Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd
[2013] FWC 8741
•17 DECEMBER 2013
[2013] FWC 8741 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Mining and Energy Union
v
BHP Coal Pty Ltd
(C2013/4813)
Coal industry | |
COMMISSIONER SPENCER | BRISBANE, 17 DECEMBER 2013 |
Alleged dispute regarding clauses 37; 37.5 & 37.10.
[1] This decision relates to an application made by the Construction, Forestry, Mining and Energy Union (the Union/Applicant) pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act). The dispute, the subject of this decision, relates to the application of clause 37 of the BMA Enterprise Agreement 2012 (the Agreement).
[2] The matter was brought before the Commission in conference, but the dispute was unable to be resolved, consequently the matter was listed for arbitration, by consent, in accordance with the disputes procedure. Directions were issued for the Applicant and BHP Coal Pty Ltd (the Respondent), to confer and file a consent question for arbitration. By agreement between the parties, the question for determination is:
1. In circumstances where clause 37.9 of the Agreement does not apply due to clause 37.5 of the Agreement, does the 14 day time limit in clause 37.10(a) of the Agreement commence on the day the disciplinary outcome/sanction is imposed?
[3] Both parties submitted that the Commission had jurisdiction to conduct an arbitrated hearing into the dispute. 1
[4] Once the question for arbitration was agreed Directions were issued for the filing of submissions and evidence in preparation for the hearing. Both parties filed material in accordance with Directions, and it was agreed the matter could be determined on the papers.
[5] The Applicant was represented by Mr Rowan Anderson, Legal Officer of the Union. The Respondent was represented by Mr Steve Smith, Partner of Herbert Smith Freehills.
[6] While not all of the submissions and evidence in this matter are referred to in this decision, all of such have been taken into account.
Background
[7] The Applicant initially sought to raise three disputes in relation to disciplinary action handed down by the Respondent, on behalf of three individual employees and members of the Applicant Union, Mr Darren Franklin, Mr Joe Hong, and Mr Sam Vella (collectively referred to as the disciplinary action).
[8] The disputes related to disciplinary action taken by the Respondent against the employees, specifically:
[9] The Applicant submitted that they sought to raise the disputes with the Respondent on 21 March 2013.
[10] As the disputes were raised more than 14 days after the Respondent took the disciplinary action, the Respondent did not accept that there was a dispute for the purpose of clause 37 of the Agreement. The Respondent’s position is based on an interpretation of clause 37.10(a), which, they submitted, requires a dispute to be raised within 14 calendar days from the date of the disciplinary outcome.
[11] The Applicant contended that this interpretation is incorrect, and it is the application of clause 37, and specifically, clauses 37.9 and 37.10, of the Agreement that forms the basis of this dispute, rather than the disciplinary action.
Relevant provisions of legislation and the Agreement
[12] The dispute was brought pursuant to s.739 of the Act. Section 739 provides:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
[13] Section 738 provides:
“738 Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”
[14] The dispute was brought pursuant to the terms of an enterprise agreement being the BMA Enterprise Agreement 2012 (the Agreement). The Agreement commenced operation on 2 November 2012 and this clause differed from the disputes procedure under the prior Agreement. Clause 37 of the Agreement provides:
37. DISPUTES SETTLEMENT PROCEDURE
37.1 It is the intention of the Parties that any disputes arising in relation to the NES; or pertaining to this Agreement; or in relation to the application of the Accommodation Agreements (as referred to in clause 34 of this Agreement); or arising in the course of employment shall be dealt with in accordance with this clause.
37.2 Employees and their Employee Representatives agree that issues in relation to the employment of Employees covered by this Agreement should be ideally addressed at their source by those involved and without undue involvement of those not directly involved.
37.3 An Employee may nominate an Employee Representative (as defined in clause 38.1) to represent them at any stage of this procedure.
37.4 This procedure does not apply in relation to the exercise of rights or implementation of processes or systems provided for under this Agreement (for example, the right of the Company to have free and unfettered access to contractors) or under other relevant prevailing legislation.
37.5 Where the matter relates to:
(a) An issue arising under the IDPR process (clause 36); or
(b) An issue relating to a disciplinary outcome;
then clause 37.9 does not apply.
37.6 At all times work will continue without disruption and at the direction of the Company, subject to the relevant provisions of the Coal Mining Safety and Health Act 1999 (Qld).
37.7 Matters affecting the majority of Employees across a crew, a department or a whole Mine may be raised by an Employee Representative and progressed in accordance with clause 37.10 where the disputed issue affects the Employees in substantially the same way.
37.8 Notwithstanding clause 37.7, the parties will address matters of an individual nature on an individual basis.
37.9 Where a matter arises:
(a) It shall be discussed between the Employee (and an Employee Representative if requested) and the immediate supervisor involved within 14 days.
(b) The supervisor will not be involved in the discussion at 37.9(a) if the dispute directly relates to that supervisor. In such a case, the matter will progress to a discussion under clause 37.10(a) with the Company nominating an alternative representative to attend the discussion (or discussions) in lieu of that supervisor.
37.10 If the Employee considers the matter remains unresolved, the following process applies:
(a) The Employee and/or an Employee Representative if requested may refer the matter to the relevant superintendent. The Employee and/or an Employee Representative must set out the details of the matter in writing and provide this to the superintendent first within 14 calendar days. The matter will then be referred for discussion between:
(1) the Employee and an Employee Representative (if requested); and
(2) two representatives from the Company (the relevant supervisor and superintendent, unless otherwise agreed).
(b) If the matter remains unresolved after completion of clause 37.10(a), the Employee and/or an Employee Representative if requested may refer it in writing to the relevant department manager within 14 calendar days. The matter will then be referred for discussion between:
(1) the Employee and an Employee Representative (if requested); and
(2) two representatives from the Company (the relevant supervisor and department manager, unless otherwise agreed).
(c) If the matter remains unresolved after completion of clause 37.10(b) and the Employee wishes to escalate it, the Employee and/or their Employee Representative (if requested) may refer it in writing to one representative of the Company not based on that site within 14 calendar days. The matter will then be referred to a State Level Conference for discussion between (unless otherwise agreed) the following participants:
(1) the Employee, and if requested:
(A) an Employee Representative; and/or
(B) a District Official of the relevant Union; (collectively, the Employee’s Representatives); and
(2) up to three Company representatives (which includes the relevant supervisor and one representative of the Company not based on that site).
(d) Where the matter remains unresolved after completion of the other stages in clause 37.10 or where the parties agree to bypass the above stages in accordance with clause 37.15, the Company or Employee and/or their Employee Representative (if requested) may refer the matter in writing within 14 calendar days to FWA to conciliate the matter. Alternatively, by agreement of both parties, a matter may be referred to an agreed private arbitrator or mediator to conciliate on the matter.
37.11 At each stage of this process in clause 37.10, the Company will have 14 calendar days from the date of the last discussion with the Employee to respond to the Employee, or make contact with the Employee (and if they have requested one, their Employee Representative) to arrange a meeting to attempt to resolve the matter raised by the Employee, in accordance with clause 37.10; and
37.12 Where the Company fails to make contact with the Employee and their Employee Representative to arrange a meeting within the time limit specified in clause 37.11, the Employee may progress the matter to the next stage of the process.
37.13 Where an Employee (or their Employee Representative on the Employee’s behalf) does not seek to progress their matter within the time limits specified in 37.10 or respond within 14 calendar days to the Company’s attempts to arrange a meeting under 37.11, the matter in dispute will be treated as being withdrawn. Once this occurs, an Employee cannot seek to re-invoke this procedure in relation to that same matter.
37.14 Unless otherwise agreed between the participants, an HR representative will not attend the discussions at clauses 37.9, 37.10(a) and 37.10(b). For the avoidance of doubt, an HR representative may be involved in a discussion held in accordance with clause 37.10(c) and 37.10(d).
37.15 By mutual agreement, the Company, the Employee and their Employee Representative may bypass any of the above steps.
37.16 Subject to clause 37.15, provided that all the above steps have been exhausted FWA may conciliate or where conciliation has been exhausted and the dispute remains unresolved, arbitrate in relation to the matter. Where a matter involving an individual Employee progresses to this stage, the Employee will be permitted to attend FWA proceedings on the same arrangements set out in clauses 38.13 and 38.14. If proceedings are brought on more quickly by FWA, the travel plan must be submitted immediately upon the listing of the matter by FWA and before travel commences.
37.17 In the circumstances set out in clauses 14(e) or 14(g), or by agreement under clause 37.15, FWA may:
(a) Conciliate in relation to the matter; or
(b) Where conciliation has been exhausted and the dispute remains unresolved, arbitrate in relation to the matter.
The parties to the matter are not required to first exhaust the above steps for the purposes of this sub-clause.
37.18 During any conciliation or arbitration proceedings before FWA under this clause 37, either party may choose to be represented by a legal practitioner.
37.19 If FWA issues a decision in writing under this clause:
(a) the decision and reasons for the decision will be provided in writing to the parties; and
(b) the decision shall be binding on the parties to the matter in dispute and persons bound by this Agreement.
37.20 Nothing in clause 37.19 removes the right of either party to a matter in dispute from appealing a decision of FWA, in accordance with the Act.
37.21 If a person who will be involved in any discussions, conferences or proceedings under this clause is not employed or reasonably available at the Mine, then that person may participate by teleconference or other remote means where possible, to expedite the process.
37.22 None of the arrangements in this clause otherwise limit the rights of the Parties at common law or under the Act.
37.23 The outcome of any matter dealt with in accordance with clause 37.10 will be recorded in writing but will not form a precedent for any other matter, either at that Mine or at any other Mine.” (emphasis added)
Summary of Applicant’s submissions and evidence
[15] The Applicant submitted that the Agreement does not impose a time limitation on the raising of disciplinary matters. In the alternative, the Applicant submits that, if there is a 14 day time limit that applies, then the 14 days will commence from the point at which the employee considers that the matter remains unresolved.
[16] Further, and in the alternative, in the event that the above interpretation is not available on a reading of the plain words, the Applicant submitted that the 14 day requirement in clause 37.10(a) must be read as only having application to matters that remain unresolved after discussions have occurred as per clause 37.9 of the disputes procedure.
[17] With regards to the intention of the parties at the time of negotiating the terms of the Agreement, the Applicant contends that it was the intention of the parties to ensure the speedy resolution of disputes, and not to place a time limit within which matters must be initially raised.
[18] The Applicant’s primary submission centred on the word “unresolved”. The Applicant submitted that a matter does not become “unresolved” until there is some disagreement between the employee and the employer. That disagreement arises, in the Applicant’s submission, at the time that the individual employee “decides” that they disagree with the disciplinary outcome.
[19] The Applicant alleges that the Respondent has relied upon their interpretation of the clause to “refuse to acknowledge and deal with” matters raised, legitimately, the Applicant submitted, in relation to disciplinary outcomes pursuant to the disputes procedure. It is noted at this point, that the Respondent did not dispute, that matters pertaining to disciplinary outcomes, were capable of giving rise to disputes, for the purposes of the disputes procedure.
[20] The Applicant submitted that the timeframes in the clause were intended by the parties, to ensure that, disputes were dealt with efficiently and in a timely manner, after having initially been raised.
[21] In support of the application, the Applicant filed a statement of Mr Steven Pierce, District Vice President of the CFMEU.
[22] Mr Pierce gave evidence, that one of the issues that the Applicant sought to address during the negotiations for the Agreement, was the timeframes applicable to progression of disputes under the disputes procedure. 2
[23] Mr Pierce stated that the Applicant’s position in respect of this issue arose as a result of previous experiences under the previous, 2007 Agreement. In particular Mr Pierce stated:
“The primary concern was that, following disputes being initiated, the progression of disputes under the procedure was inefficient and disputes would remain unresolved for long periods of time. The delays were largely attributable delays in meetings being convened.” 3
[24] In progressing this view Mr Pierce stated that the basis for the current procedure was the Saraji Schedule (Schedule C) of the 2007 Agreement.
[25] Mr Pierce stated that the “problem everyone wanted to address” 4 was the progression of disputes rather than the raising of disputes. Mr Pierce confirmed this view, and attached to his statement, bulletins issued by the Respondent during negotiations, that Mr Pierce stated indicated the issue being addressed was the progression of disputes, not disputes being raised, as this was not an issue.5
Summary of Respondent submissions and evidence
[26] The Respondent submitted that the question for arbitration should be answered in the affirmative.
[27] The Respondent submitted that the disputes procedure does impose strict time limits in relation to the steps of the procedure. Non-compliance with those time limits, so the Respondent submitted, had consequences in that, where the Respondent does not comply, the aggrieved employee can escalate to the next stage of the process. Where the employee does not seek to progress their alleged dispute within the time period provided, the Respondent submitted that the dispute is treated as withdrawn, by reference to clause 37.13 of the Agreement.
[28] The Respondent submitted that the correct interpretation of the disputes procedure, applying the relevant principle to give the words their ordinary meaning, taking into account their context and purpose, 6 was that the “issue” exists when the disciplinary outcome is imposed. In this regard the Respondent referred to the use of the word “outcome” being the operative word in the clause as to what matter is being put into dispute; the “outcome”.
[29] The Respondent submitted that ordinarily a disciplinary outcome would be imposed by the supervisor. 7 With this context in mind, the Respondent submitted that the purpose of clause 37.5(b) was to skip the initial step of the disputes procedure (where any employee raises the dispute with their immediate supervisor) in circumstances where the dispute related to a disciplinary outcome. The Respondent submitted that the context of clause 37 (as a whole) is such that time limits are important. With this in mind it cannot, in the Respondent’s submission, have been the intention of the parties to remove the time limit in relation to disciplinary outcomes.
[30] The Respondent submitted that beyond the Agreement itself, the wider context and history of the negotiation, points to a construction where the resolution of disputes is dealt with by ensuring that both the progression and initiation of disputes, was quick and efficient. The Respondent submitted that a 14 day time limit on the initiation of disputes (referring to clause 37.9 of the Agreement) was imposed “towards the end of negotiations”. 8
[31] To demonstrate the 14 day time limit point, the Respondent referred the Commission to the authority of Shop, Distributive and Allied Employees Association v Woolworths 9 (SDAEA) a decision of the Full Court of the Federal Court. The Respondent, applying SDAEA, posed the position as:
“given the purpose of the [disputes procedure] to resolve and manage disputes quickly and efficiently (by providing 14 day time limits for each step in the [disputes procedure], including those dealing with disciplinary outcomes, could it be reasonably intended by the parties to the 2012 Agreement that an employee would be entitled to initiate a dispute about a disciplinary outcome whenever the employee considered the matter to remain unresolved, including after the expiry of 14 days from the disciplinary outcome?” 10
[32] The Respondent submitted that the answer must logically be no.
Consideration
[33] The Commission, in interpreting the clause, was referred to the High Court decision in Amcor Ltd v Construction Forestry, Mining and Energy Union 11where their Honours, Gleeson CJ and McHugh J, relevantly stated:
“(t)he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation.” 12
[34] And further, at paragraph [13], the decision sets out that in terms of the interpretation of a clause it is necessary to consider:
“…the industrial purpose of the agreement, and the commercial and legislative context in which it applies.”
[35] Further, Kirby J said at paragraph [96]:
“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 to cl 55.1.1 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. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:
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.”
[36] These principles of interpretation have been utilised in examining the Agreement clauses, and the submissions and evidence of the parties.
[37] To construe this clause in a piecemeal fashion is not preferable. The disputes procedure must be construed as a whole, in the context of the words of the clauses, the Agreement as a whole and the industrial context/purpose of the clause. This is particularly so as the process is comprised of a series of sequential steps, if fully discharged.
[38] The opening words of clause 37.10, the clause in contention, are “[I]f the employee considers the matter remains unresolved, the following process applies”. The inclusion of the word “remains”, in my view (and as set out), indicates that the clause was drafted so as to ordinarily operate subsequent to the procedure in clause 37.9 applying. No allowance, in the drafting of the wording in clause 37.10, has been made to accommodate the exception in clause 37.5. The fault lies in the the exclusion of clause 37.9, as set out in clause 37.5; to bypass clause 37.9, where a matter relates to a disciplinary outcome. This anomaly arises is because the drafting of clause 37.10 proceeds on the basis that the dispute already exists at that point in time and can be raised, by the employee, in accordance with the disputes procedure, with their supervisor or an alternative Respondent representative, pursuant to clause 37.9(b). However, as the parties have noted, clause 37.9 (which directed the initial discussions), is, by virtue of the application of clause 37.5(b), skipped or does not apply, where a matter arises, regarding a disciplinary outcome.
[39] The effect, of bypassing clause 37.9, is that the parties do not need to comply with its direction for relevant initial discussions (with the immediate supervisor or alternative Respondent representative) to occur within 14 days from the disciplinary outcome. It must be noted that the circumstances of removing clause 37.9 appears to be unnecessary. The inclusion of the initial step, at clause 37.9, clarifies the subsequent steps and in clause 37.9(b), the parties specifically accommodated a situation where if a dispute directly relates to a supervisor, then it is incumbent on the Respondent to nominate an alternative representative to attend the discussion.
[40] The inclusion of the step, of initial discussions at clause 37.9, then, would move a “matter” seamlessly to clause 37.10 - which deals with the circumstances whereby, notwithstanding that step 1 discussions have occurred, “the matter remains unresolved” and therefore clause 37.10 becomes applicable. However, the process, in clause 37.10, for disciplinary outcomes commences with the opening words “if the matter remains unresolved”; implying that a matter has already commenced being dealt with. Having said that the circumvention of clause 37.9 appears unnecessary, the focus is on the interpretation of clause 37.10.
[41] The first step is that the Applicant’s argument, that no time limit applies to initiating disputes relating to disciplinary outcomes is rejected. The clause is prescriptive in setting time frames, consistently throughout for the efficient movement of matters through the procedure. Rejecting this argument is consistent with the plain and ordinary words of the Agreement, as well as the industrial purpose and outcome of the clauses. The Applicant’s evidence and submissions are that the common intention of the parties’ negotiations to the clause, was to ensure the quick and efficient resolution of disputes once initiated. Without express words to the contrary, or express contemporaneous evidence to the opposite effect, the plain and ordinary meaning of the words in the Agreement should be applied. Clause 37.10 of the Agreement stipulates that “The Employee and/or an Employee Representative must set out the details of the matter in writing and provide this to the superintendent first within 14 calendar days” (emphasis added). If the Applicant’s submission in this respect were accepted, these words “within 14 calendar days” would have no sensible industrial meaning. That is, disputes can be held in abeyance for some time until the employee subjectively decides that the matter “remains unresolved”, with practical considerations, the words of the Agreement and the common intention of the parties in mind, that practical effect of that interpretation cannot be accepted. The imposition of the timeframes to efficiently deal with disputes is consistent with the common intention of the parties, that is not to allow disputes to unnecessarily linger. 13
[42] To restate how we arrived at clause 37.10, pursuant to clause 37.5, given that, as set out, we are for the purposes of this interpretation dealing with a, “matter” relating to a disciplinary outcome, “then clause 37.9 does not apply”. 14
[43] Therefore, having moved directly to clause 37.10 (with the caution as set out that this seemed an inappropriate segmenting of the process), the words of clause 37.10 must be read and given their ordinary and plain meaning. Clause 37.10 applies “[I]f the Employee considers the matter remains unresolved”. The Applicant contended that these words apply, in the context of the “matter” under consideration, and that (when “the Employee considers the matter remains unresolved”), is the time at which, the 14 day limit commences.
[44] The Commission agrees with the Applicant’s contention in this regard; to hold otherwise does not give meaning to the words used, and certainly does not give them their plain and ordinary meaning. An interpretation should not be made where this phrase has no work to do.
[45] However, the Commission also recognises the Respondent’s submission that in ordinary circumstances, this date (“when the employee considers the matter remains unresolved”) will be the date on which the disciplinary outcome is notified. The Commission can envisage, however, very limited situations where this would not necessarily be the case and there may be some exceptional circumstance that the Employee legitimately does not consider that the matter remains unresolved until sometime after the disciplinary outcome is notified. These cases will be the exception and would have to be justified. Whether this is the case or not would depend upon the facts and circumstances of each individual case and would, ordinarily, be the exception to the rule. To consider otherwise would allow matters to linger to the disadvantage of both parties, which both parties sought to prevent.
[46] Careful regard has been given to both interpretations, particularly as the final wording of clause 37.10, has not been clearly drafted, with the effect of clause 37.5 in mind. This is not said as a direct criticism of either party; the negotiations were lengthy and it is often the case that the full effect of drafting amendments, that affect later clauses (such as the circumvention of clause 37.9), are only realised when the Agreement is brought to fruition and practical issues emerge when the clause it utilised.
Conclusion
[47] The question for arbitration is:
1. In circumstances where clause 37.9 of the Agreement does not apply due to clause 37.5 of the Agreement, does the 14 day time limit in clause 37.10(a) of the Agreement commence on the day the disciplinary outcome/sanction is imposed?
[48] Due to the way the question for arbitration is worded, and given the opening words used in clause 37.10, the question must be answered in the negative. That is, the 14 day time limit, on the wording of clause 37.10(a) of the Agreement, does not apply on the day the disciplinary outcome/sanction is imposed. The 14 day time limit applies, in accordance with clause 37.10, from the day “the employee considers the matter remains unresolved”. However, it must be clearly stated that it would be an exceptional circumstance, where in practice the day on which the “employee considers the matter remains unresolved” is not the same as the day that the disciplinary outcome is imposed. To find otherwise would be contrary to practical experience, as well as the common intent of the parties, to efficiently expedite matters for both parties.
[49] This approach is consistent with the parties stated intent during the negotiations, to efficiently deal with progressing disputes regarding disciplinary outcomes. To allow disputes to be delayed until potentially such time has elapsed whereby critical witnesses are no longer employed, or cannot recollect the relevant events of the disciplinary outcome in dispute, due to the elapse of time, would operate to the prejudice of both parties.
[50] In addition taking into account the parties concern with matters being dealt with expeditiously, it is noted that to progress the matter through the full disputes procedure from clause 37.10, allows for four 14 day periods (equating to 56 days), this is only in the steps prior to referral to a State Conference and/or, if required, to the Commission; unnecessary delay in initiation of disputes, unduly delays what is already a lengthy process,
[51] Accordingly to simply allow for a broad interpretation of the time when an “employee considers the matter remains unresolved” - unrelated to the notification of the disciplinary sanction - is contrary to the common approach of both parties to initiate matters in the most timely manner. To allow for the timing of when matters “remain unresolved”, to be some vague time in the future, makes the stipulated 14 day timeframes in clause 37.10, and further, to be made redundant, in effecting the timely passage of matters, through the disputes procedure.
[52] To restate the answer to the question for arbitration: the 14 day timeframe, in clause 37.10, will commence from the day the “employee considers the matter remains unresolved” and in all but the most exceptional of circumstances, this day will be the day of notification of the disciplinary outcome.
[53] For the aforementioned reasons, in regards to the interpretation, in the question for arbitration, as set out, I Order accordingly.
COMMISSIONER
1 Applicant outline of submissions at paragraph 1. Respondent outline of submissions at paragraph 3.
2 Statement of Steven Pierce at paragraph 10.
3 Statement of Steven Pierce at paragraph 11.
4 Statement of Steven Pierce at paragraph 19.
5 Statement of Steven Pierce at paragraph 21.
6 Citing City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 French J at [53].
7 Statement of Peter Stelmach at paragraph 14.
8 Respondent outline of submissions at 14; Statement of Peter Stelmach at paragraph 18.
9 [2011] FCAFC 67.
10 Respondent outline of submissions at 19.
11 (2005) 222 CLR 241.
12 (2005) 222 CLR 241 at [2] and [96].
13 The Agreement clause 37.5.
14 Ibid at clause 37.5.
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