Maritime Union of Australia v Giacci Bros. Pty Ltd

[2015] FWC 7962

[2015] FWC 7962

FAIR WORK COMMISSION

DECISION

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

Maritime Union of Australia
v
Giacci Bros. Pty Ltd
(C2015/4012)

COMMISSIONER CLOGHAN PERTH, 8 DECEMBER 2015

Jurisdictional objection.

[1] The Maritime Union of Australia (MUA or Applicant) has made application to the Fair Work Commission (Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (FW Act).

[2] The MUA is in dispute with Giacci Bros Pty Ltd (Giacci or Respondent).

[3] In its application, the MUA state that the dispute is referred to the Commission pursuant to the Qube Bulk Pty Ltd and Maritime Union of Australia Enterprise Agreement 2013 (The Port of Geraldton) (Qube Agreement).

[4] Giacci is a wholly owned subsidiary of Qube Ports and Bulk Pty Ltd.

[5] The relevant provisions of the Qube Agreement are as follows:

“45 DISPUTE RESOLUTION

45.1 In the event of a dispute arising in the workplace, the procedure to be followed to resolve the matter shall be as follows:

…

If the matter remains unresolved

Step 5 …either party may refer the matter to FWA for conciliation/arbitration pursuant to section 739 and section 595…” (my emphasis).

THE DISPUTE

[6] The MUA, in its application to the Commission, set out what the dispute is about, in the following terms:

“1. The Qube Bulk Pty Ltd and Maritime Union of Australia Enterprise Agreement 2013 (the Port of Geraldton) (“the Agreement”) was approved by the Fair Work Commission on 6 August 2013 and has effect from 13 August 2013. Pursuant to section 201(2) of the [Fair Work] Act, the MUA is covered by the Agreement.

2. The Agreement is a transferable instrument by operation of section 312(1)(a) of the Act.

3. At the time of the making of the Agreement, it applied to the employment of three supplementary employees engaged by Qube Bulk Pty Ltd to work in the receival and delivery yard on John Willcock Link in Geraldton. These employees subsequently undertook receival and delivery work for Qube Bulk Pty Ltd under the terms of the Agreement.

4. On or about 18 December 2013, the three aforementioned employees commenced employment with Giacci Bros Pty Ltd to perform receival and delivery work in the receival and delivery yard on John Willcock Link in Geraldton.

5. The work being undertaken by the three employees for Giacci Bros Pty Ltd is the same as the work they performed for Qube Bulk Pty Ltd.

6. By operation of section 311(2) of the Act, the three employees are ‘transferring employees’ within the meaning of the Act.

7. Qube Bulk Pty Ltd and Giacci Bros Pty Ltd are associated entities within the meaning of section 50AAA of the Corporations Act 2001.

8. By operation of section 313(1) of the Act, the Agreement applies to the three employees and the Respondent.

9. On or about 2 April [2015], two of the three employees lodged a dispute with the Respondent in accordance with clause 45 of the Agreement in relation to the failure of the Respondent to pay them in accordance with the Agreement.

10. The Respondent advised that it is of the view that the Agreement does not apply to the employees and that they are instead covered by the terms of the Giacci Brothers Pty Ltd. Western Australian Enterprise Agreement 2013.

11. The matter has been progressed through the disputes procedure and remains unresolved.”

RESPONDENT’S RESPONSE TO APPLICATION

[7] The Respondent’s response to the MUA’s application can be summarised as follows:

“4. It is the Respondent’s position that the employees referred to in the application were never covered by the [Qube] Agreement and that their employment is covered by the Giacci Brothers Pty Ltd Western Australia Enterprise Agreement 2013 (Giacci Agreement).

5. The Respondent agrees that the [Qube Bulk Pty Ltd and Maritime Union of Australia Enterprise Agreement 2014 (the Port of Geraldton)] Agreement contains a dispute resolution clause which enlivens the Commission’s powers to deal with “a dispute arising in the workplace” in accordance with section 739 and section 595 of the Fair Work Act 2009 (Act). However, if the Respondent’s position is correct and the [Qube] Agreement does not apply to the employees’ employment, the dispute resolution clause in the Agreement cannot be relied upon and the Applicant will not have standing to bring this application.”

[8] This is my decision and reasons for decision with respect to the Employer’s jurisdictional objection.

BACKGROUND

[9] The Qube Agreement operated from 13 August 2013 and has a nominal expiry date of 31 March 2016.

[10] The MUA assert that three (3) employees were employed as supplementary employees (casual stevedores) pursuant to the Qube Agreement by Qube Bulk Pty Ltd (Qube).

[11] On or about 18 December 2013, the three (3) employees referred to immediately above in paragraph [10] commenced employment with Giacci.

[12] It is not disputed that Qube and Giacci are associated entities within the meaning of s.50AAA of the Corporations Act 2001.

[13] The MUA submit that the three employees are “transferring employees” pursuant to s.311 (2) of the FW Act. Further, the Qube Agreement applies to the three (3) employees as a consequence of the transmission of business provisions in Part 2-8 of the FW Act.

[14] Giacci does not dispute that the employees are transferring employees. However, Giacci denies that the employees were covered by the Qube Agreement prior to transferring, at the time of transferring or subsequent to transferring.

[15] Reduced to its simplest, the MUA assert that the three (3) employees were and are covered by the Qube Agreement – the Respondent asserts that the three employees were not and are not, covered by the Qube Agreement.

JURISDICTIONAL OBJECTION

[16] Part 6-2 of the FW Act deals relevantly with the Commission’s powers if an enterprise agreement includes a term to deal with a dispute. In dealing with a dispute, the Commission relevantly, pursuant to s.739:

• must not exercise any powers limited by the term of the enterprise agreement (s.739(3)); and



• must not make a decision which is inconsistent with the FW Act (s.739(5)).

[17] Giacci submits that, while the FW Act enables the Commission to exercise the powers provided in s.595(4) of the FW Act, “these powers do not enable the Commission to go beyond its role in resolution of the dispute by, for example, making a binding declaration, which is the exercise of a judicial power”. 1

[18] Further, Giacci submits that “if the object of the inquiry by the Commission to determine the dispute is the ascertainment of legal rights and obligations, the inquiry and determination of the matters in issue will be a judicial function and therefore beyond the powers of the Commission. If the object is only to ascertain what rights and obligations should exist, then the enquiry is arbitral in nature and can be performed by the Commission”. 2

[19] Finally, the respondent submits that the Commission can make a finding as to how relevant clauses in the Qube Agreement are to be applied in the future. However, a declaration about past rights or past compliance with the Qube Agreement by the Respondent can only be made by a competent court. 3

CONSIDERATION

[20] For the purposes of this application, there are matters of assertion, fact and law.

[21] The present position, from an employee perspective, is that:

• Giacci has employed since or around 18 December 2013, and continues to employ, the three (3) relevant employees;



• immediately prior to 18 December 2013, the three (3) relevant employees were employed by Qube; and



• the three (3) employees were transferring employees pursuant to s.311(2) of the FW Act.

[22] The present position from a workplace instrument perspective, is that:

• the MUA assert that the three (3) employees were employed immediately prior to 18 December 2013 pursuant to the Qube Agreement;



• Giacci assert that the three (3) employees were not employed immediately prior to 18 December 2013 pursuant to the Qube Agreement. Giacci do not state what industrial instrument (if any) the three (3) employees were employed pursuant to;



• the MUA assert that, pursuant to s.312(1) of the FW Act, the Qube Agreement is a transferring instrument and, in accordance with s.313(1) of the FW Act, applies to and covers the three (3) transferring employees;



• in view of its assertion that the three (3) employees were not employed pursuant to the Qube Agreement, Giacci assert that the Qube Agreement is not a transferring workplace instrument pursuant to s.313(1) of the FW Act; and



• it is not clear whether both parties agree that the Giacci Agreement applies to all future employees doing the same or similar work as the three (3) employees covered by the Giacci Agreement.

[23] There is no agreement between the parties on whether the three (3) employees are carrying out the same or similar work prior to and post 18 December 2013.

[24] The parties agree that, for the purposes of s.311(1)(d) of the FW Act, there is a connection between Qube and Giacci.

ISSUES

Qube Agreement

[25] Giacci assert that prior to 18 December 2013, the three (3) relevant employees were not covered by the Qube Agreement. I have no supporting evidence for this assertion.

[26] The MUA assert that the three (3) employees were covered by the Qube Agreement, but similarly, I have no evidence to support such an assertion.

[27] A finding as to whether the three (3) employees were covered by the Qube Agreement is important for a number of reasons.

[28] In the first instance, if the three (3) employees were not covered by the Qube Agreement, this application has no proper basis.

[29] Secondly, if the three (3) employees were not covered by the Qube Agreement, pursuant to s.313(1) of the FW Act, the Qube Agreement cannot be a transferable instrument.

[30] However, if the Qube Agreement did apply to the three (3) employees immediately prior to 18 December 2013, the application has been properly made and, subject to s.311(3) to (6) of the FW Act, the Qube Agreement became a transferable instrument to the exclusion of other industrial instruments.

Time

[31] The parties have provided an order of events – past, present and the future.

[32] Ms Hartley, for Giacci, acknowledges that “the Commission can make a finding as to how relevant clauses in the [Qube] Agreement are to be applied in the future. However, any declaration about past rights or past compliance with the Agreement by the Respondent [Giacci] can only be made by a competent court”. 4

[33] Ms Hartley further submits that Giacci “understands” that the dispute is about the assertion that “the Respondent has failed (that is, in the past) to pay the two employees in accordance with the [Qube] Agreement”. 5 In doing so, the Respondent is relying upon paragraph 9 of the MUA application which states that the dispute is “in relation to the failure of the Respondent to pay them [two employees] in accordance with the [Qube] Agreement”.6

[34] The Commission has no documentary evidence in relation to what the “dispute arising in the workplace” is about. The Commission has Giacci’s submission on what it understands the dispute concerns and the MUA’s application.

[35] The MUA, in both written and oral submissions, emphatically state that, its members are not seeking enforcement of underpaid wages, nor does it seek a declaration of legal rights. The MUA further submits that it is, simply, “seeking the Commission [to] determine which Agreement properly applies to the employees the subject of this dispute in relation to the work they are performing”. 7

[36] It seems reasonable that Giacci, which has the burden of proof to set out its jurisdiction objection, focuses on its “understanding” of what the dispute is about and, in particular, the past tense of allegedly failing to pay in accordance with the Qube Agreement. However, such an understanding is based on language in the MUA application and not the plain fact that the Qube Agreement has existed since 13 August 2013 and will continue to exist up until its notional expiry date of 31 March 2016.

[37] The difficulty with Giacci’s portrayal of its understanding of what the dispute is about, is that it is self contained in the past. While the boundary of “failure” is definitely in the past, I am persuaded by the MUA’s submission that the essence of the dispute is which industrial instrument applies to the three (3) employees in relation to work they are performing.

[38] Giacci correctly, in my view, submit that the “only issue that is being argued is whether or not the agreement applies, because the position of the Respondent has never been to dispute payment if there is a finding of a competent court that the agreement applies”. 8

[39] Giacci submit that this application (dispute) is about the failure of it to pay the relevant employees properly in accordance with the Qube Agreement. In my view, this uncomplicated and simplified approach, while attractive, ignores the more fundamental ingredient which is whether the Qube Agreement did, does and will continue to apply to the relevant employees. That is the essence of the dispute.

[40] At this point in the application, the Commission has received an application which states that there is a dispute in the workplace. The nature of that dispute is whether, at the time the three (3) employees were employed by Giacci, their employment was regulated, in part, by the Qube Agreement. If it is found that the Qube Agreement applies, and the employees are carrying out the same or similar work, the workplace dispute is about the application of the terms and conditions of the Qube Agreement to their employment.

[41] If, on the other hand, the Commission finds that, at the time the employees were employed by Giacci, their employment was not regulated by the Qube Agreement, subject to any review, the application “falls away” as it was not made on a proper basis.

Case law

[42] In the course of proceedings, both parties referred to the Full Bench Decision in Australian Municipal Administrative Clerical and Services Union v Automated Meter Reading Services (AMRS) PR922053.

[43] In AMRS, the majority, in determining the appeal stated under the subheading “Competence [of the AIRC] to make findings about succession and binding effect of certified agreements” (my emphasis), the following:

“[53] Findings by members of the Commission about mixed questions of law and fact of that kind are a commonplace of industrial jurisprudence. Abundantly, findings are made about who is bound by an award or agreement. Or, to that end, about whether a person is a successor, transmittee, or assignee of a business of an employer who was party to a dispute, or bound by a certified agreement. There is no scarcity of decisions of the Commission which substantiate that proposition.

[59] The jurisprudence of industrial arbitration in Australia has encouraged an even more robust tolerance for members of industrial tribunals satisfying themselves as to matters preliminary to an eventual exercise of jurisdiction. It is unnecessary to descend to detail to substantiate such views. They are reflected in a line of authority around cases such as Re Cram; Ex parte NSW Colliery Proprietors Associations Ltd and others, Re AMWU; Ex parte Horwood-Bagshaw, and Attorney General (Queensland) v Riordan. The reasoning in those cases is consistent with the Commission generally taking the steps that are necessary to satisfy itself as to the existence of its jurisdiction. To that end, the Commission may make such findings about jurisdictional facts or points of law that are appropriate for that purpose.

[63] As already suggested, the existence of any relevant dispute came into sharper focus on the appeal than appears to have been given to those details in the hearing before Tolley C. The availability of jurisdiction appears to be attacked on the ground that the real and only dispute is as to whether or not the Powercor Agreement binds AMRS. Apart from any such attack, the existence, nature and content of any dispute may, or perhaps ought, be considered to be foundational to a finding of jurisdiction in the circumstances that have arisen on the appeal. At least, if it is manifest that no industrial dispute could be found, and that no dispute over the application of the relevant agreement could be found, jurisdiction to deal with the ASU application is negatived. On the other hand, it is incumbent on the ASU, as the party with carriage of its application, to establish jurisdiction if the application is to be heard and determined. It is necessary to address those points, albeit in what may be a provisional manner.” (footnotes omitted)  9

[44] Giacci submit that AMRS is distinguishable to this application because the Respondent submits that the AIRC was dealing with a “live dispute” 10 whereas the MUA’s application is characterised as an “enforcement claim”11.

[45] As I have already said, I consider Giacci representation of this dispute as an “enforcement claim” an over simplification of the dispute and, in my view, there is a live dispute and that is the application, or otherwise, of the Qube Agreement, to the relevant employees.

[46] I am unable to agree with Giacci’s submission that there is “no dispute over future rights in terms of any dispute”. 12 A finding (if any) that the relevant employees are covered by the Qube Agreement will have implications up until 31 March 2016. The issue applicable in this dispute is the ongoing matter regarding the terms and conditions of employment of the three (3) relevant employees.

[47] The Respondent does not disagree that the Commission can make a finding as to how relevant clauses in the Qube Agreement are to be applied in the future. 13 To do this, the Commission must determine, in the first instance, the applicability of the Qube Agreement. I do not see anything remarkable jurisdictionally in the Commission determining, in the first instance, whether the Qube Agreement is applicable. Applicability of awards or enterprise agreements to the workplace are commonplace matters before the Commission; further, disputes about such matters, regularly occur.

[48] A finding that a particular industrial instrument applies in a workplace, and within term, carries with it, forward provisions.

CONCLUSION

[49] For the reasons set out above:

• the dispute between the parties relates to whether the Qube Agreement applies to the work the three (3) employees have been and are carrying out since employment with Giacci;



• should the Commission find that the Qube Agreement applies to the three (3) employees, it carries with it the forward application of the terms and conditions of employment contained within that enterprise agreement;



• Giacci characterisation of this application as enforcement proceedings is a misapplication of the overall circumstances, partly caused by the portrayal of the dispute in the MUA’s application; and



• consistent with ARMS and the case law cited therein, the Commission is not exercising a judicial function by “taking steps to satisfy itself as to existence of its jurisdiction” to hear the dispute properly.

[50] In conclusion, the Respondent’s jurisdictional objection is dismissed and the Commission will now proceed to consider the facts, evidence and law as it relates to the substantive merits of the dispute.

[51] To this end, my Associate will contact the parties to list the matter for a conference early in the new year.

COMMISSIONER

Appearances:

L Edmonds on behalf of the MUA.

E Hartley of counsel on behalf of Giacci Bros Pty Ltd.

Hearing details:

2015:

Perth,

18 November.

 1   Exhibit R1 paragraph 13

 2   Exhibit R1 paragraph 14

 3   Exhibit R1 paragraph 15

 4   Exhibit R1 paragraph 10

 5   Exhibit R1 paragraph 16

 6   Exhibit R1 paragraph 16

 7   Exhibit A1 paragraph 5

 8   Transcript PN34

 9   PR922053 paragraphs [53], [59] and [63]

 10   Transcript PN38

 11   Transcript PN32

 12   Transcript PN40

 13   Exhibit R1 paragraph 15

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