Maritime Union of Australia, The-Western Australian Branch v Compass Group (Australia) Pty Ltd
[2016] FWC 2037
•7 April 2016
[2016] FWC 2037
DECISION
| Fair Work Act 2009 | |
| s.739 - Application to deal with a dispute | |
| Maritime Union of Australia | |
| v | |
| Compass Group (Australia) Pty Ltd T/A ESS | |
| (C2015/3789) | |
| COMMISSIONER CLOGHAN | PERTH, 7 APRIL 2016 |
| Alleged dispute about matters arising under an enterprise agreement. |
[1] This is an application to the Fair Work Commission (Commission) by the Maritime
Union of Australia (MUA), to deal with a dispute pursuant to s.739 of the Fair Work Act
2009 (FW Act).
[2] The MUA is in dispute with Compass Group (Australia) Pty Ltd (Compass or
Employer).
[3] In its application, the MUA state that the dispute is referred to the Commission
pursuant to the dispute settlement procedure (DSP) in the Compass Group (ESS Remote –
Western Australia) Enterprise Agreement 2012 (Compass Agreement).
[4] Compass asserts that the Commission has no jurisdiction to deal with the dispute.
RELEVANT PROVISIONS OF THE AGREEMENT
[5] The Compass Agreement was approved by Deputy President McCarthy on 5 March
2013. In his Decision, DP McCarthy noted that “the Australian Workers’ Union, being a
bargaining representative for the Agreement, has given notice under s.183 of the Act that it
wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the
Agreement covers the organisation”.
[6] Clause 2 of the Compass Agreement states:
“2. APPLICATION AND COVERAGE
The Agreement covers –
Compass Group (Australia) Pty Ltd ABN 41 000 683 125
Compass Group remote Hospitality Services Pty Ltd ABN 98 113 561 363
ESS Eastern Guruma Pty Ltd ABN 86 117 031 786
ESS Gumula Pty Ltd ABN 77 082 326 065
ESS NYFL Pty Ltd ABN 47 109 473 912
[2016] FWC 2037
ESS Pantarlangu Pty Ltd ABN 70 146 222 004
ESS Thalanyji Pty Ltd ABN 89 141 801 541
(referred to collectively as the Company)
and employees of the Company employed in the classifications contained in the
Agreement to perform work at or in connection with the Company’s ESS Remote
operations at sites in Western Australia, excluding offshore construction projects or
production operations.
It is intended that upon approval by Fair Work Australia (FWA), the Agreement will
also cover The Australian Workers’ Union (Union).” (my emphasis)
[7] Clause 9 of the Compass Agreement reads:
“9. DISPUTE RESOLUTION 9.1 The purpose of this clause is to provide, during the period of an employee’s
employment, a procedure to deal with particular types of disputes affecting the
employee.
9.2 In the event of a dispute about a matter arising under the Agreement or in relation
to the NES, the following sets out the procedure to settle the dispute –
Step 1…
Step 2…
Step 3…
Step 4 If the dispute is unable to be resolved at the workplace and Step 3 has been taken, a party to the dispute may refer the dispute to FWA. The process to be utilised by FWA includes mediation, conciliation and arbitration.
9.3 A party intending to refer a dispute to FWA must first provide the other party with
written notice of the intention to refer the dispute to FWA if it is not resolved
within 7 days.
9.4 The Company or employee may appoint another person, organisation or
association to accompany and/or represent them for the purposes of this clause.
…
9.8 The dispute resolution procedure stops operating on the cessation of an
employee’s employment and any dispute resolution that had commenced lapses,
including any matter referred to FWA.”
RELEVANT PROVISIONS OF THE FW ACT
[8] The FW Act relevantly provides at ss.595, 738 and 739 as follows:
“595 FWC’s power to deal with disputes
[2016] FWC 2037
(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) … (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) … (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.”
“738 Application of this Division This Division applies if:
(a) …
(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) …
(d) …”
“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) … (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.” (my emphasis)
[2016] FWC 2037
RELEVANT BACKGROUND
[9] In or around October 2014, the operator of the Gorgon Project, Chevron Australia Pty
Ltd, provided additional accommodation for employees engaged on the Project by chartering
the Silja Europa (Europa) and berthing the vessel at the Barrow Island jetty.
[10] Compass employed the catering, cleaning and stores employees on the Europa.
[11] On 27 October 2014, the MUA made application (C2014/1990) to the Commission to
deal with a dispute concerning Compass, in accordance with a DSP pursuant to s.739 of the
st
| FW Act (1 | Application). |
[12] The MUA referred to the DSP in the Compass Group (Australia) Pty Ltd Integrated
Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas) Greenfields Agreement 2010
(Offshore Oil and Gas Agreement).
st
| [13] | In the 1 | Application, the MUA state that the dispute is: |
“…caused by the employer (Compass) refusing to engage its employees employed on
the MS Silja Europa (the Europa) in accordance with the Compass Group (Australia)
Pty Ltd Integrated Ratings, Cooks, Caterers and Seafarers (Offshore Oil and Gas)
Greenfields Agreement 2010 (the MUA Agreement) [referred to by the Commission
as the Offshore Oil and Gas Agreement].
…
6. Compass is to date refusing to employ workers on the Europa in accordance
with the MUA Agreement, and instead appears to prefer to employ workers under the
Compass Group (ESS Remote – Western Australia) Enterprise Agreement 2012 (the
Compass Agreement).
7. The Compass Agreement has generally inferior conditions to the MUA
Agreement.
8. The dispute is over whether the MUA Agreement applies to the employees
engaged to work on the Europa.” (my emphasis)
st
| [14] | The relief sought by the MUA in the 1 | Application is that: |
“Pursuant to clause 45.4 of the MUA Agreement and s.595 and s.739 of the Fair Work
Act, the MUA seeks a determination that the MUA agreement applies to employees
employed on the Europa”.
[15] The MUA application C2014/1990 was supported by various documents.
[16] The MUA discontinued application C2014/1990 on 10 February 2015.
[17] On 4 May 2015, this application was filed in the Commission and was the subject of
nd
| conferences on 26 May and 6 July 2015 (2 | Application). |
[2016] FWC 2037
[18] On 30 July 2015, the MUA made application C2015/4980 to the Commission to deal
with a dispute involving Compass in accordance with a DSP pursuant to s.739 of the FW Act
rd
| (3 | Application). |
rd
| [19] | In the 3 | Application, the dispute was referred to the Commission pursuant to the |
Compass Agreement which the MUA stated was the relevant industrial instrument. The
dispute, as set out by the MUA, concerned “Compass’ interpretation and application of the
Agreement” to particular operational circumstances. The supporting documentation attached
rd nd
| to the 3 | Application is that relating to conference proceedings in the 2 | Application. The |
Commission, as presently constituted, is unaware of whether this dispute has been resolved by
conciliation.
st
| [20] | In summary, the Commission has received three (3) applications. The 1 | Application |
is made pursuant to the DSP in the Offshore Oil and Gas Agreement and seeks a
determination by the Commission that the Offshore Oil and Gas Agreement applied to the
relevant employees engaged by the Employer on the Europa.
nd
| [21] | The MUA contend, in the 2 | Application itself, that the Compass Agreement |
“excludes employees performing work in connection with offshore projects”. However, the
nd
2 Application goes on to state, “the dispute is about the Respondent not considering claims
by the relevant employees and about the operation of clause 4.2 of the [Compass] Agreement
in respect of those claims”.
[22] The MUA in its submission in response to Compass’ jurisdictional objection in this
application, similarly combine both matters when it states that the “context” of the dispute is
that the relevant employees, “wish to make claims for improved conditions in respect of their
employment”. Compass, according to the MUA, agrees that the Compass Agreement covers
and applies to the relevant employees, however, the Employer asserts that the no extra claims
provision of the Compass Agreement, precludes bargaining for improved conditions before
the nominal expiry date of the Agreement.
nd
| [23] | Further, the MUA proceed in its submissions relating to the 2 | Application to submit |
that, “the question of the application of the [Compass] Agreement arises only in the course of
determining whether or not the Relevant Employees are precluded from making those claims
and conversely, whether the Respondent is obliged to consider those claims”.
[24] Essentially, the MUA, in the first instance, is asking the Commission to determine the
coverage and applicability of the Compass Agreement. If the Compass Agreement applies,
the second issue for determination is whether the relevant employees are restricted from
making claims for improved conditions in light of the no extra claims term of the Agreement.
Obviously, if the Commission determines that the relevant employees are not covered by the
Compass Agreement, the second issue becomes redundant.
nd
| [25] | I now turn to consideration of this application – the 2 | Application. |
[2016] FWC 2037
CONSIDERATION
Subclause 9.8 of the DSP
[26] The MUA contend that it was necessary, and appropriate, for the relevant employees
to raise the dispute pursuant to the DSP. Accordingly, I am obliged to consider subclause 9.8
of the DSP, which reads:
“The dispute resolution procedure stops operating on the cessation of an employee’s
employment and any dispute resolution that had commenced lapses, including any
matter referred to FWA.”
[27] There is no dispute between the parties that the Europa has left Australia, and
consequently, there are no relevant Compass employees working upon the vessel.
[28] However, for subclause 9.8 of the Compass Agreement to have any function, it is
necessary to determine whether the relevant employees have ceased employment with
Compass. I say ceased employment with Compass, as the plain and ordinary meaning of
subclause 9.8 of the Compass Agreement, is that the DSP process stops operating “on the
cessation of an employee’s employment”.
[29] The difficulty of applying subclause 9.8 of the Compass Agreement is that, in this
rd
| application, and in the 3 | Application, the MUA state: |
“The Applicant [MUA] has been appointed by several employees of the Respondent to
represent them for the purposes of the dispute resolution procedure. However, the
employees have requested that their identities be kept confidential. The Applicant is
able to provide the Commission with a list of names and classifications of the
employees subject to maintaining confidentiality.”
[30] It would appear that although the MUA was able to provide a list of those who it
represents, no list was requested or provided to the Commission.
[31] In such circumstances, it is difficult, with certainty, to come to the conclusion that the
Commission has jurisdiction to deal with the dispute in view of subclause 9.8 of the Compass
Agreement. Further, to be fair to the MUA and Compass, this issue was not canvassed in
submissions, and if it is relevant, at what time does the subclause become operative in terms
of Commission proceedings.
[32] I now turn to a second issue of whether the Commission has jurisdiction to deal with
the dispute.
Subclause 9.2 of the DSP
[33] From the material provided to the Commission, and in the application, it does not
appear that steps 1, 2 and 3 in the DSP have taken place.
[34] Step 1 is a mandatory requirement that the “parties” to the dispute, must attempt to
resolve the dispute at the workplace; that is, between the relevant employees and
supervisor/manager.
[2016] FWC 2037
[35] Step 2 elevates the dispute. If the dispute is not resolved between the employee(s) and
site supervisor/manager, the dispute is progressed to a discussion between the employee(s)
and the relevant Regional/Area Manager or General Manager.
[36] I have no documentation which demonstrates that the relevant employees have had
any discussions at the workplace with the relevant workplace management personnel, as
required in Steps 1 and 2 of the DSP.
[37] While it is correct that the relevant employee(s) can appoint “another person,
organisation or association to accompany and/or represent them” for the purposes of the DSP,
I have no documentation to indicate that this has occurred.
[38] What I do have is correspondence from the MUA dated 15 October 2014 to the
Employer, in which the Union contend that the Offshore Oil and Gas Agreement applied to
the employees engaged by Compass on the Europa.
[39] In further correspondence to the Employer dated 23 October 2014, the MUA again
contend that the Offshore Oil and Gas Agreement applies to the relevant employees, and that
if Compass holds a contrary view, the MUA will notify the Commission of a dispute pursuant
to the DSP in the Offshore Oil and Gas Agreement.
[40] This documentation, reduced to its simplest, demonstrates that the dispute between
Compass and the MUA was, initially at least, about whether the Compass or the Offshore Oil
and Gas Agreement applied to the relevant employees.
[41] From this initial correspondence between the MUA and Compass concerning which
enterprise agreement applied, over time, the disagreement has changed into a dispute about
the exclusion provision in Clause 2 of the Compass Agreement which eliminates “work at or
in connection with…offshore construction projects or production operations” from the
Employer’s remote Western Australian operations.
[42] Notwithstanding the various iterations of the dispute between the MUA and Compass,
nd
| this application (2 | Application) is an application for the Commission to deal with a dispute |
concerning the exclusion provision in Clause 2: Application and Coverage of the Compass
Agreement, and its relationship with the definition of “offshore construction project” in
Clause 5: Definitions. While such a dispute does not readily recommend itself to a resolution
on the “shop floor” between employees and their immediate supervisors, the MUA contend it
is a dispute “arising under the [Compass] Agreement”. Compass disagrees with the MUA’s
contention that it is a dispute arising “under the agreement”. Irrespective of this contest, the
parties have agreed to an incremental process of dispute settlement before a dispute can be
referred to the Commission pursuant to Step 4 of the DSP.
[43] The power for the Commission to deal with disputes in the workplace derives from
ss.595 and 739 of the FW Act as well as the DSP clause in the Compass Agreement.
[44] For the Commission to have arbitral powers to resolve the dispute through arbitration,
it is necessary that Steps 1, 2 and 3 “have taken place”; that has not occurred in this instance.
Accordingly, the Commission does not have jurisdiction to arbitrate the dispute.
[2016] FWC 2037
[45] Put differently, s.739(1) of the FW Act “allows” the Commission to deal with a
dispute. However, this power is limited by the terms of a DSP. Not surprisingly, for the
benefit of parties, DSPs generally have a process which attempts to resolve disputes at the
immediate workplace, and if necessary, at progressively higher levels of responsible persons
associated with the workplace. Specifically, the Commission is not “allowed” to deal with a
dispute, pursuant to s.739(3) of the FW Act, if that power is limited by the terms of the DSP;
the term of the DSP in the Compass Agreement, limits the Commission to arbitrating the
dispute, unless and until, Steps 1, 2 and 3 have been completed.
[46] Having considered the application and the submissions of the parties, I find that the
Commission does not have jurisdiction to arbitrate the dispute until the steps in subclause 9.2
of the DSP have been complied with.
“Parties”
[47] The parties to the Compass Agreement are, Compass and the relevant employees.
[48] The MUA is neither the employer nor the relevant employees as employees.
[49] The MUA was not a bargaining representative to the making of the Agreement nor did
it seek, presumably because it was not a bargaining representative, to give notice stating that it
wants the Compass Agreement to cover the Union.
[50] Subsection 739(4) of the FW Act enables the Commission to arbitrate a dispute if the
“parties” have agreed that it may do so in an industrial instrument.
[51] Subject to the “Steps” process and other conditions outlined in the DSP, the “parties”
have agreed to the Commission arbitrating disputes in the Compass Agreement.
[52] Pursuant to s.739(6) of the FW Act, the Commission “may deal with a dispute only on
application by a party to the dispute”.
[53] The MUA, which is the applicant to this application, is neither, as I have already
stated, the employer nor the employees.
[54] In this application, the MUA states that, “the Applicant [MUA] has been appointed by
several employees to represent them for the purposes of the dispute resolution procedure”
(my emphasis).
[55] The terms of the DSP require, at Step 4, that if the dispute is unable to be resolved at
the workplace, “a party to the dispute may refer the dispute to FWA”.
[56] The MUA is, without doubt, not a “party” to the Compass Agreement. The question is
whether the MUA, as a representative of employees who are a party to the Compass
Agreement, is able to make application to the Commission.
[57] It could be argued that only a “party” to the Compass Agreement can make an
application to the Commission to deal with a dispute. In that case, only the Employer and an
employee can refer the dispute to the Commission. In such circumstances this application
would not have been properly made.
[2016] FWC 2037
[58] Alternatively, it could be argued that the MUA, as a representative of the employees,
has standing in their stead. Consequently, the MUA would contend, as a representative of the
employees, it has a mandate, among other things, to make application to the Commission to
deal with the dispute; accordingly, the MUA would argue that the application has been
properly made.
[59] In the absence of any submitted documentation which demonstrates that the MUA is
acting on behalf of some employees, and the lack of submissions on this matter, I am unable
to come to a conclusive determination. In view of my finding immediately above relating to
subclause 9.2 of the DSP, I find that it unnecessary to reach a conclusion on this issue.
[60] I now turn to the final matter concerning subclause 9.3 of the DSP.
Subclause 9.3 of the DSP
[61] Subclause 9.3 of the DSP states that, subject to my comments above on the MUA’s
status as a party, a party intending to refer the dispute to the Commission must give “written
notice of [its] intention to refer the dispute to FWA if it is not resolved within 7 days”.
[62] In its application, the MUA set out the steps taken under the DSP. The MUA refer to
several instances of communication from the MUA to Compass. I have been provided with
two written communications from the MUA to Compass. The narrative of both letters is
under the heading of the Offshore Oil and Gas Agreement and not the Compass Agreement.
Secondly, both pieces of correspondence clearly indicate the MUA’s intention to pursue the
matter in the Commission. However, when the matter was initially pursued in the
Commission, the referring industrial instrument was the Offshore Oil and Gas Agreement,
and not the Compass Agreement. It is the DSP in the Compass Agreement which mandates
written communication of a party’s intention to refer the dispute to the Commission.
[63] Similar to my consideration of the “Parties” outlined above, I find that the term of
subclause 9.3 of the DSP in the Compass Agreement appears not to have been complied with
by the MUA in properly referring the dispute to the Commission (if it can make the
application). As a consequence, it is arguable that the Commission is limited, by the terms of
the DSP, to arbitrate on the dispute pursuant to s.739 of the FW Act.
[64] However, in view of my finding in relation to the subclause 9.2 of the DSP, it is not
necessary to reach a conclusive view on this issue concerning the Commission’s jurisdiction
to arbitrate the dispute.
CONCLUSION
[65] This application was not without its difficulties and complexities.
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| [66] | Firstly, in my view, the 1 | Application by the MUA, and its correspondence with |
Compass, demonstrates the Union’s contention that the Offshore Oil and Gas Agreement
applies to the relevant employees and not the Compass Agreement.
[2016] FWC 2037
[67] Secondly, notwithstanding the MUA’s contention that the Offshore Oil and Gas
Agreement applies to the relevant employees, this application uses the Compass Agreement as
a “vehicle” to utilise the DSP.
[68] Thirdly, the specific matter in dispute, in this application, has been framed in such a
way by the MUA to arrive at a conclusion that the Compass Agreement may or may not
apply. In other words, while the MUA is using the Compass Agreement’s DSP as the
“vehicle” to agitate a dispute, it is a dispute which, chronologically, it has already stated has
no applicability to the relevant employees.
[69] For the Commission to have jurisdiction to hear and determine the dispute as set out in
the application (whether properly made or not), it needs to be in accordance with the relevant
provisions of the FW Act, read in conjunction with the DSP in the Compass Agreement.
[70] The DSP sets out the agreed terms or conditions of when the Commission has the
power to arbitrate a dispute.
[71] In accordance with my reasons above, I am satisfied that some of the mandatory
procedural terms/conditions for the Commission to arbitrate on this dispute, have not been
met. It is also arguable that some other terms/conditions of the DSP, have not been met or, in
one case, may have lapsed through cessation of employment by the relevant employees.
[72] For the reasons set out above, I find that the Commission has no jurisdiction to deal
with the dispute and the application must be dismissed. An Order to this effect is issued with
this decision and reasons for decision.
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