Construction, Forestry, Mining and Energy Union v Hyne Timber Pty Ltd T/A Hyne Timber

[2017] FWC 2941

[2017] FWC 2941

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Hyne Timber Pty Ltd T/A Hyne Timber
(C2017/844)

COMMISSIONER RIORDAN SYDNEY, 6 JUNE 2017

Alleged dispute about any matters arising under the modern award and the NES; [s146].

[1] On 15 February 2017, the Construction, Forestry, Mining and Energy Union notified a dispute against Hyne Timber Pty Ltd in accordance with the Hyne Timber Tumbarumba Enterprise Agreement 2013 1. The CFMEU asserted that Hyne had not complied with the consultation provisions of the Agreement or the relevant Modern Award in relation to imminent redundancies at its Tumbarumba Mill.

[2] Mr Maurice Swan, from the Australian Industry Group, is the industrial representative of Hyne. In response to the CFMEU’s application, Hyne submitted that:

a) the CFMEU does not have standing to make this application because they are not a party to the Agreement;

b) the CFMEU cannot make this application on behalf of their member, Mr Cepile, because Mr Cepile is no longer an employee and therefore has no standing under the Agreement; and

c) as a result, the Fair Work Commission does not have jurisdictional to deal with the matter.

[3] Hyne accept that the CFMEU, its officers and members employed at Hyne, Tumbarumba, are bound and covered by the Agreement.

[4] I note that the Agreement was signed by the CEO of Hyne and the NSW District Secretary of the CFMEU (Forestry, Furnishing, Building Products and Manufacturing Division) on behalf of CFMEU members, employees and the Company on 5 May 2016.

[5] A Full Bench of the FWC in RTBU v Asciano Services Pty Ltd t/a Pacific National 2 recently dealt with the issue of the capacity of a union to notify a dispute to the FWC, naming itself as the applicant:

“[15] …there is no requirement in the FW Act for every s.739 application filed in the Commission to identify by name each employee who was a party to the dispute at the time the application was filed… in the event that there is some uncertainty about who belongs to the class of employees or further information is required to enable the employer, as a matter of natural justice, to understand the case it has to meet in dealing with the dispute, including the names and circumstances of employee parties to the dispute, then directions can be sought from, and made by the member of the Commission dealing with the dispute…”

[16] …In our view, it would be contrary to the obligations imposed on the Commission pursuant to s.577 of the FW Act for s.739 applications to be automatically dismissed on the basis that every employee party to the dispute was not identified by name in the application.”

Submissions

[6] The CFMEU submitted that the Full Bench decision in Asciano is on point and should be followed, however, they distinguished the decision in relation to any notion that the Union is not a party to the dispute. The CFMEU submitted that it negotiated the Agreement and is a party bound by the Agreement. The CFMEU claim that it was an active participant in the dispute from the beginning.

[7] Hyne submitted that the Full Bench decision in Asciano has incorrectly applied the fundamental principle of statutory interpretation as well as ignoring the operation and meaning of s.739(6).

[8] Further, Hyne argued that Asciano can be distinguished on the basis that there is no doubt as to the true identity of the real applicant in this matter, who is a former employee who has a concurrent unfair dismissal application before the FWC.

[9] Finally, Hyne submitted that the dispute is about the CFMEU protecting its own interests by enforcing Hyne to comply with provisions of the Enterprise Agreement as a proper party to the proceedings.

Consideration

[10] I have taken into account all of the submissions of the parties.

[11] The Full Bench decision in Asciano is on point. The CFMEU has the capacity to notify the dispute in accordance with the Act and the Agreement. If Hyne was unaware of the employees involved in the dispute then they could have sought further particulars from the Union.

[12] I do not accept that the CFMEU does not have the capacity to being an application on behalf of their member Mr Cepile, simply on the basis that his employment has been terminated. If the FWC were to countenance such a proposition then the status quo provisions of the Agreement (clause 5.1.9) would be irrelevant and have no work to do.

“5. GRIEVANCE AND DISPUTE RESOLUTION
5.1 Procedure

5.1.6 The employee may nominate the union or other representative for
assistance in resolving the grievance, dispute or likely dispute.

5.1.7 At each step of this procedure either party or their representative may
ask for a response from the other party or their chosen representative
within 2 working days or otherwise as agreed. If a response is not
received within the timeframe and no reasonable reason for delay is
provided, the matter may be referred directly to the FWC.

5.1.9 The status quo existing before the emergence of the grievance or
dispute is to continue whilst the above procedure is being followed.”

[13] Such a scenario would create an incentive for an employer to introduce any proposed workplace change before a Union or an employee could make an application to the FWC to deal with the issue. Such a proposition would be a denial of natural justice.

[14] I note that the CFMEU wrote to Hyne on 1 February 2017 disputing the pending termination of Mr Cepile on 3 February 2017. This correspondence enlivened the status quo provisions of the Disputes Procedure. (see clause 5.9.1 above).

[15] The Agreement does not definitively define the “parties” to the Agreement, insofar as there is no “parties” clause. However, clause 1.3.1.2 is, relevantly, quite descriptive. It says:

“1.3 Coverage

1.3.1 This Agreement shall cover and be binding upon:

1.3.1 Hyne & Son Pty Limited trading as Hyne Timber, Tumbarumba Sawmill located at Jingellic Road, Tumbarumba in respect of all employees and all new employees employed at Hyne & Son Pty Limited apart from those excluded in Clause 1.3.2 below,

1.3.1.2 The Construction Forestry Mining and Energy Union – Forestry, Furnishing, Building Products and Manufacturing Division, its officers and members employed at Hyne Timber, Jengellic Road, Tumbarumba.”

(my emphasis)

[16] As a matter of legal principle, for an agreement or contract to bind a person or body then that person or body must be a party to the contract or agreement. Clause 1.3.1.2 binds the CFMEU and its officials to the Agreement. Clause 1.4.4 prevents the CFMEU and its officials from seeking to increase/decrease any provisions of the Agreement for its duration.

[17] A Full Bench of the FWC in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 3 conveniently set out the principles to be followed in interpreting enterprise agreements:

“[41]From the foregoing, the following principles may be distilled:

1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”

[18] The Collins English Dictionary defines the word “binding” to mean:

“bind, binds, binding, bound…. 3. (tr) to place (someone) under obligation; oblige. 4. (tr) to impose legal obligations or duties upon (a person or a party to an agreement.)

[19] Following the obiter in Golden Cockerel in applying the plain and ordinary normal meaning to clause 1.3 of the Agreement, I find that the CFMEU is a party to the Agreement on the basis that the Union and its officers are bound by the Agreement.

Conclusion

[20] I have found, for the reasons given above, that by giving the terms of the Agreement their plain and ordinary meaning that the CFMEU is a party to the Agreement and can therefore lodge an application in its own right.

[21] If I am wrong on this point, then I find that the decision in Asciano allows the CFMEU to notify a dispute to the FWC in accordance with the Dispute Procedure of the Agreement for any unnamed member, including a member who has subsequently been terminated whilst the issue was in dispute.

COMMISSIONER

 1   [2013] FWCA 6760

 2   [2017] FWCFB 1702

 3   [2014] FWCFB 7447

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