Lisa Marie Holman v Nicholas Adrian Campbell Atf the Campbell Childcare Trust
[2022] FWC 453
| [2022] FWC 453 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Lisa Marie Holman
v
Nicholas Adrian Campbell Atf The Campbell Childcare Trust
(C2022/326)
| COMMISSIONER SIMPSON | BRISBANE, 1 MARCH 2022 |
Application to deal with a dispute – Whether Award provides power to arbitrate dispute
On 7 January 2022, Mrs Lisa Holman (Mrs Holman / the Applicant) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with Clause 9 of the Children’s Services Award 2010 (the Award). Mr Nicholas Adrian Campbell ATF the Campbell Childcare Trust is the Respondent to this application (the Respondent).
The Dispute
The dispute is regarding Mrs Holman’s classification as Support Worker Bus Driver under the Children’s Services Award 2010, and whether it can be converted, by the letter of 27 May 2021, to CSE (Children’s Services employee) working within the Centre as an assistant covering staff leave without agreement of Mrs Holman, and the giving of a written proposal under clause 7.4(a) of the Award and consultation under clauses 8 and 8A.
I listed the matter for Conference on 24 January 2022, and a further Report Back Conference on 21 February 2022. The Respondent has confirmed to the Commission that they do not consent to arbitration of the dispute. The Applicant contests by force of the language in the Award and specifically clause 9.6 of the Award, that the Respondent has consented to arbitration.
The Applicant provided submissions to support its claim that the Commission did have power to arbitrate the dispute. Given the proceedings on both 24 January and 21 February 2022 proceeded as private conferences I determined that it was appropriate to issue a written decision. The Respondent provided a brief submission in response to the Applicant’s submission, and the Applicant subsequently provided a further reply submission in relation to the issue.
Dispute Resolution Clause
The Dispute Resolution clause in the Award, relevantly provides:
“9. Dispute resolution
9.1 Clause 9 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
9.2 The 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.
9.3 If the dispute is not resolved through discussion as mentioned in clause 9.2,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.
9.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 9.2 and 9.3,a party to the dispute may refer it to the Fair Work Commission.
9.5 The 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.
9.6 If 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.
9.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 9.
9.8 While procedures are being followed under clause 9 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.
9.9 Clause 9.8 is subject to any applicable work health and safety legislation.”
Consideration
The scope and nature of the Commissions power to resolve disputes will depend on the terms of the relevant industrial instrument. In this case the relevant industrial instrument is the Children’s Services Award 2010 (the Award).
The kernel of the issue that the Applicant seeks to be determined was considered in a decision of a Full Bench of Fair Work Australia in the matter of Woolworths Ltd trading as Produce and Recycling Distribution Centre [2010] FWAFB 1464 (“Woolworths decision”). The Respondent’s submissions referred to and rely on this decision. The decision makes clear that in accordance with Sections 739 of the Fair Work Act 2009 a dispute arising under a dispute settlement procedure may only be arbitrated by the Commission if the parties concerned have agreed to giving the Commission that power.
In the case of the Award in this case, clauses 9.5 and 9.6 make clear arbitration without consent falls outside the Commissions power under the Act.
The Respondent in its submission correctly distinguishes the authorities relied upon by the Applicant in its initial submission on the matter.
I have considered further authorities relied upon by the Applicant in its further submission of 25 February 2022. Again, the authorities on which the Applicant relies are not to the point. The decisions address matters such as the proper characterisation of a dispute, the framing of questions for arbitration or the relationship between industrial instruments and contracts of employment.
The Applicant criticised the Respondent’s submission on the basis that section 739(5) precludes an interpretation of clause 9.6 of the Award that excludes arbitration, as it submits the Respondent has argued.
This misreads the Respondent’s submission and the legislation. The legislative intent is that the Commission does not have power to arbitrate disputes unless the power is deliberately given to it by the parties to an industrial instrument. Some enterprise agreements provide the Commission that power. The Award clearly does not.
The Applicant makes reference to the binding force of the contract of employment. The issue before the Commission is the power provided to the Commission in the dispute settlement procedure in the Award.
The Commission may have power to arbitrate a dispute if such a power is provided in a dispute settlement procedure contained within an employment contract, as section 738(c) of the Act expressly refers to the contracts of employment that contain dispute settlement procedures, and it would be consistent with section 739(4) for the Commission to exercise such a power had the parties consented to it in a contract of employment. There is no evidence of that occurring in this case.
The Applicant is correct to distinguish the circumstances in the Woolworths decision to the extent that matter involved an enterprise agreement, and this matter an Award, however the principles are the same. In the absence of consent being given by the parties, the Commission does not have the power of arbitration for the purposes of disputes procedures contained in industrial instruments, and the legislation is unambiguous on this issue.
It is also wrong of the Applicant to submit that because the Respondent concedes the Commission has jurisdiction to deal with the dispute, it must follow that the Commission has power to arbitrate the dispute. The legislation clearly contemplates the Commission having jurisdiction to conduct conferences and engage parties in conciliation, mediation or to provide an opinion or make a recommendation without necessarily have power to issue a legally binding decision.
On a separate point, the Applicant submits that the Respondent has made no attempt as a matter of fact to establish that it has not consented to arbitration. Contrary to the submission of the Applicant, the onus is not on the Respondent to establish that it has not consented to arbitration, the power to arbitrate under an Award would trigger when consent is affirmed for the Commission to arbitrate
For the reasons set out above, contrary to the position as put for the Applicant, given the Respondent does not consent to arbitration of the dispute the Commission has no power to arbitrate.
The matter will be listed for a further report back at 2:00pm (Qld time) Thursday 10 March 2022.
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