Deane Goody v Daromin Engineering Pty Ltd

[2020] FWC 4911

[2020] FWC 4911

FAIR WORK COMMISSION

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. Daromin adduced evidence from Ms Emily Clare, HR Business Partner, and Mr Adam Kelly, Director of Business Development.

Chronology of relevant events

[8] The following chronology of relevant events puts the Dispute in its proper context:

Date

Event

14 July 2008

Mr Goody commences employment with Daromin in the position of “Quarry Worker (Stemming Truck Driver)”. He is based at Daromin’s Ravensworth depot, but works at various mine sites in the Hunter Valley and is covered by the Daracon Group, AWU Quarries Enterprise Agreement 2004-2006 (2004 Quarries Agreement). Stemming is a process whereby material known as aggregate is placed on top of explosives in drilled holes. The explosives are then detonated to destabilise overburden prior to its removal at an open cut coal mine. The operator of a stemming truck loads stemming material into the truck and deposits it into blast holes under the instruction of a shotfirer.

10 November 2008

Mr Goody signs a letter confirming his permanent employment, following successful completion of his probationary period, with Daromin in the position of “Civil Construction Worker (Stemming Truck Driver)” (Stemming Truck Operator), based at Daromin’s Ravensworth depot and covered by the 2004 Quarries Agreement.

2009

Mr Goody remains employed by Daromin but is based at the Bulga Open Cut mine (Mine) as a Stemming Truck Operator and continues working at the Mine until the incident on 22 February 2019

4 September 2014

Daracon Group Stemming and Other Supplies Enterprise Agreement 2014-2017 commences operation. Mr Goody is covered by this enterprise agreement in his position as Stemming Truck Operator.

8 November 2016

Mr Goody is counselled for using his mobile phone, in contravention of Daromin’s Mobile Phone Policy and the Mine’s Mobile Phone Policy

27 June 2018

Stemming Agreement commences to operate with a nominal expiry date of 1 September 2020. Mr Goody is covered by the Stemming Agreement in his position as Stemming Truck Operator

22 February 2019

Serious incident occurred at the Mine where the vehicle being driven by Mr Goody tipped over and crashed onto the driver's side

25 February 2019

Fit for suitable duties medical certificate issued for Mr Goody. Suitable duties are provided to Mr Goody

25 March 2019

Fit for pre-injury duties certificate issued for Mr Goody

3 April 2019

Findings meeting held by Daromin with Mr Goody

5 April 2019

Disciplinary outcome meeting held by Daromin with Mr Goody. The outcome of the meeting is that Mr Goody is given a formal written warning letter dated 5 April 2019 and is transferred to the position of Water Cart Driver (TW3), at a reduced rate of pay, based at Daromin’s Beresfield depot, with effect from 8 April 2019. Mr Goody does not sign the 5 April 2019 letter. At the disciplinary outcome meeting, Mr Drayton, on behalf of Mr Goody, disputes the transfer and contends that the Stemming Agreement does not allow the transfer to happen. The Daracon Group Transport Enterprise Agreement 2018 (Transport Agreement) covers Mr Goody’s position of Water Cart Driver.

8 April 2019 to 10 April 2019

Mr Goody is unfit for any work

10 April 2019 to 7 May 2019

Unfit/no capacity medical certificates issued for Mr Goody

8 May 2019 to 3 December 2019

Fit for suitable duties medical certificates issued for Mr Goody. Suitable duties are provided to Mr Goody for part of this period

30 October 2019

Daromin informs Mr Goody that it is considering terminating his employment because he is unable to perform the inherent requirements of his role as a truck driver

12 November 2019

Daromin informs Mr Goody that it will not be acting on the show cause notice, and will instead give Mr Goody time to have his shoulder surgery, monitor his recovery, and provide suitable duyies in the meantime

18 December 2019 to 12 March 2020

Fit for suitable duties medical certificates issued for Mr Goody. Suitable duties are provided to Mr Goody, including cleaning Daromin’s workshops at its Beresfield and Mt Thorley depots, undertaking paperwork, working in a storeroom, and sitting in a water cart to observe a qualified operator. Mr Goody does not object to undertaking these duties because he believes he has an obligation to perform such duties as part of his return to work plan

12 February 2020 to 12 March 2020

Mr Goody is certified as fit to drive a water cart for 10 hours a day, three days a week

2 March 2020

Mr Goody operates a water cart, for the first time, at Summerhill Waste Management Centre

12 March 2020 to 26 March 2020

Mr Goody is certified as fit to drive a water cart for 10 hours a day, five days a week

24 March 2020

Mr Goody operates a water cart for Daromin at Williamtown airport

26 March 2020

Fit for pre-injury duties certificate issued for Mr Goody

Mr Goody’s pay rate is reduced from the SD2 rate under the Stemming Agreement (which had been maintained despite the disciplinary outcome because of Mr Goody’s workers’ compensation claim, which was on foot) to the TW3 rate in accordance with the Transport Agreement.

26 March 2020 – 2 September 2020

Mr Goody works for Daromin as a Water Cart Driver. He is paid at the TW3 rate under the Transport Agreement

1 April 2020

Mr Drayton informs Daromin, in writing, that Mr Goody disputes the forced transfer of his employment from the Stemming Agreement “to the current role he performs”. Mr Drayton requests that a meeting be arranged in accordance with clause 34 of the Stemming Agreement

8 April 2020

A meeting is held between Mr Goody, Mr Drayton and Mr Kelly (on behalf of Daromin) to try to resolve the Dispute. The Dispute is not resolved

8 May 2020

The CFMMEU files the Application, on behalf of Mr Goody, in the Commission

27 May 2020

Conciliation of the Dispute before the Commission. Dispute not resolved

4 June 2020

The CFMMEU, on behalf of Mr Goody, requests that the Dispute proceed to arbitration before the Commission

10 June 2020

Directions hearing before the Commission. Directions are made preparing the matter for arbitration

2 September 2020

Arbitration hearing before the Commission

Daromin’s contentions

[9] Daromin submits that the Commission does not have jurisdiction to deal with the Application because Mr Goody was not covered by the Stemming Agreement at the time he initiated the Dispute. Alternatively, if the Commission does have jurisdiction, Daromin submits that the disciplinary outcome it imposed on Mr Goody by letter dated 5 April 2019 was a fair and just exercise of its managerial prerogative, with which the Commission should not interfere. Further, Daromin submits that if it was not entitled to transfer Mr Goody to the position of Water Cart Driver, then it repudiated Mr Goody’s employment contract by doing so and Mr Goody accepted the repudiation, with the result that Mr Goody has been employed under a new contract of employment since 8 April 2019 as a Water Cart Driver and covered by the Transport Agreement. It follows, so Daromin submits, that Mr Goody does not have standing to make the Application.

Relevant provisions of the Stemming Agreement

[10] The following provisions of the Stemming Agreement are relevant to the Dispute:

“2. PARTIES

The Parties to this Agreement are:

a) Daromin Engineering Pty Limited (hereinafter referred to as Daromin, Daracon, the employer, the Company or the Group);

b) All employees of the Company engaged in the activities defined in Clause 3 Application of this Agreement; and

c) The Construction, Forestry, Mining and Energy Union (the CFMEU)

3. APPLICATION

This Agreement covers all employees of the Company employed to drive stemming vehicles and associated vehicles involved in the delivery of stemming and other quarried materials.

…

8. EMPLOYEE DUTIES

8.1 The Employer may direct an Employee to carry out such duties as are within the Employee’s skills, competence and training consistent with the classification structure of the Agreement provided they are within safe working practices and statutory requirements.

8.2 Employees must undertake training that the Employer reasonably requires and may include training to maintain their classification or to acquire new competencies.

8.3 All Employees with a competency may be required to demonstrate and familiarise other Employees in that competency.

…

34. SETTLEMENT OF DISPUTES

The Parties acknowledge that this Agreement is designed to place maximum emphasis on avoidance of stoppages and/or industrial disputation and the expeditious settlement of grievances and/or disputation where it does occur.

34.1 If a dispute relates to: (a) a matter arising under the agreement; or (b) the National Employment Standards; this term sets out procedures to settle the dispute.

34.2 An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.

34.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.

34.4 If the matter cannot be solved, a party may refer the matter to the Fair Work Commission.

34.5 The Fair Work Commission may deal with the dispute in 2 stages:

(a) the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:

(i) Arbitrate the dispute; and

(ii) Make a determination that is binding on the parties.

Note If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act.

A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.

34.6 While the parties are trying to resolve the dispute using the procedures in this term:

(a) an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

(b) an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:

(i) the work is not safe; or

(ii) applicable occupational health and safety legislation would not permit the work to be performed; or

(iii) the work is not appropriate for the employee to perform; or

(iv) there are other reasonable grounds for the employee to refuse to comply with the direction.

The parties to the dispute agree to be bound by a decision made by the Fair Work Commission. The FWC may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective. The decision of the FWC will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench. To the extent, if at all, the Agreement covers the Company and Employees in respect of “building work” for the purposes of the Code for the Tendering and Performance of Building Work 2016 (“Code”), any decision made by the FWC must be consistent with the Code, as amended or replaced from time to time.

34.7 Work to continue

It is a term of this Agreement that while the dispute resolution procedure is being conducted work shall continue normally unless an Employee has a reasonable concern about an imminent risk to his or her health or safety. The Employee or their representative will contact the Senior Management of the Company prior to the stoppage of work.

34.8 Safety Issues

Where a safety problem does exist, work shall cease only in the affected area. Work shall continue elsewhere unless access to safe working areas is unsafe. However, any problem of access shall be immediately rectified and the workers will use any alternate safe access to such working areas while the usual access is being rectified.

Should the whole project be in dispute on the basis that the whole project is thought to be unsafe the following procedures shall apply: -

(a) Employees shall not leave the site but shall remain in the sheds,

(b) Immediate inspections of the disputed areas involving both the Company and Employee safety representatives shall take place in the order of priority nominated by the Company. These inspections shall identify what safety rectification needs to take place in the disputed areas,

(c) All Employees who can be gainfully employed shall immediately rectify those items that need to be rectified,

(d) On verification that rectification has been completed productive work shall resume. Such resumption of work shall take place in stages as each area has been cleared,

(e) No Employee will be required to work in any area where there is a genuine fear of risk of injury,

(f) Any disagreements between the Company and the Employee representatives shall be determined by the recommendation of a WorkCover NSW Inspector. Providing that the Company may utilise the services of their nominated risk management advisor in such disagreement, and

(g) The parties to this Agreement recognise that rectification of hazards will be a priority.

…

APPENDIX A – HOURLY BASE RATES OF PAY

Column 1	Column 2	Column 3	Column 4
Classification	Existing rate	Approval by FWC (4%)	1 Sept 2018 (2.5%)	1 Sept 2019 (2.5%)
SD1	$25.98	$27.02	$27.70	$28.39
SD2	$30.59	$31.81	$32.61	$33.43

APPENDIX B - CLASSIFICATION STRUCTURE

Driver SD1

At this grade may perform a wider range of tasks and call upon higher level of skill. A minimal level of experience and basic competency in a limited range of tasks is required.

Duties

Indicative of the tasks an employee at this level may perform include:

•  Driver of stemming vehicle with basic competence.

Criteria

•  The ability to work and follow instructions,

•  identify materials commonly used in the stemming operation

Responsibility

•  An employee at this level will perform routine tasks and use minimal judgement to the level of their skill and training,

•  Work under general supervision either individually or in a team environment.

Training

•  At this level an employee will undertake up to twelve (12) months on the job training.

Driver SD2

The Company, in its sole discretion, will determine when an employee is classified as a Stemming Driver SD2.

Workers at this level perform a wider range of tasks and call upon a higher level of skill than SD1.

Duties

Indicative of the tasks an employee at this level may perform include:

•  Driver of vehicle with confirmed competency

•  Operator of loader to self load with confirmed competency.

Criteria

A worker will demonstrate the ability to:

•  work and follow instructions with minimal supervision,

•  demonstrated ability to carry out safety inspections in accordance with the Company Safety Management Plan,

•  identify materials commonly used in the stemming operation.

Responsibility

•  An employee at this level will:

   - work co-operatively to ensure that no one gets hurt,

   - Demonstrated ability to carry out safety inspections in accordance with the Company Safety Management Plan,

   - perform routine tasks and use judgement under general supervision to the level of their skill and training.

Training

•  At this level an employee may be provided with training to allow a wider range of duties to be performed,

•  An employee at this level may be provided with appropriate training to competently perform work at higher grades.”

[11] Clause 34 of the Stemming Agreement uses the term “Parties” in the opening paragraph of the provision and the term “party” or “parties” in clauses 34.2, 34.3, 34.4 and 34.6. The capitalised term “Parties” is defined in clause 2 of the Stemming Agreement to mean Daromin, employees of Daromin engaged in the activities defined in clause 3, and the CFMMEU.

[12] It is clear from the context that the use of the capitalised term “Parties” in the opening paragraph of the clause 34 is intended to be a reference to Daromin, employees covered by the Stemming Agreement, and the CFMMEU. In particular, the opening paragraph of clause 34 is an acknowledgement by the “Parties” to the Stemming Agreement that it is “designed to place maximum emphasis on avoidance of stoppages and/or industrial disputation …”

[13] Clauses 34.2 and 34.3 refer to “parties to the dispute” in the context of establishing early steps to be taken to resolve a dispute. Clause 34.4 permits a “party” to “refer the matter to the Fair Work Commission”. Having regard to the context of this step in the dispute resolution process, following immediately as it does after discussions between “parties to the dispute” (clause 34.3), and the use of the non-capitalised term “party”, it is clear in my view that the proper construction of the word “party” in clause 34.4 is a party to the dispute, not a Party to the Stemming Agreement.

Jurisdiction and standing

[14] There is no dispute that Mr Goody, in his position of Stemming Truck Operator, was covered by the Stemming Agreement from the commencement of its operation on 27 June 2018 until 7 April 2019.

[15] With effect from 8 April 2019, Mr Goody was transferred to the position of Water Cart Driver, based at Daromin’s Beresfield depot. Mr Goody contends that the transfer was not open to Daromin under the true operation of clause 8.1 of the Stemming Agreement. Mr Drayton, on behalf of Mr Goody, disputed the transfer on the same day as Mr Goody was informed about it (5 April 2019).

[16] Because the Dispute concerns whether the transfer of Mr Goody to the position of Water Cart Driver was open to Daromin under the true operation of clause 8.1 of the Stemming Agreement, it is a dispute which “relates to a matter arising under the agreement” within the meaning of clause 34.1 of the Stemming Agreement. To that extent, the Dispute is within the scope of disputes which may be dealt with in accordance with the dispute settlement procedure in clause 34 of the Stemming Agreement. However, the question of whether the Commission has jurisdiction to determine the Dispute depends on the rights and entitlements set out in clauses 34.3 to 34.5 of the Stemming Agreement.

[17] Mr Goody purported to take the following steps under clause 34 of the Stemming Agreement:

•  On 8 April 2020 Mr Goody participated in discussions with a relevant manager, Mr Kelly, to try to resolve the Dispute at the workplace level, in accordance with clause 34.3 of the Stemming Agreement.

•  On 8 May 2020 Mr Goody purported to exercise his entitlement under clause 34.4 of the Stemming Agreement to refer the Dispute to the Commission. Mr Goody did this by filing his Application in the Commission.

•  On 27 May 2020 Mr Goody participated in a conciliation conference before the Commission, in accordance with clause 34.5(a) of the Stemming Agreement.

•  On 2 September 2020 Mr Goody participated in an arbitration before the Commission, in accordance with clause 34.5(b) of the Stemming Agreement.

[18] An enterprise agreement such as the Stemming Agreement does not give a person an entitlement and does not impose obligations on a person unless the agreement applies to the person (s 51(1) and (2) of the Act). An enterprise agreement does not apply to a person unless, inter alia, the agreement covers the person (s 52(1)(b) of the Act). An enterprise agreement covers an “employee or employer if the agreement is expressed to cover (however described) the employee or the employer” (s 53(1) of the Act). The manner in which or the criteria by which an enterprise agreement may be expressed to cover an employee is not conditioned or qualified. That is left to the enterprise agreement to specify, save that orders may be made under the Act which may regulate the extent to which an enterprise agreement covers an employee. 1 Accordingly, in order for Mr Goody to have had an entitlement under the Stemming Agreement to exercise any rights under it, including under clause 34, the Stemming Agreement must have covered Mr Goody at the time.

[19] The Stemming Agreement covers “all employees of the Company employed to drive stemming vehicles and associated vehicles involved in the delivery of stemming and other quarried materials” (clause 3 of the Stemming Agreement). Daromin contends that one of the reasons Mr Goody was not covered by the Stemming Agreement after 8 April 2019 is because, if Daromin was not entitled to transfer Mr Goody to the position of Water Cart Driver under the terms of the Stemming Agreement, then Daromin repudiated Mr Goody’s employment contract on 8 April 2019 by imposing the transfer from Stemming Truck Operator to Water Cart Driver. Daromin further contends that Mr Goody accepted the repudiation, with the result that he was employed under a new contract of employment from 8 April 2019, the terms of which included that Mr Goody would be employed as a Water Cart Driver. Accepting, without deciding, that Daromin repudiated Mr Goody’s employment contract by unilaterally changing his position from Stemming Truck Operator to Water Cart Driver, at a lower rate of pay, I reject the contention that Mr Goody accepted Daromin’s repudiation of the employment contract. As soon as the change in position was notified to Mr Goody on 5 April 2019, his representative (Mr Drayton) disputed it. Mr Goody’s conduct in undertaking suitable duties from 8 May 2019 until 25 March 2020, including some observation of an experienced operator driving a water cart and some driving of a water cart, did not constitute acceptance of the repudiation. Mr Goody undertook those suitable duties because he was obliged to do so under applicable workers’ compensation legislation. Very shortly after Mr Goody was certified as fit for his pre-injury duties on 26 March 2020, Mr Drayton sought to engage in further discussions with Daromin and to follow the steps in the dispute settlement procedure to pursue Mr Goody’s dispute of the transfer to the position of Water Cart Driver. Mr Goody has at all times maintained his opposition to that transfer. He did not accept the repudiation. I therefore reject Daromin’s argument that Mr Goody was not employed to drive stemming vehicles after April 2019 because he was employed under a new contract of employment from 8 April 2019, the terms of which included that Mr Goody would be employed as a Water Cart Driver. No such agreement was made.

[20] Mr Goody contends that he was, and remains, “employed to drive stemming vehicles …” within the meaning of clause 3 of the Stemming Agreement because at all times he has been a party to an employment contract pursuant to which his position was that of a Stemming Truck Operator and Daromin had no right under his contract or the Stemming Agreement to transfer him to a different position without his consent, which he has not given.

[21] It is necessary to construe the word “employed” in clause 3 of the Stemming Agreement. The word “employment” has several connotations. It can mean a particular job or alternatively, it can be used to refer to the state of being employed. 2 Similarly, the word “employed” can mean a particular job or it can be used to refer to the state of being employed. In my view, the word “employed” in clause 3 of the Stemming Agreement means a particular job. First, clause 3 of the Stemming Agreement refers to “all employees of the Company employed to drive stemming vehicles”. It is clear from the first part of this expression that an employee must be an employee of “the Company” in order to be covered by the Stemming Agreement. It follows that the reference to “employed” immediately after “employees of the Company” in clause 3 must mean something other than the state of being employed. To conclude otherwise would give the word “employed” no work to do. Secondly, clause 3 must be read in context with clause 2(b), which defines the “Parties” to the Stemming Agreement to include “All employees of the Company engaged in the activities defined in clause 3 Application of this Agreement”. The reference to the “activities defined in clause 3” suggests that the word “employed” in clause 3 means a particular job. Further, the expression “engaged in the activities defined in clause 3” indicates that the focus of the inquiry when considering the issue of coverage must be on the activities in which an employee is engaged when undertaking a particular job, as distinct from a contractual right to work in a particular position. Finally, it would be an unusual result if the correct construction of the Stemming Agreement’s coverage was, in essence, that the agreement covered employees engaged in the relevant activities, but only subject to the employee’s contractual rights.

[22] Appling the foregoing analysis to Mr Goody’s circumstances following the incident on 22 February 2019, I find that by no later than 26 March 2020 Mr Goody was no longer “employed to drive stemming vehicles and associated vehicles involved in the delivery of stemming and other quarried materials” within the meaning of clause 3 of the Stemming Agreement. I have chosen the date of 26 March 2020 because that is the date on which Mr Goody was certified as fit to work without restrictions and is the date from which Mr Goody was assigned to, and engaged in, the activities of a Water Cart Driver on a permanent basis. In the earlier period from 8 April 2019 until 25 March 2020, Mr Goody undertook a range of suitable duties as part of his return to work program. It may be argued that Mr Goody had a contractual right to be employed as a Stemming Truck Operator at all times after 5 April 2019 or a cause of action for breach of contract in connection with the unilateral decision by Daromin to transfer him to the position of Water Cart Driver. However, it is clear in my view that from no later than 26 March 2020 Mr Goody was, as a matter of fact, employed to drive water carts; he has engaged in the activities of a Water Cart Driver, and been paid as a Water Cart Driver, at all times since 26 March 2020. Accordingly, the Stemming Agreement did not cover or apply to Mr Goody from no later than 26 March 2020. It follows that the Stemming Agreement did not cover or apply to Mr Goody at the time he participated in discussions to try to resolve the Dispute at the workplace, referred the Dispute to the Commission by lodging his Application in the Commission, participated in a conciliation conference before the Commission, or participated in an arbitration before the Commission.

[23] The Commission has no jurisdiction to deal with a dispute pursuant to a dispute settlement procedure in an enterprise agreement unless there is an “application by a party to the dispute” (s 739(6) of the Act). Under clause 34.4 of the Stemming Agreement, a party to the dispute “may refer the matter” to the Commission. That is, clause 34.4 of the Stemming Agreement confers on a party to a dispute an entitlement to refer the matter to the Commission by making an application for the Commission to deal with the dispute. In the context of the Dispute, Mr Goody did not have an entitlement on 8 May 2020 under clause 34.4 of the Stemming Agreement to “refer the matter” to the Commission, nor did he have any other entitlement under the Stemming Agreement at that time. That is because the Stemming Agreement ceased to apply to Mr Goody from no later than 26 March 2020. 3 Because Mr Goody had no entitlement to refer the Dispute to the Commission under clause 34.4 of the Stemming Agreement, he did not have standing to make the Application and the Commission does not have any authority to decide the Dispute.4 It follows that the Application must be dismissed for want of jurisdiction.5

[24] Some limited submissions were made on behalf of Mr Goody in relation to decisions of the Commission and its predecessor concerning circumstances in which an enterprise agreement is replaced by a new enterprise agreement and there is a question about whether the Commission has jurisdiction to arbitrate a dispute under the replaced enterprise agreement. 6 Such cases are distinguishable from the present case on the basis that the Stemming Agreement remains in operation and the focus in the present case is on the particular entitlements and obligations that arise under clause 34 of the Stemming Agreement.

[25] If the Dispute had been within the jurisdiction of the Commission, I would have answered the question for arbitration in the negative. In my view, clause 8 of the Stemming Agreement did not prohibit or prevent Daromin from transferring Mr Goody to the position of Water Cart Driver. Clause 8.1 is concerned with “employee duties”. It confers on Daromin a right to direct an employee to carry out duties, provided they are within the employee’s range of “skills, competencies and training consistent with the classification structure of the [Stemming] Agreement …” Clause 8 does not govern or seek to limit any direction Daromin may give to transfer an employee to whom the Stemming Agreement applies to work in a different position as part of a disciplinary outcome, which is what happened when Daromin decided to demote Mr Goody to the position of Water Cart Driver, at a lower rate of pay, rather than terminate his employment. It may be argued that such a direction contravened Mr Goody’s contractual rights, but it did not constitute a contravention of clause 8 of the Stemming Agreement. Looking beyond clause 8, there is no other provision of the Stemming Agreement which prohibits or prevents Daromin from transferring an employee to whom the Stemming Agreement applies to work in a different position. Unlike some enterprise agreements, 7 the Stemming Agreement does not purport to set out in a comprehensive and prescriptive fashion all the terms and conditions of employment to apply while the agreement remained in force. Further, to the extent that there is a dispute about the reasonableness, fairness or harshness of what Daromin described as its managerial prerogative to impose the disciplinary outcome on Mr Goody, namely a formal written warning and transfer to a lower paid position, such a dispute is not within the scope of disputes which may be dealt with in accordance with clause 34 of the Stemming Agreement, because it is not a dispute relating to a matter arising under the Stemming Agreement or the National Employment Standards (clause 34.1 of the Stemming Agreement). The Commission does not have jurisdiction to deal with such a dispute.

Conclusion

[26] For the reasons given, the Application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr K Endacott, Industrial Officer of the CFMMEU,on behalf of the Applicant

Ms M Dawson, Solicitor of DWF, on behalf of the Respondent

Hearing details:

2020.
Newcastle (by videoconference):
2 September.

Printed by authority of the Commonwealth Government Printer

<PR722742>

 1 Fair Work Ombudsman v CFMMEU [2020] FCA 1138 at [69]

 2   Fair Work Ombudsman v CFMMEU [2020] FCA 1138 at [66]

 3   Battye v John Holland Pty Ltd[2019] FWCFB 8678 at [23]

 4   Harris v Caladine(1991) 172 CLR 84 at 136

 5   Battye v John Holland Pty Ltd[2019] FWCFB 8678 at [23]

 6   For example, Stephenson v Senator the Honourable Eric Abetz (Special Minister of State) [2004] AIRC 1059 and Association of Professional Engineers, Scientists and Managers, Australia v NSW Electricity Networks Operations Pty Limited t/a Transgrid [2018] FWC 6335

 7   See, for example, DL Employment Pty Ltd v AMWU[2014] FWCFB 7946 at [52]