DECISION

Fair Work Act 2009
s.739—Dispute resolution

Martin Scibberas
v
KONE Elevators Pty Ltd
(C2019/5366)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 7 MAY 2020

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

Introduction and Background

[1] On 30 August 2019 Mr Martin Scibberas (Applicant) applied under s.739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute pursuant to the dispute resolution procedure in the KONE Elevators Pty Ltd – Victoria Construction & Service Employees Enterprise Agreement 2019 (Agreement). 1 The Applicant is represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The Respondent is KONE Elevators Pty Ltd (Respondent), the Applicant’s employer.

[2] The parties have been unable to resolve the dispute at the workplace level. The application was the subject a conference on 16 September 2019 but attempts by the Commission to conciliate the matter were unsuccessful. Against that background, the parties were directed to confer on proposed directions and agreed questions for arbitration. There is no dispute that I am able to resolve the dispute by exercising arbitral power for which provision is made in clause 8(g)(ii) of the Agreement.

[3] The dispute concerns the interpretation and proper operation of clauses 52 and 54 of the Agreement. Under the Agreement, the ordinary hours of work of the Applicant are 36 hours per week worked in 10 day/2 week cycle. 2 Ordinary hours in a day are 8 with 0.8 of an hour on each day accruing towards a rostered day off (RDO) which is taken as a paid day off on the tenth day of the work cycle.3 The essence of the dispute concerns whether the Applicant is entitled under the Agreement to be paid a site allowance on an RDO.

[4] Clause 52(c) of the Agreement concerns site allowances and provides:

“c) These Site Allowances shall be paid at the appropriate rate per hour flat for hours worked, to compensate for all special factors and/or disabilities on construction sites including any height allowance. Any applicable allowances in this Agreement shall be applied as and when incurred, in accordance with this Agreement.”

[5] Clause 54(c) of the Agreement concerns payment on an RDO and provides:

“c) Payment on such an RDO shall include the daily Fares and Travel Allowance, and any applicable Site Allowance as prescribed by this Agreement.”

[6] The contentions of the parties in dispute can be summarised relatively briefly.

[7] The Applicant contends that clauses 52(c) and 54(c) of the Agreement unambiguously create separate and additional entitlements. 4 Taken together, the two provisions create an entitlement to be paid the applicable site allowance at the appropriate rate per hour for hours worked in addition to payment of the applicable site allowance on an RDO.5

[8] The Respondent contends that the site allowance is payable only once, either at the time the relevant hours are worked or at the time the RDO is…

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 1284
Decision Date: 7 MAY 2020

CaseChat Overview and Summary

In the case of Martin Scibberas v Kone Elevators Pty Ltd, the matter before the Fair Work Commission (FWC) involved allegations concerning issues stemming from an enterprise agreement and the National Employment Standards (NES). The applicant, Martin Scibberas, brought the case against Kone Elevators Pty Ltd, his employer, asserting grievances related to his employment conditions and potential breaches of the NES. The Commission was tasked with determining whether the dispute fell within its jurisdiction as per section 186(6) of the Fair Work Act 2009.

The legal issues before the Commission centred on whether the dispute was indeed about matters arising under the enterprise agreement or the NES. Scibberas argued that his grievances, including those pertaining to the application of the NES, warranted the Commission's intervention. Conversely, Kone Elevators contended that the dispute did not pertain to the enterprise agreement or the NES and thus fell outside the Commission's jurisdiction. The central inquiry was whether the claims made by Scibberas were directly linked to the terms and conditions of employment as outlined in the enterprise agreement or the fundamental employment rights encapsulated in the NES.

The Fair Work Commission deliberated on the nature and scope of the dispute presented. It concluded that Scibberas' claims did not pertain to any matters arising under the enterprise agreement or the NES. Instead, the Commission found that the dispute related to broader employment issues, which did not fall within its jurisdiction under section 186(6). As such, the Commission dismissed the application, affirming that the dispute was not about matters arising under the enterprise agreement or the NES, and therefore it lacked the authority to hear the case. Consequently, the application was dismissed with no orders made in favour of the applicant.

Orders