Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch (CEPU), Australian...

[2016] FWC 3699

[2016] FWC 3699

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 - Electrical, Energy and Services Division - Queensland Divisional Branch (CEPU), Australian Manufacturing Workers' Union (AMWU)-Queensland Branch and Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch (CFMEU)
v
Laing O’Rourke Australia Construction Pty Ltd
(C2016/1268)
(C2016/1273)
(C2016/3949)

COMMISSIONER SIMPSON BRISBANE, 8 JUNE 2016

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] On the afternoon of Thursday 1 June 2016 three separate applications were filed by the Communications, Electrical, Electronic, Energy and Plumbing Union (CEPU), Construction, Forestry, Mining and Energy Union (CFMEU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) respectively to deal with a dispute in accordance with a dispute settlement procedure in the Laing O’Rourke Construction Australia Pty Ltd Ichthys Onshore Construction Greenfields Agreement. (the Agreement). Each application identified the respondent to the application as Laing O’Rourke Constructions Australia Pty Ltd although it was clarified the correct name for the Respondent in each case is Laing O’Rourke Australia Construction Pty Ltd (the Respondent).

[2] The dispute was characterised in each application in the same way. The description of the dispute included the following:

(a) The Respondent has purported to direct its employees who are members or eligible to be members of the Applicant, to remove stickers from their hard hats.
(b) The Applicant disputed the direction by the Respondent on the basis that it is not lawful and reasonable.
(c) Members of the Applicant who are employees of the Respondent have been disciplined for refusing to follow a direction to remove stickers from their hard hats.
(d) Paragraph 6(a)6 of the EA states that a fundamental objective of the EA is that ‘all participants listen to others point of view and act to amicably resolve any differences of opinion that may occur from time to time without ever resorting to unreasonable or unlawful means to achieve the result they wish to achieve’.
(e) The Applicant contends that the direction to remove the union stickers from hard hats and any subsequent discipline for non-compliance is:

i unreasonable because it is based on a fundamental misapplication of the Respondent’s obligations, if any, under the Building Code 2013; and

ii unlawful as against Part 3-1 of the Fair Work Act 2009 (Cth) in that it constitutes the taking of adverse action against the employees because they are engaging in, or have engaged in, industrial activity.

[3] The three matters were listed for private conference at 4pm the following afternoon of Friday 2 June. The conference was unsuccessful in resolving the dispute. The Respondent raised an objection to the jurisdiction of the Fair Work Commission in proceeding to deal the three disputes. The matter was listed for hearing of the jurisdictional objection at 10am on Tuesday 7 June 2015.

[4] On the morning of 7 June prior to the commencement of the hearing amended applications were filed by the CEPU and CFMEU. The amended applications among other things sought to amend the description of the dispute in include an additional paragraph (f) as follows:

(f) In the alternative, the Applicant contends that paragraph 6(b)(3) of the EA obliges the Respondent to ensure that the concerns raised by the employees in relation to the purported direction to remove stickers from their hard hats, are addressed appropriately.

[5] At the commencement of the hearing the AMWU’s representative advised that the AMWU also sought to amend its application in the same terms as the CEPU and CFMEU. The representative for the Respondent did not object and I exercised power under s.586 to amend each of the three applications.

[6] At the commencement of the hearing I sought clarification from the parties about their understanding of the characterisation of the dispute and it was generally not disputed that the dispute was about whether the direction from the Respondent to remove the stickers from the employee’s helmets was unreasonable or unlawful. It was submitted for the unions that the amendment to their application extended the breadth of the dispute to include whether the concern raised by employees about the removal of the stickers were addressed appropriately.

The Respondents representatives submitted paragraphs (a),(b) and (c) in the description of the dispute in each application characterise the dispute, and the remaining paragraphs are contentions and not a description of the dispute.

[7] In order for the FWC to have jurisdiction in this dispute, the dispute must be about a matter arising under the agreement as set out at s.186(6)(a) of the FW Act. The power arises then in s.738 and s.739 of the FW Act. Section 739(3) provides that in dealing with a dispute, the FWC must not exercise any powers limited by the term.

[8] Clause 18 of the Agreement includes the following:

“18.1 Objectives of the Dispute Resolution Process

(a) The objective of the procedure is to:

(1) Avoid the escalation of disputes or grievances

(2) Provide prompt resolution of issues of concern.

18.2 Steps in the Dispute Resolution Process

(a) Any disagreement or dispute in respect of any of the matters arising under the Agreement or the National Employment Standards (NES) will be dealt with as outlined in clause 18.2…..”

[9] It is helpful to set out in full Clause 6 of the Agreement which is the clause that the three Unions argue the disputes relate to. I have underlined within clause 6 the subsections that the unions rely on to establish jurisdiction.

“6 Agreement Objectives

(a) The fundamental objective that the Parties have in creating the Agreement is to produce an agreed industrial relations framework that encourages achievement of the following goals on the Project.

(1) A safe and healthy Project Site environment where everyone works towards achieving the health and safety management philosophy of an injury and incident free Project;

(2) A Project where everyone has the opportunity to perform their best work and achieve a sense of personal satisfaction by the time they complete their work assignment;

(3) A Project where all participants’ efforts and best work translates into a high quality result for the Project;

(4) A Project where all participants work toward the common goal of completing the construction work on the Project within the defined schedule and budget;

(5) A Project where leaders focus on understanding and dealing with people issues;

(6) A Project where all participants listen to others point of view and act to amicably resolve any differences of opinion that may occur from time to time without ever resorting to unreasonable or unlawful means to achieve the result they wish to achieve; (my underlining)

(7) A Project where, by all the participants acting in a considerate and respectful manner, positive relations with the local community they are performing the construction work in are maintained.

(b) The Employer is accountable to:

(1) Provide the management resource and support needed to achieve an injury and accident free Project;

(2) Encourage it leaders to focus on issues raised by any member of their team;

(3) Ensure its leaders act to address appropriately and in a timely manner, any concern raised by any member of the team; (my underlining)

(4) Act at all times with fairness, honesty and in a trustworthy manner, responding to issues or concerns raised in a timely manner;

(5) Recognise the talents and capabilities of their Employees and encourage excellence in construction execution.

(c) Each Employee is accountable to:

(1) Establish and maintain a safe and healthy work area, ensure safe and healthy work practices are followed at all times and within their duty of care, take responsibility for their personal safety and the safety of other Employees;

(2) Comply with Project environmental health and safety regulations, procedures and practices;

(3) Participate and comply with the Project’s cultural and environmental processes;

(4) Ensure their personal fitness for work on each day they are scheduled for work;

(5) In all their dealings with other Employees and their Employer, act with fairness and respect;

(6) Work towards both the Project and their team’s goals to the full extent of their personal capacity; and

(7) Raise any personal concern/issue directly with their immediate team leader/supervisor thereby providing the Employer with an opportunity to resolve/assist the concern/issue. If the team leader/supervisor is not available then raise the matter with a more senior leader.”

Respondents Submissions

[10] The Respondents submit that it is notable that the applications do not refer to clause 18 of the Agreement in any detail, and focus on clause 6.

[11] It was said the applications quote subclause 6(a)(6) without referring to the introductory provision 6(a). The Respondent submits the subclause is aspirational and hortatory, and does not impose an obligation on the parties, but is intended to encourage conduct which might achieve the objectives in the wider clause.

[12] It was put for the Respondent that the clause obliges it to no more than participate in a process that encourages achievement of the ‘goals’.

[13] Similarly it was put that subclause 6(b)(3) needs to be considered in the context of the clause in which it sits. It was put that the clause is not headed ‘Requirements’ or ‘Obligations’, it merely provides a framework and does not impose obligations.

[14] The Respondent said the reference to ‘leaders’ in subclause 6(b)(3) does not have a clear meaning and this is consistent with the clause being aspirational or hortatory.

[15] It was put that the words in subclauses 6(a)(6) and 6(b)(3) uses different words to clause 18. Clause 6(a)6 refers to ‘differences of opinion’ and 6(b)3 refers to a ‘concern’, whereas clause 18.2 refers to ‘Any disagreement or dispute’.

[16] In regard to subclause 6(b)(3) it was said the concerns were addressed in a timely manner and the employer’s decision was confirmed, however the fact of the decision not being accepted does not create a dispute arising under the Agreement.

[17] It was put that if it were intended that in the event of the ‘goals’ as set out in clause 6 not being achieved it would give rise to a dispute then it would have said so specifically. The Respondents submits clause 6 is about the parties producing an agreed industrial framework to achieve their goals of employer and employee accountability, and without the backing of an express power they are not enforceable as they are far too vague.

[18] The Respondent referred to correspondence attached to each of the respective applications from the Union to the Respondent and points out that the letters of 26 May do not make specific reference to any provision of the Agreement. The third last paragraph of the letters uses the expression ‘characterise this dispute...” but no allegation was made that there is a specific provision of the Agreement that prevented the Respondent from doing what it did.

[19] The Respondent relies on the Federal Court of Australia Full Court decision in National Tertiary Education Union v La Trobe University. 1 That matter involved argument over the words in the following clause of an enterprise agreement;

“74. The University is committed to job security. Wherever possible redundancies are to be avoided and compulsory retrenchment used as a last resort. The University reserves the right to use the agreed redundancy procedures and provisions set out in this Agreement when all reasonable attempts to mitigate against such action and to avoid job loss have been unsuccessful.”

[20] In that matter both parties accepted the first sentence of the above clause was aspirational, but the appellant maintained the second and third sentences, when read together, imposed obligations on the respondent.

[21] In the Judgement of Jessup J he contrasted awards and orders with enterprise agreements, expressing a view that there is every reason to approach the reading of awards or orders with a disposition to finding a binding obligation, or the establishment of a binding entitlement in each operative provision. He went on to say as follows:

“Enterprise agreements, by contrast, are the doings of the parties themselves (here using the term “parties” in the loose sense of the employer and those employees who, through their bargaining representatives, were involved in the relevant negotiations). Although the content of enterprise agreements is heavily regulated by the provisions of Divs 4 and 5 of Pt 2-4 of the Act, there is nothing, so far as I can see, to prevent the parties from including in their agreement provisions or expressions which involve no obligation at all. Indeed, the admixture in industrial agreements of provisions which give rise to obligations and those which are merely “aspirational” is a practice of long standing: see, by way of a well-known example, the argument advanced on behalf of the defendant union in Ford Motor Co Ltd v Amalgamated Union of Engineering and Foundry Workers [1969] 2 QB 303, 330. That the parties to an enterprise agreement have included aspirational or hortatory provisions in their document should be no source of surprise. Neither should there be any a priori assumption that the parties are unlikely to have included a provision which involved the establishment of no concrete entitlement or binding obligation.”

[22] The Respondent argues the above quotation is precisely what clause 6 of the Agreement in this case does. The Respondent referred to the judgement of Bromberg J in the same matter who found differently to Jessup J. Bromberg J noted that it was not contested that the first sentence of clause 74 of the Agreement in that matter did not impose any binding obligation on La Trobe University, however the sentence served to frame the remainder of the clause by identifying the underlying goal or objective. Bromberg J went on to say the second sentence deals with method. It identifies the means or mechanism by which the overarching goal is to be effected or carried into practice. 2

[23] The Respondent submits that the later sentences of clause 74 considered in the NTEU matter when contrasted with clause 6 of the Agreement in this matter highlight the vagueness of the language creating goals and objectives that do not give rise to obligations or binding intent, unlike clause 74. The Respondent also referred me to paragraph 109 and 110 of the decision of White J in the same matter which was as follows:

“109. That does not mean that the parties to an enterprise agreement may not include in their agreement some matters which are in the nature of statements of aspiration or commitment and not themselves intended to be enforceable obligations or entitlements. Clearly, they may: Reeves v MaxiTRANS Australia Pty Ltd [2009] FCA 970; (2009) 188 IR 297 at [19][22]. The 2014 Agreement itself provides an example as the parties were agreed that the first sentence in cl 74 is aspirational in nature. But it remains the fact that the 2014 Agreement was plainly intended, at least generally, to create binding obligations and cl 74 is to be construed in that context.

110. In my opinion, the text of the second and third sentences in cl 74 in its plain and ordinary meaning is suggestive of the second sentence imposing a binding obligation. The second sentence, while expressed in the passive voice, is the language of obligation. Whenever possible, redundancies “are to be avoided” and compulsory retrenchment[s] “are to be used as a last resort”. Terminology of this kind is just as capable of conveying obligations as are the words “will” and “shall” used in cl 73, 75 and 76, to which the respondent drew attention…”

[24] The Respondent submits that the Full Court of the Federal Court found clause 74 in that matter created obligations regarding what was required of the University in circumstances of redundancy. However clause 6 in this matter has no focus at all on issues such as for example redundancy, or anything else, in stark contrast to clause 74 in the NTEU matter.

[25] The Respondent also referred me to the decision in Reeves v MaxiTRANS Australia Pty Ltd.  3The dispute before the Federal Court in that matter involved the following clause of an enterprise agreement:

“12. EMPLOYEE REPRESENTATION

MaxiTRANS Australia has an open door policy for employees to express any issue relating to their employment. Employees elect their own Employee Committee representative to consult with management on issues and are encouraged to use this system of representation. The company also recognizes “freedom of association”. Therefore regardless of who an employee chooses as a representative they will be treated equally and without prejudice.

See Appendix 1 for Consultation Committee Constitution”

[26] The dispute in that matter revolved around the extent to which AMWU representatives had been given access to representatives of MaxiTRANS management and an opportunity to make submissions about the content of an enterprise agreement while it was being negotiated.

[27] Ryan J in that matter referred to the decision of Madgwick J in Kucks v CSR Ltd  4as setting out the correct approach to the construction of an industrial instrument. The Respondent referred me to the following parts of paragraph 19 and 20 of the decision in MaxiTRANS.

“19. It is to be borne in mind that an industrial agreement is the product of negotiation and often of compromise on each side. Not every provision in such a document is to be taken as intended to impose an enforceable obligation on one party or another so as to expose that party to the imposition of a penalty in the event of non-compliance with the provision. Some provisions may be characterised as “hortatory” or merely reflective of a desirable policy or end which the parties have agreed to implement or attempt to achieve but without attracting penal consequences if the efforts of either party towards that end are later seen to be lacking in some respect. A helpful analogy is afforded by Ventana Pty Ltd v Federal Airports Corp and Fairways Group Pty Ltd and Fairways Leisure Market Pty Ltd[1997] FCA 538 (unreported, Federal Court of Australia, 20 June 1997). That case concerned a provision of the Federal Airports Corporation Act 1986 (Cth), which required that a statutory body “endeavour to perform its functions” in a certain manner. Those words, I considered;

….embody no more than an exhortation as to what the [statutory body] should try to achieve as far as circumstances, and what can obviously be the conflicting demands of some of its various functions and powers, permit. Hortatory words of that kind, I consider, are inapt to import an enforceable obligation.

20. Clearly, the analogy between that interpretation and construction of the present cl 12 is not exact. Ventana concerned a section of statute, not a consensual industrial instrument. Nevertheless, the interpretative technique to be applied is similar. As Tracey J remarked in Van Efferen v CMA Corporation Limited [2009] FCA 597, at [40]

The terms in which industrial instruments are drafted often require a distinction to be drawn between the aspirational and promissory statements. In accordance with the objective theory of the contract expounded in Toll [9FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165] a provision in a document proffered by an employer, will be treated as promissory in nature if the hypothetical, reasonable, potential employee to whom the document is presented would have concluded that [the employer] intended to be contractually bound to follow the procedures, outlined in it……”

[28] Finally the Respondent took me to the following conclusions of Ryan J in MaxiTRANS.

“22. These reflections have led me to conclude that, if the instrument read as a whole in its industrial context contains a hortatory or aspirational provision or one reflecting some philosophy which the parties intend should inform their industrial relations, it is not to be taken as imposing a positive obligation enforceable by the imposition of a penalty.”

[29] The Respondent submitted that in this case Ryan J pointed to an obligation exposing the party to a penalty. It was submitted in this case the three unions allege unlawful conduct has occurred founded on the vague provisions of clause 6. Paragraph (e) in the contentions of the Unions the Respondent has done something unreasonable or unlawful even though the direction to remove the stickers is not a matter dealt with under the Agreement. The Respondent submits clause 6 falls exactly within the description of paragraph 22 of the decision of Ryan J in MaxiTRANS.

Applicants Submissions

[30] The representative for the AMWU advised on opening his submission that he would focus primarily on subclause 6(a)(6) and the representative for the CEPU and CFMEU would focus primarily on subclause 6(b)(3). The union representatives adopted each other’s submissions. It was put and it appeared not to be in contest that the Applicants had discharged the obligations required to be followed in steps (1) to (4) within clause 18.2 of the dispute resolution process, and on that basis the matter could proceed to arbitration if jurisdiction is found.

[31] It was submitted that the express terms of the Agreement impose obligations on the parties. I was referred to paragraph 108 of the judgement of White J in the NTEU matter which reads as follows:

“108. Although it may be a statement of the obvious, it is appropriate to keep in mind that the document which the Court is asked to construe is an enterprise agreement made pursuant to the regime in Pt 24 of the Fair Work Act 2009 (Cth) (the FW Act). It is in the very nature of these agreements that they are intended to establish binding obligations. The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching and construing cl 74.”

[32] In response to the argument of the Respondent that the language used in clause 6(a)(6) “differences of opinion” is different to the language used in clause 18.2 of the Agreement, I was referred to this following part of paragraph 70 of the judgement of Bromberg J in the NTEU matter:

“70……………….Provisions in industrial agreements commonly reflect contributions made by many different authors. That is particularly so with agreements, like the EBA, which are not new but are based on earlier agreements, only parts of which are re-negotiated. Without more, an inconsistency in grammatical style is not likely to be instructive on a construction issue such as that which cl 74 raises.”

[33] The AMWU submitted that while much was made of the language in clause 6 being vague, it was clear the language imposed obligations on the parties.

[34] The representative for the CEPU and CFMEU submitted that contrary to the submission of the Respondent, the dispute applications filed directly reference clause 18 of the Agreement.

[35] It was put that the amended application has added the alternative contention the initial contention (that the direction of the Respondent to remove the stickers from helmets is unreasonable and unlawful) by further arguing that employees concerns regarding the direction were not appropriately addressed.

[36] In reference to the words “arising under the agreement” in clause 18.2 of the Agreement, I was referred to the decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd 5 where Tracey J found as follows:

“[51] The phrase “arising out of” implies a “sense of consequence”: see Government Insurance Office of New South Wales v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437 at 447 (per Windeyer J). It refers to a less immediate association than a direct causal relationship between the dispute or grievance on the one hand and the application and interpretation of the Agreement on the other.”

[37] This decision was relied on to demonstrate the link between the dispute and the Agreement can be indirect.

[38] In regard to the language in clause 6(b) emphasis was placed on the expression “The Employer is accountable to:” used in the introductory words, and also the words “Ensure its leaders act to…” in clause 6(b)(3) to make the point that these words are not aspirational or hortatory. Reliance was placed on a decision of the Full Bench of the Australian Industrial Relations Commission in Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office and another 6where the Full Bench said at paragraph 62:

“[62] It seems to us that in the context of this matter the expression “committed to ensuring” evinces an intention to create an obligation, enforceable as a clause of the ATO Agreement, to properly apply the Misconduct Procedures. As the Deputy President pointed out in the decision subject to appeal, one of the meanings of the word ‘commit’ is to “bind by pledge or assurance”. We also note the word “ensuring” is a derivative of the word ‘ensure’, which means, among other things,
“to pledge one’s faith to a person for the execution of a promise”. Hence, adopting the ordinary meaning of the words in the expression “committed to ensuring” suggests a binding obligation. The context within which the ATO Agreement was negotiated and the legislative context in which it sits also support that conclusion.”

[39] It is argued that clause 6(b)(3) allows the FWC to determine whether the Respondent “addressed appropriately” the concerns raised by members of the union.

[40] The CEPU and CFMEU representative referred to the decision in Construction, Forestry, Mining and Energy Union v Hay Point Services Pty Ltd 7 and specifically paragraphs [34] and [35] of that decision for the purpose of framing the role of the Commission as to determine the proper application of the Agreement, and whether the concerns raised have been appropriately addressed by the Respondent.

[41] I was referred to another decision of a Full Bench of the Australian Industrial Relations Commission in Shop Distributive and Allied Employees Association v Big W Discount Department Stores 8which related to a clause dealing with occupational health and safety. The basis for the dispute was said to be a refusal of the respondent to supply anti-fatigue matting for certain employees in two of its stores. The member at first instance concluded the character of the dispute was such that it was not a dispute over the application of the agreement. The relevant clause under the agreement in that matter included in part the following term;

“2.6 Occupational Health and Safety

(a) BIG W, its Associates and SDA are committed to achieving and maintaining healthy and safe working conditions in all BIG W workplaces by abiding by all relevant Occupational Health and Safety legislation.

(b) This commitment will have the following objectives:

(i) To control workplace hazards at their source.

(ii) To reduce the incidence and costs of occupational injury and disease.

(iii) To provide an occupational rehabilitation system for workers affected by occupational injury or illness..”

[42] The Full Bench in that matter concluded as follows:

“[25] We think the Commissioner erred in construing the dispute narrowly as “the alleged refusal of Big W, to provide anti-fatigue matting for SDA members, engaged as door greeters at the Broadmeadows and Forest Hills stores.” In our view it was a dispute, more broadly, about occupational health and safety and the provision of safe and healthy working conditions. In the notification of the dispute that initiated the proceedings the steps taken to resolve the dispute that had been taken were set out. It clearly disclosed that a member of staff, a door greeter, had been experiencing discomfort, that she had supplied her own anti-fatigue matting, that she had been told by management to remove it and that she received a doctor’s certificate advising her to use anti-fatigue matting.

[26] The provision of anti-fatigue matting is better regarded as the means of resolving the dispute rather than characterising it.

[27] Whether the dispute is a dispute over the application of the agreement requires a consideration of the terms of sub-clauses 2.6(a) and 2.6(b) of the agreement.

“[28] Clause 2.6 is headed “Occupational Health and Safety”. The appellant contended that clause 2.6(a) imposed an obligation on Big W to achieve and maintain healthy and safe working conditions by abiding by all relevant occupational health and safety legislation. It contended that in addition to the requirements of the various state Acts dealing with occupational health and safety, the clause imposed a further obligation, breach of which could be prosecuted under the Act. The respondent submitted that clause 2.6(a) was merely prefatory, that it expressed intentions of the parties and imposed no obligations. It made similar submissions about clause 2.6(b).

[29] In our view clause 2.6(a) has the effect for which the appellant contends. Further,, clause 2.6(b) sets out what is sought to be achieved by the commitment expressed in sub-clause (a).

[30] The agreement plainly commits the parties to working towards and maintaining a healthy and safe work environment. A dispute about how that is to be achieved is a dispute over the application of the agreement. The Commissioner erred in finding to the contrary.”

Respondent Reply

[43] The Respondent contrasted the words in clause 2.6(a) and (b) in the Big W matter with the language in clause 6 in this matter. It was put that 2.6(a) is an aspiration, it does not add anything to the safety statutes, it sets an objective. However 2.6(b) (i), (ii) and (iii) all start with an infinitive verb and the objective is given definition by the these infinitive verbs. It was put that the following paragraphs in clause 2.6 (not set out in this decision) also provide for obligations on the parties. For example Big W “will” meet the National Secretary, or “will be given paid leave”, or “shall establish a consultative committee”. It was said the clause specifically and precisely describes how the goal will be achieved. In contrast clause 6 does not have such verbs, with the possible exception of “Ensure”.

[44] In response to the Unions reliance on the ATO case, again the Respondent compared clause 118 of the ATO Agreement where the introductory paragraph makes a commitment to ensure a specific objective, and follows with a series of sub-clauses setting out how the commitment will be ensured. In contrast clause 6 is vague, and necessarily so as it is dealing with objectives.

[45] In reference to the use of the word “Ensure” in sub-clause 6(b)(3), the Respondent said within clause 6 the same expression is used at sub-clause 6(c)(4) under a general heading of employee accountabilities. The sub-clause reads as follows:

“(4) Ensure their personal fitness for work on each day they are scheduled to work;”

[46] It was submitted that on the Unions reading of the Agreement, if an employee failed to ensure their personal fitness for work it would be a contravention of the Agreement and be liable for prosecution. This it was said would be absurd and further supports the Respondents case that the sub-clauses in clause 6 are designed to give context to the objectives, they do not create obligations and are not enforceable because they are aspirational and hortatory.

Conclusion

[47] I have attempted to summarise without the benefit of transcript the submissions made yesterday. My conclusions will be brief as I am aware that this decision needs to be issued expeditiously given this is a dispute where the Respondent has made clear its intention to continue to pursue disciplinary actions in the event employees do not comply with its direction regarding the removal of stickers from helmets, and the Applicants has also raised the prospect of alternative applications in the event of a finding against them regarding this application.

[48] I have concluded based on consideration of the submissions set out above that neither of sub-clauses 6(a)(6) or 6(b)(3) give rise to a dispute under clause 18 of the Agreement. As set out above in order for the FWC to have jurisdiction in this dispute, the dispute must be about a matter arising under the agreement. If such a dispute exists the jurisdiction exists in accordance with s.738 and s.739 of the FW Act. Section 739(3) provides that in dealing with a dispute, the FWC must not exercise any powers limited by the term.

[49] I have been persuaded by the Respondent and the authorities it has referred to that clause 6, including specifically sub-clauses 6(a)(6) or 6(b)(3), when considered in context are aspirational and hortatory, and do not impose obligations on the parties, but are intended to encourage conduct which might achieve the objectives of the wider clause.

[50] I accept the distinction made by the Respondent between the clauses in the cases referred to by the Applicant in the Big W and ATO matters, and clause 6 in this matter. The clauses in Big W and ATO set an objective and also how that objective would be achieved, giving rise to an obligation to fulfil the agreement that was made. As was argued by the Respondent, in this case clause 6 is vague, and necessarily so because it was intended to set objectives and goals and to encourage conduct which might achieve the objectives and goals. It is not intended to give rise to enforceable obligations. On the basis of my conclusions the three applications made under s.739 are dismissed.

COMMISSIONER

Appearances

Mr P Turner Maurice Blackburn Lawyers for the AMWU

Mr W Ash Hall Payne Lawyers for the CFMEU and CEPU

Mr P Ludeke for the Respondent

Hearing Details

2016

Brisbane

June 7

 1   National Tertiary Education Union v La Trobe University [2015] FCAFC 142.

 2 [2015] FCAFC 142 at [66]

 3 [2009] FCA 970; (2009) 188 IR 297 at [19] and [22].

 4 (1996) 66 IR 182 at 184

 5 [2011] FCA 1020 at paragraph 57

 6   PR961315

 7   [2012] FWA 4606

 8   PR924554

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