Leigh McFall v Endeavour Energy Network Management Pty Ltd

[2020] FWC 4313

[2020] FWC 4313

FAIR WORK COMMISSION

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 points of view of the other parties, approach discussions in good faith, work co-operatively to try and resolve the matter, and arrange and attend meetings without unnecessary delay. Endeavour Energy will, where possible, take the needs of employees into account when making decisions.

34.2 Tier 1 Disputes

34.2.1 Tier 1 disputes will be resolved at the local level as far as practicable and in a timely manner, with the involvement of the following:

a) the employee(s) concerned;

b) the employee’s chosen support person (who may be a union representative or other individual) (if requested by the employee(s)); and

c) the supervisor, and manager (if required).

34.3 Tier 2 Disputes

34.3.1 If the issue or dispute is not resolved at Tier 1 level or is a corporate wide issue, it may be referred to the Tier 2 level with involvement of the following:

a) The employee(s) concerned

b) The employee’s chosen support person or union organiser (or other person designated by the union organiser);

c) Relevant senior manager(s), affected local manager(s), and Manager Industrial Relations (or other person designated by the Manager Industrial Relations).

34.3.2 An independent third party facilitator may be engaged to assist in resolving the issue or dispute, if agreed by all affected parties.

34.4 Tier 3 Disputes

34.4.1 If the issue or dispute remains unresolved, it may be referred to the Fair Work Commission for conciliation and/or arbitration, by Endeavour Energy, the union, an employee or their representative with the rights of the parties to appeal being reserved. If both parties agree, a person other than the Fair Work Commission can be asked to deal with the issue or dispute, as provided for under s. 740 of the Act.

34.5 Other agreed initiatives

34.5.1 There will be joint training of employees, union delegates and line managers in dispute resolution.

The parties will work together actively to identify any "grey areas" in the agreement and seek to agree on the correct interpretation before disputes arise.’

[3] In accordance with my usual procedures, the matter was listed for a conference on 4 December 2019. Mr T Dunne, Union Organiser, appeared for and with Mr McFall and Ms E Murison, Manager – Industrial Relations and Ms R Common appeared on behalf of Endeavour. No settlement of the dispute was able to be achieved.

[4] Endeavour’s jurisdictional objections to the application were summarised as follows:

‘25. Endeavour Energy respectfully submits that the FWC does not have jurisdiction to determine the Application for the following reasons (which are elaborated upon further below):

i. Mr McFall and the Union have not complied with and discharged the pre-requisite stages (or ‘Tiers’) of the applicable dispute resolution process under clause 34 of the 2017 Agreement;

ii. the Issue that is the subject of the dispute arose and related to matters under the 2012 Agreement which cannot be agitated under the 2017 Agreement; and

iii. Mr McFall and the Union have previously confirmed that the Issue was determined under the applicable dispute resolution process and it would be unequitable and prejudicial for them to now seek to re-agitate this matter (particularly as there have been no relevant developments or change in circumstances).’

[5] For reasons outside the Commission’s control, various extensions of directions were granted and hearing dates vacated; the parties ultimately agreeing that I determine the jurisdictional objections ‘on the papers’.

BACKGROUND

[6] The factual matrix to the dispute is not in contest and may be summarised as follows:

[7] Mr McFall commenced employment with Endeavour’s predecessor entity, Integral Energy, on 4 October 2005, as a Plant Technician – Mechanical. From 25 December 2012 to 12 June 2018, the terms and conditions of Mr McFall’s employment were governed by the Endeavour Energy Enterprise Agreement 2012 (the ‘2012 Agreement’).

[8] On 1 July 2013, when Mr McFall’s substantive position was made redundant, he was redeployed into various work placements, in accordance with Endeavour’s redeployment policy, until he was appointed to a permanent position of LSO on 14 April 2014. In accordance with the redeployment policy, during the redeployment process, Mr McFall continued to receive his substantive salary and the ESRA (at the 60% rate). However, on appointment to the permanent LSO role, his substantive salary was maintained, but the ESRA was removed. Mr McFall claims that he was told at the interview for the LSO role, that ESRA would be maintained. Endeavour’s position was that Mr McFall was no longer eligible for the ESRA as:

•  the LSO role was not eligible for the ESRA under the 2012 Agreement;

•  Mr McFall was no longer required to maintain the relevant training applicable to his former position and which formed the basis for the ESRA; and

•  The terms of the relevant policy did not contemplate the maintenance of the ESRA.

[9] The ESRA was paid to some employees who had transitioned into the LSO role in accordance with the historic ‘grandfathering’ arrangements under the 2012 Agreement. However, any employee who commenced an LSO role after April 2014, did not receive ESRA (including Mr McFall).

[10] On 8 May 2014, Mr McFall lodged a grievance about the non-continuation of ESRA in his permanent role and the various steps in the DRP of the 2012 Agreement (Cl 29) were followed by the Union on Mr McFall’s behalf. Endeavour maintained the ESRA did not apply to the LSO position and nor did the Salary Maintenance Policy apply as the ESRA did not form part of the substantive rate of pay.

[11] On 3 July 2014, the Union ultimately advised of its intention to invoke Tier 3 of the DRP, being a referral to the Commission. Relevantly, no further action was taken by the Union to raise the issue or lodge a dispute until September 2018 when the Union sought to reagitate the same issue on behalf of Mr McFall – over four years later.

[12] In the interim, Endeavour Energy was leased to a private consortium and a new Enterprise Agreement came into force on 13 June 2018 – the 2017 Agreement. An internal email (cc’ed to Mr Dunne) was sent on 5 October 2018 from Mr D Johnson, Transform Workshop Acting LSO, to Ms Murison as follows:

‘Emma,

In light of Emails you provided regarding our member Leigh Mccfalls (sic) grievance from 2014 and after talking to Leigh the USU and our member consider that said grievance as finalised.

Whilst Leigh is unhappy with what transpired he acknowledges that due to the delinquency of the grievance and the inaction from the USU to pursue the matter to tier three at the time it is unreasonable to pursue this grievance any further.’

[13] There the matter rested until Mr McFall sought to informally agitate the matter in May 2019 as he believed another employee, redeployed at the same time as him, had maintained the ESRA. Subsequent enquiries revealed this to be incorrect and all other employees had been treated the same and the Policy was consistently applied.

[14] However, in September 2019, Mr McFall’s new Union representative, Mr Dunne, again sought to informally reagitate the claim. Endeavour reiterated again that Mr McFall was not eligible for ESRA, the issue had been considered and determined on many occasions and would not change. The present dispute application was filed on 20 November 2019.

Jurisdictional Objections

[15] It is Endeavour’s contention that this dispute has not been properly processed through the 2017 Agreement’s DRP (Cl 34). The DRP requires staged steps in three tiers. On the Union’s own case, the DRP had been undertaken in June 2014 and although it may have followed the 2012 Agreement, it was not followed under the 2017 Agreement. Endeavour submitted that although the two DRPs were similar, they are not the same for the purposes of discharging the prerequisite stages under Cl 34 of the 2017 Agreement. In particular, the 2017 Agreement does not provide for the transfer or continuation of disputes under the 2012 Agreement, and as mentioned earlier, the provisions of the 2012 Agreement are expressly extinguished by Cl 2.2.1 in the 2017 Agreement.

[16] It was noted that the authorities of the Commission have established that the Commission only has jurisdiction under s 739 of the Act if the party bringing the dispute has complied with each step in the relevant DRP; see: The Australian Workers’ Union v MC Labour Services Pty Ltd[2017] FWCFB 5032 (‘MC Labour Services’). It is obvious, and implicitly conceded by the Union that the three Tiers under Cl 34 of the 2017, could not have been followed. Therefore, the Commission has no jurisdiction to deal with the dispute.

[17] Endeavour further submitted that the dispute does not arise under the terms of the 2017 Agreement. As the issue in the dispute asserted by the Union, related to the eligibility of Mr McFall for the ESRA upon him being permanently appointed to the LSO role, it was a dispute arising under the terms of the 2012 agreement. It was put that the dispute must have been extinguished by s 54(3) of the Act (an EA that ceases to operate can never operate again) and s 58(2)(e) notes that if an earlier enterprise agreement ceases to apply once a later agreement comes into operation, the earlier agreement can never so apply again.

[18] Thus, if a grievance or concern raised under a replaced agreement will not be capable of continuation unless ‘carried over’ or ‘permitted’ under the replacement agreement; see: Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd[2016] FWC 8360. Endeavour submitted there is nothing in the 2017 Agreement which expressly permits a dispute to be carried over from an earlier agreement. Relevantly:

i. Cl 2.2.1 of the 2017 Agreement stipulates that it applies to the exclusion of and replaces and supersedes all other agreements including the 2012 Agreement;

ii. Cl 2.3.1 of the 2017 Agreement stipulates there is no ability for ‘extra claims’ for the duration of the 2017 Agreement; and

iii. Cl 34 of the 2017 Agreement – dealing with the relevant dispute resolution procedure - does not expressly preserve or permit the continuation of grievances or concerns brought under the 2012 Agreement.

[19] Endeavour added that during negotiations for the 2017 Agreement, there was active consideration of concerns about disputes taking too long to resolve. As a consequence, the 2017 Agreement’s DRP included the following new provision at Cl 34.1.4:

‘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.’

It was Endeavour’s view that an unreasonable delay would be 21 days after Tier 2 to Tier 3 unless extenuating circumstances exist.

[20] Endeavour further submitted the doctrine of estoppel applies in this case, as this matter has a history of 5 and a half years and the extensive period of delay is both unreasonable and unjustified; notably:

‘i. the Union had foreshadowed in July 2014 that they had intended to progress the Issue to the FWC but this did not eventuate and they ultimately expressly confirmed in October 2018 they would not be proceeding in this manner (see Attachment 3 to these submissions);

ii. the FWC is readily accessible to self-represented applicants and in the event that Mr McFall had wished to do so (notwithstanding any disagreement and/or difficulties with the Union), he could have independently progressed the Issue himself and in a more timely manner; and

iii. the Issue pertains to matters that occurred in April 2014 and several key personnel and associated information relevant to this may not be available.’

See: Commonwealth of Australia v Verwayen (1990) 170 CLR 394, where the High Court said at para 21:

‘… the law will not permit an unconscionable - or more accurately, unconscientious – departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party’s detriment if the assumption be not adhered to for the purposes of litigation.’

[21] It was contended that Mr McFall and the Union caused Endeavour to assume that the issue had been resolved due to:

‘ …

i. the extensive delays in actively pursuing the Issue; and

ii. the express confirmation from the Union that the Issue would not be pursued further (see Attachment 3 to these submissions).

47. The re-agitation of the Issue at this time by Mr McFall and the Union would be inequitable and detrimental for a range of reasons including:

i. the ability to respond to any further specific matters that may be raised by Mr McFall and the Union by Endeavour Energy … may be limited due to the time elapsed and the availability of key personnel and associated information;

ii. had Mr McFall and the Union not induced the belief that the Issue was resolved, Endeavour Energy may have undertaken further processes contemporaneously to further enhance their position; and

iii. it is objectively unreasonable for the Issue - relating to events and circumstances in 2014 - to be continued after over five years (noting that most FWC claims having limitation periods of 21 days and other civil claims generally having limitation periods of between two to three years after the relevant event).’

For the Union

[22] In its response to Endeavour’s submissions, the Union stated that Mr McFall was entitled to the ESRA as applying to his role and in accordance with the salary maintenance policy of Endeavour.

[23] It was said that because the Union had properly escalated the dispute in 2014 up to Tier 2 and had not at any stage, revoked or waived its right to pursue the dispute to the Commission under Tier 3, the Commission had jurisdiction to determine the matter. It was said that there was no reason why a matter raised under a prior agreement cannot be pursued at a later date, and so long as the DSP had been followed, it was irrelevant which agreement applied at the time of referral to the Commission. Moreover, while the 2017 Agreement may not expressly provide for the transfer or continuation of a dispute, it does not expressly prevent it either.

[24] The Union put that it would be impractical and inherently unfair for all disputes to expire as soon as a new agreement is ratified; see: Association of Professional Engineers, Scientists and Managers, Australia v NSW Electricity Networks Operations Pty Limited t/a TransGrid[2018] FWC 6335 at [97]-[98].

[25] The Union further contended that Cl 34 does not confine the disputes to those under the terms and conditions of the Agreement or the NES. Clause 34.1.1 reads:

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

[26] The Union rejected Endeavour’s arbitrary selection of 21 days for matters to be referred from Tier 2 to Tier 3. There is nothing in the Agreement about such a time limit and what is an ‘unreasonable delay’ will depend on the circumstances.

[27] The Union explained that some of the delay can be explained by the several change of Organisers since 2014. Further, there was no formal confirmation from the Union that the dispute had ever been resolved.

Submissions in reply

[28] Endeavour submitted that the Union was in error when:

‘i. it is understood that Mr McFall and the Union seek to rely upon processes implemented in 2014 as purportedly discharging the pre-requisite steps in the dispute resolution process under clause 34 of the 2017 Agreement

ii. it is asserted that Mr McFall and the Union have not articulated, identified or evidenced any entitlement for Mr McFall to receive an ESRA upon his appointment to the LSO role under the 2017 Enterprise Agreement or otherwise, and

iii. it is asserted that Mr McFall and the Union have not articulated, identified or evidenced any ‘dispute’ arising or able to be determined by the FWC under the 2017 Enterprise Agreement.’

[29] The respondent reaffirmed its earlier submissions by reference to the legal principles applying to the Commission’s jurisdiction in disputes about the interpretation of industrial instruments (the ‘Golden Cockerel principles’) and the Commission’s powers to dismiss a matter (s 587).

[30] Endeavour submitted that it is illogical and untenable for the Union to submit that the prerequisite DSP steps were discharged in 2014, many years prior to the commencement of the 2017 Agreement, under which this dispute has been initiated. Further, the suggestion that actions taken in 2014 ‘carry over’ cannot be accepted as:

‘i. the 2012 Agreement and the 2017 Agreement are distinct industrial instruments with distinct provisions

ii. the clauses prescribing the dispute resolution procedures in each instrument (although similar) differ in their content and are not identical

iii. clause 34.1.4 of the 2017 Agreement requires any dispute to be ‘resolved as quickly as possible, without unreasonable delay’ and this has not occurred due to the inaction of Mr McFall and the Union

iv. by email dated 5 October 2018, it was expressly confirmed or otherwise represented to Endeavour Energy that the Issue had been resolved (Attachment 3 to the Endeavour Energy Initial Submissions); effectively presenting an intervening act in the alleged ‘pre-requisite’ steps / stages that took place in 2014, and

v. the 2017 Agreement does not expressly preserve disputes that were allegedly ‘on foot’ (for example, under the 2012 Agreement) at the time of commencement.’

[31] Endeavour conceded that the wording of Cl 34.1.1 was broad as it states ‘all disputes arising out of the employer/employee relationship’. However, the dispute concerning Mr McFall’s eligibility was resolved and concluded at least by 5 October 2018. Therefore, no dispute existed beyond that date and a new dispute would have been required to be lodged. Endeavour rejected the Union’s submission that its position was ‘unknown’ or ‘unconfirmed’ as:

‘i. the Resolution Email copied and clearly involved Mr McFall’s current named representative from the Union, [Troy] Dunne (Mr Dunne) (see page 2 of the Application and Attachment 3 to the Endeavour Energy Initial Submissions)

ii. Mr McFall and the Union (specifically, Mr Dunne) did not contemporaneously indicate that the Resolution Email was erroneously sent or not reflective of Mr McFall and/or the Union’s views

iii. no evidence has been proffered to explain the purported unauthorised or incorrect sending of the Resolution Email to Endeavour Energy

iv. on any objective assessment of the Resolution Email, there is no indication or reason to doubt the legitimacy that it reflected the position of Mr McFall and the Union, and

v. it is unreasonable to suggest that Endeavour Energy ought to have ‘confirmed’ whether the relevant correspondence was reflective of Mr McFall and the Union’s position when:

a. it was sent by a delegate of the Union that previously assisted and advocated on behalf of Mr McFall and the Union

b. it involved Mr Dunne, and

c. there was no subsequent agitation by Mr McFall and/or the Union on the Issue until around May 2019.’

[32] In any event, the original dispute was intrinsically linked to the 2012 Agreement, and therefore ceased upon the commencement of the 2017 Agreement (s 58(2)(e)). It was further submitted that the Commission could not deal with the dispute as it was inconsistent with s 739(5) of the Act and the express terms of the 2017 Agreement; namely Cls 2.2.1, 2.3.1 and 34.1.4.

[33] As to the length of the delay, Endeavour said that a delay of five and a half years was objectively unreasonable and there was no cogent evidence to explain the delay. It was asserted that negligence or unreasonable delay in asserting or enforcing a right in equity, customarily extinguishes it; see: Australian Workers’ Union v BlueScope Steel (AIS) Pty Limited [2011] NSWIRComm 1018. It maintained that Mr McFall and the Union would be estopped from pursuing the application due to:

•  the extensive, unexplained delays; and

•  the express confirmation that the issue would not be pursued further.

[34] To the extent it answered the Union’s merit arguments, Endeavour submitted that there was no entitlement to the ESRA when Mr McFall commenced in a new permanent position to which the ESRA did not apply.

CONSIDERATION

Jurisdiction of the Commission

[35] The Act provides in Part 6-2 for the manner in which disputes may be dealt with in the Commission. Sections 738 and 739 relevantly provide:

738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term 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; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(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.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

[36] When dealing with a dispute as comprehended by these sections, the Commission’s task is, as described by the Full Federal Court in Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112 at para 58:

‘In dealing with the dispute referred to it, the Commission acted, at both levels, as a private arbitrator. Its task was to determine the dispute referred to it by the parties and to make an award or determination which was binding on the parties because they had agreed to be so bound.’

[37] The Union’s submissions in this case were brief and uncharacteristically for the Union lacking in its usual rigour and enthusiasm. Perhaps, this is understandable given the material it had to work with. Let me be blunt. I understand that a Union is sometimes called upon to run a case for a disgruntled member or members where the prospects of success are nil or, at best, very remote. However, a point must be reached where the good standing and reputation of the organisation is tarnished (not to mention its resources being diverted from more worthy pursuits), if it presses a case which is so obviously and fundamentally flawed. Regrettably, in my judgment, this is such a case. I would dismiss this dispute for the following reasons.

[38] Firstly, it is abundantly clear from the Union’s Form F10 and its submissions that it asserts jurisdiction based on compliance with the DRP in the 2012 Agreement, but states the dispute arises from the steps in the 2017 Agreement. This is an illogical contortion of the correct procedure for the pressing of a dispute under the relevant and applicable agreement at the time the dispute was filed – namely, 20 November 2019.

[39] In other words, as a matter of justice and proper administration, in my view, it is not open for a party, to ‘cherry pick’ a DRP in a replaced agreement, following on that party’s delinquency in not pursuing a dispute diligently, or at all, for over four years (including three years where the rescinded agreement would be in force). and then expect that it can simply reagitate a stale dispute on multiple occasions to seek an improbable outcome from the Commission.

[40] In any event, the Commission is bound by the provisions of ss 738 and 739 of the Act to only deal with a matter to the extent of the jurisdiction and powers the parties have agreed to confer on the Commission by the express terms of the Agreement itself. Clause 2.3.1 makes it perfectly clear that not only do none of the terms or conditions of the 2012 Agreement carry over to the 2017 Agreement, but the 2012 Agreement is expressly rescinded, superseded and replaced. With such definitive terms, it is not possible for a party to invoke a term of the 2012 Agreement to ground jurisdiction of a dispute filed under the 2017 Agreement.

[41] Secondly, although the DSPs in both Agreements are similar in substance and intent, they are not the same. For example, and ironically, Cl 34.1.4 of the 2017 Agreement was a new clause to address concerns that disputes were taking too long to resolve. Each step in the 2017 Agreement must be complied with for jurisdiction to be established; see: MC Labour Services. On any objective analysis, neither Tier One nor Tier Two in the 2017 Agreement have been followed as the Union concede it had done so under the 2012 Agreement in 2014. It must logically follow, as the DRP in the 2017 was not followed in any practical sense, or at all, that the Commission is barred from further dealing with the dispute. Moreover, this case does not come ‘within a bull’s roar’ of what Flick J recently found that in some cases, it may only be necessary to establish ‘substantial compliance’ with the steps in a DRP; see: Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2) [2020] FCA 951.

[42] Thirdly, I accept Endeavour’s submission that the issue in dispute as asserted by the Union, namely, Mr McFall’s eligibility for the ESRA upon his permanent appointment to the LSO role in 2014, is not a matter arising under the terms of the DRP in the 2017 Agreement. This is so because the 2017 Agreement replaced and superseded all of the terms of the 2012 Agreement, and by virtue of s 54(3) of the Act, that former Agreement ceased to have force and effect. The following passage from Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd [2016] FWC 8360 is relevant:

‘[21] A number of general principles can be distilled from the cases. Where a dispute clause in an enterprise agreement empowers the Commission to settle a dispute about matters arising under the agreement and a dispute is commenced, the Commission will no longer have jurisdiction to deal with the dispute if the agreement ceases to operate while the dispute is on foot, unless the successor agreement has a savings clause, or a dispute settlement term that empowers the Commission to settle disputes about matters that are not confined to the application or terms of that agreement.’

[43] Fourthly, I am also well satisfied that the inclusion of the words ‘without unreasonable delay’ in Cl 34.1.4 of the 2017 Agreement could not possibly be considered to have been complied with, in spirit or intent, if the delay was over five years.

[44] For these reasons, I am comfortably satisfied that this dispute is not competent as it fails the above jurisdictional requirements under the 2017 Agreement. It is unnecessary for me to deal with the doctrine of estoppel as argued for by Endeavour. However, in my opinion, the principles of the doctrine of estoppel would, prima facie, apply to this dispute. Further, I have serious doubts that there is merit to the Union’s case, even if I was to find a jurisdictional pathway for dealing with the matter.

[45] The dispute is not competent for want of jurisdiction. Accordingly, it must be dismissed. I so order.

DEPUTY PRESIDENT

Appearances:

Mr T Dunne on behalf of the applicant.

Ms E Murison and Ms R Common for the respondent.

Printed by authority of the Commonwealth Government Printer

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