the matter directly to FWA without first going to the Disputes Board.”

Clause 9.2.1 – Origin Energy Agreements

[13] Relevantly, the Respondent notes that Clause 9.2.1 of the Origin EnergyAgreements provide that:

“The matter shall be first submitted by the employee or employee representative (if any) to the supervising officer or another appropriate manager and if not settled, to a more senior manager in accordance with local procedure” [emphasis added] 3

[14] The Respondent says that the emphasised wording in clause 9.2.1 of the Origin Energy Agreements demonstrates a two-step process. It submitted that the “supervising officer or another appropriate manager” is the Respondent’s Contract Manager, Mr David May. The Respondent says that it is clear on the evidence that the Unions have only complied with the first step of this process by submitting the matter to Mr May. 4

[15] The Respondent further says that the relevant “more senior manager” is Mr May’s manager, Mr Gordon Cracknell, and submitted that the Unions have failed to “submit” the matter to Mr Cracknell as required by clause 9.2.1 of the Origin Energy Agreements, before making these applications in the Commission. 5

[16] Mr May, Broadspectrum’s Contract Manager for the Origin Energy Contract, gave evidence. Mr May said that the Unions made contact with him via email, on 14 August 2016 requesting a site visit. 6 Mr May then met with Mr Peter Mooney, CEPU organiser and Mr Steve Dodd, AMWU organiser, on 15 August 2016 at the CEPU offices in Morwell.7 At the meeting, there were a number of issues discussed including rest period after overtime, time for Basic Offshore Safety Induction and Emergency Training (BOSIET) relating to one worker, casuals, superannuation and long service leave (LSL).8 Mr May said that he responded to the email from the Unions on 17 August 2016 confirming that the Respondent could accommodate a site visit at 6.00am on 18 August 2016, and that he would respond separately to the other issues raised at the meeting on 15 August 2016.9

[17] Mr May said that, following further exchange of emails, the Union officials attended the Tooradin Heliport on 18 August 2016 and conducted a meeting with their members. 10

[18] There were several emails between Mr May and Mr Mooney following the meeting and on 7 November 2016, Mr Jeffrey Sharp, AWU organiser, sent an email to Mr May attaching a right of entry notice for 6.00am on 10 November 2016. 11 Mr May said that, at approximately 6.00am on 10 November 2016, Mr Mooney and Mr Sharp attended the Origin Site and conducted a meeting with their members. Mr John Webb, AMWU official, also attended the meeting.12

[19] Mr May said that the issues, the subject of these applications, have been submitted to him as the Contract Manager. He says that this has occurred by way of the meetings and email correspondence with the Unions’ officials during the period commencing 14 August 2016 and the date of the hearing. 13

[20] Further, Mr May said that none of the issues had been raised with Mr Cracknell prior to the applications being lodged at the Commission. Mr Cracknell is Mr May’s Manager at the Respondent. The Respondent’s submission is that, although Mr Cracknell was copied into the email dated 11 October 2016 from Mr Mooney, 14 the email was addressed directly to Mr May and that this is supported by the fact that subsequent discussions continued with Mr May and not Mr Cracknell.15 As such, there was no relevant escalation as required by the dispute settlement procedure.

[21] There is no dispute from the Unions that clause 9.2.1 involves a two-step process as outlined by the Respondent. The Unions submit, however, that the requirements of clause 9.2.1 have been satisfied by its members first raising their concerns with their immediate supervisor, Mr Seamus Flynn. This is said to have occurred in early August 2016. The Unions say that, as no resolution was reached, the matter was escalated to relevant Union officials who subsequently submitted the dispute to a more senior manager, namely Mr May, on or around 12 August 2016. 16

[22] Mr Sharp gave evidence that, in or around early August 2016, a member of the AWU approached him seeking assistance with resolution of a dispute concerning LSL payments. The member informed Mr Sharp that a number of attempts had been made to resolve the issue with the member’s direct supervisor, Mr Flynn, the Offshore Supervisor 17. Further, Mr Sharp said that his understanding, consistent with past dealings with the Respondent, was that Mr May was the most senior officer in charge of industrial issues at the Respondent’s business.18 He also said that it was his understanding that, senior to Mr May was Mr James Durrand, Campaign Team Superintendent, Integrated Gas, of Origin. Mr Sharp says that, under the contract with Origin, industrial disputes were to be escalated to Mr Durrand.19

[23] Mr Sharp said that he made several attempts in August 2016 to contact Mr May by telephone, but Mr May did not answer or return his calls. Following this, Mr Sharp either emailed Mr May directly or was included in email correspondence to Mr May from the other Unions. 20

[24] According to Mr Sharp’s evidence, he attended a meeting with Mr Mooney and Mr Durrand on 7 October 2016. At the meeting, Mr Sharp asked Mr Durrand whether Mr May was in fact still employed by the Respondent and looking after the Origin contract. Mr Durrand confirmed that Mr May was still looking after the contract and that he would ensure that Mr May contacted the Unions. Mr May contacted Mr Sharp on 8 October 2016. Mr Sharp said that he explained that the LSL issues had not yet been resolved. Mr May told him that he would make some enquiries and get back to him, but he did not. 21

[25] Mr Sharp said that a further meeting was held at Origin Energy Lang Lang gas processing plant on 10 November 2016. In attendance at the meeting were Mr Sharp, Mr Mooney, Mr Webb, Mr Durrand and Mr May. A number of the issues relevant to this dispute were discussed, but not resolved, at the meeting. At the end of the meeting, the Unions informed Mr May that, as the issues remained unresolved, they would be making applications to the Commission in order to have the issues resolved. 22

[26] Mr Mooney also gave evidence in support of the Unions’ applications. Mr Mooney said that on or around 12 August 2016, he held a telephone conference with members of the CEPU employed by the Respondent. During the telephone conference, the members attending informed him of a number of issues that had been raised with their direct supervisor, Mr Flynn, but that remained unresolved. 23 On that same day, Mr Mooney sent an email to Mr May alerting him to the issues.24

[27] Mr Mooney says that since Mr May’s appointment as Contract Manager for Origin, Mr May has been the point of contact for the Unions who are responsible for representing the interests of members employed by the Respondent and performing work under the Origin Energy Contract. 25

[28] Mr May accepted that Mr Flynn was a supervising officer for the purposes of clause 9.2.1 and that by employees first raising an issue with Mr Flynn and then if not resolved, the Unions raising the issue with Mr May, that the steps in clause 9.2.1 had been followed. Relevantly, Mr May’s evidence is recorded in the following extract from the transcript:

“I'll get you to turn to Peter Mooney's statement.  Now at paragraph 3 of that statement he refers to a phone conference that took place in relation to a number of issues, which employees first raised with their supervisor Seamus Flynn but remained unresolved?---Yes.  Yes.

Would you agree that - would you agree that Seamus Flynn - well, based on what you've just told me in the contents of paragraph 3 of Mr Mooney's statement, was a supervisor for the Yolla platform?---Absolutely, yes.

If you once again turn to the EBA and clause 9.2.1?---Yes.

That the first part of that clause requires that the matter be submitted to a supervising officer, correct?---Yes, that's what it says, yes.

Would you deem Seamus Flynn a supervising officer for the purposes of 9.2.1?---He is a supervisor representing Broadspectrum on the oil platform, yes.

And a point of contact for you if issues arise on that platform?---He is a point of contact for employees who are on the oil platform, I'll reword it that way.

So the issue was originally raised with Seamus Flynn, in his capacity as supervisor, and then the matter was escalated to you, as contract manager for the Origin Energy contract, correct?---That's not correct, no.  It would have - what you're saying is it goes to Seamus Flynn, as the supervisor, the escalation point doesn't always come to me, it can go from him to the administration, whether it's a phone call, a pay query or whatever it may be, and that's really him following up and saying, "Can you chase this down, we need to fix it."  It doesn't always come to me.

But for the purposes of what you said, at paragraph 7 of your statement, you've said that the matter either goes through a payroll inquiry or directly to you?---Yes.

But if you use the example of the oil platform, there's actually another step in there, is there not, it's raised with Mr Flynn?---Yes, on the oil platform it goes via Mr Flynn, correct.

So I would - - -?---So payroll query from an employee to Mr Flynn and Mr Flynn often that payroll query doesn't go directly to me, it goes to our administration, administration then goes to me, if they can't fix it.

But for the purposes of what is expressly provided in clause 9.2.1, all that's required is that a dispute goes to a supervising officer and then a more senior manager?---Yes.

Would I be correct in saying that it went to Seamus Flynn and a more senior manager after that point, being yourself?---It went from the employee to Seamus Flynn, is that what you're saying?

Yes?---Yes, I agree.

Then the matter was later escalated to you by the unions, as it remained unresolved on the site?---Yes.

We would submit, on that basis, the requirements of 9.2.1 have been satisfied.

THE DEPUTY PRESIDENT:  Is that a submission to me, or are you asking this witness whether he agrees or not?

MS BARNES-WHELAN:  Would you agree?  Would you agree, Mr May?---According to the wording of the agreement, yes.” 26

[29] It seems to me that Mr May’s concession is a proper one in that it is consistent with an ordinary reading of the provision in clause 9.2.1. An employee (or his or her representative) must first submit (or raise) the matter to (or with) the supervising officer. Relevantly, Mr Flynn is or was at the relevant time, the supervising officer. If the matter is not settled, it is to be submitted (or raised) to (or with) a more senior manager in accordance with local procedure. For this purpose it seems clear to me that Mr May was relevantly, a more senior manager.

[30] On this basis, there are a number of issues which were raised with Mr Flynn initially and then escalated to Mr May when unresolved, and other concerns which were raised directly with Mr May. The evidence given by the Unions that some of their members had raised the issues in dispute with Mr Flynn seems to me to be consistent with Mr Flynn’s apparent knowledge of some of the issues in dispute as disclosed in Mr May’s evidence about conversations he had held with Mr Flynn. 27 Mr May was not called to give evidence. The issues which were raised with Mr Flynn and then escalated to Mr May are matters which have passed through the two step process of the provision in clause 9.2.1.

[31] Mr Mooney said that the issues raised with Mr Flynn were outlined by the Unions in the Form F10 applications submitted between 9 and 15 November 2016. 28 The following issues are those which accordingly, are said to have been raised with Mr Flynn and then, in most cases, subsequently escalated to Mr May:

• 16.3 (Rest period after overtime)

[32] On or about [sic] 9 August 2016, mid-life employment employees were instructed by their supervisor (presumably Mr Flynn) to perform 4 hours overtime at the conclusion of their ordinary working hours. The employees performed the 4 hours overtime and were instructed to commence work at the ordinary start time the following day despite not having a 10 hour rest period. The employees did not receive double their ordinary rate of pay until such time that they were permitted to have a 10 hour rest in accordance with clause 16.3 of the Origin Energy Agreements. 29

[33] Mr May conceded that this issue was raised with Mr Flynn but said that this issue has been resolved and the employees have been paid according to clause 16.3. 30 Mr Mooney also said, during oral evidence that the 10 hour rest period has now been paid to the relevant employees.31

[34] On the evidence, it seems that the issue has progressed through the two stage process but remains unresolved.

• 10 (Induction) (BOSIET)

[35] The Unions submitted that the Respondent breached clause 10 of the Origin Energy Agreements by failing to compensate an individual employee for attending compulsory training, and for the cost of that training. During the proceeding, Mr May said that Mr Flynn was aware of this concern but that it had not been raised with him. 32 However, it is clear from email correspondence between Mr May and the Unions that he was aware of this issue, and it appears that the Respondent had refused to pay for the time and cost of attending the training on the basis that the relevant employee was not yet employed by the Respondent when he/she attended the BOSIET training.33

[36] On the evidence, it seems that the issue has progressed through the two-step process but remains unresolved.

• 11.3 (Casual employment)

[37] The Form F10 Application Forms set out that there were six employees of the Respondent engaged to perform work on a casual basis on the Yolla Platform each of whom has performed work in excess of 12 weeks. It is alleged that the Respondent had failed to convert these employees to full time employees in compliance with clause 11.3 of the Origin Energy Agreements, despite having previously recognised in correspondence that these employees should be converted to full time employment. Mr May said that the affected employees spoke to Mr Flynn and said “I think we’re at the 12 week point, or whatever it may be” but that the process was already going through anyway. 34 It appears to have been agreed in email correspondence between Mr May and the Unions that there were four casual employees to be converted to permanent employees.35

[38] In any event, evidence was given by Mr Mooney during the proceedings that he did not think there was an outstanding issue regarding casuals at the time of the proceeding. 36

[39] On the evidence, this issue appears to have been resolved.

• 21 (Long service leave)

[40] The Unions allege that approximately eight employees of the Respondent have informed the Unions that the Respondent has not been correctly accruing LSL. 37 It is not clear from the material whether this issue has been raised with Mr Flynn, but it seems to have been raised with Mr May.38

[41] In any event, this issue appears to have been resolved. 39

• 33 (Superannuation)

[42] The Unions allege that the Respondent has failed to make superannuation contributions for employees in receipt of shift allowances for shift work performed in accordance with clause 33 of the Origin Agreements. The issue was raised with Mr Flynn 40 and subsequently with Mr May.41 Evidence given by Mr Mooney during the proceeding, which is not disputed, is that this issue is still outstanding.42

[43] On the evidence, it seems that the issue has progressed through the two-step process but remains unresolved.

• 12 (Hours of work) and 35 (Redundancy)

[44] The Unions allege that pursuant to clause 12 of the Origin Energy Agreements, the Respondent is required to provide employees with 35 hours of work per week and in the event that there is not sufficient work, the Respondent is required to compensate the employee for those ordinary hours he/she remains willing, ready and able to work as a full time employee. Alternatively, they alleged the Respondent is required to make the affected employees redundant in accordance with clause 35 of the Origin Energy Agreements. 43

[45] The Unions say that the Respondent has failed to comply with both clauses 12 and 35 of the Origin Energy Agreements. It appears that the issue was raised with Mr Flynn, 44 and has been raised with Mr May.45

[46] On the evidence, it seems that the issue has progressed through the two-step process but remains unresolved.

[47] In the circumstances, it is not necessary for me to deal with the Unions’ alternative submission relating to the involvement of Ms Kara Bryant, the Respondent’s Senior Industrial Relations Manager in the dispute. However, on the evidence it seems that Ms Bryant was consulted by Mr May about some of the issues in dispute. This was done it seems for the purpose of seeking advice so that Mr May would respond. 46 On its face, such a consultation is unlikely to amount to a referral of an unresolved dispute to a more senior manager.

Clause 9.2.6 – Origin Energy Agreements

[48] The Respondent also relies on clause 9.2.6 of the Origin Energy Agreements, which as set out above, vary only in reference to the “National Electrical and Communications Association” (Yolla Electrical Agreement) or “Employer Association” (Yolla Mechanical Agreement). Clause 9.2.6 of the Yolla Electrical Agreement provides as follows:

“If not settled the matter may be formally submitted to the State Secretary or other appropriate official of the ETU, or other employee representative (if any), and to the National Electrical and Communications Association or other employer representative (if any)” [emphasis added].

[49] The Respondent says that the wording of clause 9.2.6 represents a further and more formal step in the dispute resolution procedure which can only be acted upon by the parties after both steps of clause 9.2.1 have been complied with, and it is the Respondent’s submission that the Unions have only complied with the first step of clause 9.2.1. 47

[50] The Respondent submitted in effect that even if there had been compliance with clause 9.2.1, there had not been compliance with clause 9.2.6, which is a necessary precondition to submitting the matter to the Commission under clause 9.2.8. The Respondent submitted that “other appropriate official” does not mean the employee representative to whom the issue was raised with pursuant to 9.2.1. The Respondent says that this is an escalation point within the Origin Energy Agreements and that the idea is to “have a crack with some fresh eyes”. 48 The Respondent placed significance, in this clause, on the word “and”, and says that, in order to satisfy the requirements of clause 9.2.6, the issue must be submitted to two parties with some level of seniority who can work through it.49 It must be “formally submitted to the State Secretary or other appropriate official of the ETU, or other employee representative (if any), and to the National Electrical and Communications Association (or Employer Association) or other employer representative (if any)”.

[51] The Respondent further says that the Unions have failed to “formally submit” these matters to the Respondent’s employer representative with respect to the Yolla Mechanical Agreement and the “State Secretary or other appropriate official” as required by clause 9.2.6 of the Yolla Electrical Agreement, nor have they made any enquiries of the Respondent as to who its employer representatives are. 50

[52] Mr May gave evidence that the respective state secretaries of the Unions have not contacted him or anyone else at the Respondent regarding the issues outlined in the applications. 51 This is not in dispute. On this basis, the Respondent submitted that no contact was made with an employer representative because Mr May was dealing with the issues and that Mr Sharp’s evidence is exactly to that effect.52

[53] The Unions say that the procedure in clause 9.2.6 is not mandatory or a precondition to the exercise of the right under clause 9.2.8. The Unions contend that the use of the word “may” in clause 9.2.6 of the Origin Agreements indicates that the act of formally submitting the dispute to the relevant State Secretaries, union officials and employer representative is not a mandatory step in the dispute resolution procedure but contend, in any event, that the dispute was submitted to the appropriate Union officials, being Mr Mooney and Mr Sharp. 53

[54] The Respondent further submitted that the word “may” in clause 9.2.6 indicates that a party is not bound to submit the matter to the State Secretary or other appropriate Union in the sense that a party is not bound to escalate the matter in dispute even if it is not resolved, however clauses 9.2.7 and 9.2.8 cannot be enlivened until after clause 9.2.6 has been complied with and exhausted. 54 In other words, the step is not a mandatory step which must be followed, but it is a condition precedent to the invocation of subsequent steps in the procedure.

[55] The Respondent says that the wording of clause 9.2.7, which commences with “[I]f still not settled”, indicates that the dispute settlement procedure from that point onwards (most particularly clauses 9.2.7 and 9.2.8), cannot be invoked until the steps in clause 9.2.6 has been undertaken. 55

[56] The Respondent submitted that those who drafted the provisions come from a practical bent without having to use extensive language and simply said: ‘If it’s not settled, you may go and do this’. That did not detract from the requirement to comply with the earlier steps if further steps were to be taken. The Respondent also points to the effect of replacing the word “may” with “shall” in clauses 9.2.6, 9.2.7 and 9.2.8 – “shall submit it formally to the state secretary” or “shall submit it to the Fair Work Commission or a board of reference” – and suggests that this would compel a person to continue to pursue a dispute even if the person with the issue no longer wished to take it any further. 56

[57] The Respondent says that the steps in clause 9.2.6 have not been undertaken on any view of the evidence and that the applications should be dismissed on this basis. 57

[58] It is not seriously in contention that there has not been compliance with clause 9.2.6. The question is whether the failure to undertake those steps is a bar to the applications.

[59] In my view, on a proper construction of the dispute settlement procedures, clause 9.2.6 of the Origin Energy Agreements cannot be constructed as establishing a condition precedent to the steps in clauses 9.2.7 or 9.2.8. Textual and contextual considerations tell against such a construction. First, there is the permissive tone of the provision with its use of “may”. Secondly, the use of “may” in clause 9.2.6 stands in contrast to the use of the mandatory “shall” elsewhere in the clause as for example in clause 9.2.1.

[60] Thirdly, and most telling, is the “requirement” that the dispute be referred to, relevantly a union official or other representative (if any) on the one hand, and a relevant employer association or employer representative, on the other. That this step is not intended to be a precondition but rather an option is self-evidently disclosed as such by positing the following questions: what is the position of an employee covered by the agreement who is not a union member and who does not have or chooses not to have a representative? Must that person join a union or appoint a representative before the dispute can be resolved or further pursued under clause 9.2.7 or 9.2.8? The answer to the second question must clearly be no and if it were otherwise it is doubtful that the dispute resolution procedure would be a term of an agreement of the kind about which the Commission must be satisfied before approving an agreement. 58 If this clause were to be interpreted as a mandatory step, the consequence would be that any employee employed by Broadspectrum who is not a member of a union who is without representation or who does not wish to involve a Union is precluded from resolving any dispute the employee may have with the employer through the Disputes Board or the Commission.

[61] It follows that a failure to adopt the process in clause 9.2.6 of the Origin Energy Agreement is not a bar to invoking the jurisdiction of the Commission.

Clause 15.2 - Thylacine Agreement

[62] Turning then to the Thylacine Agreement, the Respondent says that the words emphasised in the following extract of clause 15.2(a) demonstrate that this clause also requires a two-step process:

“Where a dispute arises over permitted matters (as currently defined in the Fair Work Act), the application of this Agreement or [sic] the NES, the matter shall be first submitted by the union, employee or Employee Representative (if any) to the supervising officer or another appropriate manager, or vice versa. If not settled, the matter may be referred to more senior persons.” [emphasis added]

[63] The “supervising officer or another appropriate manager” is, in this case, Mr May. The Respondent says that the Unions have not complied with the second step of this process because they have only submitted the matters to Mr May and not to “more senior persons” such as Mr Cracknell. 59

[64] In their submissions in relation to the Thylacine Agreement, the Unions reiterate the arguments advanced in relation to clause 9.2 of the Origin Energy Agreements and say that the dispute settlement procedure provided in clause 15.2 has also been complied with. 60 There is no dispute that clause 15.2 involves a two-step process

[65] The Thylacine Agreement does not have a clause equivalent to clause 9.2.6 in the Origin Energy Agreements.

[66] The Unions submitted that each stage of the relevant dispute procedures, of the Thylacine Agreement have been satisfied. Based on this submission, the Unions say that they should not be precluded from seeking the assistance of the Commission. 61

[67] The sole issue in dispute that is agitated under the Thylacine Agreement dispute settlement procedure is concerned with clause 22, which deals with superannuation.

[68] The CEPU alleged that some of its members were assigned to perform shift work on the Respondent’s Thylacine Platform for a period of eight weeks. The CEPU submitted that the Thylacine Agreement applies to the Respondent’s employees by virtue of clause 2 of the Thylacine Agreement and says that the Respondent has breached clause 22 of the Thylacine Agreement in failing to make superannuation contributions for employees who performed shift work on the Thylacine Platform. 62

[69] The Respondent’s position in relation to this issue appears to be that the employees who worked nightshift on the Thylacine Platform were paid at penalty rates for the duration, they were paid over and above their entitlements and that superannuation is not payable on overtime rates. 63

[70] It is clear on the evidence that the issue has been raised with Mr May, 64 however, it is not clear on the material whether it has been raised with another person as required by the dispute settlement procedure. It does not appear that Mr Flynn is the relevant supervisor for the purposes of work covered by the Thylacine Agreement. Moreover, for the reasons set out in [47] above, the communication between Mr May and Ms Bryant does not amount to a referral of the dispute to “more senior persons”. Accordingly, I am not satisfied in relation to this issue, that the jurisdiction of the Commission has properly been invoked.

Conclusion

[71] For the reasons set out above, in my view, the dispute settlement procedures provided in clause 9.2 of the Origin Energy Agreement in respect of the issues that remain in dispute earlier identified has been followed and the Commission’s jurisdiction has been properly invoked. For the reasons earlier given, I am not satisfied on the evidence that the CEPU has followed the procedure in clause 15.2 of the Thylacine Agreement. On that basis, I am not satisfied that I have jurisdiction to deal with that matter.

[72] The applications made by the AWU and the CEPU under s.739 of the Act for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the Origin Energy Agreements, so far as they concern the unresolved disputes earlier identified will be listed for conference in due course.

DEPUTY PRESIDENT

Appearances:

Ms E. Barnes-Whelan for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Ms L. Aksu for The Australian Workers’ Union.

Mr C. Gianatti, Solicitor on behalf of Broadspectrum (Australia) Pty Ltd.

Hearing details:

2016.

Melbourne.

November 24.

 1   Respondent’s Outline of Submissions at [1] and [15].

 2 Respondent’s Outline of Submissions at [14].

 3 Respondent’s Outline of Submissions at [4].

 4 Respondent’s Outline of Submissions at [5].

 5 Respondent’s Outline of Submissions at [6].

 6 Exhibit 1, DM-2; Exhibit 3 at [6].

 7 Exhibit 3 at [7].

 8 Exhibit 3 at [7].

 9   Exhibit 1 at [9]-[11]; Exhibit 1, DM-3.

 10 Exhibit 1 at [14].

 11   Exhibit 1 at [15]-[21]; Exhibit 1, DM-6; Exhibit 1, DM-7; Exhibit 1, DM-8; Exhibit 1, DM-9; Exhibit 1, DM-10; and Exhibit 1, DM-11.

 12 Exhibit 1 at [22].

 13 Exhibit 1 at [28].

 14   Exhibit 1, DM-10.

 15 Exhibit 1 at [30].

 16   Applicants’ Outline of Submissions at [7]-[8].

 17 Exhibit 4 at [7].

 18   Exhibit 4 at [6]-[11].

 19 Exhibit 4 at [12].

 20 Exhibit 4 at [16].

 21 Exhibit 4 at [16].

 22 Exhibit 4 at [16].

 23 Exhibit 3 at [3].

 24   Exhibit 3 at [4]; Exhibit 3, PM1.

 25 Exhibit 3 at [5].

 26   Transcript PN182 – PN198; Transcript PN384.

 27   Transcript PN67 – PN80.

 28 Exhibit 3 at [3].

 29   Form F10 of CEPU dated 11 November 2016; Form F10 of AMWU dated 15 November 2016; Exhibit 3, PM5.

 30   Transcript PN245.

 31   Transcript PN293 – PN294.

 32   Transcript PN246 – PN247.

 33   Exhibit 3, PM4; Exhibit 4, JS-1.

 34   Transcript PN252.

 35   Exhibit 3, PM4; Exhibit 4, JS-1.

 36   Transcript PN317.

 37   Form F10 of CEPU dated 11 November 2016; Form F10 of AMWU dated 15 November 2016.

 38   See JS-1 – email from David May to Peter Mooney dated 17 August 2016. Long service leave now fixed in Respondent’s system.

 39   See Exhibit 2.

 40 Exhibit 3 at [3].

 41   See for example Exhibit 3 at PM5.

 42   Form F10 Application of AMWU dated 15 November 2016; Transcript PN318; see Exhibit 1 at DM16.

 43   Form F10 Application of CEPU dated 11 November 2016; Form F10 of AMWU dated 15 November 2016.

 44 Exhibit 3 at [3].

 45   Exhibit 1 at DM16.

 46   Exhibit 3 at PM6.

 47 Respondent’s Outline of Submission at [9].

 48   Transcript PN408.

 49   Transcript PN408 - PN409.

 50 Respondent’s Outline of Submissions at [10]; Exhibit 1 at [32].

 51 Exhibit 1 at [31].

 52 Transcript PN409; Exhibit 4 at [17].

 53   Applicants’ Outline of Submissions at [17]-[20]; Transcript PN451.

 54   Transcript PN413 – PN421.

 55   Transcript PN421 - PN434.

 56   Transcript PN419.

 57   Transcript PN431.

 58   See s.186(6) of the Fair Work Act 2009; this is because, on the Respondent’s construction, the dispute resolution clause would not allow the FWC to deal with a dispute involving a non-member or a member who chooses not to involve the union, and is thus not a procedure that allows the “FWC or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes…” .

 59   Respondent’s Outline of Submissions at [11]-[12].

 60 Applicants’ Outline of Submissions at [22].

 61   Transcript PN474.

 62   Form F10 Application of CEPU dated 11 November 2016.

 63   Exhibit 3, PM4; Exhibit 4, JS-1.

 64   Exhibit 1 at DM6 and DM16.

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