Michael Marsh v SAI Global Pty Limited

[2018] FWC 6464

[2018] FWC 6464

FAIR WORK COMMISSION

EX-TEMPORE DECISION

Fair Work Act 2009
s.739—Dispute resolution

Michael Marsh
v
SAI Global Pty Limited T/A SAI Global
(C2018/3465)

DEPUTY PRESIDENT BULL SYDNEY, 22 OCTOBER 2018

Alleged dispute about any matters in a contract of employment or other written agreement in relation to the NES or a safety net contractual entitlement; [s738(c)]. No jurisdiction for Commission to deal with dispute under employment contract.

[1] This matter was heard in Sydney on 12 October 2018. At the conclusion of the proceedings, a decision on transcript was given. This is the published version of the decision in transcript edited for style and clarity. 1

[2] The respondent opposes the application and advises that the employer’s correct name is SAI Global Pty Limited T/A SAI Global (the respondent). Pursuant to s.586 of the Fair Work Act 2009 (the Act) the application is amended to the extent that the true legal employer of the applicant is correctly identified.

[3] The application proceeds pursuant to s.739 of the Fair Work Act 2009 (the Act)and leave has been granted to the employer to be legally represented as per s.596(2)(a) of the Act. Mr Michael Marsh, the applicant, seeks for the Fair Work Commission (the Commission) to resolve a dispute under his employment contract.

[4] The respondent employer, objects to the matter proceeding on the basis that the Commission has no jurisdiction to determine the dispute.

[5] Part 6-2 of the Act titled "Dealing with Disputes" provides the Commission with the ability to deal with disputes arising out of employment contracts and written agreements, provided certain criteria are met. Section 738, which is titled "Application of this Division", under Division 2, Subdivision B titled "Dealing with Disputes" provides at s.738(c) that the Division applies if:

‘A contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement.’

[6] Mr Marsh submits that this section of the Act provides the jurisdiction for his dispute to be dealt with by the Commission.

[7] Section 739 of the Act, which is titled "Disputes dealt with by the Fair Work Commission, states at s.739(1):

“This section applies if a term referred to in section 738 requires or allows the Commission to deal with a dispute.”

[8] Further, sub-s.739(4) states:

“If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, however described, the Commission may do so.”

[9] Guidance on the application of ss. 738 and 739 of the Act can be found in the Fair Work Bill Explanatory Memorandum. At Item 2734 of the Memorandum it states:

“This Division also applies where a contract of employment includes a term providing a procedure for dealing with disputes, but only to the extent that the term relates to either the NES or a safety net contractual entitlement as defined in clause 12. The Bill does not require contracts of employment to include a term that provides a procedure for dealing with disputes. Employers and employees can choose to include such terms but, despite anything to the contrary in the contract, this Division only applies to the limited extent described in paragraph 738(c) and does not apply to general workplace disputes.”

[10] Further, at Item 2737, the Memorandum states:

“Under subclause 739(4), the Commission can make a binding decision in relation to a dispute if, in accordance with a term in the Modern Award Enterprise Agreement or contract, the parties have agreed to this, whether the term refers to arbitration, final determination, making an award or something similar.”

[11] It is therefore necessary to ascertain the nature of this dispute the applicant wants the Commission to determine and if it meets the criteria under ss.738 and 739, whether the applicant's contract of employment includes a term that provides a procedure for dealing with disputes under the NES or a safety net contractual entitlement and whether such a procedure requires and allows the Commission to deal with the dispute, including by arbitration.

[12] In Mr Marsh's F10 application form at point 2.1, he raised three disputes which in summary are that: his travel time should be included within his 25-hour week; he should receive time off in lieu for the additional hours spent travelling to and from work sites and he should not be required to work any additional hours beyond his 35 hours per week.

[13] However, in oral submissions, Mr Marsh also submitted that he believed the additional hours he worked when engaged on regional work were unreasonable, stating that he believed he worked up to 50 hours on average per week, whereas the employer stated that Mr Marsh averaged 40 to 42 hours per week.

[14] For the reasons that follow, the Commission is not required to resolve this apparent conflict of what hours the applicant averages per week.

[15] The NES conditions under the Act provide at s.62, for maximum weekly hours. For a full-time employee an employer must not request or require an employee to work more than 38 hours per week unless the additional hours are reasonable. Subsection 62(3) provides a list of circumstances that must be taken into account in determining whether hours worked beyond 38 hours per week are reasonable or unreasonable.

[16] The first point to note, which I have already brought to the attention of the parties, in particular Mr Marsh, is that he has a contract that provides for ordinary hours of 35 per week. Any question of additional hours and their reasonableness under the NES thus start from 38 hours per week and not the 35 hours per week under Mr Marsh's contract.

[17] Secondly, whether Mr Marsh's travelling time on regional work should be included within his 35-hour week or whether he should receive time off in lieu for the additional hours are not matters that are provided for under the NES.

[18] As is clear from the Act and the Explanatory Memorandum, the Commission does not have power to deal with general workplace disputes under this section of the Act. As such, Mr Marsh's dispute about NES entitlements can only relate to whether the hours are in excess of 38 hours per week and whether they are reasonable or unreasonable.

[19] For the other issues he raises, they are outside the NES entitlements and the Commission is without jurisdiction to deal with them.

[20] I now turn to whether Mr Marsh's contract of employment provides a procedure for dealing with disputes about the NES and, if so, whether the contract of employment allows the Commission to deal with the claims currently before the Commission.

[21] Mr Marsh refers to clause 26, Policies, Procedures and Guidelines of his contract of employment, which states at subclause 26.1:

‘The employee agrees to abide by such policies and procedures and guidelines.’

[22] Mr Marsh then refers to the employer's Grievance Management Policy, which provides that where an employee believes that their complaint has not been dealt with properly they may wish to refer their complaint to an external agency.

[23] While I have some doubt whether the employer's Grievance Management Policy has application to a contractual dispute, reference to an employee not being satisfied with the outcome of a complaint being able to refer the complaint to an external agency does not, in my view, confer upon the Commission the right to arbitrate a dispute arising out of the employment contract.

[24] The statement that an employee may wish to refer the complaint to an external agency is simply a reflection of the employee's legal right to take the complaint elsewhere should they so desire. It does not confer upon the Commission in direct or indirect terms, as is required by s.738 or 739 of the Act, for the Commission to be empowered with the ability to deal with contractual dispute by way of arbitration. It is not, as provided for under sub-s.739(4), wording that ‘refers to arbitration, final determination, making an award or something similar’.

[25] In any event, accepting that the employer's Grievance Management Policy provided such a right, it is clear that the Policy is not to form part of the contract of employment by the terms of subclause 26.4 of the employment contract, which states that the policies and procedures do not form part of the employment contract and do not create any enforceable rights in the employee's favour.

[26] While Mr Marsh submits that subclause 26.1 of his employment contract overrides subclause 26.4, it is not an interpretation that I accept as both sub clauses 26.1 and 26.4 of the employment contract can operate together without conflict.

[27] Based on my findings in this matter, the application must be dismissed as the Commission is without jurisdiction to deal with the matters by way of binding arbitration which is what is sought.

[28] The Commission is not a judicial body and it has not otherwise been provided under Mr Marsh's contract of employment with a power to privately arbitrate such a dispute.

[29] This, however, does not mean that Mr Marsh is without a remedy elsewhere should he believe that the additional hours above 38 that he is required to work when working in regional areas are unreasonable. He is at liberty to take his claim to a court of competent jurisdiction for the enforcement of the relevant provision of the NES.

DEPUTY PRESIDENT

Appearances:

Applicant: Mr M Marsh on his own behalf

Respondent: Mr R. Hassall, Solicitor for the Respondent.

Hearing details:

2018

Sydney

12 October

 1  See extra curial publication (1997) 9 Judicial Officers’ Bulletin Gleeson CJ at 25

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