Daren Korwa v Van Oord Australia Pty Ltd
[2017] FWC 3639
•10 JULY 2017
| [2017] FWC 3639 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Daren Korwa
v
Van Oord Australia Pty Ltd
(C2017/845)
Dredging industry | |
DEPUTY PRESIDENT ASBURY | BRISBANE, 10 JULY 2017 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
BACKGROUND
[1] On 15 February 2017, McDuff & Daniel Lawyers, on behalf of Mr Daren Korwa, applied under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a dispute settlement procedure in the Australia Maritime Officer’s Union Contract Propelled Dredging Enterprise Agreement 2011 (the Agreement). The application states that the dispute relates to clause 18 of the Agreement and describes the dispute as follows:
“The employee was not paid an (sic) equal to ten percent (10%) of the employee’s gross ordinary time salary paid to the employee for the period of their continuous employment on project.” 1
[2] Mr Korwa seeks relief from the Commission in the form of a “determination” that the Respondent, Van Oord Australia Pty Ltd (Van Oord), pay Mr Korwa “all rightful entitlements” in accordance with clause 18 of the Agreement. That clause provides that an employee on termination of a project, will be paid 10% of the employee’s gross ordinary time salary for the period of the project.
[3] On 24 February 2017, Van Oord filed a Form F1 application seeking that the Commission dismiss Mr Korwa’s application for want of jurisdiction. Van Oord’s application is made under s.587(3)(b) of the Act and seeks that the Commission exercise the power to dismiss applications under s.587(1)(a) of the Act on the basis that Mr Korwa’s application is not made in accordance with the Act.
[4] A Conference was conducted with the parties on 3 March 2017. The matter was not resolved and Van Oord pressed its application to dismiss the application. Directions were issued on 3 March 2017 providing for the parties to file submissions and evidence in support of their respective positions. At the time the material for the Applicant was filed, he was at Dampier in Western Australia working on a ship. The Applicant’s solicitor is located at Hervey Bay in Queensland. The Respondent is located in Brisbane and its representative is located in Sydney.
[5] In those circumstances the parties were also directed to confirm if witnesses were required for cross-examination and, in the absence of any such request, the matter would be determined on the papers. On 23 March 2017, my Associate, at my request, corresponded with the parties to confirm that no request to cross-examine had been received and that the Commission would determine the matter on the papers.
[6] In support of its application to dismiss Mr Korwa’s application, Van Oord relies upon an outline of submissions and affidavit of Mr Andy May, the Regional Manager of Van Oord. Mr Korwa relies upon an outline of submissions and his own affidavit. Essentially the evidence in this matter is in written form. Where Mr Korwa claims in his Affidavit to have had discussions and written exchanges with various persons employed by Van Oord, I have accepted the contents of his Affidavit and the attachments to it on the basis that there is no evidence to the contrary and that Van Oord’s legal representative did not seek to cross-examine Mr Korwa. Similarly, I have accepted the contents of Mr May’s Affidavit and the attachments to it on the basis that Mr Korwa’s legal representative did not seek to cross-examine Mr May. The contents of both Affidavits can be accepted without the need to resolve disputed issues of fact.
APPLICATION TO DISMISS
[7] The submissions and evidence in support of the application to dismiss Mr Korwa’s application are summarised below. Mr May deposes that he is familiar with the employment details of Mr Korwa. Mr Korwa commenced employment with Van Oord from August 2010 as a qualified Chief Mate and subsequently a Master. Permanent employment terms and conditions were exchanged between the parties in September 2010 and are annexed to Mr May’s affidavit. Mr Korwa was a permanent employee working on Van Oord’s Darwin Proejct working on the vessel “Pelican”.
[8] Relevant portions of an agreement made between Van Oord and Mr Korwa are extracted as follows:
“Dear Daren (Seafarer),
With reference to the Permanent Employment Terms and Conditions as agreed with our previous letter…dated 31 August 2010, this represents an update to those Terms and Conditions.
1. Capacity in which Seafarer is Employed
The Seafarer is working for the Employer in the position of Master for Van Oord Australia Pty Ltd (or seconded to New Zealand Dredging and general Works Limited as required on board the TSHD Pelican (or any dredger in the region where the company is operational).
2. Type of employment Agreement/Termination of Employment Agreement
The Seafarer is employed full time as from the 10th September 2010 and will conclude upon notice being provided in accordance with the ‘Van Oord Australia Contract Propelled Dredging AMOU Union Collective Agreement, 2009 Appendix A Permanent Employees’ and such renewed with [The Agreement]. For either party the period of notice for termination for employment is set at four weeks.
3. Home Port
The Home Port for the Seafarer is agreed as: Hervey Bay.
4. Place of Work
The Seafarer will be employed on any vessel owned, managed or chartered by the Employer during the Project.
10. Enterprise Agreements
The Enterprise Agreement(s) between [Van Oord] and the various Australian Trade Unions are applicable as referenced in and attached to this Agreement.
11. Seafarer’s Complaint Procedure
Upon embarking the vessel, the Seafarer shall be made familiar with the Seafarer’s Complaint Procedure as part of the on board familiarisation process. The Seafarer’s participation shall be logged in the Safety and Shipboard Familiarisation Log, which is available on board.” 2
[9] The Terms and Conditions letter of 31 August 2010 was not attached to Mr May’s Affidavit. Employees of Van Oord work mostly on project based work where their engagement is project specific. Mr May states that in this scenario, when the project ends, the relevant employee’s employment finishes. Mr Korwa was not engaged on this basis in that his employment was not limited to the length of any project.
[10] On 16 January 2013, Mr Korwa emailed Ms Kathy Cook, Payroll Manager of Van Oord, about his entitlement to redundancy pay. That email stated:
“Hi Kathy,
Thanks for the Payslip. Just wanted to ask you if I still get the 10% redundancy at the end of a project and what the severance fund is and how it is calculated?” 3
[11] Also on 16 January 2013, Ms Cook replied:
“Hi Daren
Severance fund is calculated yearly on payslip and includes the ½ project allowance and 10% redundancy. For your entire entitlement this would need to be calculated manually and can be worked out if required.” 4
[12] Within a few minutes of Ms Cook’s email, Mr Korwa replied:
“Thanks for that. I would like to find out my total entitlement if its not too much trouble. I know you are very busy but just a rough estimate will do.” 5
[13] On 16 January 2013, Ms Cook requested that Ms Bianca Do, Senior Payroll Assistant, calculate Mr Korwa’s entitlement. Ms Do replied to Mr Korwa and Ms Cook on 25 January 2013 as follows:
“Hi Daren,
I have been asked to calculate your estimate 10% figure and your project allowance. Please see below.
Your 10% figure is $42,477.76
Project allowance is $15,054.30
Total severance = $57,532.06
Please bear in mind that this is a gross figure.” 6
[14] On 26 March 2013, Mr Korwa further queried with Ms Cook the tax rate on termination payments as follows:
“Good morning Kathy,
I hope you are well. Just wanted to ask you what the tax rate is for the employment termination payments and what my options are for opting to be paid out. For your info I got my permanent residence earlier this month and was wondering if you still had the details of the gentlemen who had helped you out with using super to buy a property.
Thanking you kindly” 7
[15] Shortly after this email, Ms Cook replied:
“Hi Daren,
Congratulations on your permanent residence. Tax rates depend upon the circumstances for the payment being 31.5% on termination via resignation process with leave being paid less normal taxation at highest rate due to bulk payment. If you are sent a completions letter then you would be paid a bona fide redundancy depending on the amount of time it is calculated at for up to $13k tax free and then $4k for each additional year. Your project allowance would be paid as a 31.5% etp tax amount and any balance of 10% would be subject (sic). Leave 8% subject to normal taxation rates with balance as etc with applicable tax rate. Balance of leave would then be less 31.5% taxation.” 8
[16] Mr Korwa replied to Ms Cook stating “[T]hanks very much for that”.
[17] At the beginning of 2015, Mr Korwa made further enquiries about his entitlement to redundancy, at which time Mr May sought advice from his representative, Mr Diamond. The advice that Mr May received from Mr Diamond on 14 January 2015 was provided to Mr Korwa, and was in the following terms:
“Dear Andy and Richard,
As you both know I have been looking into this matter since December 2014. My initial view was that [Mr Korwa] was not entitled to any redundancy pay but I needed to review that advice in light of the emails he had received from Kathy Cook in the pay office.
I have now thoroughly reviewed every document in this matter and also looked that (sic) history generally. Mr views are these:
(i) The dredging industry has a long history in Australia of being project based and utilising local crews on a casual basis even though those casual hirings might last for a couple of years and longer depending on the project.
(ii) The result of the project pattern of engagement was that employees were faced with periods of unemployment when projects ended. It was the exception rather than the rule for experienced dredging crew to be able to jump from project to project and maintain steady unbroken employment.
(iii) To offset these periods of unemployment the maritime unions pressed for an obtained an end-of-project redundancy payment of 10%. Its whole logic was to provide some monetary support for employees left “on the beach” when a project finished.
(iv) Daren is a valued employee of Van Oord. For this reason he was one (sic) a very small band of crew offered permanent employment. His first permanent contract was August 2010. It is crystal clear under the terms of that contract (which imported Appendix A from the AMOU EBA) that the Severance and Redundancy payment was not applicable. In September 2014 his permanent status was freshly up with a new contract which referenced his 2010 contract. I am of the view that any properly informed tribunal would conclude that Daren’s 2014 arrangement with Van Oord was still on the basis that the Severance and Redundancy payment was not applicable.
(v) Daren has not been terminated by Van Oord at any point since 2010 and his salary has been one of unbroken continuity. In simply terms, he has never been made redundant. It is true that payroll emailed him with a redundancy estimate in the mistaken belief he had an entitlement. While that action was unfortunate and indeed should never have happened, of itself it is insufficient to change the fundamental position which is that Daren has not entitlement as claimed.
I realise that Daren may be unhappy with this outcome but on the basis of the facts of the matter, the law compels a conclusion that he is not entitled to the redundancy and severance payment.” 9
[18] On 16 January 2015, Mr May provided this correspondence to Mr Korwa. There is further correspondence from Mr Diamond to Mr May dated after Mr May provided Mr Korwa with Mr Diamond’s correspondence above. Mr Diamond states:
“I have read the email below from Daren and I believe there may be a slight misunderstanding on his part. What Van Oord has done (and continues to do) with its permanent employment contracts is reference a provision in the 2009 EBA for the purpose of making it clear that the Severance and Redundancy payment does not apply to permanent crew. It is not a question of holding an employee to an expired EBA. Rather it is a question of ensuring that the language in the contract of employment is crystal clear on the fundamental point: if you are a permanent employee you do not get the benefit of unbroken employment and unbroken salary but you do not also get the benefit of a redundancy payment. That redundancy is only applicable to an employee whose continuity (and salary) is broken.
In this case Daren’s employment was not broken so, consistent with the contract, he had not entitlement to the redundancy payment.” 10
[19] The “email below from Daren” referenced by Mr Diamond is not annexed to Mr May’s application.
[20] Mr May provided this further correspondence to Mr Korwa also on 16 January 2015. Mr Korwa replied within 30 minutes, to Mr May, as follows:
“Thanks for that. Is it then safe to assume that if I was made redundant or I resigned tomorrow I wouldn’t receive any redundancy or severance payments from Van Oord Australia?” 11
[21] Mr May sought Mr Diamond’s response to Mr Korwa’s further correspondence. On 17 January 2015, Mr Diamond replied to Mr May as follows:
“I can’t tell if Daren is being cute (I imagine he is) but of course if he resigns he does NOT get redundancy pay but if Van Oord makes him redundant he does get redundancy pay. Let’s discuss on Monday.” 12
[22] Mr May provided this correspondence to Mr Korwa on 19 January 2017. 13
[23] On 31 August 2015, Mr Korwa resigned from his employment with Van Oord. His resignation letter states:
“Hope you are well. After much thought and deliberation I have decided to resign as Master of the Pelican. I’d like to thank the Management and Staff of Van Oord Australia for all the opportunities and support that I’ve received in my 5 years here.
I sincerely apologise for any inconveniences caused.” 14
[24] Mr May replied and affected Mr Korwa’s resignation, also on 31 August 2015. That reply relevantly states:
“We hereby acknowledge your Resignation as advised in your email dated 31 August 2015 and confirm that your final date of employment with Van Oord Australia will be 31 August 2015.
…
Arrangements will also be made with you in the coming week to take you through the Exit Interview Process.” 15
[25] Since the correspondence of 2015, Mr May states that no further correspondence has been received from Mr Korwa in relation to his redundancy payments. Mr May received a letter from Mr Korwa’s present representatives in November 2016, which Mr May states is 15 months after his resignation.
[26] In its submissions in support of the application to dismiss, Van Oord submits that:
“(i) For any industrial dispute to exist within the meaning of the Act there must be an employment relationship on foot.
(ii) On the evidence the Applicant resigned his employment with the Respondent on 31 August 2015 which is eighteen (18) months before the proceedings herein were commenced.
(iii) The only possible basis upon which the Applicant could legitimately assert that the Commission has jurisdiction in the matter is if a valid industrial dispute could be found to have commenced by the Applicant prior to his resignation on 31 August 2015.
(iv) There is nothing in the evidence to support any conclusion that such a dispute existed.” 16
[27] Van Oord accepts that Mr Korwa raised a “question” about his entitlement to redundancy pay in 2013 (recounted at [11] to [17] above) but submits that those emails are not a “dispute” in the context of a formal disputes procedure.
[28] Van Oord submits that the only emails on which Mr Korwa could potentially rely are those discussed at [18] to [24] above. Van Oord submits that that chain of correspondence ended in January 2015 and it is not known what Mr Korwa’s view was in relation to the position put by Van Oord. Van Oord submits however that it is irrelevant what Mr Korwa’s position was at that time because Mr Korwa took no action to enliven the matter again before his resignation on 31 August 2015 and that his resignation email of 31 August 2015 also makes no mention of any dispute.
[29] Van Oord submits that Mr Korwa took no steps to agitate this dispute until he instructed solicitors to correspond with Van Oord in November 2016, 15 months after the employment relationship ended.
[30] Van Oord distinguished Mr Korwa’s application to the circumstances arising in Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd 17 (Thiess) in which it was determined that the Commission did have jurisdiction to deal with a dispute despite the fact that the employee’s employment had ended. In that matter, Van Oord submits that the findings of the Commission were that the employee had made it clear that he disputed the position of Thiess in respect of his selection for redundancy. Van Oord also submits in Thiess the time between the employee’s employment ending and a dispute being filed in the Commission was less than one month; in this matter there is a period of 15 or so months before Mr Korwa took any further steps.
SUBMISSIONS AND EVIDENCE IN OPPOSTION
[31] Mr Korwa opposes the application by Van Oord seeking that his application be dismissed. Mr Korwa accepts that the correspondence attached to Mr May’s affidavit and recounted above is correct. 18 Mr Korwa provides some further evidence as to how the matter came to be discussed with Mr May and Mr Diamond in the early 2015 correspondence.
[32] On 11 December 2014, Mr Korwa states that he “raised the issue” 19of the redundancy figure on his payslip being removed. To deal with this query, Mr Korwa was referred to Ms Julie MacPhail, Human Resources Manager. Mr Korwa states that Ms MacPhail advised Mr Korwa that he was not entitled to the 10% entitlement and that he could “seek advice from Fair Work”.
[33] Mr Korwa raised the issue with Mr Richard Kemps, Industrial Relations Manager, who passed the enquiry to Mr May and Mr Diamond. Attached to Mr Korwa’s affidavit is an email from Mr Kemps to Mr Diamond and Mr May dated 15 December 2014 that states:
“Mark, as discussed can you advise as to the entitlement of redundancy for Daren Korwa, I seek independent and impartial advice as Daren is a long term colleague and employee of Van Oord, unfortunately he approached others within our team for the enquiry, which I was unaware of until now.
The following history applies:
1 Daren Korwa returned to Van Oord in 2010 under a full time contract
2 Daren Korwa is covered by the AMOU agreement
3 The expired agreement was replaced by the 2011 agreement after Daren Korwa’s initial employment contract was signed off
4 Daren followed up an enquiry as to his entitlement to Redundancy under the EBA
5 Daren was informed he was not entitled to The (sic) 10% component unless he was genuinely retrenched, and if he did not agree he was advised he could seek advice from FWC (???)
6 Following that discussion he sought advice from me hence this email.” 20
[34] Mr Korwa states that he advised Mr Kemps that he did not agree with the response given to him by Ms MacPhail and Payroll staff prior to Ms MacPhail, to the effect that he was not entitled to the 10% component. Mr Korwa states that he was of this view “…as [he] had letters from the Employer stating that I was employed under the 2011 EBA” 21.
[35] Mr Korwa then received a response from Mr May containing Mr Diamond’s advice set out at [17] above. Mr Korwa states that he carried on “questioning” Mr May “asking” if the provisions of the expired agreement were being applied. Mr Korwa states that he contacted “Fair Work” by telephone and was advised that the Agreement applied to him. Mr Korwa does not state when this contact was made with the Commission or to whom he spoke.
[36] Mr Korwa also states that he was not in a position to “continue arguing” the point as he did not wish to jeopardise his position with Van Oord. Mr Korwa submits that in undertaking an exit interview with Van Oord he “made it very clear” that the reason for his resignation was the “removal of the payment of 10% entitlement” and this is evidenced by a written record of his exit interview. A very poor copy of this Exit Interview is attached to Mr Korwa’s statement but is illegible. For present purposes I will accept that it says what Mr Korwa has said in his Affidavit, and note that this was not disputed.
[37] Mr Korwa gives evidence that he has not taken further steps following his resignation due to a number of personal circumstances, which it is not necessary to recount. Mr Korwa has not given any specific evidence about how these personal circumstances prevented him from pursuing this matter. Mr Korwa states that at no time has he accepted the employer’s determination such that the matter came to an end.
[38] Mr Korwa accepts that there was a 12 month delay in continuing the “ongoing” argument but that this delay causes no prejudice to Van Oord and nor has any been identified by Van Oord. Mr Korwa submits that he has put the issue into dispute and has never accepted the advice of the employer as resolving the matter.
[39] Mr Korwa submits that the Agreement does not provide for a timeframe in which dispute may be progressed to the Commission. That Mr Korwa referred to the matter of the 10% component in his Exit Interview is said to indicate that Van Oord was aware that Mr Korwa did not accept their position in respect of it.
[40] In relation to Thiess, Mr Korwa refers to paragraph 57 in which it was determined that the delay in employment ending and the matter ultimately being filed in the Commission was not relevant to determining the jurisdictional objection.
[41] Mr Korwa submits that the matter was put into dispute in both written and oral form prior to the cessation of employment and that the Commission has jurisdiction to deal with his application under s.739 of the Act.
LEGISLATION AND AGREEMENT PROVISIONS
[42] Mr Korwa’s application is made under s.739 of the Act, which 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.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(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.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(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.”
[43] Section 738 provides:
“738 Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”
[44] Mr Korwa makes his application under an relies upon an enterprise agreement that includes a term providing a procedure for dealing with disputes. For the purposes of Van Oord’s application, the Agreement relevantly provides as follows:
“3. DEFINITIONS
…
“employee” means an employee who is employed by Van Oord Australia Pty. Ltd to work on or in connection with a dredging project in the classifications contained in clause 14. Employees are typically employed for the duration of dredging project.
“employer” means Van Oord Australia Pty. Ltd.
4. PARTIES TO AGREEMENT
The Agreement applies to the following parties:
4.1 Van Oord Australia Pty. Ltd…(“the employer” or “the Company”); and
4.2 The Australian Maritime Officers’ Union…(“the union”); and
4.3 Employees of the employer who are members or who are eligible to be members of the said union in relation to work on vessels owned or operated by the employer.
5. SCOPE AND APPLICATION
5.1 This Agreement is binding on the parties to this agreement and employees engaged in the classifications set out in the Agreement in or in connection with dredging in Australia including travelling to or from a dumping area, or whilst moving from port to port.
7. OBJECTS OF THE AGREEMENT
7.1 Utilising the Settlement of Disputes Procedure to resolve grievances or disputes…
9. SETTLEMENT OF DISPUTES PROCEDURE
9.1 In the event of any matter, breach and/or dispute arising under this Agreement, and / or in relation to the interpretation or application of this Agreement or the National Employment Standards, or any matter arising in the course of employment, the following procedure will apply.
Step 1: The matter will in the first instance be discussed between the Employee/s and the immediate Supervisor involved.
If the matter remains unresolved;
Step 2: It will be referred for discussion between the employee’s Union delegate or other nominated representative and the local supervisor.
If the matter remains unresolved;
Step 3: It will be referred for discussion between the designated AMOU Official and the nominated Company representative.
If the matter remains unresolved;
Step 4: In the event that the preceding steps have failed to resolve the matter and/or dispute, any person bound/covered by this Agreement or nominated other representative may refer the dispute to Fair Work Australia (FWA) for conciliation and / or arbitration pursuant to Section 739 and Section 595 of the Act.
9.2 It is the intention of the parties that in fulfilment of this Clause, FWA shall exercise any of its powers and functions including but not limited to those normally associated with conciliation and private arbitration and Section 739(4). Accordingly, the parties expressly confer upon FWA, a full range of powers and functions necessary to resolve the matter or matters in dispute or in breach.
9.3 For the avoidance of doubt, the parties consent to the FWA exercising any powers or functions reasonably incidental to the conciliation and/or arbitration of the dispute.
9.4 The parties bound/covered by this Agreement agree that any decision or determination of FWA under this Clause shall be binding and final by virtue of this Clause but note that a decision of a single member of FWA can be appealed to the Full Bench of FWA.
9.5 By agreement between the parties bound/covered by this Agreement any or all of the above steps may be bypassed in the interest of speedy resolution of the dispute and / or matter. In any event, if the dispute and/ matter has not been resolved within ten (10) days of the conclusion of Step 1 either party may initiate Step 4.”
CONSIDERATION
[45] I do not accept the submissions advanced by Van Oord to the effect that for any industrial dispute to exist there must be an employment relationship on foot or that for the Commission to have jurisdiction, a valid industrial dispute must be found to have been commenced by Mr Korwa prior to his resignation.
[46] The Commission’s powers to deal with disputes derive, in the case of an enterprise agreement, from the terms of the disputes resolution procedure contained in the enterprise agreement. As summarised in the decision of a Full Bench of the Commission in CFMEU v North Goonyella Coal Mines Pty Ltd 22the Commission may deal with a dispute only on application of a party to the dispute (s.739(6)); is prohibited from exercising any powers limited by the dispute resolution procedure (s.739(3)); may arbitrate only if the agreed dispute resolution procedure permits it to do so (s.739(4)); and must not make a decision that is inconsistent with the Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)).
[47] To the extent that the Act and the terms of a dispute settlement procedure in an enterprise agreement authorise the Commission to make decisions as to the legal rights and liabilities of the parties to an agreement, it authorises the Commission to exercise a power of private arbitration. 23
[48] It is well established that a former employee is not prevented from pursing a dispute under a dispute settlement procedure in an enterprise agreement, provided that the issue was in dispute and progressed in accordance with the terms of the procedure before employment ended, and the dispute settlement procedure does not preclude a person no longer in employment from accessing a remedy for the dispute. 24 Other issues – which are not relevant in the present case – may arise where the enterprise agreement or other instrument under which the dispute was commenced has ceased to operate after the dispute is commenced but before it is resolved.
[49] In the present case, it is not disputed that the Agreement is in operation and that it applies to Mr Korwa. The issues in dispute are whether:
● The terms of the Dispute Settlement Procedure in clause 9 of the Agreement allow Mr Korwa, who is no longer employed by Van Oord, to progress his dispute by referring it to the Commission under stage 4 of the Procedure for conciliation or arbitration; and
● Mr Korwa engaged the Dispute Procedure in the manner provided for in its terms so that the Commission has jurisdiction to deal with his application.
[50] Unfortunately the parties did not focus their submissions on the specific terms of clause 9 of the Agreement. In clauses 9.1 Steps 1, 2 and 3 of the Procedure refer to “Employee/s”, supervisors and officials of the relevant Union. At Step 4, where the matter and/or dispute has not been resolved by way of the preceding steps, “any person bound/covered by the Agreement or nominated other representative…” may refer the dispute to the Commission. It is arguable that as Mr Korwa was not employed at the time his application under s. 739 of the Act was made, he was not bound or covered by the Agreement at that time and could not refer the matter to the Commission for conciliation or arbitration, notwithstanding that he may have engaged the Dispute Procedure while he was still employed.
[51] Given that this point was not argued, I will consider whether Mr Korwa did engage the Dispute Procedure while he was employed. It is axiomatic that the procedure in question is a “Dispute Procedure”. By virtue of clause 9.1, the Procedure is intended to apply to “any matter, breach and/or dispute in relation to the interpretation or application of this Agreement…” The non-payment of the severance payment in clause 18 of the Agreement is a matter that can be dealt with under the procedure.
[52] The procedure has a number of Steps. The first Step is that the employee discusses the matter with an immediate supervisor. The Procedure then requires that the dispute is referred to a local supervisor and then to the “nominated company representative”. The Steps of the procedure are in my view predicated on the employee who raises the dispute indicating that from his or her perspective the matter is unresolved and that it is referred to the next step. While an employee who is self-represented may not specifically invoke precise terms of a dispute settlement procedure or specifically state that a matter is sought to be escalated, more is required than simply asking questions about a matter to engage a dispute settlement procedure. There must at least be a clear indication that the employee is not satisfied with the response (or lack thereof) and intends to progress the matter.
[53] I accept that Mr Korwa asked questions about his entitlement to the severance payment and that he directed those questions to a number of persons including Mr May. I do not accept that the questions were sufficient to engage the Dispute Settlement Procedure. When Mr Korwa was told that he was not entitled to the payment, at best, he kept asking questions. On 15 January 2015 Mr Korwa sought confirmation about whether he would receive the redundancy payment if he was made redundant or resigned. On 19 January 2015 Mr Korwa was told he would receive redundancy payments if he was made redundant and would not receive such payments if he resigned. Mr Korwa made no response to this communication, and resigned some seven months later on 31 August 2016. In the intervening period before he resigned, Mr Korwa took no step to escalate the matter under the Dispute Settlement Procedure so that the Procedure was engaged in a way that would have entitled Mr Korwa to refer the non-payment of the severance amount to the Commission (notwithstanding my view about whether as a former employee he could do so) as provided in Step 4.
[54] The fact that Mr Korwa made it clear in his exit interview that his resignation from Van Oord was because of the removal of the severance payment, does not constitute an escalation of the matter in accordance with the Dispute Settlement Procedure. The fact that Mr Korwa can explain the delay between ceasing employment and making his application to the Commission, and that the delay does not prejudice the Company, is not relevant to the question of whether the Commission has jurisdiction to deal with his application. What is relevant is that Mr Korwa did not engage the Dispute Procedure prior to the cessation of his employment.
[55] Mr Korwa cannot engage the dispute settlement procedure under the Agreement retrospectively after his employment has ceased by simply establishing that he asked questions about a matter that would have been within the scope of the procedure had he engaged it during employment.
[56] In the circumstances it is not necessary to determine whether Mr Korwa was entitled to refer the matter to the Commission pursuant to Step 4 of the Procedure, once his employment had ceased.
CONCLUSION
[57] The application by Van Oord Australia Pty Ltd for Mr Korwa’s application in C2017/845 to be dismissed is allowed.
[58] Mr Korwa’s application for the Commission to deal with a dispute in accordance with the Dispute Settlement Procedure in the Van Oord Australia Contract Propelled Dredging AMOU Enterprise Agreement 2012 is dismissed and an Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr J.K.McDuff of McDuff & Daniel Lawyers for the Applicant.
Mr M.Diamond of Workplace Advisory Group for the Respondent.
Hearing details:
On the papers.
Final written submissions:
10 March 2017.
Respondent.
20 March 2017.
Applicant.
1 Form F10 Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, filed 15 February 2017, item 2.1.
2 Affidavit of Mr Andy May, Annexure A.
3 Affidavit of Mr Andy May, Annexure B.
4 Ibid.
5 Ibid.
6 Ibid.
7 Affidavit of Mr Andy May, Annexure C.
8 Ibid.
9 Affidavit of Mr Andy May, Annexure D.
10 Ibid.
11 Ibid.
12 Ibid.
13 Ibid.
14 Affidavit of Mr Andy May, Annexure E.
15 Affidavit of Mr Andy May, Annexure F.
16 Respondent Submissions, dated 9 March 2017, at 3.
17 [2016] FWC 5089..
18 Affidavit of Mr Daren Korwa at 3.
19 Ibid at 4.
20 Ibid at DK1.
21 Ibid at 6.
22 [2015] FWCFB 5619.
23 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (‘Private Arbitration Case’) (2000) 203 CLR 645 [31] – [35].
24 See for example CFMEU v North Goonyella Coal Mines Pty Ltd [2015] FWCFB 5619 ING Administration Pty Ltd v Jajoo PR974301 4 December 2006.
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