Mina Koutsaftis v Spotless Facility Services Pty Ltd

[2015] FWC 5453

[2015] FWC 5453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Charlie Pinjuh; Mina Koutsaftis
v
Spotless Facility Services Pty Ltd
(C2015/3783)

COMMISSIONER RYAN MELBOURNE, 13 AUGUST 2015

Alleged dispute about receiving full wage increase under the agreement.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) filed an application under s.739 of the Fair Work Act 2009 (the Act) on behalf of Mr Charlie Pinjuh and Mr Mina Koutsaftis (the Applicants) for the Fair Work Commission to deal with a dispute in accordance with the dispute settlement procedure of the Spotless Facility Services Pty Ltd (Maintenance) Victorian Enterprise Agreement 2012 (the Agreement). The employer covered by the Agreement is Spotless Facility Services Pty Ltd (Spotless).

[2] Following a conciliation of the parties, this matter was programmed for Arbitration on 10 August 2015 where the Applicants were represented by Ms Lucy Weber of the CEPU and Spotless was represented by Mr Tony Dalton of The Australian Industry Group.

[3] At the conclusion of those proceedings I gave an ex tempore decision without reasons. I now reduce to writing the decision given in transcript. My reasons will issue at a later date.

[4] I do not accept that there is ambiguity or uncertainty in the terms of the wages clause or the wages schedule to the agreement.  I do accept that the dispute resolution procedure gives me jurisdiction to deal with the dispute over the actual rates of pay of both of the Applicants concerned. 

[5] It appears to me that, consistent with the practice adopted by Spotless in having provided wage increases in accordance with the Agreement to the actual wage rates of both the Applicants, that that should continue but only until 31 March 2016, which is the nominal expiry date of the Agreement.

[6] Both of the Applicants have no entitlement as a result of my decision to maintain their increased actual wage rates beyond 31 March 2016.  Whatever wage rates they have an entitlement to beyond that date will be determined by whatever occurs in the enterprise bargaining negotiations, and whatever become the terms of agreement.  Now knowing sometimes that agreements take a long time to negotiate and they are never done before the nominal expiry date, if at some point of time the parties are going to be running out of time and not have the actual wage rates for these two employees determined as from 1 April 2016, then you can come back and revisit the issue for interim orders.

[7] I am very careful to only make a decision that relates to what has been occurring up till the present and only protecting the status of the employees.  I think that there are strong contractual arguments for the employees to say that they should have it.  I think that there are strong industrial relations reasons for the employees to say they should have it.  It is simply consistent with what has been going on, and that practice should continue for these two employees but until no later than 31 March 2016.  In other words, it is a free for all after that date.

[8] It could very well be that the wages are decreased for those employees or anything else could happen, but I am not prepared to provide beyond 31 March 2016.  That is because now that the issue has been ventilated, this will be an issue which the parties need to specifically address next time.  Whether it is two employees or 10 employees or a range of employees across the company, wherever this situation occurs the parties should have explicit arrangements in place for dealing with people who are paid above agreement rates of pay. 

COMMISSIONER

Appearances:

L. Weber for the Applicants.

T. Dalton, The Australian Industry Group, for the Respondent.

Hearing details:

2015.

Melbourne:

August 10.

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