DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Leigh McFall
v
Endeavour Energy Network Management Pty Ltd
(C2019/7067)

Electrical power industry
DEPUTY PRESIDENT SAMS	SYDNEY, 18 AUGUST 2020

Application to have the Commission deal with a dispute under a dispute resolution procedure in an agreement - electricity industry - grievance of redeployed employee concerning the payment of the Electricity Safety Rules Allowance (‘ESRA’) - steps under a Dispute Resolution Procedure (‘DRP’) of a replaced 2012 Agreement - dispute commenced over five years ago - no action taken for four years - dispute reagitated under replacement 2017 Agreement - jurisdictional objections - DRP not followed under replacement 2017 Agreement - previous steps taken cannot carry over to replacement 2017 agreement - dispute not about a matter arising under the 2017 Agreement - doctrine of estoppel - dispute not properly brought under 2017 Agreement - merits case weak - no jurisdiction - application dismissed.

INTRODUCTION

[1] This decision will determine a jurisdictional objection to an application filed by the United Services Union (‘USU’ or the ‘Union’) on behalf of its member, Mr Leigh McFall, on 20 November 2019. The application seeks to have the Fair Work Commission (the ‘Commission’) deal with a dispute in accordance with a Dispute Resolution Procedure (‘DRP’) in an agreement, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’). The dispute is with Endeavour Energy Network Management Pty Ltd (‘Endeavour’ or the ‘respondent’) and concerns the payment of the Electrical Safety Rules Allowance (‘ESRA’) to Mr McFall, as a redeployed Logistics Support Officer (‘LSO’) He is employed under the Endeavour Energy Enterprise Agreement 2017 (the ‘2017 Agreement’).

[2] Relevantly, the application was brought under Cl 34 (DRP) of the 2017 Agreement, and identifies that the issue subject of dispute had been dealt with at the Tier Levels 1 and 2 of the DRP in June 2014. The dispute was related to ‘allowances’ said to be payable under Appendix B of the 2017 Agreement. The DRP (Cl 34) reads as follows:

‘34. Disputes

34.1 Dispute Resolution Procedure

34.1.1 The dispute resolution procedure will be used to deal with all disputes arising out of the employer-employee relationship.

34.1.2 While a dispute is being dealt with under the dispute resolution procedure the status quo is to be maintained; that is the situation that existed immediately prior to the issue that gave rise to the dispute.

34.1.3 While a dispute is being dealt with under the dispute resolution procedure work is to continue as normal. The process will not be accompanied by industrial action.

34.1.4 Disputes should, as far as possible, be resolved as quickly as possible, without unreasonable delay, at their source and at the lowest possible level.

34.1.5 Disputes should remain in the part of the organisation concerned without interference from employees not involved.

34.1.6 All those involved in dealing with a dispute should adopt an interest-based approach. They should appreciate the interests and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 4313
Decision Date: 18 AUGUST 2020

CaseChat Overview and Summary

In the matter of Leigh McFall versus Endeavour Energy Network Management Pty Ltd, the Federal Circuit and Family Court of Australia was presented with an application for the Commission to handle a dispute under a dispute resolution procedure outlined in an agreement. The dispute at hand involved a redeployed employee's grievance regarding the payment of the Electricity Safety Rules Allowance (ESRA) in the electricity industry. The dispute had been ongoing for over five years, with no action taken for four years before being reinitiated under a replacement 2017 Agreement.

The primary legal issues before the court were whether the dispute resolution procedure of the 2017 Agreement could be applied to the current dispute, given that the steps under the Dispute Resolution Procedure (DRP) of the previous 2012 Agreement had not been followed. Furthermore, the court had to determine whether the doctrine of estoppel applied, preventing the employer from asserting that the dispute was not properly brought under the 2017 Agreement. The court also needed to assess the merits of the case and whether it had jurisdiction over the matter.

The court found that the dispute resolution procedure of the 2017 Agreement could not be applied to the present dispute as the steps under the DRP of the 2012 Agreement had not been followed. Consequently, the previous steps taken could not carry over to the 2017 Agreement. The court determined that the dispute was not about a matter arising under the 2017 Agreement, and therefore, the doctrine of estoppel did not apply. Additionally, the merits of the case were considered weak, leading the court to conclude that it lacked jurisdiction over the matter. As a result, the application was dismissed.

Orders