DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union
v
WorkPac Pty Ltd
(C2016/4554)

Coal industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 29 MARCH 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES - Jurisdictional objection by employer to the Commission arbitrating the dispute – Finding that dispute settlement procedure validly engaged notwithstanding that employees in dispute were not identified – Finding that employer agreed to bypass initial steps in any event as provided for in dispute settlement procedure – Finding that CFMEU is not a party principal to the dispute settlement procedure and cannot make application under s. 739 in its own right – Finding that s. 586 is a source of power to amend application so that application is taken to be made by employees – Discretion will not be exercised to amend application unless CFMEU names applicants – Finding that dispute is within scope of the dispute settlement procedure and that the Commission has jurisdiction to arbitrate to determine the dispute – Lack of agreement on question for arbitration does not impact jurisdiction of the Commission to determine the dispute – Not necessary that agreement specifically provide for acceptance of arbitrated outcome for determination of the Commission to be binding – Jurisdictional objection dismissed – Dispute to be arbitrated.

BACKGROUND

[1] The Construction, Forestry, Mining and Energy Union (the CFMEU) applies to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) under the Disputes Settlement Procedure in clause 7 of the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012 (the Agreement). In summary, the dispute as notified relates to whether Field Team Member (FTMs) employed by Workpac Pty Ltd (WorkPac) as Flat Rate employees under the Agreement are entitled to be paid afternoon and night shift rates for all hours worked in circumstances where they work under what is described by the CFMEU as a “rotating roster”.

[2] ClarkKann Laywers on behalf of WorkPac corresponded with the Commission advising that it did not agree with the CFMEU’s contention that employees are entitled to be paid afternoon and night shift rates for all hours worked in circumstances where they are employed as day work FTMs. It was also contended that despite requests from WorkPac the CFMEU had not been able to advise of a concern about a particular employee and in the absence of a concern about a particular employee, the Commission did not have jurisdiction to deal with the dispute.

[3] A conciliation conference was conducted on 21 August 2016. The dispute was not resolved. On 21 September, a number of persons corresponded with the Commission stating that they are members of the CFMEU and support the application made by the CFMEU but have concerns about their identities being revealed to WorkPac. On 4 October 2016 the CFMEU advised that it wished the matter to proceed to arbitration and asked…

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 1735
Decision Date: 29 MARCH 2017

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a jurisdictional objection raised by WorkPac Pty Ltd against arbitrating a dispute with the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute centred around issues under the enterprise agreement and the National Employment Standards. WorkPac contested the Commission's jurisdiction on the basis that the dispute settlement procedure was not validly engaged as the specific employees involved in the dispute had not been identified. However, the Commission found that despite this, the dispute settlement procedure was validly engaged as WorkPac had agreed to bypass the initial steps of the procedure. Furthermore, the Commission determined that the CFMEU was not a party to the dispute settlement procedure and thus could not make an application under section 739 on behalf of the employees. The Commission found that section 586 could be a source of power to amend the application to be made by the employees, but this would only occur if the CFMEU named the applicants.

The legal issues before the Commission were whether the dispute settlement procedure was validly engaged, whether the Commission had jurisdiction to arbitrate the dispute, and whether the lack of agreement on the question for arbitration impacted the Commission's jurisdiction. The Commission found that the dispute settlement procedure was validly engaged and that the Commission had jurisdiction to arbitrate the dispute. The Commission held that the lack of agreement on the question for arbitration did not impact the Commission's jurisdiction to determine the dispute. The Commission also found that it was not necessary for the agreement to specifically provide for the acceptance of the arbitrated outcome for the determination of the Commission to be binding. The Commission dismissed the jurisdictional objection and found that the dispute would be arbitrated.

The Fair Work Commission dismissed WorkPac's jurisdictional objection and found that it had jurisdiction to arbitrate the dispute. The Commission held that the dispute settlement procedure was validly engaged and that the lack of agreement on the question for arbitration did not impact the Commission's jurisdiction. The Commission found that section 586 could be a source of power to amend the application to be made by the employees, but this would only occur if the CFMEU named the applicants. The Commission found that the dispute was within the scope of the dispute settlement procedure and that it had jurisdiction to arbitrate the dispute. The Commission held that the lack of agreement on the question for arbitration did not impact the Commission's jurisdiction to determine the dispute. The Commission also found that it was not necessary for the agreement to specifically provide for the acceptance of the arbitrated outcome for the determination of the Commission to be binding. The Commission dismissed the jurisdictional objection and found that the dispute would be arbitrated.

Orders