Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v CDJV Construction Pty Ltd

[2014] FWC 7626

[2014] FWC 7626

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
CDJV Construction Pty Ltd
(C2013/7602)

COMMISSIONER SIMPSON BRISBANE, 12 DECEMBER 2014

Alleged dispute about any matters arising under enterprise agreement - payment of income insurance - Jurisdictional objection - No jurisdiction to exercise judicial power - application dismissed.

[1] On 10 December 2013 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) filed an application (DR20013/762) to have a dispute resolution process conducted between the CEPU and CDJV Constructions Pty Ltd (CDJV) in accordance with the dispute resolution procedure in the CDJV Construction Pty Ltd GLNG Upstream Project Enterprise Agreement 2011, (“the CDJV Agreement”) an enterprise agreement made under the Fair Work Act 2009 (“the Act”).

[2] Conciliation of the dispute was unsuccessful. The CEPU then filed a request that the matter be listed for arbitration. The matter was listed for hearing on 16 December 2014. The matter in dispute related to clause 17 of the CDJV Agreement and the payment of income protection insurance.

[3] On 9 December 2014 Senior Deputy President Richards issued a decision in a separate matter brought under s.739 by the CEPU, also being a dispute with CDJV concerning a different clause in the same CDJV Agreement.

[4] Senior Deputy President Richards concluded he would be acting beyond power if he were to make the determination sought by the CEPU, and dismissed that application on the basis that the subject was rightly the province of the courts.

[5] I do not intend to set out in detail the reasons in that decision, put shortly in the particular circumstances of the situation before the Senior Deputy President no employees were at the time employed by CDJV and there could be no employees employed under the Agreement in the future, given the circumstances and the terms of the CDJV Agreement. Senior Deputy President Richards set out in that decision why he distinguished the circumstances in that case from other cases where jurisdiction was found to continue post the ending of an employment relations, including in the full bench Re: ING Administration.

[6] Following the issuing of Senior Deputy President Richards decision CDJV has now filed written submissions raising the same jurisdictional objection which was successfully raised in the other matter. I have invited submissions in response from the CEPU to the jurisdictional objection and the CEPU has advised it intends to leave the matter for determination by FWC.

[7] I agree with the submission as made for CDJV that the same issues regarding jurisdiction arise here as they did in the other matter, and I have concluded that for the same reasons as provided in the matter of CEPU v CDJV Construction Pty Ltd[2014] FWC 7970, it would be acting beyond power to make the determination sought by the CEPU in this matter, and I must therefore dismiss the application.

COMMISSIONER

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