Jeral Jun Panopio v Craig Mostyn Group T/A Linley Valley Pork
[2022] FWC 249
•8 FEBRUARY 2022
| [2022] FWC 249 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Jeral Jun Panopio
v
Craig Mostyn Group T/A Linley Valley Pork
(C2022/645)
| COMMISSIONER WILLIAMS | PERTH, 8 FEBRUARY 2022 |
Dispute resolution - jurisdiction.
This decision concerns an application made by Mr Jeral Jun Panopio (the Applicant) under section 739 of the Fair Work Act 2009 (the Act). The Respondent is Craig Mostyn Group T/A Linley Valley Pork (the Respondent).
The application was made on 21 January 2022.
The application to the Fair Work Commission (the Commission) is made under clause 33 - Resolving Disputes of the Derby Industries Pty Ltd – Enterprise Agreement 2013 (Linley Valley Pork – Abbatoir) [AE404376] (the 2013 Agreement).
The application was listed for a conference which was held on 7 February 2022. The Respondent was directed to provide a reply to the application prior to the conference.
The Respondent’s reply included a jurisdictional objection that the Commission has no jurisdiction to deal with this dispute because the 2013 Agreement has ceased to operate.
At the conference the Respondent’s jurisdictional objection was discussed. The Commission adjourned the conference on the basis that it would issue a decision to provide certainty and clarity on the jurisdictional objection.
Consideration
It is a matter of record and there is no dispute that the 2013 Agreement was replaced by the Derby Industries Pty Ltd – Enterprise Agreement 2021 (Linley Valley Pork) [AE514038] (the 2021 Agreement). The 2021 Agreement was approved by the Commission on 25 November 2021 with a commencement date of 2 December 2021.
The Respondent submits that a result of the commencement of the 2021 Agreement there are no employees to whom the 2013 Agreement applies. The 2013 Agreement has therefore ceased to operate in accordance with sections 54(2) and 58 of the Act.
The Respondent submits that because the Agreement has ceased to operate, the dispute resolution procedure in clause 33 has no effect and so this application cannot be made to the Commission.
This jurisdictional point has been considered by two Full Benches of the Commission most recently in Simplot Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (Simplot)[1] and earlier in Battye v John Holland Pty Ltd (Battye)[2]
In Battye the Full Bench held as follows,
“[23] It is clear that at the time Mr Battye first sought to enliven the Commission’s power to arbitrate under the 2013 Agreement, that agreement had ceased to apply to John Holland and to him. The relevant effect of s.58 of the Act is that, once the 2017 Agreement came into operation on 16 May 2018, the 2013 Agreement ceased to apply to any employee within its coverage, because the coverage of the two agreements was the same. Under s.54(2), the 2013 Agreement then ceased to operate, and that meant that under s.52(1) it could no longer apply to anyone. If an agreement does not apply to anyone, it cannot impose any obligation or confer any entitlement (s.51). Section 739(4) provides that the Commission may arbitrate a dispute only where the parties have agreed that the Commission may do so in accordance with a disputes resolution term in an agreement. Here, the relevant term in the 2013 Agreement no longer applied to Mr Battye and John Holland at the time Mr Battye first sought to invoke the arbitration power in that term.”
In Simplot, the Full Bench endorsed Battye and found that the Commission has no jurisdiction to deal with a dispute under a dispute procedure in an enterprise agreement that has ceased to operate.
Conclusion
The Commission as currently constituted is obliged to follow the Full Bench reasoning above, which in any event simply recognises the effect of sections 54 and 58 of the Act in these particular circumstances.
Consequently, the Commission upholds the Respondent’s objection and so this application must be dismissed for want of jurisdiction.
An Order [PR738142] to that effect will be issued in conjunction with this decision.
As explained at the conference dismissing this application on jurisdictional grounds does not involve any consideration of the merits of the Applicant’s dispute, which concerns how the following words in clause 9 – Pay, of the 2013 Agreement, are to be applied after 2016,
“The hourly rate in the Pay Schedule will increase by 3% per annum with effect from the first pay period commencing on or after 1 July each year.”
As discussed at conference given the absence of jurisdiction for the Commission to consider the Applicant’s dispute it may be the dispute could be prosecuted in a Court of competent jurisdiction as an alleged underpayment of wages claim, however this option is challenging for an applicant without legal representation.
[1] 2020 FWCFB 5054.
[2] 2019 FWCFB 8678.
Printed by authority of the Commonwealth Government Printer
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