Mr Anthony Giles v Blackberry Enterprises Pty Ltd

[2013] FWC 2403

Note: An appeal pursuant to s.604 (C2013/4245) was lodged against this decision - refer to Full Bench decision dated 27 June 2013 [[2013] FWCFB 3807] for result of appeal.

[2013] FWC 2403

FAIR WORK COMMISSION

DECISION

Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

Mr Anthony Giles
v
Blackberry Enterprises Pty Ltd
(C2012/6629)

DEPUTY PRESIDENT ASBURY BRISBANE, 18 APRIL 2013

Application for Fair Work Commission to deal with a dispute in accordance with dispute settlement procedure - Jurisdiction of Commission under dispute settlement procedure - Whether employee can progress a dispute under a dispute settlement procedure after employment has ceased - Application seeks declaration that agreement did not apply at any time to applicant - Whether dispute can be characterised as dispute over the application of agreement - Applicant seeks to invoke dispute procedure in an agreement he asserts never applied to him to obtain a declaration to that effect - Not a proper use of the power of private arbitration granted to the Commission under the dispute settlement procedure - Application dismissed.

Background

[1] This decision concerns an application by Mr Anthony David Giles under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute in accordance with a dispute settlement procedure in the Sunquip (Aust) Pty Ltd Certified Agreement 2004. The application is met with a jurisdictional objection made by the Respondent, Blackberry Enterprises Pty Ltd on the basis that the dispute procedure in the Agreement does not apply to Mr Giles because he has not been employed by the Company since 15 April 2005.

[2] Mr Giles seeks relief in the form of a series of declarations by the Commission about the application of a number of instruments. In particular, Mr Giles seeks a declaration from the Commission that the Sunquip (Aust) Pty Ltd Certified Agreement does not apply to employees of Blackberry Enterprises Pty Ltd (former Sunchip Transport Pty Ltd).

[3] A Conference of the parties was held on 24 January 2013, and it was agreed that the jurisdictional objection would be determined on the basis of written submissions to be provided by the parties.

The facts

[4] It appears that Mr Giles was employed by (or performed work for) a Company known as Sunchip Transport Pty Ltd, from 1 July 2003 until 15 April 2005. Subsequent to the termination of Mr Giles’ employment, Sunchip Transport Pty Ltd changed its name to Blackberry Enterprises Pty Ltd.

[5] Mr Giles asserts that on 1 July 2003, he was “transferred” without his knowledge or consent, from a company called McMah Pty Ltd to Sunchip Transport Pty Ltd, and continued to perform the same work. Subsequent to the “transfer” it was agreed that the terms of the existing “McMah Agreement” (details of which were not provided) would apply to his employment until a new agreement could be prepared, which would be no less favourable than the “McMah Agreement”.

[6] Mr Giles further asserts that he was employed as a casual employee from 1 July 2003 but was not paid overtime as required under the terms of the “McMah Agreement”. A draft agreement in substantially the same terms as the “McMah Agreement”, entitled the Sunchip Transport Certified Agreement was given to employees in August 2003, but was never certified. There were ongoing discussions about Mr Giles’ rates of pay throughout his employment, and he was pressured to agree to the terms of the Sunquip (Aust) Pty Ltd Certified Agreement. Mr Giles did not agree to this as the terms of that Agreement were radically different to the McMah Agreement.

[7] On 14 February 2005 Mr Giles was given a letter stating that his employment was subject to the Sunquip (Aust) Pty Ltd Certified Agreement, and contends that he was “forced to sign it” - presumably the letter. Mr Giles continued to be paid by Sunchip Transport Pty Ltd and was not transferred to Sunquip Transport Pty Ltd.

Submissions

[8] Mr Giles states that at all times Sunchip Transport Pty Ltd (later Blackberry Enterprises Pty Ltd) has asserted that the terms of his employment are governed by the Sunquip (Aust) Pty Ltd Certified Agreement and that because the letter signed by him on 14 February 2005 states that this is the case, the dispute resolution procedure in that Agreement entitles him to make this application.

[9] Further, Mr Giles asserts that immediately after the certification of the Sunquip (Aust) Pty Ltd Certified Agreement he disputed its application to his employment, and this dispute continued to be discussed throughout the period of his employment. All of the steps in the dispute procedure referring to “employee” were undertaken while Mr Giles was employed by Sunchip Transport Pty Ltd.

[10] At the time Mr Giles’ employment was terminated, he remained an “aggrieved party” and nothing in the dispute procedure in the Sunquip (Aust) Pty Ltd Certified Agreement can be properly construed to exclude Mr Giles from continuing to progress an unresolved dispute, notwithstanding that he is no longer employed. Mr Giles said that authority for this proposition was found in a decision of a Full Bench of the Australian Industrial Relations Commission in ING Administration Pty Ltd v Jajoo Ramsin. 1

[11] Mr Giles also stated that he had discussions with the employer during the period of his employment and sent a letter in relation to pay concerns in April 2005. Mr Giles continued to agitate his issues after the termination of his employment and made several claims through a number of government agencies, based on the assertion that an instrument referred to as the Sunchip Transport Queensland Certified Agreement 1998 (details of which were not provided) applied to his employment.

[12] Blackberry Enterprises Pty Ltd submits that the dispute resolution procedure in the “relevant agreements” does not apply to former employees. It is further submitted that the dispute resolution procedures were not commenced by Mr Giles during his employment. Blackberry Enterprises Pty Ltd also points to s.376 of the Act and submits that in Division 6-2 which deals with disputes: “Employee means a national system employee and employer and means a national system employer.”

[13] According to Blackberry Enterprises neither the scope of Division 6-2 of the Act nor the relevant Agreement extends to former employees.

The Agreement

[14] The Sunquip (Aust) Pty Ltd Certified Agreement was made under s.170LK of the Workplace Relations Act 1996 and was certified on 2 August 2004. The Agreement came into force from 30 July 2004 and was expressed to remain in force until 29 July 2007. The preamble in Part 1 the Agreement states:

“This Certified Agreement is intended to cater for the employment by SunQuip (Aust) Pty Limited...of truck drivers formerly sourced by SunQuip (Aust) Pty Ltd from McMah Pty Limited trading as Men at Work or Sunchip Transport Pty Ltd. Both SunQuip (Aust) Pty Ltd and those employees are desirous of entering into a direct employment relationship in the interests of stability, job security and for the economic benefit of both SunQuip (Aust) Pty Ltd and the Employees.

...

1.2 Coverage - this Agreement will apply to all of the truck drivers who are employed by SunQuip (Aust) Pty Ltd including but not limited to those formerly employed by McMah Pty Ltd and Sunchip Transport Pty Ltd....”

[15] The Grievance and Dispute Resolution Procedure in the Sunquip (Aust) Pty Ltd Certified Agreement is found in clause 2.4 and is in the following terms:

“2.4 Grievance and Dispute Resolution Procedure

(a) In the event of an Employee having a grievance or dispute, the Employee shall, in the first instance, attempt to resolve the matter with their immediate supervisor.

(b) If the grievance or dispute is not resolved as required in Sub Clause (a) hereof, the Employee may refer the matter to a senior executive of SunQuip (Aust) Pty Ltd for discussions.

(c) If the grievance or dispute is still unresolved after discussion as listed in Sub Clause (b) hereof, the matter shall, in the case of a member of an Industrial Organisation of Employees, be reported to that organisation.

(d) Should there be no Industrial Organisation involved, the parties shall have the right to appoint representation in the dispute.

(e) Failure to achieve resolution at this stage and after all previous avenues for discussions have been exhausted, the Australian Industrial Relations Commission shall be notified by the aggrieved party that a dispute exists.

(f) The Commission shall conduct a hearing and make recommendations about particular aspects of the matter on which the parties are unable to reach agreement.

(g) If the Commission is satisfied that all parties have made a genuine attempt to agree about those aspects of the matter and have agreed to comply with the Commission’s recommendations, the Commission may conduct a hearing and make recommendation about those aspects of the matter.

(h) Any order of the Australian Industrial Relations Commission will be final and binding on all parties to the dispute (subject to the parties rights of appeal under the Act).

(i) Discussions at any stage of this procedure shall not be unreasonably delayed by any party.

(j) While this procedure is being followed, work will continue (except in the case of a genuine safety issue), until settlement is reached.”

Legislation and Case Law

[16] Upon commencement of the Fair Work Act 2009 the Sunquip (Aust) Pty Ltd Certified Agreement became a WR Act instrument that continued in existence as a transitional instrument pursuant to Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act).

[17] By virtue of Schedule 19 of the TCPA Act the Workplace Relations Act 2006 continues to apply for the purpose of dealing with disputes in relation to matters arising under transitional instruments, and that Act applies in relation to such a dispute in the way that it applied before the repeal of the Workplace Relations Act 2006. The relevant provision of the Workplace Relations Act 2006 is section 170LW which was in the following terms:

“170LW Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:

(a) to settle disputes over the application of the agreement;

(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes.”

[18] Section 170LW is not a source of power for the Commission, but provided a facility for persons, if they agree and the Commission approve, to empower the Commission to settle disputes over the application of an agreement. 2 The jurisdiction of the Commission to deal with a dispute concerning the application of an agreement is conferred by the terms of the agreement itself.3

[19] In ING Administration Pty Ltd and Jajoo, Ramsin, a Full Bench of the Australian Industrial Relations Commission held, in a split decision, that the Commission had jurisdiction to deal with a dispute lodged by a former employee under a dispute resolution process in an agreement made under s.170LK of the Workplace Relations Act 1996. The majority of the Full Bench held that there was no limitation in s.170LW of the Workplace Relations Act 1996 that would deprive an ex-employee of the ability to progress a dispute, including to the Commission, after the termination of his or her employment, in circumstances where the employee had initiated the dispute while still employed. 4

[20] The majority in that case also held that where a dispute refers to particular provisions of a certified agreement, it usually follows that it is a dispute over the application of the Agreement. In relation to the question of whether the terms of the dispute resolution procedure in that case confined its operation to disputes with current employees, the majority said:

“[53] It may be that a former employee cannot initiate a dispute under the clause after his or her employment has ceased. The notion of an employee raising the matter with his or her manager or supervisor in the first instance tells against the existence of jurisdiction in such a case...

[58] In our view, the dispute settlement process should be viewed as a single process agreed by the parties to resolve disputes, rather than a series of separate rights and obligations which should be viewed conjunctively. That being so, an employee who had commenced to deal with a grievance or dispute while employed is not precluded, in our view, from continuing to progress that matter if it remains unresolved, notwithstanding that in the interim period they may have ceased to be employed by the employer.” 5

[21] The majority also noted that there was no reference to “employee” in the opening words of the dispute procedure in question, and that it applied to a grievance or dispute arising under the agreement and went on to state:

“[59] In reaching this conclusion, we acknowledge that parties to agreements are entirely free to draft disputes procedures in any number of different ways. Agreements may limit rights to resolve matters under disputes procedures to persons who are current employees and many agreements may properly be construed as doing so.” 6

Conclusions

[22] I do not accept the argument advanced on behalf of Blackberry Enterprises Pty Ltd which was limited to the general proposition that the Commission has no jurisdiction to deal with an application to deal with a dispute in accordance with a dispute procedure under s.739 of the Act, when the application is brought by a former employee. That argument is contrary to well established case law.

[23] However in the present case, I am unable to accept that the Commission has jurisdiction to deal with the particular dispute sought to be articulated by Mr Giles for the following reasons. The dispute as articulated by Mr Giles, is not a dispute about the application of the Sunquip (Aust) Pty Ltd Certified Agreement in the sense contemplated by s. 170LW of the Workplace Relations Act 2006. Mr Giles’ dispute is not about whether he has an entitlement or a right under the terms of the Sunquip (Aust) Pty Ltd Certified Agreement or whether the terms of that Agreement have been properly applied to him in some particular circumstance.

[24] Rather, Mr Giles asserts that the Sunquip (Aust) Pty Ltd Certified Agreement does not, and has never applied to his employment, and seeks a declaration to that effect. Mr Giles asserts that some other agreement applied to him. I accept that a dispute involving an assertion by Mr Giles that a particular agreement covered him, and that he had the right to progress a dispute raised under the dispute resolution process in that Agreement while he was employed, would be a dispute about the application of the agreement. I also accept that the Commission would have jurisdiction to deal with such a dispute in circumstances where Mr Giles had invoked the dispute procedure in the agreement while he was still employed.

[25] However, in the circumstances of this case, where Mr Giles asserts that the Sunquip (Aust) Pty Ltd Certified Agreement has never applied to him, because another agreement applies, the dispute is not about the “application” of the Sunquip (Aust) Pty Ltd Certified Agreement, in the sense that the term “application” is used in s.170LW.

[26] It is also the case that the character of the dispute is not distinguishable from the order that Mr Giles seeks in settlement of the dispute 7. The dispute is about an assertion that the Sunquip (Aust) Pty Ltd Certified Agreement has never covered Mr Giles’ employment, and that is the effect of the Order Mr Giles seeks in settlement of the dispute. Mr Giles also seeks an order that the Agreement does not apply to employees of Blackberry Enterprises Pty Ltd, and that another Agreement, details of which are not provided, does apply to those employees.

[27] Essentially Mr Giles relies on a procedure in an agreement that he asserts does not apply to him, as a basis for seeking a declaration from the Commission to that effect. The effect is that Mr Giles seeks to approbate and reprobate, by accepting that the Sunquip (Aust) Pty Ltd Certified Agreement applied to him during his employment, in order to establish jurisdiction to obtain a declaration from the Commission that the same Agreement did not apply to him at any time. In my view this is not a proper basis for the exercise of the private arbitration power 8 granted to the Commission pursuant to a dispute settlement procedure in an agreement or instrument.

[28] Further, the Grievance and Dispute Resolution Procedure in clause 2.4 of the Sunquip (Aust) Pty Ltd Certified Agreement is not framed in the same way as the clause considered by the Full Bench in the ING Case. In that case, the dispute resolution procedure did not suggest that an employee was disqualified from activating the right to progress a dispute to the Commission after employment was terminated, and the opening words of the clause were unrestricted. In the present case, the Dispute Resolution Procedure in clause 2.4 of the Sunquip (Aust) Pty Ltd Certified Agreement is restricted by the use of the words: “In the event of an employee having a grievance or dispute”.

[29] It is also the case that other than an assertion that he had discussions with his employer from July 2003 to April 2005 and wrote a letter in April 2005 in relation to pay concerns, which was not tendered, there is no real evidence of Mr Giles raising a grievance or dispute under clause 2.4 of the Sunquip (Aust) Pty Ltd Certified Agreement, prior to the termination of his employment.

[30] For these reasons, I have reached the conclusion that the Commission does not have jurisdiction to deal with the application made by Mr Giles under s.739 of the Act, and the application should be dismissed. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   PR974301.

 2   ING Administration Pty Ltd v Jajoo, Ramsin PR974301.

 3   Stephenson v Senator the Honourable Eric Abetz (Special Minister of State) PR952743.

 4   PR974301 at [41].

 5 Ibid at [53] an [58].

 6   Ibid at [56] and [59].

 7   United Fire Fighters’ Union of Australia v Metropolitan Fire and Emergency Services Board PR973884 at [10] and [12] citing with approval the Decision of Lacy SDP in Maritime Services Union of Australia v Australian Plant Services Pty Ltd T0301 at [24].

 8   Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2000) 203 CLR 645 at [31] - [35].

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