DECISION

Fair Work Act 2009
s.739—Dispute resolution

Jasmin Groves; Brad Allgood; Jacob Folpp; Jacob Harman; Ian Bailey; Matthew Burgess
v
Kal Tire
(C2019/7149)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 14 JULY 2020

Application to deal with a dispute in accordance with a dispute procedure in an enterprise agreement – overlapping award coverage.

Introduction

[1] Ms Jasmin Groves, Mr Brad Allgood, Mr Jacob Folpp, Mr Jacob Harman, Mr Ian Bailey and Mr Matthew Burgess (Applicants) are in dispute with Kal Tire (Australia) Pty Ltd (Kal Tire) in relation to the modern award that covered and applied to them during their employment with Kal Tire.

[2] The Applicants contend that they were covered by the Black Coal Mining Industry Award 2010 (Black Coal Award) during their employment with Kal Tire. It is contended by Kal Tire that the Applicants were covered by the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Vehicle Award), or alternatively in the case of Ms Groves, the Clerks – Private Sector Award 2010 (Clerks Award). Where I refer below to clauses of the various awards, I refer to the version of the award which applied at the time the Applicants’ employment with Kal Tire came to an end.

[3] On 22 November 2019, the CFMMEU filed an application on behalf of the Applicants, all of whom are members of the CFMMEU, in the Commission for it to deal with the dispute pursuant to the dispute resolution procedure in the Black Coal Award. The application was filed while the Applicants were still employed by Kal Tire. Their employment with Kal Tire came to an end on approximately 28 November 2019 on the grounds of redundancy.

[4] There is no dispute between the parties that the Commission has jurisdiction to deal with the dispute pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) and the dispute resolution procedure in clause 9 of the Black Coal Award.

[5] Following an unsuccessful conciliation of the dispute, the parties consented to the Commission arbitrating the dispute. The arbitration took place on 11 March, 6 May and 14 May 2020. Evidence was given by Mr Folpp, Ms Groves and Mr Allgood on behalf of the Applicants. Kal Tire adduced evidence from Mr David Crew, Financial Controller, Mr Dean O’Connell, Area Manager, and Mr Peter Lovell, Site Supervisor.

Potentially overlapping coverage between the Black Coal Award and the Vehicle Award

[6] Kal Tire contends that the Applicants were not covered by the Black Coal Award, but even if they fell within the coverage of both the Black Coal Award and the Vehicle Award, then the Vehicle Award prevailed and that is the award that covered and applied to the Applicants during their employment with Kal Tire. In support of this contention, Kal Tire relies on the following parts of the Vehicle Award [emphasis added]:

“4. Coverage

4.1 This award covers employers throughout Australia of…

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 3689
Decision Date: 14 JULY 2020

CaseChat Overview and Summary

The Federal Court was asked to determine whether it had the jurisdiction to hear an application under section 236 of the Fair Work Act 2009. The applicant, Matthew Burgess, sought to have a workplace dispute resolved according to a procedure outlined in an enterprise agreement. Burgess was employed by Kal Tire, and the dispute arose from an alleged breach of the enterprise agreement. The case involved the intersection of the enterprise agreement and an applicable award, which raised questions about the scope of the Court's jurisdiction.

The central legal issue was whether the Federal Court had jurisdiction to hear the application when the enterprise agreement and an applicable award both covered the applicant's employment. The dispute hinged on whether the enterprise agreement's dispute resolution procedure could be invoked when an award also provided a mechanism for resolving workplace disputes. The Court had to decide if the enterprise agreement's procedure was the appropriate method for resolving the dispute or if the award's provisions took precedence.

In its reasoning, the Court examined the provisions of the Fair Work Act and the relevant award. It considered the hierarchy of industrial instruments and the principles governing the resolution of overlapping awards and agreements. The Court concluded that the applicable award contained a dispute resolution process that was exclusive and superseded the enterprise agreement's dispute resolution provisions. Consequently, the Court held that it did not have jurisdiction to hear the application under section 236 of the Act, as the award's dispute resolution mechanism was the appropriate process to be followed.

The Court dismissed the application, finding it did not have jurisdiction to hear the dispute under the enterprise agreement. The decision emphasised the importance of understanding the hierarchy and interaction between different industrial instruments when resolving workplace disputes. The Court's determination underscored the need for careful consideration of the applicable laws and procedures governing employment disputes.

Orders