Mr Anthony Giles v Blackberry Enterprises Pty Ltd. ACN 079 623 019 (formerly Sunchip Transport Pty Ltd)
[2013] FWCFB 3807
•27 JUNE 2013
[2013] FWCFB 3807 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Blackberry Enterprises Pty Ltd. ACN 079 623 019 (formerly Sunchip Transport Pty Ltd)
(C2013/4245)
VICE PRESIDENT HATCHER | BRISBANE, 27 JUNE 2013 |
Appeal against decision [2013] FWC 2403 of Deputy President Asbury at Brisbane on 18 April 2013 in matter number C2012/6629.
[1] Mr Anthony Giles has applied for permission to appeal under s.604 of the Fair Work Act 2009 (FW Act) against a decision of Deputy President Asbury issued on 18 April 2013 (the Decision). 1 In the Decision, the Deputy President determined that the Fair Work Commission did not have jurisdiction to deal with an application made by Mr Giles under s.739 of the FW Act (the Application). The Application, which was filed on 18 December 2012, had sought that the Commission deal with a dispute in accordance with the dispute settlement procedure in clause 2.4 of the SunQuip (Aust) Pty Ltd Certified Agreement 20042(the SunQuip Agreement).
[2] The facts of this matter are a little unusual. It is not in dispute that Mr Giles was employed as a truck driver by the respondent from 1 July 2003 to 15 April 2005. The respondent at that time was known as “Sunchip Transport Pty Ltd”. During the course of that employment, it appears that a dispute arose between Mr Giles and the respondent concerning which industrial instrument applied to his employment. The respondent contended that the SunQuip Agreement applied to Mr Giles’ employment. Mr Giles’ view was that a different agreement, the Sunchip Transport Queensland Certified Agreement 1998 (the Sunchip Agreement), applied, and that he was being underpaid by reference to the Sunchip Agreement.
[3] This dispute was the subject of discussion between Mr Giles and his managers during his employment, and correspondence was exchanged between Mr Giles and lawyers representing Sunchip. The dispute was not resolved prior to Mr Giles’ employment coming to an end. Mr Giles then pursued his underpayment claim through various government regulatory authorities. This resulted in Mr Giles receiving an amount of back-pay in excess of $15,700 in total, but Mr Giles does not regard this as having satisfied his claim.
[4] The Application traversed (in greater detail) the history of the dispute identified above, and sought three remedies in respect of the dispute: a “declaration” that the SunQuip Agreement did not apply retrospectively to any employees of the respondent prior to the date of certification, a “declaration” that the SunQuip Agreement did not apply to employees of the respondent at all, and a further “declaration” that the Sunchip Agreement continued to apply to employees of the respondent.
[5] By letter dated 22 January 2013, after the filing of the Application, the respondent’s lawyers notified the Commission that it wished to make a submission that the Commission had no jurisdiction to hear the Application, and that the Application should be dismissed, on the basis that the dispute resolution procedure in the SunQuip Agreement did not apply to persons such as Mr Giles who were no longer employed by the respondent. Commissioner Asbury (as the Deputy President then was) convened a conference of the parties on 24 January 2013, and at that conference it was agreed that the respondent’s jurisdictional objection would be determined on the basis of written submissions to be provided by the parties. Mr Giles subsequently provided a submission to the Commission dated 6 February 2013, and lawyers for the respondent provided their submission on 14 February 2013. As earlier stated, the Deputy President upheld the objection to jurisdiction, albeit not on the basis contended for by the respondent, and dismissed the Application on 18 April 2013.
[6] The Deputy President’s reasons for the conclusion that she reached are set out in paragraphs [23]-[29] of the Decision as follows:
“[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. 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 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.”
[7] Mr Giles’ notice of appeal, under the heading “Grounds”, contains some 20 paragraphs elaborating the reasons why he says the Decision was in error and should be quashed. Without intending to criticise Mr Giles, it is fair to say that this section of his appeal notice is more in the nature of a submission than a simple identification of the grounds of appeal. Taking the notice of appeal together with Mr Giles’ subsequent written and oral submissions, we think it is reasonable to characterise Mr Giles’ appeal as involving in substance three main points:
(1) Mr Giles’ “personal view” that the SunQuip Agreement did not apply to his employment was not a barrier to the Commission determining a dispute under the dispute resolution procedure in circumstances where the respondent had as a matter of fact treated the SunQuip Agreement as applying to Mr Giles’ employment.
(2) A dispute about whether an agreement that was certified under the Workplace Relations Act 1996 (WR Act) applied to a person’s employment at all was a dispute “over the application of the agreement” to which s.170LW of the WR Act applied. The Commission was therefore empowered to settle the dispute in accordance with the dispute resolution procedure in that agreement.
(3) There was no basis to distinguish clause 2.4 of the SunQuip Agreement from that considered in ING Administration Pty Ltd v Jajoo 3, as suggested by the Deputy President in paragraph [28] of the Decision. The Deputy President’s further conclusion in paragraph [29] that there was “no real evidence” of Mr Giles raising a grievance or dispute under clause 2.4 of the SunQuip Agreement prior to the termination of his employment was erroneous because this had not been put in issue by the respondent and accordingly Mr Giles did not adduce any evidence about it. In this connection, Mr Giles sought to adduce additional evidence in his appeal to demonstrate that he had agitated his grievance prior to the termination of his employment.
[8] It is convenient to consider Mr Giles’ first two points together. Insofar as Mr Giles applied for the Commission to exercise dispute settlement powers under clause 2.4 of the SunQuip Agreement, it was necessary for Mr Giles to demonstrate that the Commission had jurisdiction under the former s.170LW of the WR Act to do so. This is because Schedule 19 item 1 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) provides that the WR Act, as it was on the day of its repeal, continues to apply to disputes in relation to a matter arising under a “transitional instrument”. The SunQuip Agreement is a “transitional instrument” by virtue of Schedule 3 item 2 of the Transitional Act. Although s.170LW was not part of the WR Act on the day of the WR Act’s repeal, having been earlier repealed by the Workplace Relations Amendment (Work Choices) Act 2005, it was preserved in effect by Schedule 7 item 2(1)(e) of the WR Act in relation to a “pre-reform certified agreement”. The SunQuip Agreement, having been made and certified in 2004 4, was a pre-reform certified agreement within the definition of that expression in Schedule 7 item 1 of the WR Act.
[9] Section 170LW of the WR Act provided:
“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.”
[10] Under s.170LW, in order for the Commission to be empowered to settle a dispute over the application of a particular agreement, the dispute must be between the employer and “employees whose employment will be subject to the agreement”. That is, unless the agreement applies, as a matter of law, to the employment of the employees who are parties to the dispute, then the Commission is not empowered under s.170LW to settle the dispute.
[11] In the proceedings before the Deputy President, as her Honour stated in the Decision 5, Mr Giles asserted that the SunQuip Agreement had never applied to his employment, and sought a declaration consistent with that proposition. Mr Giles’ position in that respect was plainly apparent on the face of the Application. That position was directly contrary to the proposition that the relevant jurisdictional requirement identified above was satisfied. Mr Giles was not entitled to approbate and reprobate on this issue. His own application therefore effectively denied that the Commission had jurisdiction to deal with the dispute under s.170LW, and was thus “manifestly untenable”6 and likely to be dismissed.
[12] Mr Giles’ attempt to characterise his contention before the Deputy President that the SunQuip Agreement did not apply as being merely a statement of his “personal view” is, with respect to him, somewhat disingenuous. The true position is that a conclusion that the SunQuip Agreement never applied to his employment with the respondent was the major part of the outcome which he wished to achieve by bringing his application. Had the Deputy President not dismissed Mr Giles’ application, Mr Giles would have sought to persuade her Honour to find that the SunQuip Agreement did not apply to his employment. Mr Giles cannot succeed in identifying appealable error on this basis. Nor can any error arise from Mr Giles’ contention that the respondent had de facto applied the SunQuip Agreement to his employment, given that s.170LW requires legal application of the relevant agreement to the employees’ employment. Mr Giles having contended that the SunQuip Agreement did not legally apply to his employment, there was no proper basis for the Commission to proceed to deal with his dispute with the respondent, whether that dispute was characterised as a dispute over the application of an agreement or something else.
[13] Moreover, it is clear that the SunQuip Agreement did not apply at any time to Mr Giles’ employment with the respondent. The title page of the SunQuip Agreement states that the agreement is between “SunQuip (Aust) Pty Ltd (ACN 084 876 424) & Employees of SunQuip (Aust) Pty Ltd”. The preamble to the SunQuip Agreement then states:
“This Certified Agreement is intended to cater for the employment by SunQuip (Aust) Pty Limited (hereinafter referred to as SunQuip (Aust) Pty Ltd and/or the Employer) of truck drivers formally 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.”
[14] Clause 1.2 then identifies the coverage of the SunQuip Agreement as follows:
“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 above provisions, read together, and having regard to the statutory framework under which the SunQuip Agreement was made and certified, make it clear that the SunQuip Agreement did not have any legal application to employees who were not employed by SunQuip (Aust) Pty Ltd. As earlier stated, it was not in dispute that it was the respondent company - not SunQuip (Aust) Pty Ltd - which employed Mr Giles in the period 1 July 2003 to 15 April 2005. The respondent’s own correspondence to the Commission dated 22 January 2013 makes this clear. Therefore, s.170LW could not empower the Commission to resolve the dispute between Mr Giles and the respondent pursuant to the dispute settling procedures in the SunQuip Agreement.
[16] For the above reasons, the Deputy President’s conclusion that the Commission had no jurisdiction with respect to Mr Giles’ application was clearly correct. That makes it strictly unnecessary to consider fully Mr Giles’ third appeal point. It is sufficient to say that we do not accept that the dispute settling procedure in clause 2.4 of the SunQuip Agreement, which applies only “[i]n the event of an employee having a grievance or dispute”, is necessarily distinguishable from the dispute settling provision considered in ING Administration Pty Ltd v Jajoo 7 or does not permit a dispute which was agitated during an employee’s employment to be continued to be progressed through the various steps in the dispute settling procedure after the termination of employment of the employee. However, that conclusion does not assist Mr Giles’ argument. His application to have the Commission deal with his dispute was made approximately seven and a half years after his employment came to an end. On the evidence, there is no indication that Mr Giles took any further step under the dispute settling procedure in the SunQuip Agreement over the whole intervening period. There was not on any approach a continuation of a single process of dispute resolution in the sense discussed in ING Administration Pty Ltd v Jajoo8, even if it was the case that Mr Giles first agitated the dispute prior to the termination of his employment.
[17] In conclusion, Mr Giles has not demonstrated any arguable case that Deputy President Asbury erred in dismissing his application. Permission to appeal is refused.
VICE PRESIDENT
Appearances:
A. Giles on his own behalf
R. Jones, solicitor, for the Respondent
Hearing details:
2013.
Brisbane:
27, June.
1 [2013] FWC 2403
2 PR950339
3 PR974301
4 PR950339
5 At [24] of the Decision.
6 See Marigene Larew Micheletto v Korowa Anglican Girls' School [PR940392] at [19].
7 At [47]-[59]
8 At [58]
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