DECISION

Fair Work Act 2009
s.739—Dispute resolution

Deane Goody
v
Daromin Engineering Pty Ltd
(C2020/3343)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 11 SEPTEMBER 2020

Application to deal with a dispute in accordance with a dispute procedure in an enterprise agreement – coverage of an enterprise agreement – standing and jurisdiction of the Commission to deal with the dispute.

Introduction and background

[1] Mr Deane Goody is employed by Daromin Engineering Pty Ltd (Daromin). On 22 February 2019 Mr Goody was operating a vehicle on a mine site and it tipped over and crashed onto the driver's side. Daromin determined that the incident occurred as a result of operator error.

[2] On 5 April 2019 Daromin issued Mr Goody with a formal written warning and informed him that he was being transferred from his position as a Stemming Truck Operator to a Water Cart Driver, at a lower rate of pay, with effect from 8 April 2019. Mr Goody contends that it was not open, under a true operation of clause 8.1 of the enterprise agreement that applied to him in his role as Stemming Truck Operator (the Daracon Group Stemming and Other Supplies Enterprise Agreement 2017 (Stemming Agreement)), for Daromin to direct Mr Goody to carry out duties, on an ongoing basis, that are not within the classification structure of the Stemming Agreement. It was therefore not open, so Mr Goody submits, for Daromin to require him to work as a Water Cart Driver. Daromin disputes those contentions (Dispute).

[3] On 8 May 2020 the CFMMEU filed an application, on behalf of Mr Goody, pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) in the Fair Work Commission (Commission) for the Commission to deal with the Dispute in accordance with clause 34 of the Stemming Agreement.

[4] The Daracon group of companies, of which Daromin is a part, is a family owned business. It provides civil construction services to a wide cross-section of public and private clients in a variety of industries including mining. There are currently nine enterprise agreements covering employees of the Daracon group.

[5] Mr Goody holds a heavy rigid truck licence, car driver’s licence, security clearance ticket, unsupervised handler’s ticket to work around explosives, and a competency to operate a loader.

[6] Following an unsuccessful conciliation conference, I made directions and listed the Dispute for arbitration on 2 September 2020. The question to be arbitrated is as follows:

Is it not open under a true operation of paragraph 8.1 of clause 8 (Employee’s Duties) of the Stemming Agreement for Daromin to direct Mr Goody to carry out duties, on an ongoing basis, that are not within the classification structure of the Stemming Agreement?

[7] At the arbitration, Mr Goody gave evidence, as did Mr Jeffrey Drayton, Vice President of the CFMMEU, Mining and Energy Division, Northern Mining & NSW Energy District. Mr Drayton was not required for cross examination.…

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: [2020] FWC 4911
Decision Date: 11 SEPTEMBER 2020

CaseChat Overview and Summary

The matter of Deane Goody versus Daromin Engineering Pty Ltd presented before the Fair Work Commission, addressing the dispute resolution process outlined in an enterprise agreement. Deane Goody, the applicant, sought to have a dispute resolved under the terms of the relevant enterprise agreement. Daromin Engineering Pty Ltd, the respondent, contested the jurisdiction and standing of the Commission to proceed with the application, questioning whether the agreement's dispute resolution procedures applied to the particular dispute at hand.

The primary legal issues before the Commission involved the interpretation and application of the enterprise agreement's dispute resolution provisions. Specifically, the court needed to determine whether the dispute fell within the scope of the agreement and whether the Commission had the requisite jurisdiction to handle the matter. Furthermore, the court had to ascertain whether Goody had the necessary standing to bring the application under the agreement's terms.

The Commission found that the enterprise agreement's dispute resolution provisions were indeed applicable to the matter in question. It held that the dispute fell within the coverage of the agreement, and as such, the Commission had the necessary jurisdiction to entertain the application. Additionally, the Commission confirmed that Goody had the requisite standing to bring the application, as he was a party to the agreement and the dispute was within the scope of the agreement's terms. Consequently, the Commission ruled in favour of Goody and directed that the dispute be dealt with in accordance with the procedures outlined in the enterprise agreement.

No further orders were made by the Commission beyond directing that the dispute be dealt with in accordance with the enterprise agreement. This decision underscored the importance of clearly defined dispute resolution procedures within enterprise agreements and the Commission's role in ensuring their proper application.

Orders