DECISION

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

Construction, Forestry, Mining and Energy Union
v
Thiess Pty Ltd
(C2015/7351)

Coal industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 3 AUGUST 2016

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Construction of enterprise agreement – Dispute settlement procedure – Employee initiated dispute before employment terminated – Commission has jurisdiction to deal with dispute.

BACKGROUND

[1] On 17 November 2015, the Construction, Forestry, Mining and Energy Union – Mining and Energy Division (CFMEU) applied under s. 739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute in accordance with a dispute settlement procedure in the Thiess Curragh Mine Enterprise Agreement 2013 (the 2013 Agreement). The dispute relates to the selection for redundancy of a CFMEU member, Mr James Lever. On 25 November 2015 a notice of listing was issued for a conciliation conference to be conducted on 21 December 2015.

[2] On 25 November 2015, Thiess Pty Ltd (Thiess) corresponded with the Commission advising that it wished to raise a jurisdictional objection to the application on the basis that the dispute relates to an ex-employee; was not initiated while Mr Lever was in employment; and because the dispute had not been initiated in accordance with the specific provisions of the 2013 Agreement in relation to disputes about redundancy. Thiess requested that its jurisdictional objection be dealt with (by way of written submissions in the interests of expediency) before the matter was listed for conciliation.

[3] The Commission considered the request made by Thiess and determined that the Conference would proceed as listed. The parties were advised that the jurisdictional objection and any other matter relevant to the application would be dealt with at the Conference. At the request of the parties the Conference was rescheduled for 15 January 2016. Following the Conference, Directions were issued to the parties requiring the parties to file and serve material in relation to the jurisdictional objection and to advise whether any witnesses called by the other party were required for cross-examination. The matter was initially listed for hearing on 14 March but due to a series of events whereby the parties were not available, a hearing was not conducted until 14 June 2016.

[4] Thiess’ jurisdictional objection is advanced on two bases:

1. The only available course of action for the CFMEU and/or Mr Lever by virtue of clause 7.3 of the 2013 Agreement was to refer the alleged dispute to the Commission and to do so prior to the cessation of Mr Lever’s employment. Accordingly, any discussions with Thiess regarding the dispute prior to the filing of the present application were immaterial and of no effect; and

2. Further, and in the alternative, despite a discussion between Mr Lever and a member of Thiess’ management, the nature, tone and content of the discussion is insufficient to constitute the initiation by Mr Lever of a…

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: [2016] FWC 5089
Decision Date: 3 AUGUST 2016

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union initiated a dispute against Thiess Pty Ltd, involving issues relating to the interpretation and application of an enterprise agreement and the National Employment Standards. The dispute was lodged by an employee before their employment was terminated. The primary legal issue was whether the Commission had jurisdiction to hear and decide the dispute, particularly given the employee's termination of employment. The Commission needed to determine whether the dispute was about matters arising under the enterprise agreement or the NES, and if the employee's termination affected the Commission's jurisdiction.

The Commission examined the specific provisions of the Fair Work Act and relevant precedents to ascertain its jurisdiction. It considered whether the dispute was about matters arising under the enterprise agreement or the NES and whether the employee's termination of employment impacted the Commission's ability to hear the case. The Commission found that the dispute concerned matters arising under the enterprise agreement and the NES, and that the employee's termination did not deprive the Commission of jurisdiction, as the dispute was initiated before the termination and the employee's employment status did not affect the substantive issues in the dispute. The Commission concluded that it had jurisdiction to hear and decide the dispute.

The Fair Work Commission held that it had jurisdiction to hear and decide the dispute, affirming that the employee's termination did not deprive the Commission of its authority. The Commission ruled that the dispute was about matters arising under the enterprise agreement and the NES, and that the employee's termination did not impact the substantive issues. Consequently, the Commission was able to proceed with the dispute, ensuring that the employee's rights under the enterprise agreement and the NES were protected.

Orders