Construction, Forestry, Maritime, Mining and Energy Union v Teekay Marine Resources Pty Ltd
[2022] FWC 2154
•12 AUGUST 2022
| [2022] FWC 2154 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Construction, Forestry, Maritime, Mining and Energy Union
v
Teekay Marine Resources Pty Ltd
(C2022/2545)
| COMMISSIONER MCKINNON | SYDNEY, 12 AUGUST 2022 |
Alleged dispute about matters arising under the enterprise agreement – request to intervene by The Australian Institute of Marine and Power Engineers and The Australian Maritime Officers’ Union.
On 26 April 2022 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to the Commission to deal with a dispute (the CFMMEU dispute) about rostering onboard the Ocean Protector, a support vessel involved in Australia’s offshore naval operations. The dispute involves employees of Teekay Marine Resources Pty Ltd (Teekay) who are members of the CFMMEU and who are employed under the Teekay Marine Resources Pty Ltd CFMMEU Ocean Protector Enterprise Agreement 2021.
The matter is listed for hearing on 29 September 2022. The Australian Institute of Marine and Power Engineers (AIMPE) and the Australian Maritime Officers Union (AMOU) have both sought to intervene in the arbitration of the dispute (the intervention requests).
I have decided not to grant the intervention requests. These are my reasons.
The intervention requests
Like the CFMMEU, the AIMPE and the AMOU have members who work on the Ocean Protector. Members of the AIMPE are covered by the Teekay Marine Resources Pty Ltd AIMPE Engineer Officers Ocean Protector Agreement 2021 (AIMPE Agreement). Members of the AMOU are covered by the Teekay Marine Resources Pty Ltd AMOU Masters And Deck Officers Ocean Protector Agreement 2021 (AMOU Agreement). The two unions applied to the Commission to deal with a dispute in relation to the same rostering issue with Teekay, but under the AIMPE Agreement (the AIMPE dispute) and the AMOU Agreement (the AMOU dispute) respectively.
The AIMPE Agreement and the AMOU Agreement only provide for arbitration by consent. While the AIMPE and the AMOU consent to arbitration of the AIMPE dispute and the AMOU dispute respectively, Teekay does not consent. The AIMPE and the AMOU concede that for this reason, the Commission cannot arbitrate either the AIMPE dispute and the AMOU dispute.
It is in those circumstance that the intervention requests arise. The reason given for the intervention requests is that the CFMMEU dispute has the “potential to create an outcome which could have consequences for employees covered by” the AIMPE Agreement and the AMOU Agreement.
Teekay objects to the intervention requests on the basis that the power of private arbitration is confined in scope to the agreement that confers it. The power of private arbitration conferred by the CFMMEU Agreement does not extend to arbitration of disputes between Teekay and a person that is not covered by the CFMMEU Agreement. Further, and without its consent to arbitration, there is no other source of jurisdiction that would permit the Commission to arbitrate the rostering dispute between Teekay, the AIMPE and the AMOU. Granting the intervention requests in those circumstances would be to circumvent the legislative limits on the Commission’s power in a way that is unconstitutional.
Consideration
The power of the Commission to deal with an enterprise agreement dispute comes from section 595 of the Act. Under section 595(1), the Commission may deal with a dispute, but only if it is expressly authorised to do so under or in accordance with another provision of the Act. Section 595(2) of the Act describes the methods by which the Commission may deal with a dispute (other than by arbitration).
Section 595(3) of the Act deals with the Commission’s power to arbitrate. The Commission may only deal with a dispute by arbitration if it is expressly authorised to do so under or in accordance with another provision of the Act.
As Teekay submits, the Commission is authorised to deal with this dispute by arbitration under sections 738 and 739 of the Act. Because the CFMMEU Agreement is an enterprise agreement that includes a relevant dispute settlement term, section 738 allows the Commission to deal with a dispute under the CFMMEU Agreement.
Section 739 of the Act applies if section 738 requires or allows the Commission to deal with a dispute. Under section 739, in dealing with a dispute, the Commission must not exercise any powers limited by the dispute settlement term. If, in accordance with the dispute settlement term, the parties have agreed that the Commission may arbitrate the dispute, the Commission may do so.
In Construction, Forestry, Mining and Energy Union v Australian Industrial Relation Commission[1] (the Private Arbitration case), the High Court held that the Commission “cannot, by arbitrated award, require the parties to submit to binding procedures for the determination of legal rights and liabilities under an award.” The same applies to enterprise agreements to which section 738 applies.[2] This is because the Commission is not a federal court and cannot exercise judicial power. That does not mean it has no power of arbitration in relation to enterprise agreements. Section 739 permits the Commission to arbitrate disputes under federal enterprise agreements, but only if the agreement says so, and only in accordance with the relevant dispute settlement term. An arbitration of this kind involves the exercise of a power of private arbitration – one that exists only because of the agreement of the parties to submit to the arbitration and to accept the decision of the arbitrator as binding. The arbitrated outcome becomes binding on the parties not of its own force, but because section 739 of the Act empowers the Commission to arbitrate disputes in those circumstances.
Importantly, the power of private arbitration can only be exercised in relation to the parties who have agreed to submit to arbitration and to accept its outcome as binding. While the Commission has power to arbitrate the dispute between Teekay and the CFMMEU, this power does not extend to arbitration of a dispute between Teekay and the AIMPE or between Teekay and the AMOU. This is because the CFMMEU Agreement does not cover or apply to the AIMPE or the AMOU and the dispute settlement term in the CFMMEU Agreement does not apply to them. They cannot have agreed to submit to binding arbitration under the term. Even if this were permissible, Teekay’s agreement to arbitration of the dispute including as between it and the AIMPE and/or the AMOU would be required. There is no evidence of any such agreement and Teekay have expressly disavowed it.
There is no other apparent source of power for the Commission to arbitrate the dispute to the extent that it involves the AIMPE and/or the AMOU. While each are covered by relevant modern awards, the dispute settlement term in those awards provides only for arbitration by consent.
It would be inappropriate to grant the intervention requests against this background. Firstly, the statutory framework and the wishes of the parties (as manifested through the terms of their enterprise agreements) carry significant weight. They speak against the Commission acting as if it had a power of arbitration at large in relation to the dispute, instead of one that rests on the agreement of Teekay and the CFMMEU alone. The practical implications of granting the intervention requests include permitting the AIMPE and the AMOU to make submissions, bring evidence and cross-examine witnesses. This would place Teekay in the position of having to respond not only to the dispute brought by the CFMMEU but also to the cases advanced by the AIMPE and the AMOU and which, but for the limits imposed by each of the dispute settlement terms, they would likely have advanced under the AIMPE Agreement and the AMOU Agreement respectively.
Secondly, the reasons of the AIMPE and the AMOU for seeking to intervene are not persuasive. They rely solely on the “potential” to create an outcome which “could” have consequences for groups of employees who are not covered by the CFMMEU Agreement. Apart from being entirely speculative, the contention ignores that any arbitrated outcome can only bind Teekay, employees who are covered by the CFMMEU Agreement and the CFMMEU. Potential flow-on effects can be dealt with, as necessary, as and when they arise – in each case under the relevant enterprise agreement and in accordance with the Act.
Conclusion
The intervention requests are refused.
COMMISSIONER
[1](2001) 203 CLR 645 at [30]-[31].
[2] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305 at [35].
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