Joshua Findley v MSS Security Pty Ltd T/A MSS Security

[2018] FWC 4714

[2018] FWC 4714

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Joshua Findley
v
MSS Security Pty Ltd T/A MSS Security
(C2016/6551)

COMMISSIONER GREGORY MELBOURNE, 10 AUGUST 2018

Alleged dispute about matters arising under the enterprise agreement.

[1] Mr Joshua Findley was first employed by MSS Security Pty Ltd T/A MSS Security (“MSS”) on 1 February 2016 and worked as a Security Guard under the terms and conditions contained in the MSS Security Victorian Enterprise Agreement 2011 1 (“the Agreement”). On 3 November 2016 he made application under s.739 of the Fair Work Act 2009 (Cth) (“the Act”) to have the Commission deal with the dispute in accordance with the dispute settlement procedure in the Agreement. The application indicated that the dispute was about three separate matters – underpayment due to rostering issues, payment of allowances, and avoiding paying expenses and associated wages when required to attend compulsory meetings and training.

[2] The application was dealt with in conference on 11 November 2016, but was not able to be resolved. MSS indicated that it was prepared to participate in the discussions in an endeavour to see whether the dispute could be resolved, but if the matter proceeded further it foreshadowed that it may seek to raise a jurisdictional objection in regard to the application. MSS then terminated Mr Findley’s employment on 14 November 2016.

[3] Mr Findley subsequently requested that the application be determined by way of arbitration and MSS confirmed that it now sought to raise the jurisdictional objections it had previously foreshadowed. The Commission handed down a decision in regard to those matters on 6 February 2018. 2 In summary, it determined as follows:

•  Rostering dispute – this concerned a claim that MSS was rostering employees based on an averaging period of more than 12 weeks, and was therefore not applying or interpreting the relevant terms of the Agreement correctly. The Commission determined that the rostering dispute concerned the application of the Agreement, and therefore it had jurisdiction to deal with that matter.

•  Allowances dispute – this concerned the alleged underpayment of allowances provided for in the Agreement, as well as the application of the provisions dealing with the payment of allowances. The Commission again concluded that it had jurisdiction to deal with this matter as it concerned the application of the Agreement.

•  Attending a disciplinary meeting – this involved a claim by Mr Findley that he is entitled to be reimbursed for travel expenses incurred when he was required to attend a disciplinary meeting in Melbourne on 3 June 2016. The Commission concluded that this claim did not concern the application of the Agreement, or the National Employment Standards, and therefore it did not have jurisdiction to deal with it.

•  Compulsory training dispute – this dispute concerned the nature of training required to be undertaken, and what rate of pay was to apply for the time involved. The Commission concluded that it had jurisdiction to deal with a dispute about the nature of first-aid training, and the appropriate rate of pay to be paid when undertaking the training, because these matters concerned the application of the Agreement.

[4] MSS also objected to some aspects of the application on the basis that Mr Findley did not have standing to raise these disputes on behalf of other employees, because he did not have authority to act on their behalf. It continued to submit that the Commission cannot be satisfied that Mr Findley was acting in a representative capacity on behalf of other employees. The Commission indicated in response that it was not aware of anything that precluded Mr Findley from acting on behalf of other employees who were employed by MSS at the time the dispute notifications were lodged, providing they had authorised him to act on their behalf. The Commission also indicated that it was obviously possible for an appropriate process to be put in place at some point in the future to establish whether Mr Findley had been given authority to act on behalf of other employees in a way that ensured that the confidentiality of those employees was preserved and protected.

[5] The matter was accordingly set down for hearing to deal with those matters in the dispute notification that the Commission had determined it had jurisdiction over. Mr Findley appeared on his own behalf. Mr J. Nguyen was given permission to appear on behalf of MSS under s.596(2)(a) of the Act as the circumstances involved a degree of complexity and his involvement might enable the application to be dealt with more efficiently.

[6] Mr Findley was also given the opportunity, prior to the hearing, of providing confirmation about those employees at MSS that he had authority to act on behalf of. The Commission indicated that it was prepared to assist in this process so the identification of the employees could be kept confidential. However, Mr Findley was not able to provide confirmation that he continued to act on behalf of any of the employees who were employed by MSS at the time of the dispute notification. He also indicated in response to a question from the Commission that the rostering arrangements that are the subject of the so-called “Rostering dispute” did not apply to him at the time he was employed by MSS. 3 I am accordingly satisfied that it is not appropriate for the Commission to continue to deal with this aspect of the dispute, given that it is not possible to identify any employees who were impacted by those alleged circumstances.

[7] It is also noted that Mr Findley claims in his submissions that he seeks payment of $61.98 and $318.90, being amounts outstanding in respect of the so-called “Disciplinary meeting dispute” and the “Compulsory training dispute.” 4 However, during the course of the hearing, MSS indicated in its submissions that it was prepared to pay these amounts to Mr Findley in resolution of those claims, albeit without any admission of liability.5

[8] It further indicated that it was prepared to pay an amount of $65 in respect of the amount claimed by Mr Findley in respect of the “Disciplinary meeting dispute,” even though the Commission had previously found that it did not have jurisdiction to deal with this matter. 6

[9] It is also noted that Mr Findley has not itemised a claim in respect of the so-called “Allowances dispute,” and it simply involves a claim that he was not paid on time. 7 I am satisfied in response that the offers that have been made by MSS during the course of the proceedings in response to the claims made by Mr Findley resolve the matters that remain in dispute. I am also satisfied that in these circumstances it is no longer appropriate for the Commission to continue to deal further with the application. I have come to this conclusion because the actual remedies sought by Mr Findley, as set out at paragraph 54 of his written submissions, have been agreed to by MSS. It is accordingly not appropriate for the matter to proceed as part of some theoretical exercise when the issues in dispute have been resolved.

[10] I simply note in conclusion that if MSS has not paid these amounts to Mr Findley already, then it should do so within seven days of the date of this decision in order that the matter is finalised appropriately.

[11] It is also noted that at several points in Mr Findley’s written submission he seeks to have the Commission make declarations regarding various matters. I refer in this context to paragraphs 45, 50, and 56 of those submissions. 8 I would understand this to mean that he seeks various orders declaring that a particular legal outcome applies based on the factual circumstances referred to in each case. However, I am satisfied in response that, as a body exercising arbitral powers, the Commission does not have the power to grant declaratory relief of the kind sought in each of these cases by Mr Findley. Those powers can instead only be exercised by a Court.

[12] It is also noted that MSS raised a further jurisdictional objection to the application based on the decision in Freeman v State of Victoria [Department of Education & Training] t/a Department of Education & Training (‘Freeman’). 9 However, given the decision I have come to in this matter it is not necessary to deal with this additional jurisdictional objection. However, I do have some sympathy with Mr Findley when he notes that this objection was only raised on the day after he was required to file his materials. It is also noted that the circumstances involved in the present matter appear to be different from those in Freeman, given the dispute notification in that case was actually lodged after a further Agreement had been approved and had come into force, and now applied in place of the previous Agreement. However, as indicated already the Commission is not required to rule on this jurisdictional objection given the decision it has come to in this matter.

[13] It follows as a consequence of that decision that the application is now dismissed.

COMMISSIONER

Appearances:

J Findley on his own behalf.

J Nguyen for the Respondent.

Hearing details:

2018:

Melbourne:

May 28.

Printed by authority of the Commonwealth Government Printer

<PR609858>

 1   AE400199.

 2   [2018] FWC 799.

 3   Transcript, 28 May 2018, PN 50.

 4   Applicant’s submissions re substantive matter, dated 9 May 2018, [54].

 5   Transcript, 28 May 2018, PN 198.

 6   Ibid., PN 194.

 7   Applicant’s submissions re substantive matter, dated 9 May 2018, [48].

 8 Ibid, [45], [50] and [56].

 9   [2018] FWC 212.