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

[2018] FWC 799

[2018] FWC 799

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, 6 FEBRUARY 2018

Alleged dispute about three matters arising under enterprise agreement – underpayment due to rostering arrangements, payment of allowances, and expenses associated with compulsory training and meetings – jurisdictional objections raised – former employee – standing of Applicant to represent other employees – matters not arising under Agreement or NES – held majority of jurisdictional objections dismissed – matter to be relisted for conference.

Introduction

[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 section 739 of the Fair Work Act 2009 (Cth) (“the Act”) seeking 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 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 then that it was prepared to participate in the discussions in an attempt to see whether the dispute could be resolved but if the matter proceeded further it would likely raise various jurisdictional objections. It is also noted that 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 various jurisdictional objections. This decision deals with those jurisdictional objections.

[4] It is also noted that MSS previously sought permission under s.596 of the Act to be represented by a lawyer in the proceedings. Mr Findley opposed this application. However, on 26 October 2017, the Commission granted MSS permission to be legally represented on the basis of section 596(2)(a), in that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. However, the decision continued to indicate:

“[19] I have also decided at this time that permission to appear should only be granted in regard to the jurisdictional objection raised by MSS Security. If and when the Commission comes to deal with the substantive issues in dispute I will give further consideration to any further application for permission to appear at that time.” 2

[5] The Commission also indicated that it would now list the jurisdictional objection for hearing and issue directions in regard to the filing and service of evidence and submissions.

[6] Mr Findley appeared on his own behalf. Ms F. Leoncio of Counsel and Mr R. Levin from Mills Oakley appeared on behalf MSS.

The Submissions and Evidence

MSS Security – Submissions

[7] MSS objects to the application by Mr Findley on the basis that the Commission does not have jurisdiction to determine the matters.

[8] It refers to ss.738, 739 and 595 of the Act, and submits that these provisions prevent the Commission from dealing with a dispute unless it is expressly authorised to do so. It also refers to clause 15 “Settlement of Disputes” in the Agreement and notes that it only provides for disputes concerning “the application of the agreement or in relation to the National Employment Standards” 3 to be dealt with. It continues to submit that previous authorities have made clear that in dealing with jurisdictional objections in respect to the application of dispute resolution clauses in an enterprise agreement it is important to identify the character of the dispute so as to determine whether the clause has application to the issue in dispute. In this context it refers to the Full Bench decision in National Tertiary Education Industry Union v University of Wollongong4(‘NTEU’), noting that the decision was more recently followed by the Full Bench in Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd5 (‘Broadspectrum’).

[9] MSS submits that in this context the Commission is exercising powers of private arbitration which are limited by the extent to which they have been conferred on it by agreement of the parties. For the Commission to have jurisdiction in these circumstances then a relationship between the terms in the Agreement, and the subject matter in dispute, are an essential ingredient.

[10] MSS also made reference in its oral submissions to a recent Federal Circuit Court decision, 6 which dismissed an adverse action claim brought against it by Mr Findley. It submits, in response, that the decision has already dealt with matters that are relevant to this application, and it would be “otiose”7 for the Commission to deal with them again now. It also submits that the decision makes clear MSS did not act in retaliation to any action taken by Mr Findley, and there is no basis for any such allegation. It also submits that the decision closed off any possibility Mr Findley might return to the workplace as a consequence of being reinstated.

[11] It continues to make the following submissions about each of the matters raised by Mr Findley in the original dispute notification.

The Rostering Dispute

•  Mr Findley alleges deficiencies in the rostering system which he claims has led to alleged underpayment of wages.

•  MSS submits in response that the rostering system he complains about never applied to him during the time he was employed, and so the Agreement had no application to him in this context. He therefore has no standing to agitate this issue under the dispute resolution clause.

•  In addition, given he is no longer employed by MSS any determination of this issue cannot have utility for him as he will not be subject to any future rostering by MSS.

•  He also does not have standing to raise this dispute on behalf of other employees as he has no authority to act on their behalf. The Commission cannot be satisfied he was acting in a representative capacity and, even if this were the case, there is no evidence of him progressing the matter through the dispute resolution procedure in the Agreement on behalf of those employees. It also submits there is no basis to support his claim the employees did not want to be identified because they were concerned about possible repercussions.

The Allowances Dispute

•  MSS submits that Mr Findley has not identified a clause in the Agreement which applies in respect to payment of allowances. This claim, which relates to motor vehicle expenses, derives instead from his contract of employment and therefore does not involve a dispute about the application of the Agreement or the National Employment Standards. This is made clear in previous email exchanges, which confirm the claim is made pursuant to his employment contract.

•  It also submits that, his concerns about this matter have already been resolved, and therefore there is no ongoing dispute.

•  MSS also submits that Mr Findley does not have standing to raise this dispute on behalf of other employees, as he has no authority to act on their behalf or represent their interests.

Dispute about avoiding paying expenses and associated wages to attend compulsory meetings and training

•  MSS submits this issue involves two separate elements.

•  Attending a disciplinary meeting – Mr Findley claims to be entitled to travel expenses when required to attend a disciplinary meeting. MSS submits in response that travel expenses are not a matter which arises under the Agreement or the NES, and the claim instead involves an individual contractual issue. It therefore falls outside of the jurisdiction of the Commission. It also notes that, in any case, it has since moved to pay him at the correct rate. He was originally paid at the Level 1 rate, but should have been paid at the Level 4 rate. This deficiency has now been addressed.

•  First aid training – Mr Findley claims that employees are entitled to be paid at overtime rates and are entitled to have their travel expenses reimbursed when attending first aid training. MSS submits, in response, that travel expenses are not a matter which arises under the Agreement, or the NES, but are instead a contractual matter. It also makes reference to Attachment “L,” which is relied upon by Mr Findley in support of this claim. It notes in response that the document does not relate to any dispute between the parties, and this again reinforces the fact that the Commission has no jurisdiction under clause 15 to deal with this matter.

•  It also submits that Mr Findley has been paid in accordance with clause 9.4.1 of the Agreement, which provides for payment at the “ordinary hourly rate of pay.” He also claims that clause 25 applies and he is entitled to overtime payments. However, MSS contends in response that the Agreement makes clear that this is not the case, and sub clause 9.4.1 is explicit in this context. The fact he believes he has an entitlement to something other than what is explicitly stated in the Agreement is irrelevant. Therefore, there is no dispute arising about this matter. MSS also submits that his reference to s.325 of the Act is not relevant in this context.

•  It also submits that he has no standing to raise this matter on behalf of other employees under clause 15 as he has no authority to act on their behalf or represent their interests.

[12] MSS submits, in conclusion, that there is no dispute about the application of the
Agreement, or the NES, that provides the Commission with jurisdiction under clause 15 of the Agreement to deal with the application. It also submits Mr Findley does not have standing to raise a dispute on behalf of other employees, or to otherwise represent them.

Mr Joshua Findley – Submissions and Evidence

[13] Mr Findley submits at the outset that MSS has applied the decisions in NTEU and Broadspectrum out of context and these decisions do not support its position. In addition, despite the inherent implication in its submissions that a former employee cannot continue to pursue a dispute notification previous Commission decisions have made clear that the Commission can have jurisdiction to deal with a dispute in circumstances where it was lodged by a former employee prior to him/her being dismissed. He makes reference to various authorities in this context, including the decision of the Full Bench in Broadspectrum. He notes in this context that, “If an employer was able to terminate the employment of an employee who raised a dispute to avoid an arbitrated outcome under the FW Act, it would allow unscrupulous employers to circumvent any protections enunciated in the dispute resolution clause.” 8

[14] Right to represent other employees – Mr Findley refers, firstly, to sub clause 15.2.1 of the Agreement which states, “At any stage of the process, an employee will be entitled to involve a representative of the employee’s choice.” He continues to submit that there is no restriction on who can be a representative, and there is no associated requirement to name or identify those being represented. He maintains that he has been appointed by two employees who explicitly asked him “to raise the dispute to address their concerns,” 9 and he is therefore a party to the dispute. He relies on the decision in RTBU v Asciano Services10 in support of this submission. He also submits that the employees have genuine fears their employment will be jeopardised if their identities are revealed. In addition, he relies on the evidence in his witness statement in support of the submission that he has been given authority to act on behalf of certain unnamed employees.

[15] He also submits that the Commission has powers under the Act to inform itself in any manner it chooses, and it is open to the Commission to use this discretion to confirm the relevant employees want him to be their representative. He also submits that he has followed the relevant steps in the dispute resolution procedure in terms of providing this representation.

[16] Rostering dispute – Mr Findley does not press this issue on his own behalf, given he is no longer employed by MSS. It is raised instead on behalf of those employees who have asked him to act on their behalf. His witness statement indicates he has been explicitly asked by two employees, who are currently employed by MSS and working this roster, to raise the dispute on their behalf. This request was received prior to him raising the matter with MSS on 23 September 2016, and this authority has not to date been withdrawn. He also indicated that the employees have told him that they do not wish to be identified.

[17] He continues to submit that MSS have rostered employees in a manner contrary to sub clauses 9.1.1 and 25.2 of the Agreement over an extended period of time and, as a consequence, they have been underpaid.

[18] Allowance dispute – this matter is again pressed on behalf of employees who have asked Mr Findley to represent them. His witness statement indicates that two employees have given him express authority in this context. In his submission the dispute arises under clause 22 and Schedule A of the Agreement, and MSS’s interpretation of these provisions has again caused employees to be denied entitlements otherwise due to them.

[19] Disciplinary meeting dispute – Mr Findley submits there is an ongoing dispute about his entitlement to a travel allowance under sub clause 22.5 of the Agreement as a consequence of him being required to attend a disciplinary meeting on 3 June 2016. There is also an ongoing dispute about the payments due to him for the time involved in attending this meeting. He acknowledges that he has now been paid at the Level 4 rate for this time, after initially being paid at the Level 1 rate. However, he claims he is also entitled to additional overtime payments for these hours. He also submits that MSS has previously acknowledged in correspondence dated 25 November 2016 that it was “in dispute about the matters raised in paragraph 15 of the F10.” 11

[20] First aid training dispute – Mr Findley submits he was required to undertake first aid training in order to retain his position at MSS. This was carried out after completion of his normal 38 hour working week. He therefore claims to be entitled to overtime payments under sub clause 25.2.2.1 of the Agreement. He also submits that MSS currently reimburses this time at the Level 1 rate in the Agreement, when it should be paid for at the Level 4 rate. In addition, some employees in regional locations are required to fund the cost of this training themselves, which he submits is in breach of sub clause 9.4 of the Agreement, as well as s.325 of the Act. This issue is pressed by Mr Findley on his own behalf in respect of the time he was employed by MSS. His witness statement also indicates he has been given “express authority” 12 by one other current employee to raise this issue on their behalf.

[21] Mr Findley’s submissions conclude by foreshadowing a possible future costs application against MSS.

Consideration

[22] The jurisdictional objections brought by MSS encompass several aspects. It is useful at the outset to confirm what they are, and which matters they concern. In summary, the various objections and the matters they go to are as follows:

“1. The Commission has no jurisdiction to deal with the matters because they do not concern “the application of the Agreement or in relation to the NES.”

•  This objection is raised in response to the so-called “allowance dispute” 13 and the dispute about payments associated with first aid training and Mr Findley’s attendance at the disciplinary meeting.

2. The subject matter of the dispute has never applied to Findley therefore he has no standing to press the matter. In addition, given he is no longer employed by MSS there is no possibility of him being impacted in the future.

•  This objection is pressed in regard to the rostering dispute.

3. Findley does not have standing to raise this matter on behalf of other employees as he does not have authority to act on their behalf.

•  This objection is pressed in regard to all matters.

4. Matters raised by Findley have already been resolved.

•  This objection is raised in regard to the allowances dispute.

5. Findley also suggests in his submission that MSS is implicitly questioning his ability to pursue all matters, given he is no longer employed by MSS.

● This objection is raised in regard to all matters.

6. The Federal Circuit Court decision of Judge McNab in Findley v MSS Security Pty Ltd [2017] FCCA 2898.

•  MSS referred to the above decision in its oral submissions and indicated that it would now be “otiose” 14 for the Commission to deal with the present matter “as a matter of dispute resolution when a finding has already been made by the learned Judge about what happened and why.”15 The Commission asked MSS’s representative about the relevance of the Court’s decision to the present application. Mr Levine for MSS indicated in response:

“One of the matters that you’ll see Mr Findley had raised in his paragraph 30 of his submissions, which is page 6, and if you find page 6 of his written submissions for today, the heading is, “Disciplinary meeting dispute.” 16

…

And he outlines his concerns there, why was I brought to the meeting, I shouldn’t have been, and I really feel that it was because this was retaliation, he asserts, because I had brought an application just beforehand to terminate the enterprise agreement. And so at the time, one can understand why he would have come as an employee to say, I’ve got a dispute about how you’re dealing with this. Subsequently he’d brought a proceeding alleging that that was a breach of the general protections provisions and, as I say, extensive evidence, and has been resolved, in our submission.” 17

•  Ms Leoncio for MSS also indicated that the decision was relevant because “this decision demonstrates that there is no basis for an allegation that there is any retaliation against the applicant and there’s no other basis to make such an allegation in respect of the other employees.” 18 She also stated that it had relevance because Mr Findley had sought reinstatement to his previous position in his application to the Federal Circuit Court, however, this possibility had now been ruled out by the Court’s decision.

[23] I now turn to consider each of these grounds of objection in the context of the matters they relate to. I begin by considering the relevance of the Federal Circuit Court decision and the submissions by MSS that it acts to render the current proceeding, or at least part of them, “otiose.” 19 I take this to mean producing no useful result. I am not satisfied in response that the decision should be construed in this way. The claim in the matter before the Court was obviously brought under separate provisions of the Act which are, in summary, designed to respond to action allegedly taken on the basis of a prohibited reason or reasons. It is acknowledged that Judge McNab concluded that the action taken in regard to Mr Findley was not taken for a prohibited reason in the context of that application, and he dismissed the application. However, he also made reference to “The respondent’s disproportionate response in this instance has plainly made Mr Findley feel unfairly targeted and he has suggested that the only rational reason for such a response was because of his role as a self-appointed bargaining representative and a desire on the part of the employer to terminate his employment so as to prevent him from acting as a bargaining representative.”20

[24] The decision of the Court also makes reference to the disciplinary meeting Mr Findley was required to attend on 3 June. However, the issue that Mr Findley now raises in the dispute notification is not simply about him being required to attend the meeting, but is also about his entitlement under the Agreement to be paid for the time and expense incurred. In that context I am not satisfied that the Federal Court decision has dealt conclusively with the issues raised by Mr Findley in this application.

[25] It is also been submitted that the decision provides a basis to reject any claims of potential retaliation made by Mr Findley toward him or any other current MSS employees. As indicated, the decision dealt with the question of whether action was taken for a prohibited reason. I can find nothing in the decision that provides a basis to come to any further conclusions about the possibility of retaliation occurring, or indeed not occurring. However, I do acknowledge the submission by MSS that the decision has at least closed one door firmly in terms of any possibility of Mr Findley returning to work at MSS.

[26] I turn next to consider the relevance or otherwise of Mr Findley no longer being employed by MSS. As indicated previously he lodged the current application on 3 November 2016 and his employment was then terminated eleven days later on 14 November 2016. The question of whether a dispute can only be dealt with while an Applicant remains in employment has been considered in a number of recent decisions of the Commission. I am satisfied that it is appropriate to deal with the issue on the basis of the decision of the Full Bench in Broadspectrum, which has been referred to in the submissions of the parties. It is not necessary to go in detail to the circumstances of that matter. However, the following extracts from the Full Bench decision are relevant in the present context.

“[49] In light of the above, the Full Bench’s findings in Kentz cannot be relied upon to support a departure from Jajoo and Wollongong. The Full Bench’s findings in Kentz are consistent with Jajoo and Wollongong, and do not persuade us that the Commission’s jurisdiction to deal with a dispute concerning a former employee is lost in circumstances where the employee lodged his or her dispute prior to the termination of the employment relationship.

…

[55] Many disputes, such as the one in the present matter, arise while the employment relationship is alive and continue after the termination of employment. In such a case, when the dispute arises, the dispute is between an employee and an employer. Broadspectrum’s submissions involve interpreting clause 11.2 of the Agreement so as to disqualify employees from any process the parties may agree to confer on the Commission once they cease to be employed. We are not persuaded that we should interpret the Agreement to limit the rights of former employees in this way, particularly when Mr Crawford lodged his application while he was employed by Broadspectrum. If we were to follow the Broadspectrum approach, employees who lodge a dispute while employed would not be entitled to the resolution of that dispute if the dispute was unresolved when their employment ends. We are not persuaded to reach this finding.

[56] We are of the view that if a dispute is lodged by a person who is employed at the time that they lodge the dispute, the Commission has the requisite jurisdiction to deal with the dispute pursuant to the Agreement. We believe that this is consistent with AMIEU v Golden Cockerel. In particular, we believe that pursuant to the ninth factor in AMIEU v Golden Cockerel, a “reasonable person would understand the language the parties have used to express their agreement” as an indication that an employee who lodges a dispute while still employed ought to have the opportunity to have the Commission resolve that dispute even if their employment relationship is terminated.” 21

[27] The Full Bench indicated, in conclusion, that it was satisfied the Commission had the requisite jurisdiction to deal with the dispute before it. I am satisfied that a similar conclusion is appropriate in response to any suggestion that Mr Findley cannot now pursue the present application because he is no longer employed by MSS.

[28] I next turn to the grounds of objection raised on the basis that some matters in dispute extend beyond “the application of this Agreement” 22 or the National Employment Standards, and therefore the Commission has no jurisdiction to deal with them. I am satisfied, firstly, that there is no dispute between the parties that the provisions in ss.595, 738 and 739 of the Act, in combination, prevent the Commission from dealing with a dispute by the exercise of powers of private arbitration unless it is authorised to do so. In this case sub clause 15.1 of the Agreement provides the Commission with its “riding instructions” in terms of the scope of those powers. I now turn to consider whether the various disputes notified by Mr Findley accordingly concern “the application of the Agreement” or are “in relation to the National Employment Standards.”23 It can also be noted at this point that in construing the terms of the Agreement I have had particular regard to the principles established in the recent Full Bench decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd (“Berri”).24Without going to the details of that decision it contains a detailed review of the principles to be applied in construing the terms of an enterprise agreement. In doing so it reviewed the principles set out in the earlier Full Bench decision in Golden Cockerel25 and decided, in turn, that it was appropriate to make some amendment to those principles. As indicated, I have sought to apply these principles to the interpretation of the relevant provisions of the Agreement.

[29] The Rostering Dispute – clause 9 of the Agreement deals with “Rosters.” Sub clause 9.1.1 states: “The ordinary hours of work each week for a full time employee are thirty eight (38), which may be averaged over a period of between one (1) and twelve (12) weeks.” 26

[30] Mr Findley submits that MSS is rostering employees based on an averaging period of more than twelve weeks, and it is accordingly not applying or interpreting the relevant terms of the Agreement correctly. He also submits that the overtime provisions are relevant in terms of how the Agreement is to be interpreted in this context. MSS rejects the claim that it is rostering employees in a way that is not provided for by the Agreement. However, it does not appear to go as far as submitting that the Commission has no jurisdiction to deal with the dispute because it does not concern “the application of this Agreement.” I am satisfied in response that the so-called rostering dispute concerns the application of the Agreement, and therefore the Commission has jurisdiction to deal with it.

[31] The Allowances Dispute – the dispute notification indicates that this concerns the underpayment of allowances provided for in the Agreement, and the provisions in the Agreement dealing with the payment of allowances. For example, it makes specific reference to issues that arise when an overtime shift is worked, and whether the laundry and first-aid allowances are payable.

[32] Clause 22 of the Agreement provides for the payment of various allowances. It makes reference to a “Firearm allowance,” “Occupational First-Aid Allowance,” “Relieving officer allowance,” “Employee providing own transport,” “ Leading Hands/Senior Officers,” “Torch allowance,” “Broken shift allowance,” “Meal allowance,” and “Laundry and dry cleaning allowance.” 27 Clause 22 also makes reference to Schedule A of the Agreement, which sets out the relevant amounts in respect of each of these allowances.

[33] Mr Findley submits that MSS has not been paying the allowances employees are entitled to. He also claims that MSS is not interpreting or applying the Agreement in the manner intended. The principal submission made by MSS, in response, is that Mr Findley is not entitled to represent other employees in regard to this dispute. However, based on the provisions in clause 22 of the Agreement, and the terms of the dispute notification, I am satisfied that the Commission has jurisdiction to deal with this dispute given that it concerns the application of the Agreement.

[34] Attending a Disciplinary Meeting – this involves a claim by Mr Findley that he is entitled to be reimbursed for his travel expenses when required to attend the disciplinary in Melbourne on 3 June 2016. He lives in a suburb of Geelong and drove his car to the meeting. He submits the Commission has jurisdiction to deal with the dispute because of sub clause 22.5 “Employee providing own transport.” It states:

“22.5.1 An employee required by the Company to provide their own motor car will be paid a running cost allowance per kilometre provided log book records are supplied for verification accompanied by a statutory declaration.” 28

[35] MSS submits in response that the Agreement contains no provision for payment of travel expenses in these circumstances, and this is instead an individual contractual issue.

[36] Mr Findley obviously incurred some travel expenses when he was required to travel from Geelong to Port Melbourne after being informed in a letter dated 1 June 2016 that he was required to attend a meeting on 3 June at MSS’s Security office in Port Melbourne. It would perhaps have been sensible for some agreement to be reached prior to this meeting about what was to apply in terms of the time involved and any expenses incurred. However, it appears that this did not occur. As indicated, Mr Findley now relies on sub clause 22.5 in support of his entitlement to have his travel expenses reimbursed. However, sub clause 22.5 is predicated on the basis that an employee is “required by the company to provide their own motor car.” 29 While I accept that Mr Findley was obviously required to find some means to travel to the meeting, I am not satisfied that he was necessarily “required by the company to provide their own motor car,”30 and he could instead have utilised some other means to attend the meeting. As a consequence I am not satisfied this claim concerns the application of the Agreement or the National Employment Standards. It follows that the Commission does not have jurisdiction to deal with it.

[37] The Compulsory Training dispute – the original dispute notification makes reference to various matters under this heading. It deals in broad terms with the requirement to hold first-aid certificates and the provision of first-aid training. Mr Findley submits that the dispute arises in the context of sub clause 9.4.1, and concerns the nature of training required to be undertaken, and what rate of pay is to apply for the time involved. He also submits that the overtime provisions in the Agreement potentially have application. The scope of the claim also extends to payment of travel expenses, particularly for employees located in regional areas who may have to travel some distance to attend the training. It also refers to a situation whereby Mr Findley was required to use some of his annual leave accruals to participate in this training.

[38] MSS again rejects these submissions and submits instead that the Agreement does not deal with payment of travel expenses in such circumstances. It also submits that any dispute in relation to the rate of pay to be provided for training undertaken by Mr Findley has already been resolved as a consequence of him now being paid at the Level 4 rate.

[39] Sub clause 9.4 is headed “Training (Non-Site Training) & Court Attendance”. Sub clause 9.4.1 continues to relevantly state, “Where the company requires an employee to undergo training … then that training shall be paid training at that employees’ ordinary hourly rate of pay. Examples of such training may include, but are not limited to, First-Aid training, Firearms training, Fire warden training etc.” 31

[40] Given the provisions in the Agreement I am satisfied that the Commission has jurisdiction to deal with a dispute about the nature of first-aid training that MSS requires an employee to undertake. I am also satisfied it could extend to encompass a claim about the appropriate “ordinary hourly rate of pay” to be paid when undertaking that training. In addition, if MSS requires an employee to provide their own vehicle in conjunction with attendance at such training then sub clause 22.5.1 might also provide jurisdiction to the Commission to deal with the cost involved in travelling. However, I am not satisfied that the terms of the Agreement provide the Commission with jurisdiction to deal with matters related to first-aid training that extend beyond these matters. This includes those aspects of the dispute that deal with the payment of travel expenses, leaving aside anything that might arise under sub clause 22.5.1. Mr Findley, and indeed other employees, maybe of the view that the lack of specific provision for payment of travel expenses when attending first-aid training is an omission that needs to be rectified. However, as the decision in Berri makes clear the task of interpreting an enterprise agreement does not involve rewriting the Agreement to achieve what might be regarded by some as a fair or just outcome. The task instead is always one of interpreting the Agreement produced by the parties.

[41] The next ground of objection is that Mr Findley does not have standing to raise these disputes on behalf of other employees because he does not have authority to act on their behalf. This objection is raised in respect of each of the different claims. MSS accordingly submits that the Commission cannot be satisfied that Mr Findley is acting in a representative capacity on behalf of these employees. It also rejects the submission that the employees he purports to represent have not been identified, or have not identified themselves, because they are concerned about possible repercussions if they are.

[42] Mr Findley refers, in response, to sub clause 15.2.1 of the Agreement and submits that it does not place any restriction on who may act in a representative capacity. His witness statement also makes reference to the circumstances in which he has been requested to represent other employees, and which matters they relate to. He also states that these authorities have not been revoked. It is also noted that the Commission specifically asked MSS’s representative during the hearing whether they wished to cross examine Mr Findley in regard to his evidence about these matters but they did not.

[43] In summary, I am not aware of anything at this point that precludes Mr Findley from acting to represent employees who were employed by MSS at the time the dispute notifications were lodged, and who have authorised him to act on their behalf. In the event that MSS continues to take issue about this in any future proceedings there are obviously various ways in which these concerns can be responded to. For example, it is not unusual for the Commission to have to deal with a situation where an employer takes issue with a claim by a Union that it represents employees in a particular dispute, but the Union then claims the employees do not wish to be identified. This situation is often dealt with by the employer providing the Commission with a list of employees and, at the same time, the Union providing the Commission with the names and signatures of the employees it purports to represent. The Commission then determines whether any names appear on both lists and advises the parties accordingly, without obviously divulging any details about who those employees are. In some cases other steps are taken to then provide verification about the information given to the Commission. These steps could be taken in this matter in the future if MSS continues to press its objections to Mr Findley’s ability to act in a representative capacity.

Conclusion

[44] As indicated, this decision deals with the jurisdictional objections brought by MSS in response to the application filed by Mr Findley on 3 November 2016. I have dismissed most of those objections and concluded instead that the Commission has jurisdiction to deal with most of the matters in dispute, apart from the limited exceptions that have been identified.

[45] However, in coming to this decision the Commission is not expressing any view about the respective merits of the matters in dispute. Those issues extend beyond the scope of this decision. The Commission has also acknowledged that MSS may wish in the future to further test Mr Findley’s entitlement or ability to act in a representative capacity.

[46] It is also noted that the substantive matters in dispute were last dealt with in a conference held on 11 November 2016. I now propose to list the application again for mention at 10 a.m. on Wednesday, 14 February 2018, by way of a teleconference, to enable both parties to provide their views about how the matter should now be progressed. These arrangements will be confirmed in a subsequent Notice of Listing. It is also noted that the decision handed down on 26 October 2017, which granted MSS permission to be legally represented in the proceedings, only extended to the proceedings dealing with the jurisdictional objections. If MSS now seeks to be legally represented in any future proceedings it will again need to seek permission to be represented in that way.

COMMISSIONER

Appearances:

J Findley on his own behalf.

F Leoncio of Counsel with R Levin for the Respondent.

Hearing details:

2017.

Melbourne:

November 29.

<PR600187>

 1   AE400199.

 2   Findley v MSS Security Pty Ltd T/A MSS Security [2017] FWC 5590 at [19].

 3   MSS Security Victorian Enterprise Agreement 2011 at cl 15.1.

 4   PR930177, 9 April 2003.

 5   [2017] FWCFB 269.

 6   Findley v MSS Security Pty Ltd [2017] FCCA 2898.

 7   Transcript at PN12.

 8 Applicant’s submissions re jurisdictional objection, dated 24 November 2017, at [11].

 9   Ibid at [15(c)].

 10   [2017] FWCFB 1702.

 11 Applicant’s submissions re jurisdictional objection, dated 24 November 2017, at [35].

 12 Exhibit JF1 at [2].

 13   Respondent’s submissions re jurisdictional object, dated 10 November 2017, at [4(b)].

 14   Transcript at PN12.

 15   Ibid.

 16   Transcript at PN15.

 17   Transcript at PN17.

 18   Transcript at PN22.

 19   Transcript at PN12.

 20   Findley v MSS Security Pty Ltd [2017] FCCA 2898 AT [76].

 21   Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd[2017] FWCFB 269 at [49], [55]-[56].

 22   MSS Security Victorian Enterprise Agreement 2011 at cl 15.1.

 23   Ibid.

 24   [2017] FWCFB 3005.

 25   Australasian Meat Industry Employees Union v Golden Cockerel[2014] FWCFB 7447.

 26   MSS Security Victorian Enterprise Agreement 2011 at cl 9.1.1.

 27   Ibid at cl 22.

 28   Ibid at cl 22.5.1.

 29   Ibid.

 30   Ibid.

 31   Ibid at 9.4.1.

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