Miss Melissa Cook v Sunstate Airlines (Qld) Pty Ltd T/A QantasLink

[2018] FWC 2271

[2018] FWC 2271

FAIR WORK COMMISSION

DECISION

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

Miss Melissa Cook
v
Sunstate Airlines (QLD) Pty Ltd T/A QantasLink
(C2017/4187)

COMMISSIONER SPENCER BRISBANE, 1 MAY 2018

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – jurisdictional objection – whether the dispute falls within disputes procedure – dispute related to waitlist for part-time employment.

INTRODUCTION

[1] An application pursuant to s.739 of the Fair Work Act 2009 (the Act) was made by Ms Melissa Cook (the Applicant) in relation to an alleged dispute with Sunstate Airlines (QLD) Pty Ltd T/A QantasLink (the Respondent) arising under the Sunstate Airlines (QLD) Pty Limited Flight Attendants’ Enterprise Bargaining Agreement 2016 (the Agreement).

[2] The dispute related to the Respondent’s “wait list” for part-time employment, as set out in cl.15.3.13 of the Agreement. The Applicant alleged that the Respondent’s administration of the wait list to record those employees seeking to transfer to part-time employment had been unfair. The Applicant contended the unfairness in the process arose as she had been informed, after the fact, that the nomination of a new “embargo date” rendered her initial application for part-time employment invalid and caused her to lose her ranking on the wait list.

[3] The Applicant set out that she first placed her name on the wait list for part-time employment on 9 May 2009 and that this request did not have an embargo date. The Respondent stated that on 8 March 2014, the Applicant made a request to record an embargo date of August 2015 (that is, that part-time employment not be offered until that date). The Applicant stated that she later learned that this inclusion of the embargo date had been taken as a second or new application for part-time employment, and her name as a result, had been moved to the bottom of the wait list.

[4] The Respondent raised a jurisdictional objection to the application, stating that the Fair Work Commission (the Commission) did not have jurisdiction to deal with the dispute as, in accordance with the disputes procedure, it was not a matter arising under the Agreement or the NES.

[5] The application was listed for conference, however was unable to be resolved. Directions were issued for the filing of material in relation to the jurisdictional objection and the matter was heard in Brisbane. The Applicant was self-represented and the Respondent was represented by Mr Mark Stokes, Industrial Relations Manager of the Respondent with Ms Narelle Gill.

[6] The questions for arbitration in relation to the jurisdictional objection were proposed by the parties, as follows:

1. Is the Applicant’s dispute a matter, “arising under [the] Agreement”? That is, does the Agreement regulate Sunstate Airlines Pty Ltd’s (Sunstate) administration of the “wait list” referred to in clause 15.3.13 of the Agreement?

If yes,

2. Is Sunstate prevented from administering the “wait list” in a manner that causes a Flight Attendant who adds a new “embargo” date to his or her application lose his or her position on the “wait list”?

[7] Whilst not all of the submissions and evidence are referred to in this decision, all of such have been considered.

RELEVANT PROVISIONS OF THE ACT

[8] Pursuant to ss.738 and 739 of the Act:

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) 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; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[9] Further, pursuant to s.595 of the Act:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”

RELEVANT PROVISIONS OF THE AGREEMENT

[10] The dispute settlement procedure is set out in cl.12 of the Agreement:

“12 PREVENTION AND SETTLEMENT OF DISPUTES

12.1 In the event of a dispute arising in the workplace about matters arising under this Agreement or in relation to the National Employment Standards, the procedure to resolve the matter will be as follows:

12.1.1 The Flight Attendant and the Flight Attendant's supervisor meeting and conferring on the matter.

12.1.2 If the matter is not resolved at this meeting, the parties to the dispute must arrange for further discussions between the Flight Attendant and more senior levels of management.

12.1.3 If the matter cannot be resolved, it may be referred by either party to the dispute to the Tribunal for resolution. This does not affect the right of either party to the dispute to take other action to resolve the dispute.

12.2 A Flight Attendant may choose to have an employee representative of their choice, including a union representative, to represent and support them at any stage of the dispute resolution procedure. Any representative nominated by the Flight Attendant pursuant to this dispute resolution procedure will be allowed, at a place designated by the Company, the necessary time during working hours to support the Flight Attendant.

12.3 While the parties to the dispute attempt to resolve a dispute, Flight Attendants must continue to work as normal in accordance with this Agreement and their contracts of employment unless a Flight Attendant has a reasonable concern about imminent risk to safety or health. In this case, a Flight Attendant must not unreasonably fail to comply with a direction of the Company to perform other available work, whether at the same or another workplace that is safe and appropriate for the Flight Attendant to perform.

12.4 If a dispute is referred to the Tribunal for resolution, the Tribunal can take any or all of the following actions as it considers appropriate to resolve the dispute:

12.4.1 convene conciliation conferences of the parties to the dispute or their representatives at which the Tribunal is present;

12.4.2 require the parties to the dispute or their representatives to confer among themselves at conferences at which the Tribunal is not present;

12.4.3 request, but not compel, a person to attend proceedings;

12.4.4 request, but not compel, a person to produce documents;

12.4.5 where either party to the dispute requests, make recommendations about particular aspects of a matter about which they are unable to reach agreement;

12.4.6 where the matter, or matters, in dispute cannot be resolved (including by conciliation) and one party to the dispute or both request, arbitrate or otherwise determine the matter, or matters, in dispute.

12.5 The Tribunal must follow due process and allow each party a fair and adequate opportunity to present their case.

12.6 Any determination by the Tribunal under paragraph 12.4 must be in writing if either party to the dispute so requests, and must give reasons for the determination.

12.7 Any determination made by the Tribunal under paragraph 12.4 must be consistent with applicable law and must not require a party to the dispute to act in contravention of an applicable industrial instrument or law.

12.8 Where relevant, and circumstances warrant, the Tribunal can consider previous decisions of the Australian Industrial Relations Commission, Fair Work Australia and the Tribunal. The Tribunal must approach matters regarding management decisions in accordance with the general principles set out in the XPT case [(1984) 295 CAR 188].

12.9 The Tribunal must not issue interim orders, ‘status quo’ orders or interim determinations.

12.10 The parties to the dispute are entitled to be represented including by legal representatives, in proceedings pursuant to this dispute resolution procedure.”

[Emphasis added]

[11] The “wait list” and “embargo date” are referred to in clauses 15.3.13, 15.3.14 and 15.3.15 of the Agreement, as follows:

“15.3.13 A Permanent Part Time wait list is in place.

15.3.14 Flight Attendants who wish to avail themselves of a Permanent Part Time position may place their name on the wait list for any base. Flight Attendants who place their name on the wait list may also place an embargo date beside the request.

15.3.15 Nothing in this clause shall operate to prevent the Company recruiting externally for part time positions as long as all Flight Attendants on the wait list for that base are first offered part time positions and the part time vacancies are advertised internally.” [Emphasis added]

SUMMARY OF THE RESPONDENT’S SUBMISSIONS ON JURISDICTION

[12] The Respondent submitted that it is required to maintain a wait list that enables it to monitor the order in which Flight Attendants are to be offered permanent part-time positions. It was submitted that a Flight Attendant is able to place an embargo date on their request, such that the request for part-time employment will not be considered until that date has passed.

[13] The Respondent submitted that the only provisions of the Agreement pertaining to the wait list were in cl.15.3, which set out the ability of an employee to place their name on the wait list for part-time work. In addition, it states that the Respondent may not recruit for a permanent part-time position externally, unless the position has first been offered to Flight Attendants on the wait list.

[14] It was submitted, as set out, that the Applicant first made a request to have her name placed on the wait list for transfer to part-time work on 9 May 2009 and that this request did not have an accompanying embargo date. The Respondent stated that on 8 March 2014, the Applicant made a second request to place her name on the wait list, with an embargo date of August 2015.

[15] In relation to this second request, the Respondent stated in their submissions that:

“12 Sunstate’s position and past practice is that the addition of, or change to, an embargo date constitutes a new request, such that a Flight Attendant adding or changing an embargo date is entered onto the bottom of the Wait List. This is to ensure fairness across the Flight Attendant work group, as well as for reasons of administrative efficiency.

13 As a result, upon making the Second Request, the Applicant reverted to the bottom of the Wait List.” 1

[16] The Respondent referred to the judgment of the High Court in Construction, Forestry, Mining and Energy Union v Australian Industrial Relation Commission, 2 as authority that the Commission will only have jurisdiction to deal with a dispute arising under an enterprise agreement where a provision under the agreement confers power on the Commission.3 It was submitted that the Agreement confers a power of private arbitration on the Commission only in relation to disputes “about matters arising under [the] Agreement or in relation to the National Employment Standards.”

[17] It was submitted by the Respondent that the matter at hand was clearly not a dispute in relation to the NES. Further, the Respondent argued it was not a dispute about a matter arising under the Agreement.

[18] The Respondent contended that the manner in which the wait list is administered is not a matter arising under the Agreement, because the Agreement neither contemplates nor prescribes the process of the administration of the wait list. It was argued as the Applicant’s dispute centres on the method that the Respondent used to manage the wait list, this was not a matter arising under the Agreement and therefore is not a matter for which the Commission has jurisdiction.

[19] It was further stated that there was no guidance within the Agreement as to how the wait list is to be administered, as a basis to arbitrate the matter. The Respondent contended this supports the conclusion that the issue of the administration of the wait list is outside of the jurisdiction of the Commission to determine.

[20] In the alternative, the Respondent advanced an argument that even if the Commission finds that it does have jurisdiction in respect of the dispute, the Commission does not have the power to make any order that may abrogate the discretion of the Respondent to administer the wait list. An extract from the Federal Court judgment of Tracy J in Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd (Thiess) was cited by the Respondent, in relation to this contention:   

“I accept the respondents’ submissions that Clause 1.3 confers an unfettered discretion on them and that the right there conferred may not be abrogated against their will even if the dispute ultimately falls to be dealt with by arbitration.” 4

[21] The relevant enterprise agreement in that case was the Thiess Degremont (“TD”) and AMWU, AWU, CEPU and CFMEU Victorian Desalination Project Greenfields Agreement 2009, of which cl.1 of Part 2 of Schedule 1A relevantly provides:

“1. Implementation

1.1 TD may implement a 4/4 roster in the manner provided for in clause 7.5 of Division A of Part 2 to apply only to particular parts of the work covered in Division A, or to employees with particular skills engaged on the work covered in Division A.

1.2 Where TD implements the 4/4 roster it will first call for volunteers. TD may exclude a volunteer if it considers the volunteer does not have appropriate skills or capability. If a call for volunteers is oversubscribed, TD will determine employees to move to the 4/4 roster by random selection – an employee representative may be an observer.

1.3 The implementation of the 4/4 roster may be terminated by TD. Once terminated, the 4/4 roster may be re-implemented in the manner provided for in clause 7.5 of Division A of Part 2.”

[22] This case can be distinguished, as it concerned an enterprise agreement that provided clear terms on the operation of the roster by the employer. The absence of operational terms does not necessarily remove the subject matter from the application of the disputes procedure.

[23] The Respondent submitted that the administration of the wait list is at their sole discretion, as the Agreement is silent on the point. This is reinforced, it was argued, as the Agreement provides processes of administration of other wait lists, for other types of positions, such as full-time positions.

[24] As a further alternative, it was submitted that the Commission does not have the power to abrogate the Respondent’s exercise of its discretion in administering the wait list unless that discretion has been exercised in an unjust or unreasonable manner. The Respondent submitted that the manner in which it administers the wait list, in accordance with cl.15.3.13 and 15.3.14, is not unjust or unreasonable and that the Commission should not interfere with its “lawful exercise of managerial prerogative.”

[25] The Respondent concluded that the effect of cl.12.4 is to vest in the Commission a discretion, rather than an obligation, to resolve a dispute.

SUMMARY OF THE APPLICANT’S SUBMISSIONS ON JURISDICTION

[26] The Applicant submitted that the Commission had jurisdiction in respect of her dispute with the Respondent, relating to the administration of the wait list.

[27] The Applicant set out a chronology of the events that led to the dispute arising. She stated that she commenced employment with the Respondent in October 2004, and was an Inflight Trainer between 2005 and 2009.

[28] She submitted an application for placement on the part-time employment list in 2009 and in August 2014, placed an embargo date on her application for a period of one year (that is, to be considered for part-time employment from August 2015). At this point, the Applicant was of the understanding that her name was on the top of the wait list for almost two years, by virtue of her original application continuing from 2009. The Applicant submitted that she later became aware that the application of the embargo date, caused her to lose that position on the wait list.

[29] It was also submitted by the Applicant that the Agreement has never, and does not, provide that the addition of an embargo date is to be considered a second application or request, which would void the original application. She refuted the Respondent’s submission that their “position and past practice is that the addition of, or change to, an embargo date constitutes a new request.” The Applicant submitted that such a practice was not provided for in the Agreement, nor was this practice ever verbally communicated to the employees.

[30] She stated that an “overwhelming” number of flight attendants had placed an embargo application on the wait list, subsequent to making their original application for consideration of a part-time opportunity. In her application, the Applicant attached several emails which appeared to be from colleagues, outlining their understanding of how the part-time wait list operated.

[31] It was contended by the Applicant that she had acted in good faith by lodging the embargo application for a period of one year, in consideration of a smooth transition and less workload for other staff and management. Further, she believed she should have been advised of its effect and, at least been offered the opportunity to remove the embargo date rather than risk being placed at the bottom of the list. She alleged that other flight attendants were given this opportunity, according to an email from her manager, and she was not offered this privilege due to the workplace “culture and/or discrimination.”

[32] The Applicant submitted that she should not be disadvantaged by the retrospective application of changes to the interpretation of the administrative process, in respect of part time applications and the embargoed application periods.

CONSIDERATION

[33] This decision concerns a jurisdictional objection raised by the Respondent that a dispute relating to requests from employees to transfer to part-time employment using the “wait list” (and an associated “embargo date”) was not subject to the disputes procedure in the Agreement. The Respondent submitted that the Commission’s jurisdiction to deal with the dispute was not enlivened.

[34] The Full Bench in The Australian Workers’ Union v MC Labour Services Pty Ltd (MC Labour Services) held that the Commission’s power to deal with a dispute under an enterprise agreement “depends on the terms of that agreement, and that the parties to the agreement may structure or limit the role of the Commission (or other person).” 5

[35] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri), 6 the Full Bench summarised the approach to be adopted with respect to the interpretation of enterprise agreements, as set out:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

 
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties. 

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

 
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning. 

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists. 

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement. 

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement. 

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. 

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was. 

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 7

[36] Clause 12.1 of the Agreement states that the dispute settlement procedure is engaged where a dispute relates to “matters arising under this Agreement.” At the hearing, Mr Stokes summarised the Respondent’s submissions with respect to the present dispute, as follows:

“It’s not in dispute, as I understand it, that Sunstate does have a wait list and it does allow flight attendants to place an embargo date next to their name when they put their name on the wait list. Sunstate’s position is that it has fulfilled the requirements in the enterprise agreement. The enterprise agreement goes no further as to how the waist list is to administered by Sunstate.

Sunstate’s submissions are that insofar as there is a dispute about whether a wait list is in place or whether or not an employee can put an embargo date, that might be a matter arising under the enterprise agreement. However, it’s not in dispute that those matters are in place, therefore the administration of the wait list goes beyond what the agreement deals with.” 8

[37] The wording and construction of this provision and others in the Agreement, were considered in accordance with the principles set out in Berri. In the Berri decision, details regarding the application of a laundry allowance, were also absent from the relevant enterprise agreement. Whilst there was in Berri,at first instance and on appeal, more comprehensive submissions on the full principles for interpretation, the Commission’s jurisdiction was confirmed in circumstances where the mechanics of the payment were silent. The Agreement provisions clearly provide for a wait list for applications for part-time employment, to which an embargo date can be added. The process of administering such is silent. However the disputes procedure only requires “dispute arising in the workplace about matters arising under this Agreement.”

[38] In comparing the manner in which the provisions in the Agreement are dealt with, it was put to the Respondent, that if a dispute concerning the provision in the Agreement for “pro rata entitlements for all conditions of employment under this agreement unless specified otherwise” (under cl.15.3.1 of the Agreement) were to arise, such a dispute would necessarily involve: how the entitlements were calculated and applied, how the entitlements were paid, and other administration matters arising under that particular provisions. These matters are not particularised in the Agreement. The Respondent conceded that, although the Agreement is similarly silent on these mechanics and the related administration process, such a dispute determination, would require examination of those matters. However it was argued that there was a distinction from the present dispute, as the calculation of pro rata entitlements was not at the discretion of the Respondent. 9 The Respondent submitted a dispute in relation to that provision would be within the jurisdiction of the Commission.

[39] In line with this, it was put to the Respondent that there was nothing in the Agreement that restricted consideration of a dispute, arising under the wait list provisions on the same basis. In response to this matter, Mr Stokes set out:

“Well, I concede that there are no words in the agreement that say nothing shall prevent the Commission dealing with - however, I think the limit comes from the disputes clause itself. What Ms Cook is asserting is to have a dispute about how the wait list is administered, which is not something that the agreement goes to.” 10

[40] It was also stated by the Respondent, that the full mechanisms set out in other provisions, brought other disputes within jurisdiction. The Respondent referred to cl.15.6.1 (dealing with the recruitment of casual employees), which states:

“Where employment of an additional permanent Flight Attendant or Flight Attendants cannot be justified, having regard to the particular circumstances of the Company, the Company may elect to periodically engage one or more Flight Attendants on a casual basis. The frequency and duration of such engagements shall be in accordance with the legitimate operational needs of the Company.”

[41] Mr Stokes argued that if a dispute arose in relation to this provision, “the Commission would have jurisdiction because it would be a matter arising under the agreement as to whether or not additional permanent flight attendants could or could not be justified.” 11 However, it was further submitted by the Respondent, that if the dispute were to move beyond that into an area of employer discretion (for example, the selection criteria used to recruit casual employees), it would not be a matter arising under the Agreement; “in the same way that whether or not a wait list is provided and whether or not employees may put an embargo date is a matter that arises under the agreement, but the manner in which the employer administers the wait list moves beyond what is contained in the agreement.”12 The example is not completely analogous. The Respondent is correct in that the Agreement does not specify the selection criteria of casual employees however the Agreement does specifically reference the wait list to obtain part-time employment, and the associated inclusion of the embargo date, in association with the application.

[42] In the current matter there is a direct link between a dispute arising in the workplace and the terms as set out in the Agreement.

[43] In dealing with the terms of the Agreement and the resolution of the dispute, the following extract is relevant from National Tertiary Education Union v La Trobe University, 13 in which White J stated:

“128. The University emphasised that cl 74 does not contain any stipulation as to what it must do in order to discharge the putative obligation contained in its second sentence. It contended that the omission of any expressed stipulations of this kind undermined the argument that the sentence imposed a binding obligation. I do not agree. The University’s obligation is to avoid, whenever possible, redundancies and to use compulsory retrenchment as a last resort. It would be natural to read in a word such as “reasonably” or “practically” into cl 74 so that the obligation imposed on the University applies whenever it is “reasonably possible” or “practically possible”. That is because it is appropriate to regard cl 74 as operating in a practical environment so that mere theoretical or impractical possibilities may be ignored.

…

130. The University also emphasised the words “all reasonable attempts to mitigate against such action and to avoid job loss” in the third sentence of cl 74. It submitted that this terminology was ill‑adapted to the imposition of substantive obligations because it was vague and of uncertain content. Whether or not that is so, need not be considered as the University’s submission overlooked that the third sentence in cl 74 does not purport on its face, to impose a substantive obligation. It is instead a reservation of rights. Any uncertainty as to the extent of a reservation should not affect the binding nature of the obligation which it purports to qualify. In any event, it is not uncommon for obligations to be imposed in general terms leaving unspecified the way in which the duty is to be discharged. The statutory duty not to drive without due care is an obvious example.” [Emphasis added]

[44] The relevance of such to the current matter, where a dispute has arisen in relation to matters arising under the Agreement (the wait list and embargo date), and where the Agreement is silent on the operation of these matters, is that the terms give rise to rights, and it is arguable that there should be a procedurally fair process adopted in regard to the wait list.

CONCLUSION

[45] It is not necessary for the purpose of these jurisdictional proceedings, to interpret the provisions the subject of the dispute. All that must be satisfied for the Commission to have jurisdiction to deal with the dispute, is that there is a dispute about matters arising under the Agreement. The wait list and embargo date are clearly matters specified in the Agreement and a dispute has arisen in relation to these matters.

[46] To determine the jurisdictional objection, it is necessary to properly characterise the dispute and determine whether it is a dispute that is referred to the Commission by the disputes procedure. The wait list and embargo date are referred to in clauses 15.3.13, 15.3.14 and 15.3.15. The Applicant’s dispute arising at the workplace, relates to those provisions and in particular, whether they impose obligations on the Respondent.

[47] On review, it is considered that the questions for arbitration do not appropriately meet the characterisation of the Applicant’s dispute or the proper matter for the consideration of jurisdiction. In the Applicant’s Form F10 Application, she stated that her dispute was about:

“1. I placed my part time form in 2009, then placed an embargo form in for 1 year in 2014 which we all had an understanding we could put only one embargo in.

2. 2015 I get asked to go part time however my embargo was still going so my name was left at the top of the list for the next position.

3. 2017 I get called into the office being told that due to putting my embargo in on a 2nd application, my name should of [sic] went to the bottom of the list.

4. Nowhere is that written. My understanding is one embargo.”

[48] The Applicant’s dispute relates to the inclusion of the embargo date. The embargo date is directly referred to in the provision. The dispute relates to the effect of the Applicant undertaking what cl.15.3.14 provides for; putting an embargo date next to her name on the wait list for part-time employment. This is prima facie, a dispute about matters arising under the Agreement. It is accepted, as the Respondent submits, that the Agreement does not specifically set out the manner of the administration of the wait list. It is however, reasonable to expect that a procedurally fair process would be adopted by the Respondent, regarding part-time employment, in relation to the provisions of the Agreement providing for the wait list and embargo date. In the current Agreement, the Respondent has agreed to the provision of a wait list (and an embargo date), to allow an orderly and fair list for obtaining part-time employment.

[49] Accordingly, for the aforementioned reasons, the dispute is in relation to a matter arising under the Agreement. The Respondent’s jurisdictional objection is dismissed.

[50] The matter will now be programmed for conciliation of the matter in dispute. A separate listing will be provided.

[51] I Order accordingly.

COMMISSIONER

Appearances:

M. Cook on her own behalf.

M. Stokes and N. Gill for the Respondent.

Hearing details:

2018.

Brisbane:

8 February.

Printed by authority of the Commonwealth Government Printer

<PR602171>

 1   Respondent’s Submissions on Jurisdiction dated 17 November 2017 at paras 12 – 13.

 2 (2001) 203 CLR 645.

 3 Ibid at [32].

 4 (2011) 212 IR 327 at 339.

 5   [2017] FWCFB 5032 at [25].

 6   [2017] FWCFB 3005.

 7 Ibid at [114].

 8   Transcript at PN74 – PN75.

 9   Ibid at PN84 – PN87.

 10   Ibid at PN103.

 11   Ibid at PN144.

 12   Ibid at PN145.

 13 [2015] FCAFC 142.