Lachlan Wende v Normist Pty Ltd T/A NQ Fasteners & Lifting

[2023] FWC 2917

[2023] FWC 2917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Lachlan Wende
v

Normist PTY LTD T/A NQ Fasteners & Lifting

(C2023/4702)

COMMISSIONER HUNT BRISBANE, 7 NOVEMBER 2023

Alleged dispute about any matters arising under the modern award and the NES; [s146] – Commission’s power to arbitrate under the terms of an award – no power to arbitrate without consent from both parties – consent not given – application dismissed

1. On 9 August 2023, Mr Lachlan Wende applied to the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with a dispute settlement procedure.

1. The dispute concerns Mr Wende’s former employment with Normist Pty Ltd T/A NQ Fasteners & Lifting (the Respondent). The Respondent is in the general retail industry. Mr Wende essentially made an underpayment claim.

1. The matter was listed for conference before me on 22 August 2023. Mr Wende did not attend, but was represented by Ms Georgia Smith, Youth Vocational Specialist of Headspace Cairns. Mrs Sheree Salonga, Accounts Receivable appeared for the Respondent. 

1. The Respondent detailed how various payments had been made to Mr Wende, including a back payment on 6 June 2023.  The Respondent denied that Mr Wende had been underpaid in respect of his employment with the Respondent.  

1. I informed the parties that two jurisdictional issues may need to be determined if the application is pressed; is there consent to arbitrate the dispute, and was the dispute raised while the employment was on foot?  

1. Correspondence was sent from my chambers on 27 October 2023 and 6 November 2023, inquiring if Mr Wende wished to pursue his application, or alternatively withdraw his application.  No response was received. 

Dispute resolution procedure

1. Mr Wende’s employment was covered by the General Retail Industry Award 2020 (the Award). The Award contains the following dispute resolution procedure:

“36        Dispute resolution

36.1Clause 36 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.

36.2The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.

36.3If the dispute is not resolved through discussion as mentioned in clause 36.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.

36.4If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 36.3 and 36.3, a party to the dispute may refer it to the Fair Work Commission.

36.5The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.

36.6If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.

36.7A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 36.

36.8While procedures are being followed under clause 36 in relation to a dispute:

(a)work must continue in accordance with this award and the Act; and

(b)an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.

36.9Clause 36.8 is subject to any applicable work health and safety legislation.”

1. At clause 36.5, the procedure permits the Commission to deal with the dispute including by consent arbitration.

1. I am satisfied that during the conference convened on 22 August 2023, attempts were made to mediate and conciliate the dispute.   The Respondent has not provided consent for the dispute to be arbitrated.  

Consideration

1. Section 595 of the Act sets out the Commission’s powers to deal with disputes:

“595      FWC’s power to deal with disputes

(1)       The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(2)       The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a)       by mediation or conciliation;

(b)       by making a recommendation or expressing an opinion.

(3)       The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(4)       In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5)       To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”

1. Section 595(3) provides that the Commission may only deal with a dispute by arbitration if it is expressly authorised to do so under or in accordance with another provision of this Act. This limitation is emphasised by s.595(5) of which provides that to avoid doubt, the Commission must not deal with a dispute by arbitration except as authorised by s.595.

1. The terms of the Award’s dispute resolution procedure at clause 36.5 expressly only provides for consent arbitration. Arbitration is only available where both parties have agreed to it. This is made clear in The Explanatory Memorandum to the Fair Work Bill 2008 at item 2289:

“FWA will have power to arbitrate a bargaining dispute or a Part 6-2 dispute if the parties have agreed that it may arbitrate, however the parties describe that process (subclauses 240(4) and 739(4)) …”

1. The Full Bench in Woolworths Ltd trading as Produce and Recycling Distribution Centre (Woolworths)[1] held that in relation to s.595 of the Act:

“[19]      The section is concerned with the powers the tribunal may exercise in dealing with disputes. Section 595(1) provides that Fair Work Australia may only deal with a dispute if it is expressly authorised to do so. Section 595(2) provides that the tribunal may deal with a dispute by mediation, conciliation, making a recommendation or expressing an opinion subject to the qualification that it may not deal with the dispute by arbitration. Section 595(3) permits the tribunal to arbitrate if it is expressly authorised to do so. Section 595(4) operates to confer procedural powers. It seems to us clear enough from the text of these provisions that the legislature intended that Fair Work Australia can deploy voluntary methods of dispute resolution without the consent of the parties to the dispute, provided the dispute is one with which it is authorised to deal, but can only arbitrate if it has been specifically empowered to do so.”

1. Section 739 of the Act applies if a term referred to in s.738 requires or allows the Commission to deal with a dispute. Section 739(4) is reproduced below:

“(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.”

1. The Full Bench in Woolworths also found:

“[21] Section 738 specifies the type of dispute resolution terms to which the division applies. Section 738(b) makes it clear that the division applies in relation to a dispute resolution procedure of the kind described in s.186(6). Section 739(1) provides that the section applies if a term in s.738 requires or allows Fair Work Australia to deal with a dispute. Section 739(2) is not relevant. Section 739(3) provides that a dispute resolution term can limit the powers available to Fair Work Australia to settle a dispute. Section 739(4) sets out the circumstances in which Fair Work Australia may arbitrate a dispute, providing that if the parties have agreed that Fair Work Australia may arbitrate, Fair Work Australia may do so. It appears to us that s.739(4) strongly implies the negative stipulation that if the parties have not agreed, Fair Work Australia has no power to arbitrate.”

1. I find that the Commission may only arbitrate a dispute under clause 36 of the Award where the parties consent to arbitration by the Commission. In the absence of agreement from both parties, the Commission has no power to arbitrate the dispute. Mr Wende has not expressed whether he seeks to press his application, and the Respondent has not provided consent for the dispute to be arbitrated. 

1. There is no evidence before the Commission that there is an enterprise agreement or contract of employment or other written agreement including a term that provides a procedure for dealing with disputes between Mr Wende and the Respondent.

1. Accordingly, the Commission does not have power to arbitrate this dispute and this application must be dismissed.  Having dismissed the application, it is not necessary to determine if the dispute was raised by Mr Wende during the period of employment.  

COMMISSIONER

[1] [2010] FWAFB 1464.

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