Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australia Pacific Airports (Melbourne) Pty Limited
[2013] FWC 627
•7 FEBRUARY 2013
[2013] FWC 627 |
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
v
Australia Pacific Airports (Melbourne) Pty Limited
(C2012/5569)
COMMISSIONER GREGORY | MELBOURNE, 7 FEBRUARY 2013 |
Alleged dispute concerning disciplinary action.
Introduction
[1] This matter concerns an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) under s.739 of the Fair Work Act 2009 (the Act). The Respondent is Australian Pacific Airports Corporation (Melbourne) Pty Ltd (the Respondent). The relevant agreement is the APAC Enterprise Agreement 2010 (the Agreement) and the Dispute Settlement Procedure is set out in clause 36 of that Agreement.
[2] The Application has been made following disciplinary action taken by the Respondent in October 2012 in regard to two employees which resulted in both being suspended on full pay. The Respondent has, in turn, raised a jurisdictional objection to the Application.
The Issue to be Decided
[3] The application has been made pursuant to s.739 of the Fair Work Act 2009. That section allows the Tribunal to deal with disputes if “a term” referred to in s.738 requires or allows the Tribunal to deal with a dispute. The relevant provision in s.738 in this case is s.738(b) which states:
“an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6).” 1
[4] As indicated, Clause 36 of the Agreement sets out the Dispute Settlement Procedure. The Applicant has made application to have the Tribunal deal with a dispute in accordance with that Clause in respect of a dispute arising variously under Clause 13 - Performance Management System, Clause 18 - Productivity, Efficiency and Flexibility and Clause 19 - Policies and Procedures. (However, it subsequently advised during the proceedings the dispute in respect of Clause 19 was no longer pressed.)
[5] The Respondent submits the matter does not concern a dispute arising under the Agreement pursuant to Clause 36 because there is no dispute arising in the context of the clauses referred to by the Applicant and accordingly the Tribunal has no power to deal with the matter.
[6] Without resiling from that position the Respondent also argues in the alternative that if the Tribunal finds it does have jurisdiction to deal with the matter under the Dispute Settlement Procedure in the Agreement it should not be before the Tribunal at this time because the Applicant has not followed the steps required by the procedure before a matter is referred to the Tribunal under that procedure.
[7] Accordingly, the principal issue to be determined is whether the issues in dispute between the parties are matters that arise under the Agreement and can therefore be dealt with by the Tribunal under the relevant Disputes Settlement Procedure.
[8] If the Tribunal determines that question in favour of the Applicant, the second issue to be determined is whether the Applicant has followed the steps to be completed under the Disputes Settlement Procedure before a matter is referred to the Tribunal pursuant to that procedure.
The Submissions and Evidence
[9] The Respondent’s submissions in support of its jurisdictional objection reiterate the central issue to be determined is whether the present dispute is about a matter arising under the Agreement. Clearly, in their submission it is not.
[10] On 26 September 2012 letters were forwarded to two employees, Mr Christopher Morton and Mr Kevin McDermott, arranging a meeting to discuss an issue concerning damage to a desk in Building 219, as well as certain other anomalies in work practices. That meeting took place on 2 October 2012 after which the two men were suspended on full pay pending the outcome of further investigations. Those investigations particularly concerned discrepancies between the Civil Aviation Safety Authority (CASA) reader activity and logbook activity recorded by the two employees. A more detailed investigation was then undertaken over four particular shifts which allegedly revealed the logbooks contained certain activities which had not actually been completed during those shifts. On 3 October that information was conveyed by email to the Union’s representative who had also attended the previous meeting. The email indicated the matter concerned inconsistencies between logbook entries and other available data and whether in some instances the activities had been carried out at all. The Respondent accordingly submits the matter in dispute is therefore simply concerned with a misconduct and disciplinary investigation in regard to the two employees about those matters.
[11] On 5 October 2012 the Applicant sent an email to the Respondent indicating it considered itself to be in dispute with the Company over Clauses 18 and 19 of the Agreement and on 8 October 2012 it filed the Application which initiated the current matter. The Application indicates the clauses in the Agreement to which the dispute relates are Clause 13 - Performance and Management System, Clause 18 - Productivity, Efficiency and Flexibility, and Clause 19 - Policies and Procedures, although, as indicated, Clause 19 is no longer relied upon. Under the heading “What is the Dispute about?” the Application states:
“1. The Respondent is taking disciplinary action against two of its employees who are members of the Applicant.
2. The disciplinary action is premised on the employees not acting in accordance with a policy/procedure of the Respondent.
3. The employees have not been made aware or trained about the operation of the policy/procedure which the Respondent is relying upon in its disciplinary action.” 2
[12] The Respondent submits Clauses 13 and 18 have no relevance to the matter at issue. In its submission Clause 13 is concerned specifically with the Performance Management System and simply provides that employees will actively participate in that system, referred to as CAPS (Career and Performance System.) It submits the clause does not impose any specific obligations as to how the Respondent must manage the performance of its employees and, in any event, the issues concerning the two employees are not performance management issues, but issues to do with alleged misconduct.
[13] The Respondent submits Clause 18 is also not relevant to the investigation into the conduct of the two employees. They describe Clause 18.1 as being aspirational in nature and simply recognising a mutual understanding about the importance of training. In regard to the second paragraph they submit that they recognise training is a shared responsibility but does not impose any obligation upon the Respondent to provide any specific form of training. The Respondent further submits:
“...there’s nothing in the clause that is promissory.” 3
[14] In the context of the present matter the Respondent also submits the completion of the logbooks as required by the Company is not a policy or procedural matter. Accordingly the dispute does not concern any failure by the Respondent to have not complied with a provision of the Agreement and therefore the Dispute Settlement Procedure in Clause 36 can have no application in the present circumstances.
[15] Ms Nuria Florentino, the Respondent’s HR Manager, provided evidence on behalf of the Respondent. She was involved in the second meeting on 8 October and stated it was for the purpose of discussing the anomalies allegedly found to exist between what was actually stated in the logbook and whether those tasks had actually been completed. The meeting was not just about incorrect time recording in terms of when things were done, but whether the logbook entries were correct at all. In cross examination she stated the Union representative at the meeting had raised issues to do with appropriate training, but the response from the Employer representatives had been that the issue was not about training, but instead about the fact the logbook determined certain activities had been carried out, but the relevant authorities could not actually verify those activities had occurred.
[16] As indicated, the Respondent also submits in the alternative if the Tribunal finds the dispute is a matter that can be dealt with in accordance with the Dispute Settlement Procedure in the Agreement, then it is not appropriate for the matter to be before the Tribunal at this time because the six stage process set out in that clause has not been followed. The Respondent notes, in particular, the matter has not been raised with the CEO as required by Step 4.
[17] The Applicant provided evidence from three witnesses. Mr Greg Arnett has been an official with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for more than 17 years and responsible for organising members at Melbourne Airport for more than 10 years. He stated the logbooks were introduced in late November 2011, although they were only required to be used by a limited number of employees. He attended a meeting on 2 October 2012 which first discussed issues to do with damage to a desk. The meeting then moved to a broader discussion about issues concerning the logbooks and required reporting obligations. He stated it was not his understanding the logbooks were such an important verification tool in regard to the work being done. A further meeting took place on 8 October 2012 at which the Respondent provided further information about the alleged misconduct. Mr Arnett responded by questioning the level of training provided in regard to use of the logbooks. In cross examination he acknowledged he had been told the logbooks were being introduced because they were a CASA requirement, but said he had not been told they had been introduced on the basis they must strictly align to other indicators, such as the swipe card system.
[18] Mr Christopher Morton has been employed by the Respondent in the position of Airfield Lighting Officer for approximately two years. He was involved in the introduction of the logbook and was concerned at the time as it appeared to be an additional time keeping device, although he was subsequently reassured it was not intended to be used in that way. He also attended the meeting on 2 October 2012 and confirmed the discussion was, firstly, about the damage to the desk and later shifted to discussion about the logbooks. He indicated the current practice of filling out the logbooks was how it had been done since they were introduced and noted both he and other employees had never been trained or spoken to specifically about how they were to be completed. He also confirmed he had seen an email sent by Mr Ramalinga, on behalf of the Respondent, to the Union confirming what the meeting on 2 October 2012 was about, and what was being investigated, which included the issue about whether work entered in the logbooks had been completed at all.
[19] Mr Kevin McDermott has been employed by the Respondent at the Airport for more than seven years as an Airfield Lighting Officer. He also attended the 2 October 2012 meeting and confirmed what had been said by the other witnesses about the content of the discussions. He indicated Mr Arnett had raised the issue about what training had been provided in regard to use of the logbooks. Mr McDermott stated he had never been “walked through it to say how we should do it” 4 in terms of training in use of the logbooks. He indicated in cross examination his understanding was the logbooks were:
“...simply just to record any major faults or, as I said, communication between us and the tower or the safety officers.” 5
[20] Against this background the Applicant submits the issues in dispute are not just about the two members directly involved but concern all of their members who are required to complete the logbook. While there was now an allegation of misconduct in regard to the logbook use, if the Respondent had provided the necessary training the issue would never have arisen. The Applicant submits:
“...this is a dispute that has come out of a disciplinary process but it is a dispute that is about the distinct issue of the training on the use of the logbook. It has wider application than what is going on at the moment...” 6
[21] In the Applicant’s submission the issue of training is accordingly a subject covered by Clauses 13 and 18 in the Agreement.
[22] In regard to Clause 13 the Applicant submits the Clause is relevant because what the Company is asking employees to do in regard to the use of the logbook is part of the performance management system. It submits the clauses do place a positive obligation upon the Respondent to act, and the matters in dispute are about the application of the two clauses and the Respondent’s failure to act in accordance with those provisions. They accordingly provide the Tribunal with jurisdiction to deal with the dispute.
[23] The Applicant also made a further submission about the scope of Clause 36 that was not previously contained in its written outline of submissions. It submitted the Clause is actually to be read in two parts. The first part, contained in the first six paragraphs, sets out what applies “...in respect of disputes about any matters arising under this agreement or the NES” 7 and continues to set out the steps to be followed if a dispute of that kind is escalated through the dispute settlement procedure.
[24] The Applicant then submits the words following after the heading “36.1 Procedure” indicate a second set of steps applies:
“...in the event of any grievance arising between an Employer and an Employee(s) or between Employees ...” 8
[25] In their submission this procedure is not constrained to “... disputes about any matters arising under the Agreement...” but is wider and extends to “any grievance”. In terms of what is encompassed by “any grievance” it made reference to the dictionary definition of “grievance,” which extends to any issue which involves an employee having:
“A feeling of resentment or injustice or having been unfairly treated.” 9
[26] The Respondent submits the clause should not be construed in this way, but read instead in the context of the clause as a whole. They submit:
“The clause is an entire clause and it can’t be separated into distinct component parts.” 10
[27] The Respondent also submits the reference to “any grievance” in the clause is simply:
“...an anomaly. It’s a laxity in drafting. What we’re dealing with here are disputes arising under the agreement or the NES and the process that 36.1 applies and, in our submission, the reference in stage 6 of referral to Fair Work Australia of the dispute does not mean that you can give grievance a separate and distinct meaning.” 11
Consideration
[28] Clause thirteen of the Agreement is entitled Performance Management System and states as follows:
“Employees will actively participate in the performance management system, referred to as Career and Performance System (CAPS), put in place by the relevant Employer, and includes appraisals encompassing qualitative assessments of "What" (tasks) and "How" (behaviours).
Performance expectation levels include an Employee's ability to perform consistently with company values, defined as;
- Safety, security and the environment
- People and their development
- Customer and commercially focused
- Excellence and accountability
- Teamwork and respect
- Ethics and integrity.
The system is designed to:
- provide a clear and understood link between the mission and objectives of the Airport with the objectives and plans of each individual job, team and Department; and
- help build a performance culture within each Airport by establishing clear measures of success and encouraging ongoing discussion of progress.
The system benefits Employees by:
- highlighting how an individual's contribution fits into the relevant Airport's business outcomes;
- providing regular communication with supervisors on progress; and
- providing an opportunity for Employees to discuss their career and develop action plans for skill and performance improvement.” 12
[29] As indicated, the Clause deals specifically with the so called Career and Performance System (CAPS) and, in essence, simply requires employees to actively participate in that system. It contains little additional detail about what the CAPS actually involves, other than to indicate it includes:
“...appraisals encompassing qualitative assessments of “What” (tasks) and “How” (behaviours).” 13
[30] It also indicates that performance expectation levels include an “Employee’s ability to perform consistently with Company values...” 14, which are then referred to under the six headings that follow.
[31] I am not satisfied, based on the submissions and evidence, that this clause has anything to do with the alleged misconduct involving the two employees. Nothing has been put in evidence to suggest those operational requirements concern or are about the Career and Performance System, or that any breach of the Clause is somehow involved or related to the alleged breaches involving the two employees. I am accordingly not satisfied the Clause provides a basis for the Tribunal to have jurisdiction in regard to the current dispute between the employer and the two employees.
[32] Clause 18 of the Agreement is headed “Training and Development”. It states as follows:
“18. TRAINING & DEVELOPMENT
18.1 Commitment
It is agreed that the development and implementation of relevant and targeted training and development activities is critical to improving the job knowledge, skills, flexibility and adaptability of Employees, and thereby improving individual and organisational performance. In addition, it will also enhance the career opportunities of Employees.
It is recognised that responsibility for the training and development of Employees is shared between the relevant Employer and each individual Employee.
Training and development will be integrated into the performance management system referred to in Clause 13 of this Agreement.
18.2 Training Arrangements & Payments
All training and development expenditure must be approved in advance by the relevant level of management as well as the Executive General Manager People & Performance. In order to be approved, the particular training and development program or activity must be assessed by the Employer as relevant to the individual's employment and consistent with CAPS Action Plans for skill and performance improvement.
Payments in relation to training and development activities will be as follows:
- Employees will not suffer loss of pay, including shift penalties.
Type of Training | Employee’s Pay/Time | Course Fees |
Required of Employees by an Employer or requested by the Employee and agreed by the Employer. | • Employees will be paid at the commencing base hourly rate or non-standard rate as applicable in accordance with Schedule 1 of this Agreement where training is conducted during the Employee’s ordinary rostered working hours. • Where possible, training will be conducted during the Employee’s ordinary rostered hours of work and between the hours of 8am and 10pm, to minimise disruption to the Employee(s) concerned. • Where training is conducted outside of ordinary working hours, time off (on a time for overtime basis) will be granted where possible. Where time for time cannot be achieved within a 6 month period, the relevant Employer will pay the time as overtime, or credit additional annual leave to the Employee as elected by the Employee. | The Employer pays the course costs. |
Study Assistance/General career Development (approved external study programs at recognised institutions) | • No paid time, other than for end of subject or unit examination. | By agreement, the Employer may reimburse between 0-100% of compulsory course fees, HECS and examination fees on successful completion. |
Nothing in this clause will preclude management and Employees agreeing to alternative arrangements.” 15
[33] The first part of the clause, “18.1 Commitment,” is a broad statement of intent indicating relevant targeted training and development activities are critical to improving the job knowledge, skills, flexibility and adaptability of employees. It indicates training and development is a shared responsibility and will be integrated into the performance management system (CAPS) referred to in Clause 13. The balance of the clause is concerned with the steps involved in the approval of particular training and development activities and any associated expenditure. This is further explained in the associated table which sets out when the employer will fund training activities and in what circumstances training can be undertaken during ordinary working hours, or treated as paid time.
[34] The Applicant submits the clause is relevant to the current dispute because there is an issue about whether the two employees have been provided with sufficient training and instruction about what is required by the logbook entry requirements, both in terms of content and timing. It also submits that the issue concerns all of the employees who are required to use the logbook.
[35] It is acknowledged if disciplinary action has been taken against an employee because of failure to comply with a particular operational requirement then a likely relevant consideration in that context will be whether the employee has been made aware of what was required of them in regard to that obligation, and whether they have been provided with relevant training and instruction. It is also clear from the evidence issues to do with training in the use of the logbooks were raised in the discussions with the employer about the actions of the two employees.
[36] However, the current dispute involving the two employees is not about whether the parties recognise training is a shared responsibility in the broad sense, or whether training and development has been integrated into the CAPS performance management system. Nor is it about approval of prescribed training and development activities in the context of Clause 18, and the circumstances in which the employer will fund training or allow it to be performed during paid time. It is instead about whether employees have been made aware of relevant operational requirements, in this case the completion of relevant logbook entries, and been provided with appropriate instruction about what is required. In addition, no evidence has been put to indicate a broader dispute involving other employees exists in regard to training in the context of Clause 18 and the specific issues it deals with. Accordingly, I am again not satisfied a dispute exists about a matter arising under the Agreement which enables the Dispute Settlement Procedure in clause 36 to apply. The fact a claim of inadequate training in the use of the logbooks has been raised in the dispute involving the two employees is not of itself sufficient to bring the dispute within a clause that deals specifically with certain training and development issues. Consequently, the Tribunal does not have jurisdiction, pursuant to s.738 of the Fair Work Act 2009, to deal with the matter in terms of it being a dispute arising under the terms of that Clause.
[37] In coming to this conclusion it should be emphasised it does not imply any adverse finding in regard to either the actions of the two employees, or the action taken by the employer. This decision is not concerned with those issues. Nor does it mean the two employees might not at some later point have the ability to have any action taken in regard to them reviewed by this Tribunal under other provisions of the Fair Work Act.
[38] I turn finally to deal with the submission of the Applicant that Clause 36 of the Agreement has two parts, the first dealing with “disputes about any matters arising under this Agreement” 16 and the second dealing with “any grievance arising between the employer and an employee.”17 The Applicant submits as a consequence that if there is a finding the Tribunal has no jurisdiction because there is no dispute arising under the terms of the Agreement, the Tribunal still has jurisdiction because of the second part of clause 36 which allows it to deal with “any grievance arising between the employer and an employee.”
[39] Clause 36 states as follows -
“36. DISPUTES SETTLEMENT PROCEDURE
The dispute settlement procedures apply to all Employees in respect of disputes about any matters arising under this Agreement or the NES. No Employee will be disadvantaged by the operation of this clause.
It is agreed that all necessary steps will be undertaken to ensure issues receive prompt attention and, as far as possible, are dealt with at the most appropriate level.
In the first instance the parties will genuinely attempt to resolve the matter at the workplace by discussions between the Employee or Employees concerned and the relevant supervisor and, if such discussions do not resolve the dispute, by discussions between the Employee or Employees concerned and more senior levels of management as appropriate.
Employees may make arrangements to be represented at any stage of the dispute resolution procedure.
If the dispute is unable to be resolved at the workplace, and all above steps for resolving it have been taken, the dispute may be referred to FWA for resolution by mediation, conciliation and/or arbitration in accordance with this Clause 36.
It is a term of this Agreement that while the dispute resolution procedure is being conducted work will continue according to the status quo unless an Employee has a reasonable concern about an imminent risk to his or her health or safety.
36.1 Procedure
It is agreed that in the event of any grievance arising between the Employer and an Employee(s) or between Employees, the individuals involved will confer without delay in a genuine endeavour to resolve the matter at the earliest practical stage in the following procedure:
Stage 1
The Employee who has the grievance should report it to their Immediate Supervisor and attempt to settle the matter at that level.
Stage 2
If the matter is not settled at stage 1, the Employee will confer with his or her Departmental Manager.
Stage 3
If the matter is not resolved at stage 2, the Employee will confer with Human Resources.
Stage 4
If the matter is not resolved at stage 3, the Employee will confer with the Chief Executive Officer.
Stage 5
If the matter is not resolved at Stage 4, either the Employer or the Employee can refer the matter to FWA for resolution by mediation and/or conciliation.
Stage 6
If the matter is not resolved at Stage 5, either the Employer or the Employee can refer the matter to FWA for resolution by arbitration.
The parties agree that FWA may give all such directions and do all such things as are necessary for the just resolution or determination of the dispute, subject to section 739 of the FW Act. This may include but is not limited to:
(i) Taking verbal or written evidence on oath or affirmation, in chief and by cross examination;
(ii) Conducting a hearing;
(iii) Holding a ballot of affected employees where in the opinion of FWA such ballot may assist in the resolution of the dispute;
(iv) Meeting with any party separately during a conciliation but with the knowledge of the other party;
(v) Summoning to appear before FWA any party to the dispute, witness or persons whose presence FWA believes would help in the resolution or determination of the dispute and who are covered by the terms of this agreement or are an employee of a party to this agreement;
(vi) Requesting the attendance before FWA of any witness or person whose presence FWA believes would assist in the resolution of the dispute;
(vii) Receiving documents and other material related to the dispute and compelling the production of documents and other material that relate to the dispute in hard or electronic form;
(viii) Determining the dispute in the absence of any party or person who has been notified of the dispute or who has summonsed to appear;
(ix) Convening a compulsory conference;
(x) Giving directions in the course of or for the purpose of procedural matters relating to the dispute;
(xi) Deciding when conciliation is ended and arbitration is to begin.” 18
[40] The relevant authorities in regard to how industrial agreements should be read and interpreted are well known and well established. The decision of Madgwick J. in Kucks v CSR Limited 19 (Kucks) has been referred to often in this context, including by each of the parties in the present matter. It dealt with the interpretation of an award provision. Madgwick J. stated:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.” 20
[41] Whilst made in the context of an award the approach in that decision has also been adopted in relation to the construction of an industrial agreement. In Australian Meat Industry Employees Union v. Coles Supermarkets Australia Pty Ltd 21 Northrop J. stated:
“The increase in the number of certified agreements gives rise to an area of possibly greater dispute as to the construction of provisions contained in the agreements. The parties may adopt a multitude of different structures and methods of terminology. No common pattern may develop. Nevertheless certified agreements are to be construed adopting the same methodology as that used in construing awards. In Kucks v CSR Limited (1996) 66 IR 182 Madgwick J., sitting as a judge of the Industrial Relations Court of Australia, at 184 expressed his opinion on the legal principles to be applied in construing awards under the Act. I agree with that statement of principles. They have even stronger application to certified agreements.” 22
[42] That view has been approved in a number of subsequent decisions. In Amcor Limited v Construction Forestry Mining and Energy Union 23 Kirby J. stated:
“The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given ...should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements.” 24
[43] In City of Wanneroo v. Holmes 25 French J. also observed that in interpreting industrial instruments “fractured and illogical prose may be met by a generous and liberal approach to interpretation”26 and the starting point should be a consideration of the natural and ordinary meaning of the words used.
[44] I am not satisfied the ordinary and natural meaning of the words in Clause 36 intends it has two separate parts - one dealing with “disputes about any mattes arising under the Agreement or the NES,” and the other with “any grievance.” The six opening paragraphs instead set out broad statements about when the procedure applies and what is intended to occur. They refer in broad terms to the parties first attempting to resolve the matter between the employee and the relevant supervisor and then if not resolved in discussions with “more senior levels of management as appropriate.” From that point a matter not resolved can be referred to the Tribunal, initially by conciliation, and then arbitration.
[45] The heading “36.1 Procedure” then provides precise detail about what happens in each case when a dispute is required to be escalated through those various steps. This process is then set out in more explicit detail in the paragraphs that follow under that heading. Clearly there is some laxity in the wording in the first two paragraphs in 36.1 in the references to “grievance”, however, the terminology reverts to “dispute” in the latter paragraphs in a manner consistent with the intended scope of the Dispute Settlement Procedure. Regardless, I am satisfied that on a natural and ordinary meaning of the words the paragraphs that follow after the heading “36.1 Procedure” are intended to amplify and provide further explanation about what is referred to in the preceding six paragraphs, rather than being a separate set of provisions that apply in regard to “any grievance.”
[46] Accordingly, I am not satisfied Clause 36 is to be read in two separate parts as the Applicant contends, based on the natural and ordinary meaning of the words used. It follows in conclusion that the Tribunal does not have jurisdiction to deal with the dispute involving the two employees under the provisions of s.739 of the Fair Work Act.
COMMISSIONER
Appearances:
Mr G Arnett and Mr K Reidy of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia appeared on behalf of the Applicant.
Ms J Young of Corrs Chambers Westgarth appeared on behalf of the Respondent.
Hearing details:
2012.
Melbourne:
18 October.
1 Fair Work Act 2009 s.738(b)
2 Form F10 lodged by Applicant on 8 October 2012.
3 Transcript PN45
4 Transcript PN220
5 Transcript PN230
6 Transcript PN255
7 APAC Enterprise Agreement 2010 clause 36
8 Ibid clause 36.1
9 Transcript PN280
10 Transcript PN396
11 Transcript PN398
12 APAC Enterprise Agreement 2010 clause 13
13 Ibid
14 Ibid
15 Ibid clause 18
16 Ibid clause 36
17 Ibid
18 Ibid
19 (1996) 66 IR 182.
20 Ibid. at 184.
21 (1998) 80 IR 208.
22 Ibid at 212.
23 [2005] HCA 10.
24 Ibid at 96.
25 (1989) 30 IR 362
26 Ibid at 47
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