Karen Akers v Carter Holt Harvey Woodproducts Australia Pty Ltd T/A Carter Holt Harvey

[2017] FWC 4046

[2017] FWC 4046

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Karen Akers
v
Carter Holt Harvey Woodproducts Australia Pty Ltd T/A Carter Holt Harvey
(C2017/4191)

COMMISSIONER RYAN MELBOURNE, 14 AUGUST 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - jurisdiction – application dismissed.

[1] This matter was filed in the Fair Work Commission (the Commission) on 28 July 2017. On 3 August 2017 Carter Holt Harvey Woodproducts Australia Pty Ltd (CHH) notified the Commission that it objected to the Commission dealing with this application as it did not have jurisdiction to do so.

[2] A hearing was conducted on 10 August 2017 to deal with the jurisdictional objection of CHH. My decision and reasons for decision were given in transcript at the conclusion of those proceedings. I set out below the decision and reasons, now edited.

[3] The matter that was described in the form F1 that was filed by Ms Akers and because the structure of the form F1 is slightly different from the structure of the form F10, there is an identification of what is wanted and then an identification of why that thing is wanted. What was wanted out of this application was that the employees, which is 19 staff members, seek to be treated equally and without discrimination in relation to the recently announced enhancement packages which the company and the unions have agreed.

[4] The “why” speaks of meetings between the lead team and CHH representatives, staff being ultimately advised that they would not get anything beyond the policy for staff exiting in the business at the time that they go. Then the final grounds for why they wanted what they wanted was:

“We, staff, request to have Commissioner Ryan review our concerns before approval the Morwell closure package.”

[5] The very essence of the issue in dispute here is fair treatment and in asking Ms Akers questions about that, Ms Akers very clearly acknowledged that this is an issue where the staff members feel that they have been unfairly treated by their employer because their employer has significantly enhanced the redundancy packages for persons who were covered by an enterprise agreement that applied to production and maintenance employees, but would not increase the redundancy arrangements that applied to the staff employees.

[6] I think it is reasonably obvious that there is a double standard, in that there has been a significant increase in the redundancy payments made available to persons covered by the enterprise agreement and that, as asserted by the applicant in this matter – and certainly as was made known to me during the mention - Carter Holt Harvey do not intend to increase the redundancy package for its staff employees. That strikes me as being an inherent unfairness, but for the purposes of an application invoking the jurisdiction of the Commission, unfairness is not the essential ingredient.

[7] It might be something that goes to whether or not a matter can be dealt with in certain ways, but the essential ingredient that has to apply for a jurisdictional purpose is: Is the subject matter of the dispute alleged to be in play, a matter which can fall under one of the headings of section 738 of the Act? Even if I assume that each and every one of the 19 employees is covered by an award and therefore is covered by the disputes procedures terms of an award (and I make it as an assumption because it has not been argued and I do not need to make a finding on that), but even if everyone was covered by an award, the subject matter of this dispute relates to fair treatment between staff and non-staff employees where staff are saying that they are not being treated equally because there has been recently announced enhancement packages which apply to those persons covered by the enterprise agreement and that that recently announced enhancement package is not being applied to staff.

[8] Ms Akers properly made the concession that the matter in dispute does not involve the application or operation of the National Employment Standards relating to termination or redundancy. Even if I can also assume that each and every employee other than Ms Akers has a contract of employment that provides a procedure for dealing with disputes between the employer and the employee to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement, then equally the subject matter of this dispute is not a matter that arises under the National Employment Standards or a safety net contractual entitlement.

[9] That leads to the inevitable conclusion that the Commission does not have jurisdiction to deal with this matter as a matter under sections 738 or 739 of the Fair Work Act. Having said that, I am obliged to dismiss the application, but that is simply not the end of what goes on in the real world. Quite clearly this matter, as currently constructed, is not a matter that the Commission can deal with as a dispute under section 739 of the Act and whether this is on the basis of an application filed by Ms Akers or an application filed by any of the other of the 19 employees, it is the subject matter of the dispute which means that it falls outside of section 738.

[10] The fact that it falls outside of section 738 does not lessen the fact that it is an industrial dispute in the old sense of the word. I use that in the context of what used to be considered an industrial dispute within the meaning of the Conciliation and Arbitration Act; a dispute between employers about matters pertaining to the employment relationship. It is simply a dispute which is not amenable to the Commission exercising its jurisdiction under the dispute resolution procedures and that is because of the construction of the language of the Act.

[11] I would make the obvious observation. Any dispute in the workplace should, wherever possible, be resolved at the lowest possible level by discussions between an employer and its employees. That is at the basis of the dispute resolution procedures in the award. It is at the base of the dispute resolution procedure which is the model dispute term and it is at the heart of every dispute resolution procedure in every enterprise agreement.

[12] Dispute resolution that requires the intervention and involvement of a third party is always as a last resort and always is a reflection of the failure of the parties to be able to resolve the dispute themselves. There is a real dispute here. It is just it is not a dispute that falls within the jurisdiction of the Commission under section 739 of the Act. I would simply urge the parties to continue talking with each other and I would certainly urge the employer to have discussions with its employees.

[13] Will it resolve the dispute? I have no idea, but it never hurts to continue a dispute resolution process that is based upon reasonable dealings with each other. The Commission cannot assist the parties given that there is no jurisdictional basis at the moment, but there are so many other avenues under the Fair Work Act for the parties to pursue, if they want. I will just leave it in the hands of the parties, but I do strongly urge the parties to talk to each other. There is still hope.

[14] Mr Snaden, can you please make certain that my comments are drawn to the attention of senior management within your client’s business. I am not certain who is instructing you and at what level they are within the business, but could you urge upon whoever is your instructor within the business – and this is if you have to go back through your instructing solicitor to your client, draw my comments to the attention of your client and urge your client at the most senior level possible to at least consider engaging with its employees; for no other reason that it is good business practice and it is just sensible common sense behaviour.

COMMISSIONER

Appearances:

K Akers and B Box for the Applicant.

J Snaden of Counsel for Carter Holt Harvey Woodproducts Australia Pty Ltd.

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