Jeremy David Miles v Live Events Australia Pty Ltd T/A Creative Technology Australia / New Zealand

[2021] FWC 6170

[2021] FWC 6170

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Jeremy David Miles
v
Live Events Australia Pty Ltd T/A Creative Technology Australia / New Zealand
(C2021/3794)

COMMISSIONER WILLIAMS PERTH, 21 OCTOBER 2021

Alleged dispute about any matters arising under the modern award and the NES; [s146]

[1] On 5 July 2021 Mr Jeremy Miles (Mr Miles or the Applicant) made this application under section 739 the Fair Work Act 2009 (Cth) (The Act). The Respondent is Live Events Australia Pty Ltd T/A Creative Technology Australia / New Zealand (Creative Technology or the Respondent).

[2] The application is for the Commission to deal with a dispute in accordance with Clause 26 Dispute Resolution of the Broadcasting, Recorded Entertainment and Cinemas Award 2020 (the Award.)

[3] This application was the subject of a conciliation conference on 20 July 2021. The Respondent objected to the Commission dealing with the matter on the basis of a jurisdictional objection that the Applicant had not invoked the dispute settlement procedure before his employment had ended.

[4] Subsequently, the Commission issued directions to the parties to provide submissions and materials in support of their position on the jurisdictional issue. Both parties have provided submissions and documentation.

[5] This decision deals only with the Respondent’s jurisdictional objection.

Factual findings

[6] It is not disputed, and I accept, that the Applicant’s employment with the Respondent was covered by the Award.

[7] The Applicant has been employed with the Respondent since 2017.

[8] The Applicant states that through emails and group meetings he raised questions regarding contract implementation and the interpretation of his contract compared to the Award in 2019.

[9] The materials submitted by the Respondent show that on a number of occasions in May 2021 and June 2021 Mr Miles asked questions about his payments. He sought clarification on the distinction between daily and weekly overtime, the difference between penalty hours and overtime, payment for night shifts and the averaging of hours over weeks. Some of these questions concerned his contract of employment and some concerned the Award or both. These questions were replied to by the Respondent via email or during collective work meetings.

[10] There is no evidence that the Applicant referred to Clause 26 Dispute Resolution of the Award when raising these queries.

[11] The dispute identified in his application is broader than these relatively narrow and simple queries.

[12] On 19 of June 2021 the Applicant tendered a resignation letter which confirmed his last rostered shift would be 4 July 2021.

[13] The Applicant made this application on 5 July 2021.

[14] Consequently, I find that the Applicant was not an employee when he made this application.

Consideration

[15] Deputy President Clancy helpfully considered the principles applicable to this matter in the case of Tara Toohey v QBE Management Services Pty Ltd T/A QBE Insurance[2017] FWC 510 as follows.

“[25] This is an application made pursuant to s.739 of the Act, which provides:

“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.”

[26] A majority in the Full Bench decision of ING Administration Pty Ltd v Jajoo (Jajoo)found the Commission had jurisdiction to hear an application to deal with a disputein circumstances where Mr Jajoo had filed his application in the Commission after his employment had terminated. The majority in Jajoo said:

“In the circumstances of this matter, Mr Jajoo sought to progress a dispute under the relevant dispute settlement procedure while still employed. It was unresolved when his employment was terminated. We do not believe that there is a sound basis for construing the terms of s 170LW in a way which would deprive him of the right to progress his dispute to other levels of the procedure, including to the Commission, after the termination of his employment.” 

[27] The majority in Jajoo further stated:

“In our view, 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.” 

[28] Importantly, the majority in Jajoo noted:

“In reaching this conclusion, we acknowledge that parties to agreements are entirely free to draft disputes procedures in any number of different ways. Agreements may limit rights to resolve matters under disputes procedures to persons who are current employees and many agreements may properly be construed as doing so. In the circumstances of this case, we believe that the Agreement empowers the Commission to determine the dispute notwithstanding that prior to the matter being resolved (and prior to Mr Jajoo referring the dispute to the Commission) his employment was terminated by ING.” 

[29] In referring to and relying on Jajoo, the Commission in Shields & Spriggs v Alfred Health, (Shields & Spriggs) noted that Jajoo was decided under 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.” I have adopted this reasoning.

[30] In similar circumstances to the application before me, the Applicant in Draeger v Ventura Bus (Draeger)filed his application to deal with a dispute under s.739 of the Act in the Commission after his employment had been terminated. Commissioner Lee, who considered Jajoo and Shields & Spriggs in his Interim Decision, said:

“…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.” 

[31] The recent Full Bench decision of Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd  (Broadspectrum)confirmed Jajoo “is authority for the finding that if an employee agitates a claim arising under an enterprise agreement while employed, the Commission has the jurisdiction to deal with the dispute, even after that employee’s relationship with the employer is terminated.” The Full Bench in Broadspectrum indicated it was not prepared to depart from Jajoo, stating:

“We are not persuaded that the Commissioner erred with his construction of the Act in finding that there was jurisdiction for the dispute to be arbitrated by the Commission in circumstances where Mr Crawford was no longer an employee of Broadspectrum.” (References Omitted)

[16] There is nothing submitted that demonstrates Mr Miles, whilst still employed, had referred to Clause 26 Dispute Resolution of the Award when first asking his questions and that he had then escalated these queries through the steps of that dispute resolution clause.

[17] Separately, the dispute Mr Miles wants the Commission to deal with is identified in his answer to question 2.1 on the Form F10 and is detailed in his 14 page attachment. This dispute is not the same as the narrow queries Mr Miles had raised whilst still employed.

Conclusion

[18] In this instance I find that Mr Miles had not pursued a dispute, and certainly not particular the dispute detailed in his application, under the Award’s dispute resolution procedure while he was still employed. Consequently, the Commission has no jurisdiction to hear this application and an Order [PR735094] dismissing the application will now be issued.

Final written submissions:

Applicant, 26 July 2021.

Respondent, 28 July 2021.

Printed by authority of the Commonwealth Government Printer

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