Laing O'Rourke Australia Construction Pty Ltd v The Australian Workers' Union
[2013] FWC 9456
•2 DECEMBER 2013
[2013] FWC 9456 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Laing O'Rourke Australia Construction Pty Ltd
v
The Australian Workers' Union; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Construction, Forestry, Mining and Energy Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2013/6514)
Northern Territory | |
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 2 DECEMBER 2013 |
Summary: s.739 dispute application - CFMEU objections - whether application is jurisdictionally competent - steps in dispute resolution procedure made out - objections dismissed.
[1] On 23 October 2013 Laing O’Rourke Australia Construction Pty Ltd (“the employer”) lodged a dispute application under s.739 of the Fair Work Act 2009 (“the Act”) in relation to a workplace issue that had been the subject of a prior application under s.418 of the Act. A stop order had been made against the employees who were the subject of the application. The employer subsequently notified this dispute in relation to the CFMEU, the AMWU, the CEPU and the AWU (“the unions”).
[2] The unions raised various jurisdictional objections in relation to the dispute application.
[3] They claimed the application was not competent for various reasons (that I will set out below) and indicated that they would not attend a conference under the dispute application or would not otherwise productively contribute to such a conference prior to the jurisdictional issues being determined. My final, summary correspondence to the parties put it this way:
In circumstances where the Respondent (union) parties contend that the in alleged dispute under an enterprise agreement is not a matter about which the Commission can exercise jurisdiction, and patently intend not to participate productively in a conference until issues bearing on jurisdiction are determined, it is desirable to move to determine the jurisdictional point(s). This is not a circumstance that arises particularly often. This is because ordinarily parties will confer willingly in relation to the matter(s) in alleged dispute and reserve their rights in the event there is no resolution of the dispute on an agreed basis. Here, however, it is necessary to hear and determine the various issues of jurisdiction that are in contest before any further steps can be taken.
A directions timetable will be issued shortly so as to afford procedural fairness in the preparation of the respective responses and materials.
Should there be a revision of the circumstances by the union parties, the Commission can convene a conference at which parties can reserve their rights at short notice (or else convene a conference at a time convenient to the parties).
[4] I note the AWU ceased to agitate its opposition to the application prior to the hearing of the jurisdictional objection. The CFMEU, AMWU and CEPU maintained their objections, however. A hearing proceeded in respect of these objections.
[5] In essence the dispute concerned (as I will determine below in any event) whether or not the employer should provide for employees to depart from the work site or project (by bus or, perhaps, by private vehicle as well) at the designated finishing time or whether work at the workface, as it may be on the project, should cease at the designated finishing time (with employees departing from the workplace at a subsequent point in time).
[6] It was this issue that was at the background of the s.418 application referred to above.
[7] Section 8.1(c)(6) of the Laing O’Rourke Construction Australia Proprietary Limited Ichthys Onshore Construction Greenfields Agreement (“the Agreement”) provides as follows:
The Parties and Employees bound by the Agreement commit to:
[...]
(6) remain at their workface until their designated finishing time.
[8] The employer takes the view that under the terms of the Agreement employees are not permitted to cease work at the workface until the designated finishing time.
[9] It appears as though there may be a number of practices on site applied by variously tiered sub contractors that permit employees to depart from the workface somewhat earlier than the designated finishing time so that those employees may depart the work site or project itself at the designated finishing time.
[10] The CFMEU, supported by the AMWU and the CEPU, argued that the matter raised by the employer was not a matter arising under the Agreement.
[11] The CFMEU contended that the Commission was being asked to determine the timing of bus transport rather than the application of the particular clause of the Agreement, and the issue otherwise dealt with a matter of custom and practice.
[12] It was also argued that the dispute cannot be a dispute under the Agreement as nowhere in the Agreement does it mention when employees are to arrive home after performing a day’s work, and that the Agreement dealt with issues about the employment relationship other than travel arrangements agreed between the employer and employees.
[13] It was also submitted that the dispute settlement procedure under clause 18 of the Agreement had not been followed by the employer in any event. Whilst it was conceded that the dispute had been “aired on some level” the communication between the parties was limited and had not occurred under the auspices of the dispute settlement procedure. Nor had the parties referred to the dispute settlement procedure.
[14] It was also submitted that cl.18.2(b)(3) of the Agreement had not been met. Clause 18.2(b)(3) of the Agreement refers to the dispute resolution process and provides as follows:
If the matter remains unresolved, either the Employee or the supervisor/superintendent shall request a formal meeting with the Employer’s most senior manager on the Project site, or the manager’s representative.
[15] The CFMEU contended no such “formal” meeting had occurred (they had been “informal” only), and no such formal meeting had occurred with the employer’s most senior manager on site, regardless.
[16] It was further argued that at no time had the dispute settlement procedure been formally commenced by either party during “informal discussions”.
Determination
[17] I firstly turn to characterise the dispute.
[18] True it is that the dispute, like most disputes, has various consequential manifestations. Because the issue concerns the time of the departure from the project or site it will bear upon the time at which employees are bussed, and their bussing arrangements (where the employees are non-locals).
[19] But the substance of the issue in dispute (as I have stated earlier) concerns the time at which employees are obligated to remain at the workface, at which they are performing duties on the project/work site.
[20] The direct evidence before me was that the employees had questioned the employer about the time at which they wished to finish work each day (which was between 4:30 PM and 4:40 PM so that they could board the buses to leave at the designated finishing time of 5 PM).
[21] This is a matter that is regulated by cl.8.1(c)(6) of the Agreement, as set out above.
[22] The matter in dispute therefore is a contest between the expectations of the employees and the construction of the Agreement to which they are subject (as advanced by the employer).
[23] Relatedly, the issue in dispute is a matter arising under the Agreement, as there must be, and must have been, a rejection of the employer’s application of cl.8.1(c)(6) of the Agreement.
[24] In the s.418 proceedings, the CFMEU organiser put the issue in dispute like this:
The site procedure has been set from the beginning. Everyone has come on board with this that you leave the project - you bus out of the project at 5 pm at knock off.
[...]
When you say “leave the project at 5 o’clock”, does that mean they walk out of the gate at 5 o’clock, or does that mean they to leave their work area at 5 o’clock? No, that means they leave the project, the security gate at 5 o’clock. So for example probably the furthest [indistinct] they furthest part of the project [indistinct] there guys would properly leave about 4.30, 4.35 with intention of getting off the project at 5 o’clock. [..] The site standard is they leave the project at five o’clock, and that’s when they stopped getting paid.
[25] In its discussion with the CFMEU organiser and delegate/employee representative, the employer had made reference to it maintaining a position derived from its “interpretation of the Agreement” as a defence against the claim made against it.
[26] Clearly, the issue in contention was the time at which employees may depart the workface or work area at which they were performing their duties so that they can depart from the project or site itself. Again, this is a matter that is inextricably related to the operation of cl.8.1(c)(6) of the Agreement, which purports to regulate the time at which the employees may leave the workface.
[27] Having so characterised the dispute, I now turn to evaluate whether the steps in the dispute resolution procedure as prescribed in the Agreement have been applied before such time as the dispute has been referred to the Commission.
[28] The direct evidence before me is that the employees of the employer raised the issue of the appropriate departure time with their supervisor/team leader “many times”, and that this had been witnessed by the employer’s industrial relations manager. The evidence was that the issue had been raised since September 2013. The matter was also raised by the CFMEU delegate. The CFMEU organiser gave evidence of the period of time (being some six or seven weeks) over which the dispute had been agitated at the ground level, as it were, in the s.418 proceedings referred to above.
[29] The evidence also was that the employees had agitated (or “pushed”) that the employer lodged a dispute with the Commission.
[30] The employer’s construction manager himself also recalled attending a pre-start meeting and clarifying with employees that they were employed by the employer to work from 6:30 AM to 5 PM and that they weren’t to leave the workplace area until the designated finish time. This occurred towards the end of September 2013.
[31] When the dispute was discussed, the evidence was that it was discussed in terms of the time at which the employees were obligated to remain at the workface (which was - as pressed at the time - until the designated finish time on the employer’s construction of the Agreement).
[32] On 2 October 2013 the CFMEU delegate/employee representative met with the employer’s human resources/industrial relations manager, along with the most senior manager on the site. The purpose and intention of the meeting was to discuss the dispute. The minutes of this meeting formed part of the evidence. The dispute was discussed. In the course of so doing, reference was made to the steps in the dispute resolution procedure.
[33] In this way, the requirements of s.18.2(b)(3) of the Agreement (which reads as per immediately below) were discharged:
If the matter remains unresolved, either the Employee or the supervisor/superintendent shall request a formal meeting with the Employer’s most senior manager on the Project Site, or that manager’s representative.
[34] The reference in s.18.2(b)(3) of the Agreement to “Employee” is taken to be a reference to an employee or the employee’s representative. In this case, the employee representative was also the CFMEU delegate. As is evident from the employer’s evidence but as well as the transcript of proceedings in the s.418 application, the CFMEU delegate demonstrably performed the role of a representative of the employees in this particular dispute. He was far indeed from being a marginal figure with little understanding of the issues.
Conclusion
[35] The application under s.739 of the Act is jurisdictionally competent.
[36] The jurisdictional objections raised by the CFMEU and supported (ultimately) by the CEPU and the AMWU are dismissed as a consequence.
[37] A conference of the parties will be convened this Wednesday 4 December 2013.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr M. Coonan, of Herbert Smith Freehills, for the Applicant
Mr T. O’Brien, for the CFMEU.
Hearing details:
Brisbane
2013
2 December
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