Mr Cameron Webb v Aurizon Operations Limited

[2024] FWC 296

[2024] FWC 296 [Note: An appeal pursuant to s.604 (C2024/1482) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Mr Cameron Webb

v

Aurizon Operations Limited

(C2024/130)

AURIZON NSW COAL OPERATIONS ENTERPRISE AGREEMENT 2021

Alleged dispute over disciplinary matters – jurisdiction – whether disputes procedure followed
DEPUTY PRESIDENT CROSS	SYDNEY, 5 FEBRUARY 2024

1. On 9 January 2024, Mr Cameron Webb (the Applicant) applied under section 739 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with an alleged dispute with Aurizon Operations Limited (the Respondent) regarding a provision titled Disciplinary Matters contained in the Aurizon NSW Coal Operations Enterprise Agreement 2021 (the Agreement). The Australian Rail Tram and Bus Industry Union (the RTBU) represented Mr Webb and the Respondent was granted, without objection, permission to represented by a legal practitioner.

1. The Respondent objects to the Application on two grounds:

(a)Firstly, the Commission does not have jurisdiction to deal with the Application because the relevant steps of the dispute resolution procedure at clause 54 of the Agreement have not been followed; and

(b)In circumstances where the relevant investigation has been completed, there is no utility

in the relief sought in the Application, being the provision of the finalised investigation report, as it is not relevant, nor is it required for the Applicant to enable him to respond to the show cause letter.

1. The Respondent also outlined an objection that the relief effectively sought by the Applicant was inconsistent with the provision of the Agreement that provided that disciplinary inquiries and investigations shall be confidential, and so would not be allowed pursuant to s.739(5) of the Act.

Relevant Law

1. Section 595 of the Act empowers the Commission to deal with disputes if it is expressly authorised to do so under or in accordance with the Act. The Commission can deal with disputes in a number of ways, including by mediation or conciliation, making a recommendation or expressing an opinion. The Commission can only arbitrate a dispute with the express agreement of the parties to the dispute.[1]

1. Section 739 of the Act empowers the Commission to deal with certain disputes if an enterprise agreement includes a term that provides a procedure for dealing with disputes (s.738(b)), including a term referred to in subsection 186(6).

1. The principles that apply in properly construing the Agreement were summarised by the Full Bench in AMWU v Berri Pty Ltd (Berri)[2]. More recently, the Full Court of the Federal Court of Australia stated the principles applicable to the interpretation of an enterprise agreements in James Cook University v Ridd,[3] which provided:

(i) The starting point is the ordinary meaning of the words, read as a whole and in
context.

(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers
of such documents were likely to be of a “practical bent of mind”. The interpretation
“turns upon the language of the particular agreement, understood in the light of its
industrial context and purpose”.

(iii) Context is not confined to the words of the instrument surrounding the expression
to be construed. It may extend to “... the entire document of which it is a part, or to
other documents with which there is an association”.

(iv) Context may include “... ideas that gave rise to an expression in a document from
which it has been taken”.

(v) Recourse may be had to the history of a particular clause “Where the circumstances
allow the court to conclude that a clause in an award is the product of a history, out of
which it grew to be adopted in its present form...”

(vi) A generous construction is preferred over a strictly literal approach, but “Awards,
whether made by consent or otherwise, should make sense according to the basic
conventions of the English language. They bind the parties on pain of pecuniary
penalties”.

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but
in the light of the customs and working conditions of the particular industry.

[references omitted]

Agreement Provisions

1. The following provisions of the Agreement are relevant to the dispute:

12 DISCIPLINARY MATTERS

12.1 Process: Any Internal Investigation In relation to a matter or incident by the Company that may lead to disciplinary action being taken against an employee must apply the principles of natural justice and due process, Including:

12.1.1 The employee being made fully aware in writing of the allegations that are the subject of investigation; 12.1.2 The employee being provided with sufficient information to enable the provision of an informed response;

12.1.3 The employee being informed of their entitlement to have a Union representative present and/ or a witness /support person at any meetings/interviews, if so requested;

12.1.4 The employee being given reasonable time to prepare a response to the allegations that are the subject of the investigation; 1

2.1.5 Records of conversation and RU OK conversations are an informal counselling tool that do not form a part of the disciplinary process. This clause does not limit the Company's ability to use these informal counselling tools which may lead to the commencement of a formal discipline process.

12.2 Confidential: Disciplinary Inquiries and Investigations shall be confidential.

12.3 Investigations: Employees under investigation may be subject to the following action during the investigation: 12.3.1 Suspension from duty with no reduction of pay; or 12.3.2 Placed on alternative duties; or 12.3.3 Re-assessed and returned to normal duties.

12.4 Disciplinary Outcomes

12.4.1 Following the procedure In Clause 12.1 employees may be subject to the following discipline outcomes:

(i) Verbal warning with a file note entered on the employee's personnel file; or

(ii) Written warning or reprimand; or

(iii) Temporary reduction in position, classification level and pay (for a period of up to twelve (12) months). When this option is implemented, the employee will be required to undertake work activities in accordance with the classification level to which they have been regressed; or

(iv) Suspension from duty without pay, or

(v) Dismissal, with or without notice as applicable.

12.4.2 In assessing what disciplinary outcome an employee may be subject to, the Company will:

(i) Assess and place appropriate weight to relevant matters only; and
(ii) Give the employee a reasonable opportunity to provide reasons to the Company as to what the appropriate disciplinary outcome should be, taking into account their employment history, Including years of service, performance, discipline and their plans for Improving their performance/ conduct.

(iii) Where the Company has elected to suspend the employee from duty or dismiss the employee with or without notice, as a disciplinary outcome, the Company will provide the employee with written Information as to why a verbal or written warning, reprimand, or temporary reduction In position is not an appropriate outcome and allow the employee the opportunity to respond.

12.4.3 Employees who wish to dispute the outcome of a disciplinary procedure, except where the discipline involves dismissal, must follow the procedure set down in Clause 54 of this Agreement.

…

54 DISPUTE SETTLING PROCEDURE

54.1 In the event of a dispute about a matter arising under this Agreement, or In relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employee's representative concerned and more senior levels of management as appropriate.

54.2 If a dispute arises under Clause 54.1 and is unable to be resolved at the workplace, and all appropriate steps under the above Clause 54.1 have been taken, a party to the dispute may refer the dispute to the FWC.

54.3 Where the dispute remains unresolved, the FWC may exercise any method of dispute resolution permitted by the Act that It considers appropriate to resolve the dispute.

54.4 The Company or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause.

54.5 Subject to Clause 54.6, while the above procedures are being followed, all work shall continue as normal prior to the dispute occurring.

54.6 Normal operations will not continue where a genuine and serious safety concern makes it unsafe to continue normal operations and is the issue in dispute.

54.7 The ultimate terms of the settlement of the dispute shall not be affected in any way, nor shall the rights of any person involved in the dispute be affected or prejudiced by the fact that normal work has continued without interruption.

Background

1. On 17 and 22 December 2023, the Respondent received a formal grievance from an employee (the Complainant) raising concerns regarding the conduct of the Applicant at a work Christmas party on 9 December and a subsequent interaction on 16 December 2023 (the Allegations).

1. In response to the Allegations at 8.15am on 8 January 2024, upon the Applicant’s return from leave, the Respondent provided the Applicant with a letter that advised that an investigation into the Allegations concerning his behaviour was being conducted by an external investigator and outlined three allegations that he was required to respond to at an information gathering meeting with an external investigator on 9 January 2023 at 9.00am. That letter also advised the Applicant as follows:

We are committed to being fair and transparent through this process, this includes letting you know that all information collected during the investigation, including information provided by yourself, will be considered in identifying any opportunities to learn and improve and in determining an outcome if the allegations are substantiated. You should be aware that this may include disciplinary action.

And

Whilst we are gathering information in relation to this matter, it’s important to ensure
confidentiality is maintained, and we trust that you will not discuss this matter with anyone unless specifically permitted to do so by myself, in order to protect the integrity of the process. Failure to maintain confidentiality, may result in disciplinary action.

[Emphasis added]

1. The Applicant contacted the RTBU on the morning of 8 January 2024, and as a result at 12:18pm and again at 1:03pm on 8 January 2024, Mr Hart of the RTBU telephoned Mr Morgan, Regional Operations Manager – Wollongong Operations NSW and South East Queensland to raise concerns about the disciplinary process involving the Applicant. Mr Morgan did not answer either call. On both occasions Mr Hart left a voice message on Mr Morgan’s mobile service.

1. Subsequently on 8 January 2024, Mr Hart sent an email to Mr Morgan at 1:30pm that advised as follows:

I have attempted to contact you this afternoon and have left a couple of voice messages on your mobile phone (NUMBER DELETED) requesting you call me back.

The purpose of my call is to discuss the meeting that has been scheduled for 9am, Tuesday 9 December at the Sage Hotel in Wollongong with Kieran Plasto from Resolvere.

Noting the provisions contained at Clause 12 of the Aurizon NSW Coal Operations Enterprise Agreement 2021 (the Agreement), in particular the term requiring adherence to the principles of natural justice and due process, we are concerned that the proposed interview may not comply with the terms of the Agreement to the extent that Aurizon is required, pursuant to clause 12.1.1, to fully provide Mr Webb in writing, the allegations being put to him and that, in accordance with clause 12.1.4, Mr Webb is given reasonable time to prepare a response. We say that any such prepared response is to be in writing.

Unless there is any further or specific information that Aurizon seeks to rely on and present to Mr Webb, we propose that Mr Webb prepare a written response to the allegations contained in your letter of today’s date, in lieu of the proposed meeting with Mr Plasto.

Can you provide your response to the above before 4:30pm today to the above proposal.

[Emphasis added]

1. At 2:48pm on 8 January 2024, having not received a response from Mr Morgan, Mr Hart sought to escalate the RTBU’s concerns by contacting Daniel Kadziela – General Manager

Aurizon NSW Coal by telephone and:

(a) Advising Mr Kadziela of his efforts to contact Mr Morgan and seeking his assistance in requesting Mr Morgan make contact with me in respect of whether the Applicant was being directed to attend the meeting on 9 January 2024;

(b) Asking Mr Kadziela to intervene to cancel the meeting scheduled; and

(c) Broadly outlining the RTBU’s concerns that the Respondent was not complying with the terms of clause 12 of the Agreement.

1. Following the above telephone call with Mr Kadziela, Mr Hart emailed Mr Kadziela at 2:51pm on 8 January 2024, and requested that the meeting scheduled for Tuesday 9 January 2024 be cancelled.

1. At 4:11pm on 8 January 2024, Mr Morgan sent an email to Mr Hart. The totality of that email was as follows:

   Thank you for reaching out, and apologies for missing your calls this afternoon.

   With regard to Clauses 12.1.1 and 12.1.4 of the Aurizon NSW Coal Operations Enterprise Agreement 2021 (the Agreement), Aurizon has provided a full copy of the allegations in writing to Mr Webb, and has provided reasonable time for Mr Webb to prepare a response.

   Aurizon has requested Mr Webb attend the meeting to respond to allegations provided to him, to which Mr Plasto may ask questions to seek further clarity about the allegations.

   I believe it reasonable to request Mr Webb attend the meeting at the proposed time.
   Regards,

2. At 4.30pm on 8 January 2024, in response to the above email, Mr Hart emailed Mr Morgan. In that email, Mr Hart enquired:

Just to confirm, is Cameron is receipt of all materials and evidence that Aurizon seeks to rely on as part of this investigation?

For abundant clarity, can you confirm whether [the Complainant] has made an audio or video recording of the alleged discussion held on 15 December 2023 with Mr Webb and if so, whether she has provided a copy of that recording to Aurizon?

Finally and for completeness, can you confirm that you are directing Mr Webb to attend tomorrow’s interview with Mr Kieran Plasto from Resolvere?

1. At 5:42pm on 8 January 2024, Mr Hart received a further email from Mr Morgan in response to the above email. The totality of that email was as follows:

Cameron has been made fully aware in writing of the allegations that are the subject of the investigation, and has been provided with sufficient information to enable the provision of a response.

Cameron has been directed to attend the meeting as per the letter provided to Cameron today.

Regards

1. At 6.07pm on 8 January 2024, Mr Hart responded to the above email. The totality of that email was as follows:

Regrettably, you have not responded to my direct question about whether [the Complainant] has provided audio or video footage obtained on 15 December 2023.

Your failure to respond raises significant concerns about the fairness of proceeding with tomorrow’s meeting.

Unless you unequivocally provide a response before 830am Tuesday 9 January, we put you on notice that we will file a dispute with the fair work commission to have the merits of the investigation process determined. And until the matter is determined we won’t be proceeding with the meeting.

Your urgent response is required.

Regards

1. At 8:51am on 9 January 2024, Mr Hart prepared and filed a Form F10 Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure (the Application). In the Application, in outlining what the dispute was about, the Applicant stated:

1. Employer has failed to adhere to principles of procedural fairness, pursuant to clause 12 of the Agreement. 

2. Employer has failed to make the Applicant ‘fully aware in writing’ of the allegations and subsequent questions that it seeks to rely on as part of the investigation, pursuant to clause 12.1.1. 

3. The Employer has failed to adhere to clause 12.1.2 concerning the provision of sufficient information for the Applicant to make an informed response to the allegations being put to him. 

4. The Employer has failed to provide, in accordance with clause 12.1.4, reasonable time to prepare a response to the allegation, including but not limited to seeking advice and support from his representative.

1. In the Application, in outlining what steps had already been taken to resolve the dispute under the dispute resolution procedure, the Applicant stated:

1. The Employer refused to respond to a request for information concerning facts in issue that are material to the investigation. 

2. On 8 January 2024 at 4:30pm the Employer was requested to provide further particulars.  

3. At 6:07pm on 8 January 2024, the Employer was requested to provide further details in response to inquiries made by the Union. The Employer failed to respond. 

4. At 8:25am on 9 January 2024, the union notified by telephone call, Mitchell Morgan, that a dispute pursuant to clause 54 of the Agreement would be filed.

1. The Applicant and Mr Hart attended the investigation meeting as scheduled on 9 January 2024. At the meeting the Applicant provided a verbal response to the Allegations. Following the meeting the Applicant provided a written response to the Allegations.

1. The investigation was subsequently finalised on 17 January 2024, and the Allegations were said to be substantiated. The Respondent reviewed and accepted the findings of the Investigator.

1. A meeting occurred on 23 January 2024, with Mr Morgan and Mr Peter Hamilton of the Respondent, and the Applicant and Mr Hart. During the meeting, Mr Morgan read from a prepared letter which ultimately was a show cause letter then handed to the Applicant in the meeting, and inviting the Applicant to provide a written response by 29 January 2024 as to why his employment should not be terminated. The show cause letter stated in part:

These findings were made by an independent and impartial investigator weighing all the evidence before him, including both your verbal and written responses. I have reviewed and accepted the findings.

1. In the meeting Mr Hart requested a copy of the investigation report that the Respondent relied upon in substantiating the allegations against the Applicant (the Report). Mr Morgan advised that the Report was confidential. Mr Hart suggested that the Respondent could redact the names of any witnesses to assist with his request. Later that morning Mr Hart sent an email to Mr Morgan confirming the RTBU’s request for a copy of the Report, and again noting witnesses names could be redacted.

1. At 12:57pm on 24 January 2024, Mr Hart received an email from Mr Morgan rejecting the request for a copy of the Report.

1. At 1:13pm on 24 January 2024, Mr Hart responded to Mr Morgan advising that he did not agree with the decision not to provide the RTBU (or Mr Webb) with a copy of the Report. Further, Mr Hart addressed several inconsistencies in the facts relied on by the Respondent during the course of the investigation, and sought clarification as to whether the Respondent continued to rely on the time that the first Allegation occurred on 9 December 2023.

1. Mr Morgan responded to the above email at 3.22pm on 25 January 2024, and in response to the assertion of inconsistencies in facts relied upon, Mr Morgan stated:

As I am sure you can appreciate, concerns are often raised where there is an absence of a witness. In these circumstances, ancillary information (for example, contemporaneous reports, credibility of the parties, documentary evidence, etc.) can be considered to determine whether an allegation is, or is not, substantiated. The Investigator considered relevant ancillary information in reaching his determination (including [the Complainant’s] evidence, the evidence of witnesses who observed [the Complainant] immediately following the incidents and Cameron’s text message and responses) in reaching his finding that the incident is more likely than not to have occurred as alleged. I have accepted the findings of the independent, external, and appropriately qualified investigator.

[Emphasis added]

Respondent’s Submission

1. The Respondent acknowledges that the Applicant (through his representative) exchanged email correspondence with Mr Morgan on 8 and 9 January 2024 regarding the investigation process. The Respondent submits, however, that correspondence did not invoke the dispute settling procedure under the Agreement by raising a specific dispute by reference to clause 54 of the Agreement. It simply raised a separate proposal for the investigation process and sought some clarifying information.

1. Further, even if the email correspondence with Mr Morgan on 8 and 9 January 2024 constituted the invocation of the dispute settling procedure, clause 54.1 of the Agreement requires at the least a two-step process, and Clause 54.2 requires all appropriate steps to have been completed before the dispute may be referred to the Commission. The Respondent submits there is no suggestion that the 'dispute' was raised with two levels of management, either Mr Webb's direct supervisor Mr Morgan or the General Manager to whom Mr Morgan reports, before it was filed on the morning of 9 January 2024. In the hearing of the matter the Respondent clarified that it did not contend Mr Kadziela was not the second person identified in Clause 54.1, and it accepted Mr Morgan was the relevant supervisor identified in the clause.

1. The Respondent submitted that Clause 54.2 of the Agreement does not confer a power on the Commission to deal with a dispute unless the relevant steps in clause 54.1 of the Agreement have been complied with, and that had not occurred. As a result the Commission has no jurisdiction to deal with the Application by making any compulsive order.

1. The Respondent also outlined a jurisdictional objection that the relief effectively sought by the Applicant was inconsistent with the provision of the Agreement that provided that disciplinary inquiries and investigations shall be confidential, and so would not be allowed pursuant to s.739(5) of the Act.

1. The Respondent further submitted the relief sought by the Applicant is futile in circumstances where the investigation, which the Applicant has participated in since the filing of the Application, has been completed. There is therefore no genuine dispute on foot in relation to the investigation as it has concluded, and a new process has commenced.

1. Regarding the Report, the Respondent submitted it has no relevance to the matters raised in the Application because by Mr Morgan’s email of 25 January 2024, a “fulsome response” was provided to Mr Hart’s email of 1:13pm on 24 January 2024.

1. As to whether, if jurisdiction is established, the Commission would exercise its discretion to require production of the Report, the Respondent submits:

(a)       The Report has been prepared with input from employees other than the Applicant. He is not the only one affected by disclosure or non-disclosure of the Report.

(b)       Employees are asked to participate in workplace investigations at times they do so reluctantly, and at times only on the basis that confidentiality is maintained so far as that is possible.

(c)       The Respondent does not have a practice of providing copies of investigation reports in disciplinary proceedings, including because they often contain information which has been provided confidentially or which relates to other employees who have not provided consent for the report to be provided and because it may impact employee participations in future investigations.

(d)       The Applicant may return to his role after consideration of his response by Aurizon, and may be working with people who have provided information to the investigator (who of course may be RTBU members).

(e)       The interests of witnesses are not represented in these proceedings, and they rely on the Respondent maintaining confidentiality in the Report. Their interests may be affected by any disclosure of the Report, even on the basis of confidentiality.

Applicant’s Submissions

1. The Applicant relied on Berri, and noted the Full Bench in Berri affirmed that the interpretation of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words.

1. The Applicant submitted that in determining whether the relevant term at clause 54.1 of the Agreement has been complied with, the task requires an examination of the following:

(a)       First, the nature and extent of what is intended or meant by ‘attempt’ in resolving a dispute, noting that the term lacks any specificity as to how expansive any such attempt must be prior to affording the aggrieved party the right to progress to the next step of escalating the dispute. The extent of any such attempt must be assessed on a case-by-case basis, having regard to the peculiarities of timeframes or urgency of the matter being disputed and without imposing an overly technical requirement to progressing matters in dispute;

(b)       Second, whether the adoption of the phrase ‘in a timely manner’ or colloquially taken to mean ‘as quickly as possible’, imposes or requires some or any period of passage of time before triggering the provisions of clause 54.2; and

(c)       Third, whether any further procedural requirement exist beyond merely holding ‘discussions’ with more senior levels of management. Relevantly, the provision does not impose with any precision a requirement beyond merely holding of discussions concerning a dispute. Accordingly, the term affords parties the right to advance any such grievance without overcoming technical or further administrative obstacles prior to escalating a dispute.

1. The Applicant submits that concerns were raised with the investigation process at the earliest opportunity on January 8 and those concerns continued to be expressed into 9 January 2024. The attempts to resolve matters in dispute were done so in a timely manner, given the timeframes imposed by the Respondent in pressing ahead with its intention to hold the

investigation meeting on Tuesday 9 January 2024.

1. The Applicant further submits that ‘discussions’ occurred either in writing or by phone with the immediate manager and then more senior managers with the dispute remaining unresolved. The Applicant submits that he attempted to resolve the dispute by raising it with Mr Morgan by telephone and email, and latterly, by holding telephone discussions with Mr Kadziela on the afternoon of 8 January 2024. The Applicant’s concerns were not assuaged by the conduct of the Respondent and continue to remain on foot on the basis the Respondent has not provided to the Applicant or his representative a redacted copy of the Report.

1. The Applicant submits that the Respondent does not provide any evidence to substantiate submissions of prejudice to other employees involved in the investigation. The Respondent must comply with the terms of the instrument as set out at clause 12.1 of the Agreement. The duty to accord procedural fairness, natural justice or due process is imposed by the term at clause 12.1 of the Agreement and must accordingly allow the Applicant to apprehend the case against him, test the rationality and logicality of the decision-maker’s deliberative processes and decision which can only be achieved following an evaluation and consideration of the materials the Respondent seeks to rely upon.

1. Regarding procedural fairness, the Applicant referred to Independent Education Union of Australia v Father Nicholas Pearce[4], where the Commission summarised the concepts of procedural fairness and natural justice from Coutts v Close (Coutts)[5] in the following terms:

“Subject to any relevant statutory modification or variation, it is well-established that a person liable to be directly affected by an administrative decision to which the rules of procedural fairness apply must be given an opportunity of putting information or submissions to the decision-maker. For that right to have substance, the person affected must be given an opportunity of ascertaining the relevant issues, which requires the decision-maker to identify for the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The obligation extends to informing the affected person of the nature and content of the adverse material that is credible, relevant and significant obtained from sources other than the affected person, as well as of any adverse conclusion reached by the decision-maker…”

In some circumstances, procedural fairness may also require the decision-maker to disclose to the affected person information provided to the decision-maker by a third party which is relevant to the matters in issue.”

1. The Applicant submits that the principles of procedural fairness require the Respondent to ensure that employees are afforded the opportunity to know and test the case against them and any evidence the Respondent relies on in reaching a decision to potentially terminate the employment of an employee. The Respondent has not discharged its duty to afford the Applicant with such procedural protections.

Consideration

1. The Full Bench of the Commission observed in Australian Workers’ Union v MC Labour Services Pty Ltd:[6]

[37] It may be that situations will arise where it is genuinely impossible for a party to comply with a mandatory step in a dispute resolution procedure, and that the effect of this is that the Commission or other independent person cannot attempt to settle the dispute. This might be an issue for the Commission to examine when considering whether to approve an agreement under s.185 of the FW Act. However, once an agreement has been approved, and a dispute is referred to the Commission under it, it would not be permissible for the Commission to recast or ignore certain components of the dispute settlement procedure. Section 186(6) is not a source of power to do this. An enterprise agreement comes into operation seven days after it is approved by the Commission. Once in operation, the agreement is presumed to be valid, until such time as the decision of the Commission to approve the agreement is overturned on appeal, or the agreement is otherwise found by a court to be invalid. The various terms of an enterprise agreement are also assumed to be valid, with the exception only of unlawful and certain other terms, which have no effect as a resultof s.253 of the FW Act.

[38] The requirements of s.186(6) may be relevant in identifying the proper construction of a dispute resolution clause in an agreement. If the proper meaning of such a clause is disputed, the resolution of the disputed construction will begin with the ordinary meaning of the relevant words, considered in context, in accordance with the principles summarised in AMWU v Berri. The legislative framework, including s.186(6), is part of that context. There may be cases where, properly construed, the clause allows the Commission to proceed to deal with a matter, despite certain steps not being satisfied. And of course, there may be clauses which expressly allow certain steps to be bypassed, or for the Commission to have a general discretion to deal with disputes.

[39] However, the parties to an enterprise agreement are free to impose limitations on the role afforded to the body that is to settle disputes about matters arising under the agreement. Where these limitations are not observed, the Commission (or other persons) has no discretion to deal with a dispute referred to it under the agreement, unless one is conferred on it under the terms of the agreement.

[Emphasis added]

1. The resolution of this matter necessarily involves a detailed analysis of Clause 54.1 of the Agreement. Issues arising are:

(a)       What is the dispute?

(b)       What are discussions, or attempted discussions?

(c)       Was the dispute the subject of the necessary discussions?

(a)       What is the Dispute?

1. The dispute was clearly identified in the Application as the Respondent’s failure to adhere to principles of procedural fairness pursuant to clause 12 of the Agreement. That failure was particularised as failing to make the Applicant fully aware in writing of the Allegations, and failing to provide sufficient information for the Applicant to make an informed response to the Allegations.

1. That characterisation was entirely consistent with the Applicants verbal and written communications with the Respondent prior to the filing of the Application. In particular:

(a)       The email of 1.30pm on 8 January 2024, where Mr Hart noted the provisions contained at Clause 12 of the Agreement, in particular the term requiring adherence to the principles of natural justice and due process;

(b)       The telephone conversation of 2:48pm on 8 January 2024, and subsequent email where Mr Hart raised concerns with Mr Kadziela that the Respondent was not complying with the terms of clause 12 of the Agreement;

(c)       The email from Mr Morgan at 4:11pm on 8 January 2024, where Mr Morgan referred to Clauses 12.1.1 and 12.1.4 of the Agreement;

(d)       The email from Mr Hart at 4.30pm on 8 January 2024, seeking clarification that the Applicant is in receipt of all materials and evidence that the Respondent seeks to rely on as part of this investigation; and

(e)       The further email of Mr Hart at 5:42pm on 8 January 2024, seeking reassurance that the Applicant had been made fully aware of the Allegations, and had been provided with sufficient information to enable the provision of a response.

1. Contrary to the Respondent’s submission, the dispute continues to “remain genuinely on foot” because the Applicant still asserts that the failure to provide a redacted copy of the Report constitutes a continuing failure to comply with Clause 12 of the Agreement. That concern is particularly apparent when it is to be recalled that in the letter that commenced the disciplinary process with the Applicant on 8 January 2024, Mr Morgan advised:

We are committed to being fair and transparent through this process, this includes letting you know that all information collected during the investigation, including information provided by yourself, will be considered in identifying any opportunities to learn and improve and in determining an outcome if the allegations are substantiated. You should be aware that this may include disciplinary action.

1. In contrast, the Respondent’s current position, outlined in the email of Mr Morgan at 3.22pm on 25 January 2024, and in response to the assertion of inconsistencies in facts relied upon, Mr Morgan stated, referring to materials not seen by the Applicant or the RTBU:

The Investigator considered relevant ancillary information in reaching his determination (including [the Complainant’s] evidence, the evidence of witnesses who observed [the Complainant] immediately following the incidents and Cameron’s text message and responses) in reaching his finding that the incident is more likely than not to have occurred as alleged.

(b)      What are Discussions?

1. The Respondent submitted in the hearing of the matter that Clause 54.1 requires discussion, and that can’t be satisfied by attempts to contact the nominated persons. I reject that submission.

1. While not at all reflective of the evidence, that interpretation:

(a)       Disregards the word “attempt” in the first sentence of Clause 54.1; and

(b)       Such a narrow or pedantic approach would result in absurd consequences, and allow non-responsive persons to defeat the dispute settlement procedure. Applying a purposive approach to the interpretation of the Agreement would not allow such an interpretation.

1. While not necessary to resolve the meaning of discussion, I note that the Macquarie Dictionary defines “discussion” as:

1.  the act of discussing; critical examination by argument; debate.

2.  a written or spoken text type or form which offers a balanced presentation of different points of view on an issue.

[Emphasis added]

(c)       Was the Dispute the Subject of the Necessary Discussions?

1. Clauses 54.1 and 54.2 of the Agreement clearly outline a two step process that must be followed before a party may refer a dispute to the Commission. I find that the Applicant has taken both appropriate steps before filing the dispute.

1. The first step was satisfied by:

(a)       The attempt by the RTBU to contact Mr Morgan at 12:18pm and again at 1:03pm on 8 January 2024, and the two voicemail messages left; and

(b)       The email sent by Mr Hart to Mr Morgan at 1.30pm on 8 January 2024.

1. The second step was satisfied by:

(a)       The telephone call from Mr Hart to Mr Kadziela at 2:48pm on 8 January 2024; and

(b)       The email from Mr Hart to Mr Kadziela at 2:51pm on 8 January 2024.

1. While the Respondent submits that the correspondence did not invoke the dispute settling procedure under the Agreement by raising a specific dispute by reference to clause 54 of the Agreement, I do not consider such formulaic reference necessary. Both the Applicant and Mr Morgan referred to Clause 12 of the Agreement. The dispute clearly was, and continues to be, about matters arising under the Agreement being Clause 12, in particular the term requiring adherence to the principles of natural justice and due process.

Confidentiality

1. Regarding the Respondent’s jurisdictional objection that the relief effectively sought by the Applicant was inconsistent with Clause 12.2 of the Agreement that provided that disciplinary inquiries and investigations shall be confidential, and so would not be allowed pursuant to s.739(5) of the Act, I reject that submission.

1. The broad statement at Clause 12.2 could easily be observed and applied by, for example, the provision of the Report in redacted form, as the RTBU has proposed. The appropriate time to ensure compliance with Clause 12.2, and Clause 12 as a whole, is when production and access issues are being considered.

Conclusion

1. The Commission has jurisdiction to deal with the Application because the relevant steps of the dispute resolution procedure at clauses 54.1 and 54.2 of the Agreement have been followed.

1. The Report apparently contains details of the evidence relied upon by the Investigator in reaching his finding that the incident is more likely than not to have occurred as alleged. The parties should confer as to whether any outstanding issues as to production and access to the Report exist.

DEPUTY PRESIDENT

Appearances:

Mr J Hart, for the Applicant

Mr T Walthall, Solicitor (MinterEllison), for the Respondent

Mr D Williams, Solicitor (MinterEllison), for the Respondent

Hearing details:

Video using Microsoft Teams.

2 February 2024.

[1] CC Pty Ltd t/a Cook Colliery v CFMEU[2017] FWCFB 2749.

[2] [2017] FWCFB 3005 at [114].

[3] [2020] FCAFC 123 at [65].

[4] [2020] FWC 5416 at [53].

[5] [2014] FCA 19 at [114] and [115].

[6] [2017] FWCFB 5032.

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