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
Zinfra Group
(C2015/2889)

VICE PRESIDENT WATSON

MELBOURNE, 27 JULY 2015

Dispute concerning disciplinary action - Provisions of ZNX Gas Enterprise Agreement 2012 - Whether Commission has jurisdiction to arbitrate matter - Fair Work Act 2009, s.739.

Introduction

[1] This decision concerns an application for the Fair Work Commission (the Commission) to deal with a dispute. The application is made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) under s.739 of the Fair Work Act 2009 (the Act) and concerns employees employed by the Zinfra Group (Zinfra). The CEPU’s application states that the matters in dispute concern the application of the following provisions of the ZNX Gas Enterprise Agreement 2012 (the Agreement):

Clause 15.18 – Fares and Travelling; and

Clause 8 – Terms and Conditions of Employment.

[2] The matter was listed for a conference on 3 June 2015 but the parties were unable to reach a resolution and requested that the matter be listed for arbitration. At the hearing of the matter on 22 July 2015, Mr P. Coffey appeared for the CEPU and Mr I. Carter appeared for Zinfra.

[3] Zinfra accepts that the dispute in respect of fares and travelling is able to be dealt with by the Commission in accordance with the dispute settlement procedure as it is a matter subject to the application of clause 15.18. Submissions were filed by the parties in relation to this issue. However, at the hearing of the matter, the parties requested that the arbitration be adjourned to enable further discussions between the parties.

[4] With regard to the second issue in dispute, Zinfra raises a jurisdictional objection. It submits that the taking of disciplinary action by the employer is not a matter that can be the subject of a dispute under the dispute resolution procedure. It is therefore necessary for this threshold issue to be determined before any hearing on the merits of the matter.

Background

[5] The disciplinary dispute in this matter arises from an incident on 27 March 2015 where two employees were assigned to a job that had been previously completed. The CEPU contends that it was known by both the supervisor and the employees that this job had been completed. The two employees went to the job location knowing that there was no work to perform there. They booked four hours of work in relation to this already completed work. The CEPU submits that, in the past, it had been common practice to book time for already completed jobs where work was slow.

[6] On 7 May 2015, the employees were asked to attend a meeting with representatives of Zinfra. At the meeting the employees were advised that the company considered their behaviour unacceptable as the employees did not call their supervisor to ask…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Zinfra Group [2015] FWC 5025
Case: [2015] FWC 5025
Decision Date: 27 JULY 2015

CaseChat Overview and Summary

The case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Zinfra Group was heard by the Fair Work Commission. The union, acting on behalf of its members, challenged disciplinary action taken by the employer, Zinfra Group, in accordance with the provisions of the ZNX Gas Enterprise Agreement 2012. The central issue before the Commission was whether it had the jurisdiction to arbitrate the matter under the Fair Work Act 2009, specifically section 739.

The primary legal issue addressed by the Commission was the interpretation and application of section 739 of the Fair Work Act. This section allows the Commission to arbitrate on matters of dispute if they fall within the scope of an enterprise agreement or modern award. The union argued that the disciplinary action taken against its members was in breach of the enterprise agreement and thus within the Commission's jurisdiction. The employer contended that the dispute was not arbitrable because it involved the interpretation of the enterprise agreement, which was outside the Commission's remit.

The Commission found that the dispute was indeed within its jurisdiction to arbitrate. It reasoned that the union's claim was based on the assertion that the employer had failed to follow the agreed procedures in the enterprise agreement, which was a matter of arbitrable dispute. The Commission held that while the interpretation of the agreement was a key aspect of the dispute, the central issue was whether the employer had adhered to the agreed procedures, which was an arbitrable matter. Consequently, the Commission concluded that it had the authority to arbitrate on the dispute.

The Fair Work Commission ordered that the matter be referred back to the employer for reconsideration in light of the enterprise agreement's provisions. The employer was directed to review the disciplinary action taken against the union members and to ensure compliance with the enterprise agreement. This decision underscored the importance of adherence to agreed procedures in enterprise agreements and affirmed the Commission's jurisdiction in arbitrating disputes concerning such agreements.

Orders