Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd

[2014] FWC 6731

[2014] FWC 6731

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
v
North Goonyella Coal Mines Pty Ltd
(C2013/1697)

DEPUTY PRESIDENT ASBURY BRISBANE, 26 SEPTEMBER 2014

Application to deal with a dispute.

Overview

[1] On 25 October 2013, the Construction, Forestry, Mining and Energy Union - Mining and Energy Division, Queensland Branch (CFMEU) made an application (the substantive application) under s.739 of the Fair Work Act 2009 (the Act) seeking that the Commission deal with a dispute with North Goonyella Coal Mines Pty Ltd (NGCM) in accordance with a dispute settlement procedure in the North Goonyella Underground Mine Collective Enterprise Agreement 2012 (the Agreement). The dispute relates to redundancies at the North Goonyella Coal Mine which were implemented in August 2013. The redundancies have been the subject of two applications by the CFMEU under s.739 of the Act.

[2] I held a number of conciliation conferences between November 2013 and May 2014. The matter was not resolved and the CFMEU indicated that it sought to have the dispute referred to arbitration. I indicated on a number of occasions that I would not arbitrate the substantive application, due to the fact that I was extensively involved in conciliating it and in attempting to resolve a related application made by the CFMEU to the Federal Court.

[3] NGCM subsequently made an application seeking that the Commission exercise discretion and refuse to arbitrate and/or that the Commission dismiss the substantive application under s.587(3)(b) of the Act. I issued directions requiring NGCM to file an outline of submissions and for the CFMEU to provide submissions in reply. I indicated to the parties that I would deal with the NGCM application and attempt to develop the question for arbitration, in the event that the NGCM application was refused.

[4] At a conference on 2 May 2014 and in correspondence of 16 May 2014 the CFMEU requested that I refer the substantive application and the NGCM application to dismiss it to the Panel Head for reallocation to another member of the Commission. This was pressed at a hearing into the NGCM application on 15 August 2014 during which the CFMEU made a formal application that I “recuse” myself from dealing with the NGCM application and that I refer that matter and the substantive application to the Panel Head for allocation to another member of the Commission.

[5] I refused the CFMEU’s application that I disqualify myself from dealing with the NGCM application and indicated that I would determine the NGCM application. The CFMEU requested that I issue reasons for refusing the application to disqualify myself from dealing with the NGCM application. Those reasons are set out below. For reasons which are also set out below, I have decided to refuse the NGCM application and to refer the substantive application to the Panel Head for allocation to another member of the Commission.

Background

[6] The CFMEU application made on 25 October 2013 was said to concern the manner in which NGCM applied selection criteria in clause 38 of the Agreement (the selection criteria dispute). 1 That dispute is the substantive application referred to in this decision. The selection criteria dispute was also said to relate to Clause 36 of the Agreement which deals with the subject of Contractors and External Resources. There was an earlier application under s.739 made by the CFMEU on 6 August 2013 seeking that the Commission deal with a dispute under the Dispute resolution procedure in relation to NGCM’s failure to comply with its obligations in clause 38 of the Agreement to consult with the CFMEU about redundancies (the consultation dispute).2 A conference was held on 8 August 2013 in relation to the consultation dispute and a timetable for consultation was agreed. A Recommendation was issued on 9 August 2013 in relation to the consultation process to be followed. Neither party has sought to have the consultation dispute relisted, and the file has been closed.

[7] The selection criteria dispute was listed for Conference on 4 November 2013. At that conference the parties canvassed a number of issues:

● The CFMEU had commenced proceedings in the Federal Court in relation to the selection of three members for redundancy;
● In light of the Federal Court application NGCM had sought to have legal representation in meetings with the CFMEU about redundancies involving other members and the CFMEU did not agree with this request;
● NGCM believed that for the CFMEU to notify the Commission of a dispute about the redundancies would be an abuse of process on the grounds that the subject matter of the dispute would overlap with issues being ventilated by the CFMEU in the Federal Court; and
● NGCM reserved its rights to apply to have the application in relation to the selection criteria dispute dismissed.

[8] I issued a Recommendation on 11 November 2013 that the parties participate in a meeting and NGCM should be allowed to have legal representation at that meeting. I also recommended that the parties attend a further Conference before the Commission on 13 December 2013.

[9] On 25 November 2013, Solicitors for NGCM wrote to the Commission advising that discussions had been proceeding between the parties with a view to resolving both the selection criteria dispute and the Federal Court proceedings, and requesting that the Commission bring forward the Conference scheduled for 13 December 2013.

[10] By return email, Solicitors for the CFMEU advised that the CFMEU was unavailable for conciliation but remained available for the report back on 13 December 2013. On Thursday 28 November 2013 Solicitors for NGCM advised that there had been “an exchange of best offers” between the parties and no resolution reached and requesting a conference to attempt to bridge the gap between the parties. Solicitors for the CFMEU advised that due to the importance of the matter, and the fact that the Federal Court litigation was proceeding on Monday 2 December 2013, that the CFMEU was agreeable to attending a conciliation conference which should be in person to maximise the potential for resolution of the matters in dispute.

[11] A Conference was conducted on Friday 29 November commencing at 5.30 pm. The matters in dispute were not able to be resolved. In light of the concessions it had indicated during the conciliation, offers of settlement and counter offers were put by the parties encompassing the selection criteria dispute and the matter before the Federal Court. On Saturday 30 November 2013, Solicitors for NGCM corresponded with Solicitors for the CFMEU, advising that NGCM had determined that in light of the concessions it had indicated in conciliation conference on 29 November 2013, that it would have been prepared to make in the context of an overall resolution, NGCM would consent to judgment in the Federal Court substantially in accordance with the CFMEU’s application. NGCM’s Solicitors also indicated that the Company withdrew from all negotiations and offers in relation to the matter and would proceed to deal with the matter as it saw fit. The Federal Court subsequently made orders and awarded penalties against NGCM in November 2013.

[12] The parties attended the Conference in the Commission which had been scheduled for 13 December 2013 and it was agreed that they would attend a meeting pursuant to Step 3 of the Dispute procedure the following week and that a further Conference would be conducted on 9 January 2014. That date was vacated at the request of Solicitors for the CFMEU on the basis that further discussions under Step 3 of the dispute procedure were scheduled for later in January 2014. A further Conference listed for 4 February 2014 was cancelled at the request of the parties.

[13] On 31 March 2014, the CFMEU requested that the matter be relisted and it was listed for further Conference on 2 May 2014. At that Conference, the CFMEU indicated that it intended to progress the dispute to arbitration. NGCM indicated that it was considering whether to object to the dispute being arbitrated, on grounds related to the terms of the dispute settlement procedure in the Agreement.

[14] NGCM was given 14 days to file a formal response to the CFMEU’s request that the dispute be referred to arbitration. I indicated to the parties that I would determine any such objection. I also indicated to the parties that if there was no objection to the dispute being arbitrated made by NGCM that I would develop the question for arbitration, with the input of the parties and then refer the matter to the Panel Head for allocation to another member of the Commission. I informed the parties that I would not arbitrate the substantive dispute on the basis that I had been extensively involved in conciliation and was privy to offers and counter offers of settlement in relation to the matters that would now be the subject of arbitration.

[15] On 16 May 2014, Solicitors for NGCM forwarded an email to my Chambers stating that NGCM would formally object to the Commission arbitrating the matter, and would seek that the Commission exercise its discretion to dismiss the CFMEU application. A short extension was sought to file a formal response in this regard. The CFMEU subsequently corresponded with me requesting that the matter be referred to the Panel Head for reallocation and that the objection by NGCM and the scope of any question for arbitration, be dealt with by the member to whom the file was reallocated.

[16] My Associate wrote to the parties in response to this correspondence confirming that, as previously advised to the parties on 2 May 2014, I would deal with any preliminary matters including whether the dispute should be arbitrated, and if so, the question for arbitration. The parties filed submissions and statements in relation to NGCM’s application that the Commission refrain from hearing or dismiss the CFMEU application, and the matter was heard on 15 August 2015. At the hearing, the CFMEU pressed its application that I “recuse” myself from dealing further with the matter and refer it to the Panel Head for reallocation. When I declined to take that course, the CFMEU requested that I provide reasons for so declining.

The NGCM application

[17] NGCM submits that the Commission should exercise its discretion to refuse to arbitrate substantive application on the basis that:

● The substantive application is a collateral attempt by the CFMEU to challenge the NGCM’s managerial prerogative to set maximum workforce numbers based on operational requirements. This is a matter which is not covered by the Agreement. Therefore that decision cannot be challenged in these proceedings; and

● It is not in the public interest for the arbitration to continue because, if the best case outcome for the CFMEU is that the NGCM will be directed to review and reapply its selection process, the only possible outcomes are:

● the same employees are selected for redundancy - which would be a futility; or

● different employees are selected for redundancy and must be terminated in favour of employees who have not worked at the NGC coal mine since August 2013 - which would be a grossly unfair and unworkable outcome.

[18] It is further submitted that the CFMEU has not pursued the substantive application in a timely manner. Instead (as it was entitled to do) the CFMEU pursued Federal Court proceedings in respect of three employees. Those proceedings are resolved, and have been since November 2013. In the meantime, NGCM and its workforce have ordered their affairs as they are entitled to do, which inevitably may have resulted in turnover of workers, both through natural attrition, performance management processes and the need to respond to changes in operational requirements.

[19] For these reasons, the CFMEU’s delay has led to a situation where even if the Commission found that the NGCM’s August 2013 redundancy process was not in accordance with the Agreement, it would be in a position where it would be likely to be impossible to make an order responding to that breach in a way which was useful or fair to any party. In the circumstances, NGCM submits that the Commission should dismiss the Application pursuant to s.587(3)(b) of the Fair Work Act 2009.

[20] NGCM submits admissions made by it in the Federal Court were limited to the particular facts of the matter and do not suggest that the broader process to select employees for redundancy was flawed. It is assumed that the CFMEU will allege similar adverse assessments in respect of clause 38.5(c) of the Agreement and that the allegations may be made with respect to some 30 former employees who were made redundant in August 2013. NGCM further submits that the relevance of clause 36 which deal with the use of contractors, and was referred to by the CFMEU in the Application, is not apparent.

[21] In support of the submission that the Commission should exercise discretion to refrain from arbitrating the substantive application, NGCM points to the use of the term “may” in clause 41.2 of the Agreement. That clause relevantly provides, after setting out a process involving a series of meetings between the parties at various levels, that:

Step 4

If the dispute remains unresolved, it will be referred to FWA for conciliation, and if the dispute remains unresolved, arbitration. In exercising its powers under this clause FWA may exercise all of its powers and functions incidental or associated with the exercise of conciliation or arbitration.” [emphasis added]

[22] NGCM also points to the use of the term “may” in s.739 of the Act, which relevantly 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.

….

(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.

(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. [emphasis added].”

[23] NGCM points to the Decision of Deputy President Sams in Australian Municipal, Administrative, Clerical and Services Union v Sydney Water Corporation t/a Sydney Water 3in support of its submission.

[24] NGCM also points to the Decision of Commissioner Jones in Schweppes Australia Pty Ltd v United Voice 4where it was held that:

“The matters that inform [the Commission’s] discretion to arbitrate are not limited by the [dispute settlement] term. In my view, relevant considerations will include the nature of the dispute, the position of the parties and other matters [the Commission] is informed of during the course of the conciliation.” 5

[25] It is submitted by NGCM that the matters relevant to discretion in the present case are:

● NGCM has set maximum workforce numbers by reference to its operational requirements and implemented redundancies in August 2013 to give effect to those requirements;
● The CFMEU is attempting to use the dispute resolution clause and any alleged breaches of clause 38.5 of the Agreement to mount a broader challenge on the number of employees selected for redundancy by NGCM;
● The CFMEU has not identified the status quo that it seeks to restore and has not made allowance for an inevitable further redundancy process that will have to be carried out if employees subject to the 2013 redundancy round are reinstated;
● There is not a sufficient evidentiary basis to supplant NGCM’s decision about the appropriate labour model for its business moving forward;
● There is nothing in the Agreement that would enable the CFMEU or the Commission to mandate the number of employees who can be selected for redundancy by NGCM and this matter is entirely within managerial prerogative;
● If the Commission grants the relief sought by the CFMEU a further redundancy round will have to be carried out where the same employees could be selected again, rendering that relief futile;
● Reinstatement of redundant employees as sought by the CFMEU will have adverse effects on current employees including the possibility that they will be made redundant in the place of reinstated employees and NGCM’s current employees are entitled to security of employment; and
● The redundancies took effect in August 2013 and it is likely to be some months before any arbitration is heard and determined, resulting in further uncertainty for NGCM and the employees who made redundant at that time, who have likely moved on and found alternative employment.

[26] NGCM also submits that the Commission has broad powers under s. 587(b) and that is not limited by the matters referred to in s. 587(1)(a) should exercise that power in a manner that is:

● fair and just; 6
● quick, informal and avoids unnecessary technicality; 7 and
● takes into account equity, good conscience and the merits of the matter. 8

[27] Further NGCM submits that in determining whether to exercise its broad powers under s.587 of the Act, the Commission is permitted to take into account the public interest. In all of the circumstances the application should be dismissed as, similar to the case in Schweppes Australia Pty Ltd v United Voice:“there is no utility in proceeding to arbitrate in respect of this dispute ...having regard to the nature of the dispute and the circumstances in which the dispute arose.” Such a result in the present case would be consistent with the objectives of the Act.

CFMEU submissions in response to the NGCM application

[28] The CFMEU submits that the objection to the substantive application being arbitrated should be rejected and the matter listed for arbitration without further delay. NGCM accepts that the Commission has jurisdiction to deal with the dispute. The CFMEU further submits that clause 41.2 of the Agreement does not give discretion to the Commission to refuse to arbitrate the dispute and the word “may” is used only to confer authority on the Commission and the Commission is obliged to arbitrate. A similar submission is made in respect of s.739(4) of the Act.

[29] The decision of Deputy President Sams in the Sydney Water Case is not authority for the proposition that the Commission has discretion as to whether or not to arbitrate. That decision was made on the basis that there was an obvious and serious issue to be tried, and the distinction between discretion to arbitrate and a strike out motion was a “distinction without difference”. It was submitted that applying the principles relevant to a strike out motion as set out by Deputy President Sams in that case, would result in NGCM’s application failing. Reference was also made to summary provided by Justice Collier in Leica Geosystems Pty Ltd v Koudstaal 9of the principles in relation to summary dismissal of claims on the ground of no reasonable prospects of success, as set out in the High Court Decision in Spencer v Commonwealth of Australia as follows:

“21. The members of the High Court discussed in detail the meaning of the term “no reasonable prospect of success”. Principles emerging from the judgments of their Honours include the following:

● The legislation permitting summary dismissal of cases is designed to deal with cases that are not fit for trial at all.

● The types of case s.31A contemplates include those where:

• the pleadings disclose no reasonable cause of action and their deficiency is incurable;

● there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment; and/or

● the case is “frivolous or vexatious or an abuse of process”.

• The exercise of powers to summarily terminate proceedings must always be attended with caution.

• Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.



• Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter (unless the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of the High Court).



• The fact that the proceeding involves consideration of important questions of law, and potentially complex questions of fact, may militate against summary dismissal.



• It is important to keep in mind that the central idea about which the provisions pivot is “no reasonable prospect” of success. The choice of the word “reasonable” is important. To that extent, the enquiry to be made is whether there is a reasonable prospect of prosecuting the proceeding, rather than an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.”

(citations omitted)

[30] In the present case, it is submitted there is no evidence before the Commission that the claims in dispute are so obviously untenable that they will not succeed or are beyond the Commission’s jurisdiction, so that the observations of Deputy President Sams in the Sydney Water Case would apply. The CFMEU also submitted that the dispute settlement provision in the Schweppes Case was distinguishable from the provision in the present case on the basis that the clause in that case provided that:

“If [the Commission] is unable to resolve the matter by conciliation, it may conduct arbitration over the application of this agreement”.

[31] It is contended that this can be contrasted with step 4 of the dispute procedure in the present case, which simply provides that if the matter is not resolved through conciliation it will be referred for arbitration. The term “may” is only used to confer powers and functions on the Commission. The Commission has jurisdiction to arbitrate, the parties have agreed that the Commission will arbitrate and no discretion is found in s.739(4). It is also the case that there is an obvious and serious issue to be tried and NGCM’s objection must be dismissed.

[32] The CFMEU disputes the discretionary matters raised by NGCM and contends that they are disputed submissions from the bar table. The CFMEU also points to statements made by NGCM to the Federal Court to the effect that it would take appropriate steps in relation to the proceedings in the Commission, and submits that these statements would be relevant to any exercise of discretion.

[33] With respect to the submissions about the futility of arbitration and the remedy sought, the CFMEU contends that any determination as to remedy can only be made on the basis of evidence in the substantive arbitration. The assertions that the CFMEU has delayed the matter are disputed and the CFMEU asserts that its handling of the dispute has been consistent with the objectives of the dispute settlement mechanisms contained in the Agreement. The CFMEU also asserts that any adjournments have been by consent. Further, the effluxion of time between the date of termination and the date of any order for reinstatement, does not of itself make reinstatement impracticable. 10

[34] The CFMEU also submits that it is not necessary for the Commission to make a determination as to discretion as the Commission has a mandatory jurisdiction to arbitrate based on the terms of the Agreement. Any such discretion should not be exercised. In relation to the submission by NGCM that the Commission should dismiss the application under s.587 of the Act, the CFMEU contends that:

● There is no evidence or submission alleging that the application has not been made in accordance with the Act;
● NGCM has accepted that the Commission has jurisdiction to deal with the dispute;
● The application is not frivolous or vexatious and NGCM makes no such submission; and
● The application cannot be said to have no reasonable prospects of success and such submission has been made.

[35] While s.587 does not limit the Commission’s power to dismiss an application to the matters set out in s.587(1) (a) to (c) there are no public interest grounds in the submissions of NGCM that would justify the application being dismissed and there is no provision under the Act in relation to matters being dismissed on the grounds of public interest. The matters referred to by NGCM in its submission are in contest and can only be dealt with in a hearing of the substantive dispute. It is for the arbitrator to decide all disputed questions of fact and law and arbitration will assist the parties to continue their relationship under their Agreement with an outcome arrived at by way of a dispute settlement procedure which they have both agreed to.

The CFMEU Application that I disqualify myself

[36] The case law relevant to whether a member of the Commission should decline to deal with a matter on the basis of an assertion of apprehended bias, was comprehensively examined by Commissioner Wilson in Metropolitan Fire and Emergency Services Board v United Firefighters Union of Australia. 11From those authorities and the Commission’s Fair Hearings Practice Note the following points can be distilled:

● A fair hearing is at the heart of the Commission’s obligations to the parties that appear before it and involves the opportunity for parties to put their case and to have that case determined impartially and according to law; 12
● Bias, whether actual or apprehended, connotes the absence of impartiality; 13
● The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide; 14
● The test is objective - the observer is taken to be reasonable and the person being observed is a professional whose training, tradition and oath or affirmation require irrelevant and prejudicial material to be discarded; 15
● There is no principle that requires disqualification because of what a member of the Commission may have said or done at earlier stages of the proceeding 16 or because the of what is said or done in a conciliation conference;17 and
● The application of the test for apprehended bias requires two steps - the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits and the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. 18

[37] In the present case, the CFMEU contends that what might lead me to decide a case other than on its legal and factual merits is the fact that I conciliated the matter. In so doing I heard offers and counter offers of settlement. In support of the contention that I should disqualify myself the CFMEU referred to the decision of the majority of the High Court in British American Tobacco Australia Services Limited v Laurie and Others 19and submitted that the test is not what I think, but what a reasonable observer might think.

[38] When pressed as to the basis upon which the application that I disqualify myself was made, Mr Docking for the CFMEU stated that in the conciliation conference, there was a settlement offer which excluded one of the applicants in the Federal Court proceeding, and that the CFMEU was “urged” by me to accept that offer. Ultimately it was admitted by NGCM in the Federal Court proceedings that the CFMEU’s assertions about the dismissal of the three applicants were correct.

[39] As I stated to the parties at the outset of this hearing, I was “up to my eyeballs” in conciliating the dispute that the CFMEU now seeks to be arbitrated. The conciliation conference that the CFMEU submits provides a basis for me to disqualify myself was lengthy and conducted in an atmosphere of urgency late on a Friday evening as a last attempt to resolve a dispute that was to be dealt with by the Federal Court of Australia on the following Monday. The conciliation conference involved offers and counter offers of settlement being canvassed and I attempted at some length (albeit unsuccessfully) to broker an agreement between the parties that would have resolved the proceedings in the Federal Court and the issues that are in dispute as part of the substantive application. That is the basis upon which I made it clear that I would not arbitrate the substantive application.

[40] Even if it is accepted that I “urged” a settlement, there is no indication that I expressed any view about the strengths or weaknesses of either party’s case or that I made any statements in relation to merit that would indicate that I had formed such a view. At the point the conciliation conference in question was conducted, the parties were two (weekend) days away from proceedings in the Federal Court involving a small group of employees, and a dispute about a much larger group was not going to be addressed in those proceedings. In those circumstances, that a settlement was “urged” is not a basis that I disqualify myself on the grounds of apprehended bias.

[41] NGCM does not rely on anything that occurred in the confines of the conciliation conference as a basis for its application that the substantive matter be dismissed. The submissions are based on the terms of the dispute settlement procedure in the Agreement and the practicability and appropriateness of the relief sought in the application. NGCM does not raise the making or rejection of offers or counter-offers as a basis for its application that the Commission should dismiss or refrain from hearing the substantive application.

[42] I do not accept that a fair-minded lay observer might reasonably apprehend that I would not bring an impartial and unprejudiced mind to the resolution of the question of whether the substantive application should be dismissed or whether the Commission has or should exercise discretion to refrain from hearing it.

Conclusion in relation to the NGCM application

[43] After considering the submissions of the parties, I have decided to refuse the application by NGCM to dismiss the substantive application and have decided that it should proceed to arbitration. I have made that decision on the basis that the issues raised by NGCM are not appropriate to be dealt with in an application to dismiss or refrain from hearing the substantive application, and are properly matters that should be dealt with by the member to whom the substantive application is allocated.

[44] I am also of the view that it would be inappropriate to summarily dismiss an application which the Commission has jurisdiction to deal with. I do not accept the submission of the CFMEU that the dispute settlement procedure in the Agreement does not give discretion to the Commission to refuse to arbitrate a dispute. The dispute settlement procedure provides at clause 41.2 as follows:

Step 4

If the dispute remains unresolved, it will be referred to FWA for conciliation, and if the dispute remains unresolved, arbitration. In exercising its powers under this clause FWA may exercise all of its powers and functions incidental or associated with the exercise of conciliation or arbitration.”

[45] The dispute settlement procedure makes it clear that in exercising powers under the clause, the Commission may exercise incidental or associate powers and functions. These include the power to dismiss an application under s.587 of the Act. I am also of the view that in arbitrating a dispute the Commission is not bound by the relief sought by the parties and may decide the matter in a way that is contrary to the outcome sought by either party. The Commission may also decide the matter by simply refusing to grant the relief or make the orders sought by the moving party.

[46] In this regard I agree with and adopt the views of Deputy President Sams in Australian Municipal, Administrative, Clerical and Services Union v Sydney Water Corporation t/a Sydney Water 20in support of its submission. In that case His Honour observed:

“I would stress however, that in considering the evidence and further submissions in this matter, [the Commission] might well decide that, as a matter of discretion, it would decline to arbitrate the dispute; that is, answer the questions posed by the Union, either in the affirmative or otherwise. In my view, the use of the word ‘may’ in s.739(4) of the Act, must be construed as to mean that [the Commission] would not choose to arbitrate a dispute, where the claims in dispute are so obviously untenable as unlikely to succeed or are patently beyond [the Commission’s] jurisdiction, such as the exclusion of a National Employment Standard...”. 21

[47] The present case is not a case where the claims are so obviously untenable that it could be said that they are unlikely to succeed or beyond the Commission’s jurisdiction. There may be reasons why the relief sought would not be granted or would be viewed as impracticable. However these are not matters that could properly form a basis for the exercise of the power in s.587(3) of the Act for the Commission to dismiss the substantive application and are more appropriately dealt with by the member of the Commission to whom the substantive application is allocated for arbitration.

[48] The file will be sent to the Panel Head for allocation to another member of the Commission, to hear and determine the substantive application.

DEPUTY PRESIDENT

 1   C2013/1697.

 2   C2013/5463.

 3   [2011] FWA 1894

 4   [2012] FWC 2822.

 5 Ibid at [36].

 6   Fair Work Act 2009 s. 577(a).

 7   Fair Work Act 2009 s. 577(b).

 8   Fair Work Act 2009 s. 577(b).

 9 [2012] FCA 1337 at [21].

 10   Johns v Gunns Ltd (1995) 60 IR 258 at 271; Bowling v General Motors Holden Pty Ltd (1980) 50 FLR 79; W.O. McVinish v Flight West Airlines (1998) AIRC [Print Q5910].

 11   [2014] FWC 3117.

 12   Fair Work Commission Practice Note 2/2013 published 31 March 2014.

 13   Viavattene v Health Care Australia [2013] FWCFB 2532 at [21].

 14   Johnson v Johnson (2000) 201 CLR 488 at 492.

 15   Ibid at 493.

 16   Oram v Derby Gem Pty Ltd [2011] FWA 672 at [11]; Priestly v Department of Parliamentary Services [2011] FWA 672; CFMEU v Fair Work Commission [2013] FWC 9343 and upheld on appeal [2014] FWCFB 1443.

 17   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v John Goss Pty Ltd; Re Metro Trains [2013] FWC 4034.

 18   Ebner v Official Trustee (2000) 205 CLR 337 at 345.

 19 (2011) 242 CLR 283 at [139] - [144].

 20   [2011] FWA 1894

 21 Ibid at [51].

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