Mr Adam Murray v Atwood Australian Waters Drilling Pty Ltd
[2016] FWC 3242
•2 JUNE 2016
| [2016] FWC 3242 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Adam Murray & Ors
v
Atwood Australian Waters Drilling Pty Ltd
(C2016/2469 & Ors)
COMMISSIONER CLOGHAN | PERTH, 2 JUNE 2016 |
Dispute about matters arising under the enterprise agreement – dispute settlement procedure - jurisdiction.
[1] This is an application to the Fair Work Commission (Commission) by Mr Adam Murray and 40 other applicants (collectively the Applicants) to deal with disputes pursuant to s.739 of the Fair Work Act 2009 (FW Act).
[2] The Applicants are in dispute with Atwood Australian Waters Drilling Pty Ltd (Atwood or Employer).
[3] The applications are referred to the Commission pursuant to the Dispute Settlement Procedure (DSP) in the Atwood Oceanics Enterprise Agreement 2013 (Agreement).
[4] The Employer asserts that the Commission must determine, separately, each application to determine whether it has jurisdiction. Secondly, as the required DSP steps in the Agreement have not been followed, the Commission does not have the jurisdiction pursuant to s.739 of the FW Act, to hear and determine the disputes.
[5] At the hearing of the applications, the Applicants were represented by Ms D Bohnen, Agent, and evidence was given by:
- Mr S Worth, Materials Coordinator;
- Mr G Price, Employee; and
- Mr M Moore, Ballast Control Officer.
[6] In addition, the written evidence of Messrs Ditchmen, Sultana and Fox was admitted into proceedings without the need for examination-in-chief, cross-examination and re-examination.
[7] The Employer was represented by Mr M Vallence, Agent. Evidence, on behalf of the Employer, was given by Ms A Sutherland, Human Resources Generalist.
[8] This is my decision and reasons for decision as to whether the Commission has jurisdiction to deal with the applications.
RELEVANT LEGISLATIVE FRAMEWORK
[9] The FW Act relevantly provides at ss.595, 738 and 739 as follows:
“595 FWC’s power to deal with disputes
(1) The FWC may deal with a dispute only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.
(2) …
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.
(4) …
(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.”
“738 Application of this Division
This Division applies if:
(a) …
(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) …
(d) …”
“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) …
(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) ...”
RELEVANT PROVISIONS OF THE AGREEMENT
[10] Clause 14 of the Agreement is entitled Dispute Settlement Resolution and reads as follows:
“The parties agree that any dispute in relation to the meaning or effect of any aspect of this Agreement or disagreements between employees shall be processed in accordance with the following:
(a) The employee concerned will at first instance (and as soon as practicable) raise the issue with the relevant Supervisor.
(b) In the event the dispute is not resolved, to the satisfaction of the parties affected within twenty four (24) hours (or other such reasonable period as agreed between the parties), the dispute shall be referred to the Operations management.
(c) If, after seventy two (72) hours (or other such reasonable period as agreed between the parties) of the referral of the issue to the Operations management, the dispute is not resolved to the satisfaction of the parties affected, an affected party may refer the dispute to the Fair Work Commission (Commission).
(d) The Commission shall, at first instance, attempt to conciliate an acceptable outcome between the affected parties. In the event that conciliation is exhausted and does not arrive at an agreed outcome, the Commission may arbitrate the matter.
Commission proceedings shall be scheduled for a time that the affected parties can appropriately participate.
(e) …”
[11] In addition, pursuant to s.190 of the FW Act, the Employer provided the following undertaking which forms part of the Agreement:
“Atwood Oceanics undertakes, that in Clause 14: Dispute Settlement Procedure, of the Agreement, an employee may appoint a representative for the purposes of the procedures in that clause, in accordance with the rights afforded to them under section 186(6)(b) of the Fair Work Act 2009.”
[12] For reasons which will later become apparent, it is necessary to briefly set out the background and procedural background to the applications.
RELEVANT BACKGROUND TO THE DISPUTE
[13] On 24 December 2015, the Employer’s parent company decided that the Atwood Falcon, a Mobile Offshore Drilling Unit (MODU) was to be taken out of service following the completion of the then current drilling programme.
[14] On 26 December 2015, the Employer advised the relevant employees of the decision.
[15] In accordance with Clause 15: Consultation of the Agreement, the Employer engaged in a consultation process with the relevant employees on the Atwood Falcon.
[16] On 31 December 2015, the Employer communicated, to all affected employees, the decision to terminate their employment on the grounds of redundancy. Affected employees were advised of their actual date of ceasing employment, or depending on their roster, the probable date of termination of employment.
[17] Employees were paid all, part, or none of their notice period depending on whether they worked the notice period.
[18] The Applicants are not challenging the fact that their employment was terminated on the grounds of redundancy but are seeking, pursuant to Clause 14 Dispute Settlement Procedure of the Agreement, the meaning and application of certain provisions in Clauses 10, 11 and 12.
RELEVANT PROCEDURAL BACKGROUND TO THE APPLICATIONS
[19] On 3 February 2016, Ms Bohnen filed 30 individual Form F10 applications for the Commission to deal with a dispute in accordance with the DSP in the Agreement.
[20] On 5 February 2016, Ms Bohnen filed a further five (5) individual Form F10 applications for the Commission to deal with a dispute in accordance with the DSP in the Agreement.
[21] On 8 February 2016, my Associate set the applications down for a conference on 29 February 2016.
[22] On 25 February 2016, Ms Bohnen filed a further six (6) individual Form F10 applications for the Commission to deal with a dispute in accordance with the DSP in the Agreement.
[23] At the conference on 29 February 2016, the matter of whether the Commission had jurisdiction to deal with the applications filed by Ms Bohnen, and whether the steps in the DSP had been complied with, was discussed.
[24] On 4 March 2016, Ms Bohnen filed a submission in response to the Employer’s jurisdictional objection made at the conference on 29 February 2016.
[25] On 10 March 2016, the Employer responded to the Applicants’ submission of 4 March 2016.
[26] On 15 March 2016, the Applicants provided a further submission on the Employer’s jurisdictional objection.
[27] On 16 March 2016, the Employer requested the Commission to consider referring the matter for hearing and the taking of evidence, rather than deal with the applications “on the papers”.
[28] Further emails were exchanged between the representatives of the parties.
[29] On 11 April 2016, I advised the parties that I would hold a hearing into the applications on 17 May 2016. At the hearing, the parties could provide evidence. I also advised the parties that I would receive further submissions on the jurisdictional objection.
[30] On 26 April 2016, I received a further submission from Ms Bohnen, on behalf of the applicants, and 12 witness statements.
[31] On 5 May 2016, my Associate received an email from Ms Bohnen which states:
“…we respectfully seek permission for witnesses who are unable to travel to Perth to attend by telephone. It is anticipated that evidence will be brief, factual, and non-controversial, and therefore the need to assess demeanour should be relatively trivial. Whilst we accept that [the] telephone is not preferable to attendance…” (my emphasis).
[32] The Employer responded to the request for witnesses to give evidence by telephone stating that it did not know whom and for what reason, other than assumptions and generalisation stated by Ms Bohnen in her email.
[33] Ms Bohnen responded with the names of 14 applicants on 6 May 2016.
[34] Of the list of 14 applicants, only six (6) had provided witness statements on 26 April 2016.
[35] In Ms Bohnen’s correspondence of 6 May 2016, she also states:
“As the Applications all seek a determination in relation to the interpretation of the Atwood Oceanics Enterprise Agreement 2013 as it applies to the underpayment dispute, we observe that a decision pursuant to a singular application would apply to …all individuals covered.”
[36] On the same day (6 May 2016), the Employer highlighted that the date of the hearing had been set down since 11 April 2016. Further, the Employer objected to any assumption that a decision in one application would apply to all applicants, and again emphasised that a significant number of Applicants had failed to provide a witness statement and the lack of certainty regarding which of the Applicants Ms Bohnen was seeking to give evidence by telephone, and for what reason.
[37] On 10 May 2016, I received the Employer’s final written submission on the jurisdictional objection.
[38] On 11 May 2016, Ms Bohnen provided the names of four (4) Applicants who sought permission to give evidence by telephone. Of the four (4) Applicants, three (3) had provided written witness evidence on 26 April 2016.
[39] Ms Bohnen also provided the names of eight (8) Applicants who were “unable to attend”. Of the (8) Applicants, two (2) had provided a witness statement on 26 April 2016.
[40] On 12 May 2016, Ms Bohnen informed the Commission that a further seven (7) applicants were “unable to attend”. It is notable that, of these seven (7) applicants, only one (1) applicant had provided a witness statement on 26 April 2016. Secondly, it is notable that the reason why one (1) applicant was unable to attend is that he “lives in Dunsborough”.
[41] In response, the Employer requested that the three (3) applicants who had provided witness statements and sought to give evidence by telephone, be required to give evidence through an appropriate video link facility as it expected demeanour to be an issue in the consideration of their evidence.
[42] In the midst of the vigorous exchange of emails, I advised the parties which particular matters, of necessity, I would have to focus upon in the hearing on 17 May (later 19 May) 2016. Further, I indicated to the parties that I would not “group” the individual applications until I was satisfied of similarities. Thirdly, it would be presumptive of either party to assume that a decision in one application would apply to another application. Finally, that I would deal with any request for an applicant to give evidence by telephone on an individual basis at the hearing after considering the Employer’s submission; again no presumption should be made regarding my decision.
[43] At the request of Ms Bohnen, the 17 May 2016 hearing was adjourned.
[44] The hearing took place on 19 May 2016.
[45] In conclusion, I want to go back to the prescient comments of Ms Bohnen to Mr Vallence on 1 March 2016 that, “as a registered industrial agent, he should be familiar with the usual protocols, code of conduct and professional courtesies”. I have taken those comments into account in my consideration of some of the procedural issues raised in the course of hearing the Employer’s jurisdictional objection.
[46] As part of the procedural background, the Applicants sought an order pursuant to s.593 of the FW Act. For reasons which I will set out later, I am not satisfied that such an order should be made.
[47] For clarity, I want to set out the status of all 41 applications.
APPLICATIONS DISCONTINUED
[48] The following applications have been discontinued:
- C2016/2470 on 2 March 2016
- C2016/2472 on 3 March 2016
- C2016/2475 on 14 May 2016
- C2016/2488 on 2 March 2016
- C2016/2497 on 14 May 2016
- C2016/2530 on 5 May 2016
- C2016/2532 on 19 February 2016
- C2016/2732 on 22 April 2016
[49] It is not necessary to make any further comment regarding these applications.
APPLICATIONS MADE AFTER THE APPLICANT HAD CEASED EMPLOYMENT
[50] I intend to deal with those applications made after the applicant had ceased employment, based on the date the applications were made in the Commission.
3 February 2016
[51] The following applications were received on 3 February 2016 after the applicant had ceased employment:
- C2016/2469 (Murray)
- C2016/2471 (Jamieson)
- C2016/2473 (Price)
- C2016/2476 (Lindfield)
- C2016/2478 (Kelly)
- C2016/2482 (Joksovic)
- C2016/2483 (Hutchings)
- C2016/2484 (Rudyard)
- C2016/2486 (Slattery)
- C2016/2487 (Buckingham)
- C2016/2490 (Forster)
- C2016/2492 (Hawkins)
- C2016/2493 (Munro)
- C2016/2496 (Cadd)
- C2016/2498 (Greenwood)
5 February 2016
[52] The following application was received on 5 February 2016 after the applicant had ceased employment:
- C2016/2529 (Watt)
25 February 2016
[53] The following applications were received on 25 February 2016 after the applicant had ceased employment:
- C2016/2735 (Hancock)
- C2016/2736 (Warren)
- C2016/2734 (Watkins)
- C2016/2733 (Hadlow)
- C2016/2731 (Baker)
[54] Of the 33 applications which have not been discontinued, 21 applications were made after the employee had ceased employment. I shall now turn to consider the Employer’s jurisdictional objection to the Commission dealing with those applications.
Do the applicants, who were dismissed on grounds of redundancy before making application to the Commission, have “standing” to bring the application?
[55] All the applicants in paragraphs [51] to [53] made application to the Commission on a date after being dismissed pursuant to s.739 of the FW Act.
[56] Part 2-4 of the FW Act commences with a “Guide”. The Guide describes an enterprise agreement as being “made at the enterprise level and provides terms and conditions for those national system employees to whom it applies…” (my emphasis).
[57] In Part 2-4 of the FW Act, an employee means a national system employee and employer means a national system employer. Section 13 of the FW Act defines a “national system employee” as, “an individual so far as he or she is employed...” (my emphasis).
[58] There is no dispute that the Employer is a national system employer and is covered by the Agreement.
[59] There is no dispute that the terms and conditions of the Agreement only apply to employees.
[60] Further, an enterprise agreement can only, in accordance with s.172(2)(a) of Part 2-4 of the FW Act, relate to “matters pertaining to the relationship between an employer…and employees who will be covered by the agreement”. Secondly, an enterprise agreement can incorporate, “how it will operate” pursuant to s.172(a)(d) of the FW Act.
[61] The symmetry between Part 2-4 of the FW Act and the Agreement is readily apparent. Subclause 3(b) of the Agreement covers, “All operational employees of the Company who are employed to work offshore and undertake work…” At Clause 4, it states that the Agreement will apply to all work performed by operational employees who are employed to work…” (my emphasis).
[62] Accordingly, from the date the dismissal took effect, the terms and conditions of the Agreement, including the DSP, ceased to apply to the applicants in paragraphs [51] to [53] because they were no longer employed by a national system employer, in this case, Atwood.
[63] The applicants have referred the dispute to the Commission pursuant to Clause 14: Dispute Settlement Procedure of the Agreement. Subclause 14(c) states that, “an affected party may refer the dispute to the Fair Work Commission”.
[64] At the time of referring the matter to the Commission, the applicants were no longer an “affected party”. The parties to the Agreement are the Employer and employees. To be an “affected party” or a “party”, it is necessary to be the Employer or an employee. The applicants ceased being an employee, or party to the Agreement, at the time their dismissal took effect.
[65] I now turn to whether an application can be made to the Commission pursuant to s.739 of the FW Act, notwithstanding, that the applicants were no longer employed by Atwood.
[66] Similar to Part 2-4 of the FW Act, Part 6-2 (which includes s.739) relates to national system employees and employers. The statutory provisions which give the Commission its power to deal with disputes pursuant to DSPs in enterprise agreements, is underpinned by the requirement that the dispute is between national system employers and employees.
[67] Importantly, subsection 739(6) of the FW Act enables the Commission to deal with a dispute “only” on an “application by a party to the dispute”; that is usually, an employer or employee.
[68] I have already traversed the reasons why those applicants in paragraphs [51] to [53] are not a “party” to the dispute; it would serve no purpose in repeating my comments. Shortly put, these applicants ceased being a “party”, or an “employee”, pursuant to the Agreement on cessation of their employment.
[69] Part 6-2 of the FW Act gives, as the Guide states, the Commission the power to deal with disputes involving employees in its ordinary sense - not ex-employees.
[70] Both parties have referred to ING Administration Pty Ltd v Jajoo, Ramsin [2006] AIRC 773 (ING). The Applicants submit that this is authority for the proposition that where a dispute had commenced before termination of employment, the Commission has jurisdiction to deal with an application to the Commission for arbitration, after employment has ended. The difficulty with such an expansive submission is that Clause 14 does not refer to a party who “was an employee” or “an ex-employee”. In all cases, the clause refers to either “the parties” - that is, a party in existence; in other words, an employee or the Employer in the present tense.
[71] One example of the difficulty with the approach by the Applicants is as follows. If the dispute commenced at subclause 14(a) of the Agreement and the dispute remained unresolved, it would be necessary to proceed to step 2 before referring the dispute to the Commission. At step 2, if the dispute is not resolved at step 1, the dispute shall be referred to Operations management, within 24 hours or such other reasonable period “as agreed”. The Employer, in effect, is required to obtain agreement of a person outside of the employment arrangement regarding timeframes in step 2 of the DSP.
[72] Further, I refer to the provisions of subclause 14(g) of the Agreement. Subclause 14(g) states:
“(g) Continuation of Normal Work
Normal uninterrupted work shall continue at all times whilst a dispute is being progressed through the Dispute Settlement Procedure.”
[73] The words “whilst” or “while” are defined in the Australian Concise Oxford Dictionary as meaning “during the time that, for as long as, at the same time as”. Such a subclause presupposes or implies that during the resolution of the dispute, the Agreement and contract of employment remain in existence, and that the parties will “continue” to work in accordance with their provisions. Obviously, these applicants cannot continue with their obligation to work under the Agreement and contract of employment, if the employment relationship has ceased.
[74] Finally, when considering the context of the DSP, it is notable that included in the definition of a “dispute”, is “disagreements between employees”. Accordingly, the Employer and the Commission could, according to the submission of the applicants, hear and determine disagreements between former employees. I am unable to conclude that this was the intention of the parties when making the Agreement.
[75] As both parties referred to ING, it is appropriate to conclude by referring to specific statements of the Full Bench in that Decision. When considering the question of whether s.170LW of the Workplace Relations Act 1996 (WR Act) limits the Commission’s power to current employees and “deprive an ex-employee of the ability to initiative, or progress a dispute after the termination of his or her employment”, the majority of the Full Bench state, “as a matter of interpretation, a court or Tribunal should not read a limitation into a source of power unless the words clearly bear such a meaning”. 1
[76] However, the majority also cautioned, at paragraph [18]:
“Care must be exercised in considering earlier decisions given changes to the legislative provisions…”
[77] The provisions of s.170LW of the WR Act are different to s.739 of the FW Act. Pursuant to s.739 of the FW Act, the power of the Commission to arbitrate, is limited to the powers contained in the term of the Agreement.
[78] In this application only a “party” to the Agreement can refer a dispute to the Commission. None of the applicants were an “affected party” to the Agreement at the time of making the application. The applicants were no longer employees having had their employment terminated on the grounds of redundancy.
[79] For the reasons set out above, I find that the applications in paragraphs [51] to [53] relate to a dispute between the Employer and former employees. Further, having considered the provisions of the FW Act, in particular, Parts 2-4 and 6-2, and the Agreement, and for the reasons above, I find that the Commission has no jurisdiction to deal with the applications by these applicants.
[80] However, should I be wrong in relation to those applicants whose employment ceased before making application to the Commission, it is necessary to consider the Employer’s jurisdictional objection that the required steps in the DSP have not been followed, and consequently, the Commission does not have the jurisdiction to hear and determine the applications.
[81] Notwithstanding my finding immediately above, Mr Price (C2016/2473) gave written and oral evidence even though his employment had ceased prior to making application to the Commission.
[82] The purpose of Mr Price giving evidence was to ensure that the Commission had the best available evidence at the hearing regarding the second “limb” of the jurisdictional objection.
CONSIDERATION OF EMPLOYER’S JURISDICTIONAL OBJECTION OF APPLICATIONS MADE PRIOR TO THE APPLICANT CEASING EMPLOYMENT
[83] The following applications were made while the applicants were employees of the Employer:
- C2016/2474 (Ditchmen)
- C2016/2477 (Marachel)
- C2016/2479 (White)
- C2016/2480 (Williams)
- C2016/2481 (Nostas)
- C2016/2485 (Moore)
- C2016/2489 (Sultana)
- C2016/2491 (Fox)
- C2016/2494 (Worth)
- C2016/2495 (Cousins)
- C2016/2528 (Waghorn)
- C2016/2531 (Lawrance)
[84] The Employer submits that each of the applicants, in the paragraph immediately above, have to establish that they initiated the processes in the DSP while an employee as a pre-requisite to filing the application in the Commission.
What are the procedural requirements of the DSP before the dispute can be referred to the Commission?
[85] In brief and simple terms, the procedural requirements of the DSP before the dispute can be referred to the Commission are:
- the employee concerned raises the issue with the relevant supervisor;
- if the dispute is not resolved to the satisfaction of both the employee and Supervisor;
- the dispute is referred to Operations management;
- if, after having referred the dispute to Operations management, and the dispute remains unresolved;
- an affected party may refer the dispute to the Commission.
[86] Put at its very basic, for the Commission to exercise its powers under the DSP, it is necessary that circumstances exist where the parties have failed to reach a resolution at the supervisory level, and secondly, at Operations management level.
[87] In such circumstances, it is necessary to consider the facts, assertions and evidence of the applicants in paragraph [83] and Mr Price.
Written documentation of the applicants
Form 10 applications
[88] All 33 applicants, irrespective of whether the applicants made the applications as a former employee or as an employee, state in the Form F10 in answer to the question, “what steps have already been taken to resolve the dispute under the dispute resolution procedure?”, the following:
“2.4.1 Employee queries during Redundancy consultation period via telephone conference(s) 27 to 30 December 2015 regarding final pay;
2.4.2 Memorandum dated 13 January 2016 issued to all employees by Acting Operations Manager – Falcon, Mr Jim Watson, in response to employee pay queries;
2.4.3 Memorandum dated 22 January 2016 issued to all employees by Human Resources and Administrative Services Supervisor, Ms Anne Maree Hanson, in response to employee pay queries;
2.4.4 Employee queries at HSR meeting on 24 January 2016, documented in the form of minutes and emailed to head office.”
[89] These steps were the subject of oral evidence and will be considered later in this Decision.
Written witness statements
[90] Messrs Worth, Price, Moore, Ditchmen, Sultana and Fox each state in their witness statement:
“I and other employees raised a dispute regarding payment of off rig time equivalent to on rig time (payment in full for work completed at the on rig rate) prior to my redundancy effective date.”
[91] Mr Worth states he raised the dispute with Mr Stenzel. 2
[92] Mr Price does not state who he raised the dispute but observes:
“All Atwood rig based personnel report to the Offshore Installation Manager (OIM) who reported directly to the Operations Manager for the Atwood Falcon.” 3
[93] Mr Moore states that he raised the “matter” with Mr Danny Darragh and later with Mr Glen Wilson. 4
[94] Mr Ditchmen states that he “reported directly to Offshore Installation Manager (OIM), Mr Nathan Buchanan”. 5
[95] Mr Sultana states that he “reported directly to Mr Glen Ditchmen, Rig Maintenance Supervisor”. 6
[96] Mr Fox states that he “reported directly to Toolpusher, Mr Guy Watkins”. 7
[97] Mr Worth states that Mr Stenzel was “unable to deal with the underpayment dispute [as the Agreement] applied to him, and he was affected by the matter in dispute”. 8
[98] Mr Moore states both persons he referred the “matter” to “were unable to deal with the dispute”. 9
[99] It is notable that Messrs Price, Ditchmen, Sultana and Fox do not state who they raised the dispute with, but give evidence as to who they reported to. I find such deliberate wording ineffective with respect to compliance with the requirement to raise the dispute with the relevant supervisor.
[100] However, Messrs Price, Ditchmen, Sultana and Fox, all infer in their witness statements that their direct reports were unable to deal with the matter, because they were affected by the dispute.
[101] Mr Ditchmen does not state that Mr Sultana raised the dispute with him, although Mr Sultana infers, in his witness statement, that he did so. Mr Ditchmen’s written evidence is that:
“Several employees approached me, approximately 5 or 6 in Maintenance, regarding payment at the full on rig rate for the last hitch on board the Atwood Falcon following receipt of initial correspondence in relation to redundancies. This was a hot topic amongst employees.
I initially instructed employees that as we did not know if payment would be made by the company in full we could not raise the dispute until the matter was substantiated.” 10 (my emphasis)
[102] Messrs Worth, Price, Moore, Ditchmen, Sultana and Fox all state in their witness statements, the following identical words:
“Collectively, Atwood Falcon employees, myself included, again raised the underpayment dispute via the HSRs, which was subsequently discussed at a HSR meeting on 24 January 2016 and followed up with AAWD [Atwood] management.” (my emphasis)
[103] From the written witness statements of Messrs Worth and Moore, I have no dates, times or documentation concerning when each raised the dispute purportedly in accordance with step 1 of the DSP.
[104] With respect to Messrs Price, Ditchmen, Sultana and Fox, who infer that they raised the dispute with their relevant supervisor, I have no dates, times or documentation.
[105] From all the witness statements, I am inclined to the view of Mr Ditchmen that it was a “hot topic” of conversation amongst employees and that a dispute would not exist until the employees had been formally advised of the Employer’s position in relation to the off rig time payment.
[106] However, I am certain that the issue of off rig time payment was referred to the HSRs and the issue discussed at the HSR meeting on 24 January 2016.
[107] I now turn to the oral evidence of Messrs Price, Moore and Worth.
Oral evidence
Mr Price
[108] Mr Price’s evidence was honest and straightforward.
[109] Mr Price’s application was prepared by Ms Bohnen.
[110] Mr Price agreed that the steps taken to resolve the dispute under the DSP, as set out in his application, did not apply to him.
[111] Mr Price gave evidence that he discussed the matter with Mr Gregg but could not remember the date. 11 At the time of when it was a “hot topic”, there was no certainty regarding the matter12 and essentially speculation was occurring.13
[112] Mr Price could not characterise his discussions with Mr Gregg as a dispute – he was making queries as to what was going on. 14
[113] Mr Price described his role as an “interested party” 15, lending support to a collective issue among employees and did not appoint anybody formally to represent him in the dispute pursuant to the DSP.16
[114] Mr Price agreed that when it was discussed by the HSRs, it was as a safety issue and not a dispute being processed pursuant to the DSP.
[115] In summary, Mr Price’s evidence was illustrative and explicit of why the Employer has stated that the steps in the DSP were not followed. While detrimental to his application, Mr Price gave evidence what happened and, with few exceptions, did not embellish the facts.
Mr Moore
[116] Similar to Mr Price, Mr Moore’s evidence was honest and straightforward.
[117] Mr Moore’s evidence was that his application was prepared by Ms Bohnen and he agreed that the steps taken to resolve the dispute, as set out in his application, did not apply.
[118] Mr Moore arrived on the rig for his “swing” on 20 January 2016. Prior to that, he was unaware of the dispute. 17 On arriving on the rig, he became aware of the issue and essentially tried to find out what the matter concerned, which included obtaining a copy of the Agreement.
[119] Mr Moore agreed in evidence that he did not know how to raise a dispute pursuant to the DSP. 18 No person went through the DSP with him when the Agreement was being negotiated and he was not aware of any other employee raising a dispute through the DSP.19
[120] When Mr Moore approached his supervisors (Mr Darragh and Mr Wilson) allegedly in accordance with step 1 of the DSP, he gave evidence that Mr Darragh worked for an “agency” and Mr Wilson was an “ex pat from the United States and had no knowledge of the enterprise bargaining agreement or what I was talking about in effect”. 20
[121] Mr Moore gave honest evidence when he stated that his approach to Mr Darragh and Mr Wilson was a case of, “what’s going on” and “what’s happening” 21, rather than putting an issue into dispute.22
[122] Notwithstanding these purported circumstances regarding step 1 of the DSP, Mr Moore conceded that he did not approach operations management pursuant to step 2 of the DSP 23 even though he had the relevant communication contacts.24
[123] Although his witness statement infers that Mr Moore referred the matter to Operations Management in accordance with step 2 of the DSP, Mr Moore conceded that he had not spoken to Mr Stenzel but was “given information by my colleague during that conversation on the 20th with my colleague that this matter had been raised by Dave [Mr Stenzel]…” 25. In short, as Mr Vallence described it, and Mr Moore agreed, it was “third hand information”26. Mr Moore did not speak to Mr Stenzel directly.27
[124] Mr Moore initially gave evidence that he authorised Mr Brett, Health and Safety Representative (HSR), to act on his behalf. 28 However, later in his evidence, he conceded that he did not appoint Mr Brett, rather Mr Brett is the HSR “for the crew”.29 Mr Moore acknowledged, in his evidence, that it was Mr Brett who approached him and he stated that this issue was to be raised at the HSR meeting, and would he support such an action – Mr Moore agreed.30
[125] In a more general sense, Mr Moore agreed, from his experience, raising a dispute has to be more formal than a verbal enquiry. 31
[126] Mr Moore concurred that he became part of the “group” which intended to raise the matter under the auspices of the HSR meeting on 24 January 2016. 32 However, he agreed that the meeting minutes document safety concerns33. The minutes do not refer to a dispute pursuant to the DSP34 and if the concerns of employees are not addressed, the matter will be pursued with the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) and not the Commission.35
[127] Finally, Mr Moore gave evidence that he received no “feedback” from Mr Brett, as his purported representative, on the outcome of the HSR meeting. 36
[128] Mr Moore prepared his witness statement approximately three (3) weeks before the hearing. 37
Mr Worth
[129] Like his work colleagues, Mr Worth’s’ evidence was sound and trustworthy.
[130] Mr Worth’s application was prepared by Ms Bohnen but he agreed that the alleged DSP steps taken set out in the application, were not relevant to his circumstances.
[131] Mr Worth concedes that when he spoke to his supervisor, purportedly in accordance with step 1 of the DSP, it was on an “informal basis”. 38 The conversation was along the lines, “what’s happening”.39 Furthermore, when he spoke to Mr Stenzel, it had been after pay enquiries had been referred to the Perth Office. Further, Mr Stenzel did not indicate that a dispute had been raised by employees, and it would be reasonable to assume that Mr Stenzel would have raised such an issue with him if that had occurred.40
[132] Mr Worth conceded that Mr Watson’s memorandum of 13 January 2016 41 does not state that the cause of the document being issued is a dispute which had been referred to him pursuant to the DSP, and after it had been raised by employees with their supervisor.42 The memorandum was not issued as a result of any dispute raised by Mr Worth.43
[133] Due to the fact that Mr Worth was not on the rig during the time the matter had become a “hot topic”, the following questions were put to Mr Worth in examination-in-chief and was illustrative of the Applicant’s overall case:
“With respect to those random emails and telephone calls, and your statement saying that you wished to take part in action, does that not constitute authorising someone to act as a representative, on your behalf?---Yes.
Who would that be?---Mr John Hancock.
John Hancock. What capacity was he in, what position - - -?---He was my back-to-back, so he was (indistinct) coordinator.
Okay. Are you aware of what steps Mr Hancock took, on your part?---No.
In terms of addressing operations management, did anyone, on your behalf, address the matter to operations management?---Not that I'm aware of.
What was the most recent correspondence that you would have received, in relation to this dispute, while still employed?---Probably the memorandum from Jim Watson.” 44
[134] Mr Worth did not make a formal complaint to Mr Stenzel. Further, when asked what was his reply to his “what’s happening” discussion with Mr Stenzel, he gave evidence of a group email in which Mr Stenzel said words to the effect of, “here you are boys, here’s the answer”. 45 The “answer” was Mr Watson’s memorandum of 13 January 2016. Mr Worth had no further contact with Mr Stenzel after his email of 13 January 2016.46
[135] As Mr Worth was not on the rig at the time, he agreed, similar to Mr Price and Mr Moore, to be part of the “group action”. 47
[136] Mr Worth agreed that he did not raise a dispute to be dealt with at the HSR meeting 48 and that he did not follow the two stages set out in the DSP.49
CONSIDERATION OF ALLEGED STEPS TAKEN BY ALL APPLICANTS AS SET OUT IN THE FORM F10 APPLICATIONS
[137] Notwithstanding the oral evidence of Messrs Price, Moore and Worth, it is useful to consider the alleged steps taken by all the Applicants in compliance with the DSP. Mr Marechel’s steps are considered separately.
[138] The first step at 2.4.1 is that of, “employee [applicant] queries during Redundancy consultation period via telephone conference(s) 27 to 30 December 2015 regarding final pay” (my emphasis)
[139] It is notable the Applicants’ use of the word “queries”.
[140] “Query” according to the ACOD is a “question, esp expressing doubt or objection”. Essentially, the putting of a question which questions the accuracy of something.
[141] Eight (8) teleconferences were held between Human Resource representatives and employees. The Employer received six (6) queries. Of the six (6) employees, two are applicants. Mr Hawkins’ query was the subject of evidence by Ms Sutherland and I am satisfied he did not raise a dispute. The other applicant is Mr Sultana and his query was, “Can I please have a detailed breakdown of my redundancy payment…” 50
[142] Having examined the remaining queries, I am satisfied that they are what they are – queries – and not a dispute for the purposes of the DSP process.
[143] In the second step in 2.4.2, the Applicants refer to the memorandum dated 13 January 2016, issued to all employees by Mr Watson in response to employee pay queries.
[144] It is again notable the Applicants use the word “queries” – because that is what Mr Watson’s memorandum was about.
[145] Mr Watson refers to queries from employees. Mr Watson addresses common issues. Mr Watson does not mention the word “dispute” or the DSP provisions in the Agreement.
[146] I cannot find, and so find, any connection between the DSP provisions in clause 14 of the Agreement and Mr Watson’s memorandum.
[147] I now turn to the third step at 2.4.3 which refers to a memorandum issued by Ms Anne Maree Hanson, Human Resource and Administrative Services Supervisor, in response to employee pay queries.
[148] Again, the word “queries” is used in the memorandum.
[149] Ms Hanson’s memorandum is entitled “Annualised Salary – LAHA [living away from home allowance]”. Similarly to Mr Watson’s memorandum, there is no mention of a dispute, the DSP, or Clause 14 of the Agreement. 51
[150] In view of the nature of the memorandum, I find that it cannot be, and was not, a step in the DSP process. The memorandum was information relating to LAHA.
[151] The final step in the DSP alleged to have been taken by the Applicants related to “Employee queries at HSR meeting on 24 January 2016, documented in the form of minutes and emailed to head office” (my emphasis).
[152] Ms Bohnen submits, following the queries, a HSR meeting was held on 24 January 2016, to discuss “the matters in dispute and these matters collectively”. 52
[153] It is interesting to note that Ms Bohnen states that, “the meeting, representing all employees, including those off rig and/or made redundant”. However, the minutes refer to “all employees on board the Atwood Falcon”. The description in the minutes is consistent with the concerns of a meeting that the Employer was, “introducing new hazards to the work environment by not being focused on tasks [on board the rig]”.
[154] There is a disconnect between Ms Bohnen’s submission that the meeting was concerned with safety aspects of the Employer’s alleged actions on persons who had already been dismissed on grounds of redundancy. Surely, the safety concerns would not affect a person no longer in the employment relationship.
[155] There is no dispute between the parties that the minutes reflect a HSR meeting. The minutes reflect alleged “serious safety concerns”. The minutes characterise the “new hazards” as causing, among other things, “confusion and stress” (as a result of the LAHA allowance), the need to seek “confirmation” regarding “reflection pay” and a “clear definition of why, if crew is not going to be paid”. Finally, the outcome of the meeting does not have to be characterised - it speaks for itself – and it is, “crew expect a reply to the issues raised by COB on the 27th January 2016” (my emphasis).
[156] The minutes conclude, “We have been advised to contact NOPSEMA if concerns aren’t addressed immediately” 53 (my emphasis).
[157] I am unable to come to the view, as submitted by Mr Bohnen, that this was a stage in the DSP process. The minutes do not refer to the DSP processes in the Agreement. Furthermore, the type of meeting is to address alleged “hazards” and “issues” and “concerns”. Finally, the concerns/issues/hazards if not resolved, seek recourse is to NOPSEMA, and not the Commission.
EVIDENCE BY TELEPHONE
[158] On 6 May 2016, Ms Bohnen proposed, in the interests of concluding the jurisdictional objection, the Commission take evidence from 14 applicants. Ms Bohnen indicated, but did not identify, whom she sought permission to give evidence by telephone. However, Ms Bohnen identified, to her knowledge, the most recent location of the 14 applicants.
[159] Before turning to the Employer’s response, I should note that of the 14 applicants, only six (6) had provided witness statements on 26 April 2016.
[160] On the same day, Mr Vallence, not unreasonably, sought: the names of the 14 applicants who Ms Bohnen was seeking to give evidence by telephone, which applicants were to attend in person and who would not be attending or giving evidence by telephone. Mr Vallence also sought the reasons why those applicants who wished to give evidence by telephone, could not give evidence in person.
[161] On 11 May 2016, Ms Bohnen sought permission for four (4) employees to give evidence by telephone. As it so happened, Mr Moore gave evidence in person. The remaining three (3) witnesses had provided a witness statement on 26 April 2016. All three (3) had been in employment prior to making the application.
[162] All three (3) witness statements were incorporated into evidence. 54
[163] All three (3) applicants provided the following identical statements similar to Messrs Price, Moore and Worth and that is:
“I and other employees raised a dispute regarding payment of off rig time equivalent to on rig time worked (payment in full for work completed at the on rig rate) prior to my redundancy effective date.”
[164] Save for different names of the supervisor, all three (3) applicants state:
“[Name] was unable to deal with the underpayment dispute as the Atwood Oceanics Enterprise Agreement 2013 also applied to him, and he was affected by the matter in dispute.”
[165] All three (3) applicants state that they reported to a supervisor but do not state, in accordance with step 1 of the DSP, when, if they did, raise a dispute with their supervisor.
[166] All three (3) applicants give the following identical evidence:
“Collectively, Atwood Falcon employees, myself included, again raised the underpayment dispute via the HSRs, which I am aware was subsequently discussed at a HSR meeting on 24 January 2016 and followed up with AAWD management.”
[167] All three (3) applicants refer to the same documents referred to by Messrs Price, Moore and Worth.
[168] After hearing the evidence of Messrs Price, Moore and Worth, I was satisfied that the evidence would be similar, if not identical, to the evidence already received by the Commission.
[169] I was satisfied that differences between the evidence of Messrs Price, Moore and Worth and Messrs Ditchmen, Sultana and Fox, if any, would not be determinative of the jurisdictional objection and/or detrimental to the applicants’ case. For this reason, I declined Ms Bohnen’s request for the three (3) applicants to give evidence by telephone.
MR MARECHAL
[170] Mr Marechal’s application, in substance, is no different to the other 33 applications. However, in his application, he refers to “individual inquiries’.
[171] Mr Marechal is one of the applicants who filed an application before he ceased employment.
[172] Mr Marechal did not file a witness statement or, according to Ms Bohen’s emails to the Commission, proposed to give evidence at the hearing. However, Ms Sutherland referred to the Employer’s contact with Ms Bohnen in relation to Mr Marechal’s enquiries.
[173] Ms Bohnen’s correspondence of 21 January 2016 to the Employer states that she acts for Mr Marechal and refers to Mr Watson’s memorandum of 13 January 2016. Ms Bohnen notes various aspects of Mr Watson’s memorandum and relevantly states, in relation to the substantive issue, “pursuant to the above, we seek confirmation that payment of any outstanding monies…” 55 (my emphasis).
[174] Further, and notably, Ms Bohnen states:
“To avoid us exploring options pursuant to clause 14 of the Agreement…” (my emphasis).
[175] The plain and ordinary meaning of Ms Bohnen’s words are that if Ms Bohnen does not receive confirmation of the asserted payment, she will, on behalf of Mr Marechal, “explore” alternative means to obtain the payment – specifically, the DSP in the Agreement.
[176] Ms Bohnen’s proposition is transparent – the Employer can confirm Mr Marechal will receive payment by way of an exchange of letters, or alternatively, Mr Marechal or Ms Bohnen will activate the DSP in the Agreement.
[177] On the basis of Ms Bohnen’s statement, I consider it can be reliably inferred that Mr Marechal had not activated Clause 14 of the Agreement, and that this conclusion can be applied to all the other applicants.
ORDER PURSUANT TO SECTION 593(3) OF THE FW ACT
[178] By email dated 1 April 2016, Ms Bohnen requested that the Commission make orders pursuant to s.593(3) of the FW Act. The order was to “prohibit or restrict the publication of the names, addresses and personal identifiers of all Applicants in the above matter”.
[179] Ms Bohnen made the request, “in large part due to the confidential and essentially private nature of the matter and related evidence, and the likelihood of compromising the future employment prospects of the individuals”.
[180] Firstly, the substantive matter the Commission is dealing with, is whether the Commission has the power or authority to hear and determine the Applicants’ applications.
[181] Put shortly, there is a separation of the legal question of the Commission’s powers and the substantive merit, or otherwise, of the Applicants’ arguments. The Commission is not, and has not, dealt with the latter matter. The Employer’s jurisdictional objection is not “private” or “confidential”. The objection is simply a legal question and can be distinguished easily from the private nature of the individual matters.
[182] Secondly, what oral evidence that was given by Messrs Price, Moore and Worth was a credit to their honesty, despite the evidence being detrimental to their cases.
[183] Thirdly, there were no grounds or evidence to suggest that being an applicant would compromise future employment prospects.
[184] Finally, in the interests of “open justice”, the presumption is that hearings and publication of names are made public 56. The evidence was not confidential as asserted by Ms Bohnen, it was very much matter of fact.
[185] Having considered the nature of the proceedings and the evidence provided, I am not satisfied it is desirable to make the order sought by Ms Bohnen.
WITNESS STATEMENTS NOT INCORPORATED INTO PROCEEDINGS
[186] Witness statements provided on 26 April 2016 by Messrs Lindfield, Joksovic, Forster and Buckingham were not incorporated into proceedings. These applications were considered as part of those applications filed after the employees had ceased employment in paragraphs [51] to [53].
APPLICANTS’ KNOWLEDGE OF CLAUSE 14 OF THE AGREEMENT
[187] As part of Ms Bohnen’s evidence-in-chief, she attempted, by way of various questions, to weave a thread that the three (3) witnesses, and by inference, the remaining applicants, that they had not read, been trained in or were familiar with the DSP processes set out in the Agreement.
[188] I do not doubt the witness evidence of Messrs Price, Moore and Worth that each lacked appreciation of and awareness of the processes in the DSP. However, being unacquainted with the DSP processes in not a defence, especially when I consider Mr Moore’s evidence of how he was able to access the Agreement from the radio operator, it appears, without difficulty. 57
[189] Further, I provided Ms Bohnen with the opportunity to respond to the Employer’s declaration in support of application for approval of the Agreement, signed by Mr Andrew Bohnen, which sets out, in detail, the steps taken to ensure that employees were given access to the written text of the Agreement before voting upon the document.
[190] The evidence of Messrs Price, Moore and Worth regarding their lack of knowledge, is not a situation where that evidence, displaces the required provisions in the DSP. Mere enquiries, questions or the raising of issues, is not an acceptable form of dispute resolution as agreed between the parties.
CONCLUSION
[191] While I have indicated in other proceedings dealing with DSP processes that “some gaps in documentation may be excusable” 58, in these applications, there is a complete lack of documentation from the Applicants, save the HSR minutes. The documentation relied upon by the Applicants primarily, are the Employer documentation in which there is no reference to the Employer responding to either stages 1 or 2 in the DSP process. Even the Applicants’ witnesses agreed that there has to be some sort of formality in the DSP process.
[192] The parties referred to Shields & Sprigg v Alfred Health[2012] FWA 162 (Shields & Sprigg), Harold Draeger v Ventura Bus[2014] FWC 107 and AWU v Veolia Environmental Services (Australia) Pty Ltd [2015] FWC 8893. Those authorities support the judgement that the raising of a query/concern, or the posing of a question, is not the equivalent of agitating a dispute pursuant to a DSP. Further, in the case of Boral Cement Ltd v AWU[2012] FWAFB 350 which was referred to in Shields & Sprigg, it is stated that there is a manifest public interest in parties abiding by the DSP to which they have agreed upon.
[193] The DSP, in some respects, has its own “legal system” which the parties have agreed upon. Having agreed upon a system, it is not permissible for one party to dispense with its processes when it feels the need. Nor can one party attempt to fashion a disparate set of circumstances and transmute them into the form set out in the DSP. Such transmutation exposes flaws which have been clearly demonstrated in the oral evidence of the witnesses in these proceedings. In coming to this conclusion, I make no criticism of the witnesses because I am sure, on reflection, they will come to the conclusion that the evidence, did not demonstrate that the DSP processes were not complied with before the applications were referred to the Commission.
[194] For the above reasons, I find that the Commission has no jurisdiction to deal with the applications and accordingly, they must be dismissed. Orders to this effect will be issued separately to this Decision.
COMMISSIONER
Appearances:
D Bohnen, Agent, on behalf of the Applicants.
M Vallence, Agent, on behalf of the Respondent.
Hearing details:
2016:
Perth,
19 May.
1 ING paragraph [40]
2 Exhibit A5
3 Exhibit A6
4 Exhibit A7
5 Exhibit A8
6 Exhibit A9
7 Exhibit A10
8 Exhibit A5
9 Exhibit A7
10 Exhibit A8
11 Transcript PN1103
12 Transcript PN1105
13 Transcript PN1106
14 Transcript PN1162 and PN1218
15 Transcript PN1180
16 Transcript PN1191
17 Transcript PN1593
18 Transcript PN1474
19 Transcript PN1473 and PN1474
20 Transcript PN1458
21 Transcript PN1629
22 Transcript PN1630
23 Transcript PN1567
24 Transcript PN1568
25 Transcript PN1622
26 Transcript PN1624
27 Transcript PN1622
28 Transcript PN1514
29 Transcript PN1636
30 Transcript PN1643
31 Transcript PN1738
32 Transcript PN1661
33 Transcript PN1678
34 Transcript PN1668
35 Transcript PN1669 and PN1670
36 Transcript PN1733
37 Transcript PN1765
38 Transcript PN894
39 Transcript PN869
40 Transcript PN913 to PN951
41 Exhibit R3 (7)
42 Transcript PN955
43 Transcript PN964
44 Transcript PN882 to PN887 and Exhibit R3 (7)
45 Transcript PN852
46 Transcript PN864
47 Transcript PN857
48 Transcript PN885
49 Transcript PN1003
50 Exhibit R3 (10)
51 Exhibit A13 (13)
52 Exhibit A2 (1)
53 Exhibit A2 (1)
54 Exhibits A8, A9 and A10.
55 Exhibit R3 (14)
56 Section 593(2) of the FW Act
57 Transcript PN1495
58 Seiffert & Ors v Patrick Projects Pty Ltd [2014] FWC 7019
Printed by authority of the Commonwealth Government Printer
<Price code C, PR580641>
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