Harald Draeger v Ventura Bus

[2014] FWC 107

[2014] FWC 107

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.739—Dispute resolution

Harald Draeger
v
Ventura Bus
(C2013/5919)

Passenger vehicle transport (non rail) industry
COMMISSIONER LEE	MELBOURNE, 8 JANUARY 2014

Alleged dispute concerning the granting of shift workers leave entitlement.

[1] This matter involves an application to deal with a dispute, notified by Mr Harald Draeger (the Applicant), made pursuant to section 739 of the Fair Work Act 2009 (the Act) against his former employer, Ventura Bus (the Respondent). The dispute is brought under the dispute settlement clause contained in the Grenda Bus Services Drivers Union Collective Agreement 2011 1 (the Agreement).

[2] The matter involves a consideration as to whether the Fair Work Commission (the Commission) has jurisdiction to deal with the dispute that the Applicant has notified against the Respondent in circumstances where the Applicant is no longer an employee of the Respondent and was not an employee of the Respondent at the time he lodged the dispute with the Commission.

Background

[3] The Applicant worked for the Respondent up until 4 August 2013. At that time, the Respondent lost a contract for some of the bus routes that it was undertaking on behalf of Public Transport Victoria to Transdev. The Applicant’s employment transferred, in accordance with the terms of the tender, to Transdev.

[4] The Applicant lodged the dispute with the Fair Work Commission on 6 September 2013. The dispute relates to clause 17 of the Agreement which provides an entitlement to an extra week of annual leave for shift workers.

[5] I listed the matter for conference on Monday 30 September 2013. The Applicant sought and was granted an adjournment. The matter was relisted for conference by telephone before me on 3 October 2013. The Applicant was self represented. Mr Rayner and Ms. Peters represented the Respondent. The conference failed to resolve the matter in dispute. At the conclusion of the conference, I expressed the view that there did not appear to be jurisdiction to deal with the dispute as it appeared that the Applicant had lodged the dispute a number of weeks after he ceased to be in the employ of the Respondent.

[6] I wrote to the parties on 11 October 2013 highlighting that the dispute settlement procedure in the Agreement deals with disputes with employees and that, as the Applicant was not an employee of the Respondent at the time the dispute was lodged, I would be inclined to dismiss the application and would do so unless I heard from either party why I should not, by 18 October 2013.

[7] The applicant subsequently filed, after being granted an extension until Monday 21 October 2013, a written submission asking me not to dismiss the application. I have considered that submission. What follows is an interim decision on whether there is jurisdiction to deal with the matter.

Law to be applied:

[8] This is an application made pursuant to section 739 of the Act, which provides as follows:

“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) effectas 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.”

[9] Therefore, any exercise of power under a dispute settlement clause must not exercise any powers limited by the term. The dispute settlement term in the Agreement is in the following terms:

“12. Settlement of Disputes

12.1 Matters affecting employment shall be subject to discussion procedures which ensure that all affected parties to the relevant matter are promptly and fully informed of the issue and any differences are discussed with a view to avoiding industrial disputation.

12.2 Without limitation to the operation of clause 18 below, management shall advise employees and at the request of one or more employees, their representative of choice (which may be an elected representative or other representative of employees) of any proposed changes in the normal pattern of working arrangements affecting employees and if the matter is not resolved this clause shall apply.

12.3 In the event of a dispute arising the patties agree to the following dispute settlement procedure:

(a) Where an employee has a dispute concerning any matter directly connected with employment, including about any matter that arise under this Agreement or the National Employment Standards, the employee shall raise the matter with a supervisor.

(b) If the employee deems that the answer to the matter in dispute is not satisfactory, the employee may, if they so desire, ask their representative (which may be an elected representative or other representative of employees) to submit the matter to the Manager of the depot.

(c) If the dispute is not settled at this stage, the matter shall be the subject of a formal exchange between the employee (and, if the employee chooses, their elected or other representatives) and the employer.

(d) If not settled at this stage, the matter shall be discussed between such representatives of the employee as appropriate and as selected by the employee (which may be an elected or other representative) and the employer and the employer's representative of choice.

(e) If the matter is still not settled it may be submitted to a member of the Transport Panel of Fair Work Australia to exercise powers that existed prior to 30 November 2005to conciliate and if unresolved to arbitrate the matter in dispute, subject to any appeal rights of the parties to the dispute.

(f) Where the above procedures are being followed, work shall continue normally. No party to the dispute shall be prejudiced as to final settlement by the continuance of work in accordance with this sub-clause.”

[10] It is clear that the terms of this Agreement limit the power of the Commission to deal with disputes between an employee and the employer. In this case there is no dispute that the Applicant lodged the dispute with the Commission after he ceased employment with the Respondent.

[11] His Honour Senior Deputy President Kaufman in Shields & Spriggs v Alfred Health 2 dealt with the issue of whether a former employee could lodge a dispute under a dispute settlement procedure.

[12] In that decision, His Honour referred to and relied upon the Full Bench decision in ING Administration Pty Ltd. v Jajoo 3(the ING decision). His Honour noted that the ING decision dealt with a provision of the Workplace Relations Act 1996 and that “care should be exercised in considering earlier decisions given changes to the legislative provisions, the constitutional head of power underpinning the relevant legislative provisions and the differences in the wording of dispute settling clauses in relevant instruments”.4

[13] In the ING decision, the Full Bench concluded that, “a single person dispute which arises for the first time after the termination of employment is not a dispute between an employer and employee. However, many disputes will arise while employment exists and continue after the termination of employment. In such a case, when the dispute arises, it is a dispute between an employee and an employer” 5 [my emphasis]. The Full Bench further stated;

“...the dispute settlement process should be viewed as a single process agreed by the parties to resolve disputes, rather than a series of separate rights and obligations which should be viewed conjunctively. That being so, an employee who had commenced to deal with a grievance or dispute while employed is not precluded, in our view, from continuing to progress that matter if it remains unresolved, notwithstanding that in the interim period they may have ceased to be employed by the employer.” 6

[14] His Honour Senior Deputy President Kaufman, when considering the ING case stated that ‘[t]he Full Bench doubted that a former employee could initiate a dispute under the dispute settling clause after the employee’s employment had ceased. It noted that the notion of an employee raising the matter with the immediate manager or supervisor in the first instance, as contemplated by the relevant provision of the certified agreement, told against jurisdiction in such a case.” 7

[15] It is clear that in order for the Commission to exercise powers under a dispute settlement procedure, the steps in the particular dispute settling clause must have been complied with. In Shields & Spriggs v Alfred Health 8, His Honour Senior Deputy President Kaufman, against the background of the ING case, considered the particular terms of the dispute settling procedure that applied in that matter and whether the applicants had complied with those dispute settlement procedures whilst still an employee of the respondent. In the circumstances of that case His Honour formed the view that, as the processes required to be followed under the dispute settlement clause had not been followed there was no jurisdiction for Fair Work Australia (now the Commission) to deal with that matter.

[16] I respectfully endorse the approach taken by His Honour in the Shields & Spriggs v Alfred Health 9 and will apply the same approach in my consideration of the particular facts of this matter.

Consideration

[17] In this case, there is no doubt that the Applicant was not an employee at the time the application was made the Commission. I indicated in my letter to the parties on 11 October 2013 that as the dispute settlement procedure dealt with disputes affecting employees there appeared no jurisdiction to determine the matter and I would be inclined to dismiss it.

[18] Having further considered the matter and in particular the cases referred to above, to dismiss the application purely on that basis would have been an error. It is clear that there is a capacity for jurisdiction to be enlivened where an employee is no longer employed at the time of making an application. In this matter, the key consideration is whether or not the Applicant has complied with the requirements of the relevant dispute settling procedure whilst still an employee of the Respondent.

[19] In this matter the Applicant has in his attachment to his application, under the heading “Steps already taken under the dispute settlement procedure” claimed the following:

“(1) Meeting with my then Depot Manager regarding my SWL entitlements before transfer to Transdev. (Tansdev is the company who took over the drivers for the Orbital Routes from Ventura).

(2) Meeting with the new payroll manager Elk Peters.

Elk Peters speaking on behalf of/and after collaboration with Greg Rayner (General Manager Operations) and Derek Wood (Depot Manager). I provided all my records to prove that insufficient SWL was calculated. This was not accepted. Payroll Manager refused to amend calculation and entitlement.”

[20] I have no other information as to whether or not the steps of the particular dispute settlement procedure in clause 12 of the Agreement have been complied with by the Applicant while he was still employee.

[21] As the question of whether or not there is jurisdiction for the Commission to deal with this matter turns on this factor I require further information before I can determine the matter. Accordingly I will issue directions concurrently with this Interim Decision that will provide an opportunity for the Applicant and the Respondent to provide further submissions and evidence relevant to the question of whether or not the dispute settlement procedure has been followed.

COMMISSIONER

 1   AE888423

 2   [2012] FWA 162

 3   PR974301

 4   Shields & Spriggs v Alfred Health [2012] FWA 162, [14]

 5   ING Administration Pty Ltd. v Jajoo, PR974301, [38]

 6   Ibid, [58]

 7   Shields & Spriggs v Alfred Health [2012] FWA 162, [16]

 8   [2012] FWA 162

 9   Ibid

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