Giuseppe Amato v Comfortdelgro Australia T/A Cdc Buses Victoria, Oakleigh Depot
[2024] FWC 2112
•8 AUGUST 2024
| [2024] FWC 2112 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Giuseppe Amato
v
Comfortdelgro Australia T/A Cdc Buses Victoria, Oakleigh Depot
(C2024/4292)
| COMMISSIONER YILMAZ | MELBOURNE, 8 AUGUST 2024 |
Alleged dispute about any matters arising under an enterprise agreement – dispute regarding enforcement of settlement deed – no jurisdiction to deal with the dispute – application dismissed
An application for the Fair Work Commission (the Commission) to deal with a dispute under s.739 of the Fair Work Act 2009 (the Act) was made by Mr Giuseppe Amato (the Applicant) on 26 June 2024.
Mr Amato’s Form F10 application states that the dispute concerns the employer’s failure to pay compensation as agreed having settled a previous application for unfair dismissal. The Applicant submits that he received “inadequate compensation being paid to me after a signed settlement agreement.”
Mr Amato’s form F10 identifies the CDC Victoria Bus Driving Enterprise Agreement 2022-2025 (the Agreement) as the relevant industrial instrument and clause 9.5 which concerns the settlement of disputes as the relevant clause of the Agreement. Mr Amato submits that Comfortdelgro Australia T/A CDC Buses Victoria, Oakleigh Depot (the Respondent) has not complied with the terms of a signed settlement agreement and that monies are still owed to his personal bank account.
The Respondent raised a jurisdictional objection but reserved its rights and agreed to participate in a conference to resolve any misunderstanding held by the Applicant.
The Applicant submits that the Agreement signed by the Parties provided for a set sum with tax to be deducted, however the Applicant submits this sum should actually be a different amount. The Respondent submits that this set sum was agreed upon by the parties which was then reflected in the terms of settlement that was accepted and signed by the Applicant.
While the Applicant filed an application under s.739 of the Act and he referred to both the CDC Bus Driver Enterprise Agreement 2022-2025 and the Passenger Vehicle Transportation Award 2020 as the relevant industrial instruments, this dispute does not relate to the application of any term of either industrial instrument.
The Applicant confirmed the dispute concerned his understanding over the agreed terms following resolution of an application for unfair dismissal remedy.
The Respondent confirmed that the correct industrial instrument was the CDC Bus Driver Enterprise Agreement 2022-2025 (the Agreement). However, this application was made well after the dismissal and following resolution of an unfair dismissal application.
It is not in dispute that the Agreement applied to Mr Amato while employed with the Respondent. It is also not in dispute that Mr Amato was dismissed on 4 April 2024.
On 10 July 2024, I convened a conference between the parties and explained to Mr Amato that my preliminary view is that his dispute does not relate to a term referred to in s.738 of the Act which requires or allows the Commission to deal with a dispute. Further, I explained that the Commission does not have jurisdiction to enforce deeds of settlement. The Applicant indicated that he wished to proceed with his application.
For the reasons below I have decided to dismiss the application for want of jurisdiction.
Consideration
The Commission can arbitrate a dispute where the dispute resolution procedure authorises it.[1] Though the Commission must not exercise any powers that may be limited by the term in the Agreement[2].
The Commission has no general power of arbitration,[3] however, s.595 of the Act provides that the Commission may deal with a dispute if expressly authorised to do so under or in accordance with another section of the Act.[4] Further the Commission may only arbitrate if authorised, and may exercise any of its powers, but to avoid doubt the Commission must not exercise its powers to arbitrate except as authorised by subdivision B—Conduct of matters before the Commission.[5]
In this matter, the application is made pursuant to s.739 of the Act. Disputes dealt with by the Commission in s.739 are enlivened where an industrial instrument, or in this case an enterprise agreement includes a term that provides a procedure for dealing with disputes.[6]
Section 738 and 739 of the Act provide as follows:
“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.
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.
(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.”
Clause 9 of the Agreement, which deals with the settlement of disputes, relevantly states:
“9. Settlement of Disputes
9.1 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.
9.2 An Employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this clause.
9.3 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.
9.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission.
9.5 The Fair Work Commission may deal with the dispute in two 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 Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act.
A decision that 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.
9.6 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.
9.7 The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this term.
9.8 Where the above procedures are being followed, work shall continue in accordance with the status quo. No party to the dispute shall be prejudiced as to final settlement by the continuance of work in accordance with this sub-clause”.
Clause 9 limits disputes to matters arising under the Agreement or the NES. Further all of clause 9 limits application of the term to the parties which are an Employee and CDC Victoria Pty Ltd. An Employee has its ordinary meaning.
In addition, disputes made under s.739 of the Act may be dealt with by the Commission where an enterprise agreement includes a term that provides a procedure for dealing with a dispute and permits the Commission to settle the dispute about any matters arising under the agreement or the NES.[7]
The dispute described by the Applicant does not concern either a matter in the Agreement or the NES. Further clause 9 provides for an Employee to make an application. The Applicant was not an Employee at the time of making the application.
The Commission has no jurisdiction to determine the disputed terms of a private settlement agreement between the Applicant and the Respondent. I observe that despite the clear and unambiguous terms provided in the terms of settlement executed by both parties, the Applicant maintains that his understanding is not reflected in the signed document. At the conclusion of the conference the Applicant confirmed that the Parties remained in dispute over the terms of the private agreed settlement.
Conclusion
The Commission cannot exercise its powers under the Act to deal with a dispute under a s.739 application if it does not have jurisdiction to do so.
I have determined that the jurisdiction of the Commission has not been enlivened as the dispute settlement procedure is limited to disputes concerning the Agreement or the NES and not disputes over private settlement agreements as is the case in this matter.
For these reasons the Commission has no jurisdiction under s.739 of the Act. Mr Amato’s application has no prospect of success, nor is it made in accordance with the Act. In accordance with ss.587 (1) (a) and (c) of the Act, this application is dismissed.
An order[8] to that effect will be issued with this decision.
COMMISSIONER
[1] Ss.739 (1) and (4) Fair Work Act 2009.
[2] Ibid s.739 (3).
[3] Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82.
[4] S.595(1) Fair Work Act 2009.
[5] Ibid ss.595 (3) – (5).
[6] Ibid s. 739(1) and s.738(b).
[7] Section 738 which also references s.186(6).
[8] PR 778142.
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