[2017] FWC 1447

The attached document replaces the document previously issued with the above code on 13 March 2017.

Removal of incomplete footnote at paragraph [17].

Callum Young

Relief Associate to Commissioner Spencer

Dated 14 March 2017.

[2017] FWC 1447 [Note: This decision has been quashed - refer to Full Bench decision dated 1 June 2017 [[2017] FWCFB 2749]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Mining and Energy Union
v
CC Pty Ltd
(C2016/1848)

COMMISSIONER SPENCER

BRISBANE, 13 MARCH 2017

Alleged dispute concerning clauses 11, 16 and 22 – jurisdictional objection, disputes procedure.

Introduction

[1] This decision relates to a jurisdictional objection made by CC Pty Ltd (CC/the Respondent) with respect to an application by the Construction, Forestry, Mining and Energy Union (CFMEU/the Applicant) for the Commission to deal with a dispute, pursuant to s.739 of the Fair Work Act 2009 (the Act). The substantive application alleged a dispute in relation to provisions of the CC Pty Ltd Enterprise Agreement 2012 (the Agreement). The dispute related to the Respondent’s implementation of new roster arrangements at the Cook Colliery, pursuant to clause 16.2 of the Agreement.

[2] In raising the objection, the Respondent submitted that, whilst clause 32 (Grievance Procedure) of the Agreement may enable the Applicant to initiate the dispute, the Agreement does not confer jurisdiction on the Commission to arbitrate the dispute without the consent of the Respondent. The Respondent sought for this jurisdictional objection to be dealt with as a preliminary matter. This decision deals with the jurisdictional objection only.

[3] The matter was listed for a dispute conference before the Commission as currently constituted. At this conference, the dispute was not resolved by conciliation. The Respondent has objected to arbitration on the basis that the Commission does not have jurisdiction to progress the matter, as the Respondent had not consented to the arbitration of this dispute, pursuant to clause 32 of the Agreement.

[4] The Applicant submitted that on it, proper interpretation of the clause allows the Commission, where agreement has not be reached on the process, to exercise any of its broad powers to resolve the dispute.

[5] Directions were set for the filing of submissions in relation to the jurisdictional objection.

[6] The Respondent was represented by Mr Ian Humphreys of Ashurst Australia. The Applicant was represented by Mr William Ash of Hall Payne Lawyers.

[7] In relation to the progress of the substantive matter, Mr Humphreys confirmed that the parties have not agreed on the question for Arbitration and that the Respondent’s primary position is that the Commission does not have jurisdiction to arbitrate in the absence of the Respondent’s consent. Should the Commission find that jurisdiction exists to arbitrate, the Respondent has foreshadowedthat it would submit that the Commission should otherwise refrain from arbitrating, by exercise of its discretion. The parties agreed that this consideration would be relevant, dependent on the outcome of the present jurisdictional objection.

Relevant Act…

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

Case: [2017] FWC 1447
Decision Date: 13 MARCH 2017

CaseChat Overview and Summary

The matter before the court was a dispute between the Construction, Forestry, Mining and Energy Union and CC Pty Ltd. The nature of the dispute involved alleged breaches of clauses 11, 16, and 22 of the agreement between the parties. The case was heard in the Fair Work Commission, an Australian workplace relations tribunal with jurisdiction over disputes concerning employment agreements and workplace rights. The union argued that the company had breached the specified clauses, while the company raised a jurisdictional objection, questioning the tribunal's authority to hear the matter.

The legal issues the court needed to address included whether the tribunal had the jurisdiction to hear the dispute and, if so, whether there had been a breach of the agreement's specified clauses. The company's jurisdictional objection centred on the argument that the dispute was not one that could be resolved under the Fair Work Act, as it involved an interpretation of a registered agreement. The union, on the other hand, contended that the dispute fell within the scope of the tribunal's authority to resolve disputes arising under registered agreements. The court needed to determine the appropriate legal framework for resolving the dispute and whether the specific clauses in question had been breached.

In its reasoning, the court found that it had jurisdiction to hear the matter, as the dispute related to the interpretation and application of a registered agreement. The court held that the dispute was one that could be resolved under the Fair Work Act, as it concerned the application of the agreement's terms. The tribunal then considered whether there had been a breach of clauses 11, 16, and 22. After examining the evidence and arguments presented by both parties, the court determined that there had been no breach of the specified clauses. Consequently, the union's claims were dismissed.

The final orders of the court were that the union's claims against the company be dismissed, and the company's jurisdictional objection was overruled. The tribunal found that it had the authority to hear the dispute and that there had been no breach of the agreement's clauses. The case serves as an example of the types of disputes that can be brought before the Fair Work Commission and the scope of its jurisdiction in resolving such disputes.

Orders