Mr Duane Stott v Mobil Refining Australia Pty Ltd
[2024] FWC 2365
•9 SEPTEMBER 2024
| [2024] FWC 2365 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Duane Stott
v
Mobil Refining Australia Pty Ltd
(C2024/877)
| COMMISSIONER CONNOLLY | MELBOURNE, 9 SEPTEMBER 2024 |
Alleged dispute about a matter arising under the enterprise agreement
On 14 February 2024, an application was lodged by Mr Duane Stott (the Applicant) under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the dispute resolution procedure. The Respondent in this matter is Mobil Refining Australia Pty Ltd (‘Mobil’), the Applicant’s employer who is covered by the dispute procedure in the relevant agreement.
The enterprise agreements governing Mr Stott’s employment relevant to this dispute are the Mobil Altona Refinery Operations Continuous Improvement Agreement 2019 (the 2019 EA) and the Mobil Altona Terminal Continuous Improvement Agreement 2023 (the 2023 EA). The 2019 EA expired on 31 December 2022 and was replaced by the 2023 EA on 12 April 2023.
What this dispute is about
This is a dispute about whether the Commission has the jurisdiction to determine Mr Stott’s dispute with his employer in relation to overpayments. Mr Stott maintains he was not overpaid, whereas his employer claims otherwise and wants to recover the overpayment. The total repayment sought is $39,615.88.
The overpayment dispute arises from a period when Mr Stott was working at Respondent’s Altona Refinery. Mr Stott has worked for Mobil since 2013. He still works for Mobil and is presently working as an Offshore Installation Manager in the Bass Strait, a role he commenced on 1 December 2023.
Working in the Bass Strait, Mr Stott is no longer covered by the Agreement governing Mobil’s Altona operations.
As this is a dispute about the Agreement at Mobil’s Altona operations which Mr Stott is no longer covered by, the Respondent argues the Commission does not have jurisdiction to determine Mr Stott’s application.
For the reasons set out below, I am satisfied the Commission has jurisdiction to consider the overpayment during the period between 12 April 2023 to 2 May 2023. Mr Stott was still covered under the terms of the 2023 EA at this time.
It is not disputed that he was paid an additional amount during this period. He claims to have been entitled to this payment, Mobil disagrees. I am satisfied the Commission has jurisdiction to resolve this dispute which will now be scheduled for determination.
Relevant background
Mr Stott’s substantive position at the Altona Refinery was one of Senior/Specialist Technician Level 2 (ST2).
On 1 December 2020, he commenced a 2-year temporary appointment pursuant to clause 14 of 2019 EA to a Zone Team Leader (ZTL) Classification. It was agreed he was to be paid the higher ZTL rate for the period of the temporary appointment.
During negotiations for the 2023 EA, the parties agreed the ZTL role would not be included within the classifications covered by the new Agreement as it was no longer work required at the Terminal. A process for the implementation of this change, in consultation with nominated employee representatives was also included in the new Agreement.[1]
On 15 February 2022, Mr Stott was advised that due to the earlier than expected decommissioning of the Altona Refinery operations, his temporary appointment would also end earlier than expected on 31 March 2022.
For the period from 1 April 2022 to 2 May 2023, Mr Stott continued to be paid the higher ZTL rate. The Respondent identifies this as the period of overpayment.
Mr Stott does not accept he was overpaid. He contends that during this time, he continued to perform ZTL duties and accepted payment at the ZTL rate from the Respondent on this basis. He accepts he was advised that his temporary appointment at the ZTL level would cease on 31 March 2022, but submits that he continued to perform the ZTL role, be paid the ZTL rate as required and was not told to stop performing this work.
Mobil does not accept this argument and seeks Mr Stott agree to repay the $39,615.88 they say he owes them.
Agreed facts[2]
On 8 May 2023, Mobil made Mr Stott aware that it believed it had overpaid him at the ZTL rate for the period 1 April 2022 to 2 May 2023 (the overpayment). On 22 May 2023, Mr Stott responded disputing he had been overpaid. Between May and August 2023, the Respondent and Mr Stott participated in an audit of the alleged overpayment.
On 16 August 2023, the Respondent met with Mr Stott and advised him of the audit outcome and alleged overpayment amount. On the same day, they asked Mr Stott to consider entering a voluntary repayment plan.
On 29 August 2023, Mr Stott wrote to Mobil making it clear he did not believe he was overpaid. He believed he was entitled to the ZTL rate under the 2019 EA, that he would be seeking legal advice and would like a meeting to discuss the matter further.
Meetings between Mr Stott and his AWU union site delegates were held on 18 October and 27 November 2023 where the audit and alleged overpayment was discussed. Mr Stott maintained he was not overpaid. The Respondent maintained otherwise and again pressed he consider a repayment plan. Following the meeting on 27 November 2023, the Respondent put forward a proposed repayment plan.
On 1 December 2023, Mr Stott commenced a new role for the Respondent as an Offshore Installation Manager in the Bass Strait and was no longer performing duties at the Mobil Altona Terminal.
Between 5 to 20 December 2023, the Respondent sought a response from Mr Stott to its proposed repayment plan. On 20 December 2023, Mr Stott advised the Respondent he was intending to talk to the AWU about the matters in dispute. On 29 December 2023, he advised the Respondent he was meeting with the AWU on 8 January 2024.
On 9 January 2024, the AWU wrote to the Respondent indicating it was reviewing the materials on behalf of Mr Stott. On 15 January 2024, the AWU advised the Respondent that the matter is in dispute pursuant to clause 25 of the 2023 EA, seeking a meeting in accordance with clause 25.1(a) to seek to resolve the dispute in the first instance. A meeting was held on 25 January 2024.
On 5 February 2024, the Respondent wrote to the AWU and again sought a response to its proposed repayment plan to prevent further escalation. On 6 February 2024, the AWU wrote to the Respondent seeking that it reconsiders its position or otherwise confirm that the parties had exhausted the possibility of reaching a mutual resolution to the dispute. If this was the case, the AWU advised it would refer the dispute to the Commission for assistance.
The Respondent and the AWU exchanged emails over 8 and 9 February confirming their positions remained unchanged. At this time, it was understood the AWU would seek the assistance of the Commission pursuant to the dispute resolution procedure.
On 14 February 2024, the AWU filed a Form F10 application with the Commission to deal with the dispute in accordance with the dispute settlement procedure. On 28 February 2024, a conciliation conference was convened before me, this was unsuccessful in resolving the dispute.
On 8 March 2024, the Applicant wrote to the Commission requesting the matter be programmed for arbitration and on 13 March 2024, I issued proposed questions for determination and directions. On 14 March 2024, the parties convened before me for a Mention and the Respondent raised this jurisdictional objection.
What is in dispute?
In light of the authorities in Simplot[3] and Falcon Mining,[4] it is accepted this is not a valid dispute about the 2019 EA alone.
It is accepted that Mr Stott has not complied with the dispute settlement procedure and pre-arbitral requirements of the 2019 EA.
Mr Stott’s position is that this dispute is a matter arising under both the 2023 EA and the 2019 EA.
In order for this dispute to proceed, the Commission must be satisfied that this is a dispute under terms of the 2023 EA.
Procedural matters
On 15 March 2024 (later amended on 2 April 2024), Directions were issued for both parties to file submissions and material in support addressing the jurisdictional question of whether the Commission has the power to arbitrate this dispute. The Respondent has filed written submissions in support of its position. The Applicant has filed written submissions and provided witness statements from both Mr Stott and AWU Delegate Mr Peter Croft, who provided sworn evidence at the hearing convened on 14 June 2024. A Statement of Agreed Facts has also been provided by the parties.
The Respondent’s position
It is the principal position of the Respondent that this is a dispute about the payment of the ZTL rate to the Applicant under the terms of the 2019 EA. They submit this was confirmed by the Applicant in its filing of the dispute application, discussions between the parties in January and February 2024 and initial proceedings before the Commission. In its Form F10 in response to Question 2 of the application, the Applicant identified: [5]
“…In summary, the dispute concerns an alleged overpayment of higher duties payment by the Respondent to the Applicant for a period of 13 months between approximately 1 April 2022 and 1 May 2023.
From on or about 1 December 2020 the Applicant commenced a 2 Year Temporary Appointment to the position of Zone Team Leader (ZTL).
…
4. In accordance with clause 14 of the Mobil Altona Refinery Operations Continuous Improvement Agreement 2019, which applied to his employment at the time, the Applicant became entitled to a higher duties payment at the ZTL rate.
5. On 15 February 2022 the Applicant received an email from Colin Schmalow (Resource Manager) stating that the Temporary Appointment to ZTL was to end sooner than the previously agreed 2-year period, that is on 30 March 2022.
6. However, the Applicant continued fulfilling ZTL Higher Duties per, but not limited to, clauses 9 and 14 of the 2019 Agreement.
…
16. The Applicant contends he was entitled to the remuneration of the Higher Duties pay of ZTL as Team Leader at least until the 2023 Agreement…”
The remedy sought by the Applicant also confirms the nature of the dispute, with the Applicant seeking to retain the amount of the overpayment up to the date that the 2023 EA commenced operation. There is no claim of overpayment or an entitlement to higher duties under the 2023 EA and the 2023 EA does not in fact include the ZTL classification.
It was not until 15 January 2024 that the AWU first advised the Respondent that it was seeking to resolve this dispute in accordance with the dispute settlement procedure in clause 25 of the 2023 EA. Furthermore, in its proposed questions for arbitration on 13 March 2023, the AWU again confirmed what this dispute is about with the following proposed questions for determination:[6]
“Pursuant to clause 14 of the Mobil Altona Refinery Operations Continuous Improvement Agreement 2019:
1. Did the Applicant perform step up to Zone Team Leader (ZTL) duties within
the relevant period?2. If yes, was the Applicant entitled to the higher rate of pay (salary at ZTL rate
of pay) for the relevant period?If the Respondent asserts the ZTL position came to an end:
3. What was the Applicant’s Shift Team Leader classification and wage rate
that then applied during the relevant period?“Relevant period” is agreed by the parties to mean: the period between 1
April 2022 – 1 May 2023, which the Respondent alleges the Applicant was not
entitled to be paid the higher (ZTL) rate of pay.”
The 2019 EA ceased to operate on 12 April 2023 when it was replaced by the 2023 EA. It was not until after this date, on the 8 May 2023, that the Respondent first made the Applicant aware of the alleged overpayment. The period the Applicant was in receipt of the alleged overpayment under the 2023 EA was from 12 April 2023 to 2 May 2023.
Referring to Full Bench decisions of the Commission in Simplot and Falcon Mining as authorities, Commissioner Lim relevantly distilled in a recent decision in Schoof v Hitachi that:
“What is clear from the above authorities is that for the Commission’s power to arbitrate a dispute to be enlivened, the parties must have reached agreement in accordance with the dispute resolution term before the relevant agreement ceases to operate and apply to the parties.”[7]
It is a matter of fact that the 2019 EA ceased to operate on 12 April 2023 and no longer applied to the Applicant. It is agreed that the Applicant was first made aware of the alleged overpayment after this date, on 8 May 2023.
On this basis, the Respondent’s position is that the Commission does not have jurisdiction to arbitrate the dispute. Firstly, because the terms of the 2019 EA do not preserve the ability to bring a dispute once the agreement has ceased. Secondly, because the terms of the 2023 EA do not enable disputes to be made about a predecessor agreement. Thirdly, because no steps were taken to resolve the dispute while the 2019 EA was in operation. Finally, because the parties did not reach the requisite agreement to arbitrate before the 2019 EA ceased operation.
The Respondent also rejects an assertion by the Applicant that this is a dispute about both the interpretation of the 2023 EA and the 2019 EA.
It is their position that the agreed statement of facts and the Applicant’s own proposed questions for arbitration make clear what is in dispute is the Applicant’s entitlement to the higher duties payment at the ZTL rate under the 2019 EA.
The Respondent argues the Commission does not have jurisdiction to arbitrate a dispute under the 2023 EA. They submit clause 25 of the 2023 EA only applies to matters arising from the 2023 EA or the NES. This means the Commission has no power to arbitrate a dispute about the 2019 EA pursuant to clause 25.2 of the 2023 EA.
In the event the Commission finds a dispute arising from the 2023 EA, it is the Respondent’s position that the Commission is not empowered to deal with the dispute. Firstly, because the 2023 EA did not apply to the Applicant at the time any dispute was raised by the Applicant or when it was referred to the Commission. Secondly, because the terms of the dispute settlement procedure set in clause 25.1(a) of the 2023 EA were not complied with.
In support of this position, the Respondent relies on the uncontested fact that the Applicant ceased to be employed under the 2023 Agreement on 1 December 2023. Further, that it was not until 15 January 2024 that the AWU first informed the Respondent it was seeking to resolve the dispute in accordance with the dispute procedure in clause 25 of the 2023 EA.
Finally, and as an alternative, the Respondent submit that should the Commission determine a power to arbitrate exists, any question for determination should be confined to the period from 12 April 2023 to 2 May 2023. This is the only period when 2023 EA was operating that an alleged overpayment could have occurred.
Further, the Respondent submits it is well established that an enterprise agreement does not give a person an entitlement and does not impose obligations unless it applies to the person.[8]
The Applicant ceased to be covered by the 2023 EA from 1 December 2023. From this time, the Applicant was no longer an “operator” for the purposes of clause 25, and no longer entitled to bring a dispute.
While the Respondent accepts there were various discussions between the parties from June to November 2023, they submit none of these can be characterised as the Applicant referring the matter as required under clause 25.1(a). It is their position that the earliest this could have occurred was 5 December 2023 when the Applicant advised he would seek the advice of the AWU. However, they maintain that it was not until 15 January 2024 that the Respondent was formally notified of a dispute under the 2023 EA.
Further, that s.739(6) of the Act provides the Commission has no jurisdiction to deal with a dispute under an enterprise agreement unless there is an application by a party to the dispute, as identified by the Full Bench in CFMEU v Falcon Mining:[9]
“Simply put, the Commission is seized of jurisdiction to arbitrate in respect of a dispute arising under a dispute resolution term described in s 738(b) once an application is made in accordance with s 739(6) and the requite agreement under s 739(4) exits, and it is thereafter entitled to exercise that jurisdiction to completion.”
The Respondent rejects the Applicant’s contention that he has taken all steps required under clause 25.1(a) of the 2023 EA while it covered and applied to him. It is their position that clause 25.1(a) leaves it open to parties to engage in further discussion as necessary. They maintain this sustains the status of the dispute until either it is resolved, withdrawn, or one party considers the dispute is “still not settled” and submits the matter to the Commission in accordance with clause 25.1(b).
On this basis, the Respondent submits the fact the parties engaged in further discussions throughout January and February 2023 indicate it was not until 8 February 2024 that either party considered the dispute “still not settled”. After this, they accept attempts to resolve the matter by mutual agreement had been exhausted.
The Respondent maintains there is no basis in the authorities, or otherwise, for an employee who initiates a dispute settlement procedure under an industrial instrument to retain that right after they cease to be covered by the instrument. Further, that the 2023 EA ceased to apply to the Applicant from 1 December 2023. From then, he no longer had any entitlement to exercise rights under clause 25 of the Agreement because he was no longer a member of the workplace.
Moreover, in the present case, the Respondent maintains the Commission’s power to arbitrate only arises if, following conciliation under clause 25.1(b), the dispute remains unresolved such that arbitration becomes “necessary” under clause 25.2. It is their position that this could only have occurred on 8 March 2024 when attempts to resolve the matter by conciliation were unsuccessful. As Mr Stott had no entitlement to refer the matter to arbitration after 1 December 2023, the Respondent maintains there is no jurisdiction for the Commission to arbitrate.
The Respondent also refutes Mr Stott’s contention that this dispute is about a matter arising under the 2023 EA - being a claim for an entitlement to the ZTL rate under the incorporated award terms of the 2023 EA. Their position is a “new and fundamentally different dispute to that discussed between the parties and raised before the Commission.”[10] Further, that the clauses the Applicant submits are now in dispute are different to those identified in the application.
The Respondent’s position is that the Applicant has not complied with the requirements of clause 25.1(a) of the 2023 EA in this regard. Their position is that at no stage prior to its receipts of the Applicant’s written submissions had the above issues been identified or the parties engaged in the required steps in relation to these matters.
Finally, the Respondent rejects the Applicant’s submission that the Commission has the power to arbitrate the dispute in respect to the period prior to 12 April 2023. Mr Stott’s submission is that this is a dispute “properly characterised as arising under the 2023 EA”, and that to “construe the scope of the DSP as confined to the application of terms of the 2023 EA in relation to a dispute about a single course of conduct that extends to a previous agreement would be to impose a limitation that is not present within the DSP itself”. [11]
The Respondents reject’s this argument on three grounds.
First, just because an overpayment was discovered during the payroll implementation of the 2023 EA does not mean this is a question of an interpretation of the 2023 EA. Second, that clause 25 of the 2023 EA is explicitly confined to “any dispute about matters arising under this Agreement or the NES”. Third, that the arbitral powers of the Commission are dependent on the requirements of clause 25 being met, including the agreement of the parties that efforts to resolve the dispute in accordance with these provisions have been exhausted.
The Respondent’s position is that the requirements for the Commission to arbitrate for the period after 12 April 2023 have also not been meet. Further, that the Commission cannot be satisfied that “arbitration is necessary” under clause 25.2 of the 2023 EA because other options are available (the courts).[12]
The Applicant’s position
It is accepted that Mr Stott has not complied with the dispute settlement procedure and pre-arbitral requirements of the 2019 EA and that this is not a dispute about the 2019 EA or the NES.
Mr Stott’s position is that this dispute is a matter arising under both the 2023 EA and the 2019 EA. He argues that he has consistently identified his dispute of the alleged overpayment in these terms and that he has complied with the dispute settlement terms of the 2023 EA when it covered and applied to him. Therefore, that the requirements for the arbitral powers of the Commission have been enlivened and the dispute can be determined by the Commission.
In the alternative, the Mr Stott submits the Commission can be satisfied that this is a dispute about recovery of an alleged overpayment under the terms of the 2023 EA for the period from 12 April 2023 to 2 May 2023.
The basis of this submission is that Mr Stott continued to perform work at the ZTL classification level as higher duties for this period and that he was entitled to this payment in accordance with the terms of the 2023 EA and its incorporation of the relevant Award. Further, the Applicant submits that the Commission will not be able to determine a dispute about Mr Stott’s performance of higher duties under the 2023 EA in a vacuum when he was validly performing higher duties for the entire period.[13]
Mr Stott’s representatives reject the Respondent’s assertion that the dispute was only about the application of the 2019 EA and that they were not aware of disputed matters, including incorporated award terms and an entitlement to payment for higher duties under the 2023 EA, until the filing of submissions.
Mr Stott’s position is that from 22 May 2023 he made the Respondent aware he was entitled to payment of the higher ZTL rate under the 2023 EA, that the ZTL rate remained a term included in the 2023 EA, that he was performing ZTL work and was entitled to be paid on that basis.
From his representative’s perspective, Mr Stott not referencing clauses 6, 14 or incorporated award terms in making his position clear is immaterial. They submit, it is sufficient that as a layperson he asserted his right to be paid higher duties at the ZTL rate under both the 2019 and 2023 EAs when raising this dispute with the employer.[14]
Mr Stott’s position is that from the time he was made aware of the alleged overpayment he took all steps to comply with what was required of him under the provisions of the dispute procedure at clause 25.
Once notified of the alleged overpayment, he disputed his employer’s position, maintaining he was entitled to the ZTL payment under both the 2019 and 2023 EA. He followed up his concerns, participated in the audit, referred his dispute to the appropriate person, and awaited his employer’s response. On 27 November 2023, he was told the employer’s final position was that he had been overpaid and would have to repay the overpayment.
All this occurred when the terms of the 2023 EA continued to apply to him. On this basis, Mr Stott’s representatives submit he has complied with the terms of both clauses 25.1(a) and 25.1(b) of the 23 EA and enlivened his right to refer his dispute to the Commission and have it determined.[15]
It is their position this outcome is consistent with the alternative view the Full Bench found that there was much to be said for in Falcon Mining and other authorities.[16]
Further, they submit the terms of the dispute clause (25) in the 2023 EA mean that after a matter has been referred to the relevant manager for resolution and remains not settled, 25.1(b) obliges the parities to submit the matter to the Commission. They do not accept that the plain and ordinary meaning of these words import a requirement of conciliation prior to arbitration. Moreover, that the use of the word “may” in clause 25.1(a) that provides optionality, is replaced at 25.1(b) by the word “shall” - meaning a dispute that “is still not settled…shall” be submitted to a member of the Commission enlivening it powers with agreement of the parties.[17]
Questions for consideration
On the material before me, I consider there are four central questions to be resolved to settle the jurisdictional question before the Commission.
Firstly, it needs to be established that there was a dispute within the meaning of the 2023 EA. If this is not the case, the application must be dismissed.
Secondly, what are the Commissions powers to deal with disputes.
Thirdly, if a dispute under the 2023 EA is identified then were the requirements of the dispute settlement procedure followed in relation to the dispute?
Fourthly, if the answer to the above questions favours the Applicant, is the Commission’s power to arbitrate enlivened in circumstances where the Applicant is no longer covered by the 2023 EA?
I consider each of these questions in turn below.
Question 1: Is there a dispute within the meaning of the 2023 EA?
The Respondent’s position is that this is not the case. They submit that the evidence, including the AWU’s proposed questions for arbitration, clearly identify that this dispute is about the alleged overpayment under the 2019 EA.
Further, that it is not until 15 January 2024 that the Applicant identified he was seeking to resolve the dispute in accordance with the terms of clause 25 of the 2023 EA. By this time, he was no longer engaged at the Altona Refinery, was no longer covered by the scope of the 2023 EA and was not entitled to bring a dispute under its terms.
The Respondent accepts that it’s claim of alleged overpayment relates in small part to the period from 12 April 2023 to 2 May 2023, when the 2023 EA was in operation and covered the Applicant.
Despite conjecture about whether a right exists for the AWU to bring a dispute that I need not consider here, there is no dispute that to be made under the terms of the 2023 EA a dispute must be about a “matter arising under the Agreement or the NES” and be brought by a “operator” as defined by clause 4 covered by the Agreement.
The Applicant’s position is that whilst the dispute is about an ongoing entitlement arising under the 2019 EA, it is also a dispute about a matter arising under the 2023 EA. This is the entitlement to payment at the equivalent rate to that of the ZTL rate under the 2023 EA for the period 12 April 2023 to 2 May 2023. The Respondent accepts this payment was made. They submit this was an administrative error immediately rectified once identified and seek payment of the overpayment.
At a minimum, the Applicant’s position is this payment is not an overpayment but an “entitlement” because Mr Stott understood he was performing the equivalent of ZTL work under the 2023 EA. Further, that the employer failed to comply with the transitional requirements of the Agreement to advise him otherwise until it notified its administrative error on 8 May 2023. Therefore, they submit this is a matter under the 2023 EA that can be raised under the dispute procedure.
In support of this position, they identify that the Agreement incorporates the relevant higher duties terms of the relevant Award. That clause 6 of the 2023 EA provides for the ongoing payment at classification levels under the 2019 EA, including the ZTL rates, until such time as the Respondent advises and consultation has occurred with the parties to the Agreement.
It is their position that the consultation requirements of clause 6 have not been met by the Respondent. Further, that from the time Mr Stott first raised issue with the Respondent’s claim that he was overpaid, he consistently identified the dispute as matters under both the 2019 and 2023 EAs.
The agreed statement of facts provided by the parties, along with the statements of Mr Stott and the supporting materials to both, support this position, as set out in the below – an email from the Applicant to Mr Chowdhury (Altona Conversion Venture Manager) on 22 May 2023:
“I can see there has been administrative errors, but not in claim of overpayment.
My responsibilities have not significantly changed for the life of the 2019 Altona Agreement since being temporarily appointed as ZTL. The previous 2019 Agreement does not have an alternative to ZTL in a Designated Position and has yet been defined for the 2022 (sic) Altona Agreement.
I have been expected to continue cover the ZTL position until the expiration of the 2019 Altona Agreement and have not been appointed to an alternative equivalent to the ZTL role to date.
…
It was incumbent on the company (Mobil Altona Refinery Pty Ltd) to offer an alternative appointment to the ZTL temporary classification.
Alternative appointment opportunity as STL classification has only just been made officially available with the new implementation of the 2022 (sic) Altona Agreement. The ZTL classification also still exists in the new 2022 Agreement.
…
2023 Agreement has only been implemented recently, and there has been no discussion of a new appointment to the newly formed STL position…”[18]
The evidence of Mr Stott and Mr Croft of the meetings that occurred, what was discussed and referenced (including to the terms of the 2023 EA) were accepted by the Respondent to the extent of their relevance to the jurisdictional question. The Respondent did not present any evidence to the contrary. The Applicant’s submits it is open to the Commission to draw a Jones v Dunkel[19] inference that its absence of evidence can be taken to be detrimental to its position. I do not accept this is a conclusion I need to make.
The Respondent has chosen to limit its submissions to the question of jurisdiction and the parties have presented an agreed statement of facts. This statement clearly identifies, and I am satisfied, that from 8 May 2023 when he was first made aware of the alleged overpayment, Mr Stott consistently refers to the matter being a dispute about the 2019 and the 2023 EAs.
The Respondent submits that it has complied with the consultation requirements of clause 6 of the Agreement, that this was a major restructure, and everybody understood what they were getting into.[20] The Respondent has chosen not to present any further evidence to support this position on the question of jurisdiction, I accept their decision.
The Applicant’s presents a contrary position. The unchallenged evidence of Mr Croft and Mr Stott does not lead me to conclude Mobil took the steps it committed to in clause 6 of the 2023 EA. In particular:
“The date at which any of the ZTL, ST4, ST3, D3 and DT2 classifications are no longer required will be determined by the Company. This change will be implemented in consultation with nominated employee representatives (including union representatives and delegates) and/or Shift Team Leaders (STLs) and bring classifications in line with the ongoing Terminal business needs.”[21]
Mr Stott’s evidence is he was not actually made aware that the ZTL position was no longer required and what it was to be replaced with until 8 May 2023 when he received the advice of alleged overpayment from Mr Chowdhury. His response on 22 May 2023, cited above in paragraph [85], makes this clear. Absent evidence to the contrary from the Respondent, I accept his evidence.
The evidence of what occurred on site from 15 February 2022 when Mr Stott was told his ZTL secondment would end and 2 May 2023 when he stopped being paid the ZTL rate is contested. No detailed evidence on this question has been presented by the parties and it is not necessary for this be to the case to resolve the jurisdictional question before the Commission.
However, it is not contested that from 12 April 2023 to 2 May 2023, Mr Stott continued to be paid the ZTL rate. The Respondent is seeking recovery of this amount. From 22 May 2023, Mr Stott has disputed he has been overpaid. Therefore, I am satisfied this is a dispute about an alleged overpayment for the period of 12 April 2023 to 2 May 2023 under the terms of the 2023 EA.
Further, I note the F10 filed on behalf of the Applicant identified the dispute being a dispute about the 2023 EA.
I have considered the Respondent’s position that the references to the incorporated Award as grounds for the Applicant’s claim to be about a matter under the 2023 EA were not discussed or identified until the Applicant’s submission in reply were received. I note they submit this is an attempt by the Applicant to reframe a dispute that the “factual matrix” clearly identifies being about the 2019 EA, as a dispute about the 2023 EA.
The evidence identified above does not support this position. Furthermore, I accept that its well established that industrial disputes are not fixed and may evolve over the course of proceedings in the Commission.[22] For example, in this matter it was not until the Mention before me on 14 March 2024 that the Respondent articulated any jurisdictional issues with the powers of the Commission to determine this dispute.
For these reasons, I am satisfied there is a dispute about a matter arising under the 2023 EA and that the question of whether the Commission has the power to arbitrate needs to be considered.
Should the engagement under the 2019 EA be considered?
In the present circumstances, I do not consider it necessary to determine, as pressed by the Applicant, that in the event the Commission has the power to arbitrate, this extends to the period of the overpayment under the 2019 EA and 2023 EA.
The Respondent rejects such a finding and I have regard to the authority in Simplot that:
“The Commission has no jurisdiction to deal with a dispute under a disputes procedure in an enterprise agreement that has ceased to operate.”[23]
On the facts, the terms of the ZTL engagement and its duration may need to be considered in order to determine if Mr Stott was entitled to payment of a higher rate for the period of 12 April 2023 to 2 May 2023. However, this question goes to the merits of the case that have not been considered here and cannot be determined.
Question 2: What are the Commission’s powers to deal with disputes?
Section 595 of the Act provides for the Commission’s powers to deal with disputes only if it is expressly authorised to do so in accordance with another provision of the Act. Section 739 provides for the Commission’s power to deal with a dispute where an enterprise agreement includes a term that provides a procedure for dealing with disputes under section 738(b). An enterprise agreement must contain a term about settling disputes to be approved by the Commission in accordance with s.186(6) of the Act. The Commission must not exercise any powers limited by the term. The Commission may only arbitrate the dispute if the parties have agreed that the Commission may arbitrate the dispute.
In Falcon Mining the Full Bench said:[24]
“…it is s 739(4) which gives effect to an agreement by the parties for the arbitration of a dispute by the Commission pursuant to a dispute resolution term of a type described in s 738, and it is s 739(3) which limits the powers of the Commission to deal with the dispute by reference to any such limitations contained in the relevant dispute resolution term. Therefore, the scope of the authority of the Commission to engage in arbitration of disputes pursuant to a dispute resolution term is ultimately the question of statutory construction although, in a particular case, the application of the statutory provisions will be affected by the terms of the relevant dispute resolution procedure.”
The 2023 EA contains a disputes procedure at clause 25 in the following terms:[25]
“25. Disputes Procedure
The parties and the workforce are committed to ensuring ongoing supply of products to Mobil Altona Terminal’s customers.
25.1 Any dispute about matters arising under this Agreement or the National
Employment Standards between an Operator and the Company shall be settled in the following manner:
(a)The Operator involved, together with their employee representative, if the Operator so wishes, shall refer the matter to the relevant manager for resolution. The manager shall provide an answer as soon as reasonably possible. If not settled, the matter may be taken by the Operator or the employee’s representative if the Operator so chooses, to the Terminal Manager, and if necessary thereafter to the HR manager for further discussion.
(b)If the matter is still not settled then it shall be submitted to a member of the Fair Work Commission, whose decision subject to any rights of appeal shall be final and accepted by the parties.
25.2If arbitration is necessary the parties agree the Fair Work Commission shall have the power to do all such things as are necessary for the just resolution or determination of the matter in dispute. The includes the exercising of procedural powers in relation to directions, hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.
25.3Until the matter is determined, work shall continue normally. Where it is agreed between the parties and there is an existing custom, work will continue in accordance with that custom. No party shall be prejudiced as to final settlement by continuance of work in accordance with this sub-clause.”
The parties are not in agreement as to the plain meaning of the disputes clause. The Respondent’s position is that the plain meaning of the clause is that the “Operator” has the responsibility to take the steps in 25.1(a); that there is no clear point of completion to this obligation and that it is open to the parties to engage in further discussions as necessary.[26] Further, that there is a tiered structure to the clause that means 25.1(a) continues to govern the dispute until it is resolved; is withdrawn; or a party to the dispute considers it “still not settled” and refers the matter to the Commission pursuant to clause 25.1(b).
It is their position that it is only at this stage that the parties have agreed in accordance with the terms of the disputes procedure that the Commission can arbitrate the dispute provided “it is necessary” as required by clause 25.2.
The Applicant reject’s this assertion. He submits that the plain and ordinary meaning of the clause is that there is a requirement on the “Operator” to refer the matter to the relevant manager for resolution. Thereafter, where the “matter is still not settled”, an obligation exists on the parties that the matter “shall be” submitted to a member of the Fair Work Commission, enlivening its arbitral decision-making powers.
In further support of its position, the Applicant submits there is no reference to the subjective views of either party. The steps are that the matter be referred to the relevant manager for resolution, and that the matter is not resolved. If this is the case, and objectively viewed the matter is “still not settled” the matter is to be referred to the Commission, “whose decision subject to any rights of appeal shall be final and accepted by the parties.” Additionally, had the parties intended on a series of tiered discussions and a bifurcation of each stage of the dispute settlement procedure they would have included terms to this effect, but they did not.[27]
The principles of Agreement interpretation are well established and have been helpfully set out by the Full Bench in AMWU v Berri and I need not repeat them here.[28] The Full Court of the Federal Court in Workpac Pty Ltd v Skene[29] has affirmed this approach. In Qantas Airways v ALEA,[30] Flick J applied these principles to dispute resolution clauses in the Qantas and Jetstar Engineering and Maintenance Agreements. Commissioner Lim helpfully distilled these principles in the recent decision Schoof v Hitachi Rail at [78], observing that:[31]
“
(1) The requirements in a dispute procedure must be construed with a degree of flexibility consistent with the industrial context in which clauses are drafted.
(2) With regards to the meaning of “dispute” in both the Qantas and Jetstar Agreements, the essence of “dispute” is that there is an occasion during which there is an exchange of “opposing views” or positions. The necessity is that there is an exchange of positions “for” and “against” a particular result.
(3) The terms “meeting” and “discussion” should be construed with a degree of informality and flexibility. The requirement for a “meeting” or a “discussion” obviously does not require a formally convened meeting or a formal discussion. By way of example, a dispute may best be sought to be resolved informally and during a lunch-break at which the dispute is raised with a manager or supervisor.
(4) There needs to be some minimum content to the steps in dispute resolution clauses. With regards to the Qantas and Jetstar Agreements, it was not necessary for those participating in the meeting or discussion to know that they were participating in a meeting which formed part of a dispute resolution procedure. What was required was an employee (or group of employees) raising an “opposing view” to their employer at a meeting (however flexibly that term is to be construed) at which it was known or could be reasonably inferred that each the “opposing” sides knew that there was a dispute in need of resolution”
I have considered the terms of clause 25 in the light of these authorities and applied the principles of Agreement interpretation to discern their plain and ordinary meaning. I note that there is a clear distinction in the use of the words “may” and “shall”. The use of the word “shall” in the clause imposes a clear obligation on the Operator to raise a matter of dispute with the relevant manager for resolution. This requirement does not apply to the additional provisions of clause 25.1(a) that indicate the Operator “may” raise the matter with the Terminal manager or HR manager for further discussion.
If after the required steps in 25.1(a) have been followed, and the “matter is still not settled” it “shall” be referred to a member of the Commission. Again, the use of the word “shall” makes clear this is also a requirement that once, objectively viewed, the provisions of 25.1(a) have been met and the matter remains unresolved it is to be referred to a member of the Commission.
On the above basis, I am satisfied the plain and ordinary meaning of the dispute clause is that it requires a dispute to be raised with the relevant manager and that it is not resolved.
Once both these requirements are met, the requisite requirements of s.739(4) identified by the Full Bench in Falcon Mining are satisfied such that the Commission’s powers to arbitrate the dispute are enlivened.
In Falcon Mining, the Full Bench provided further guidance on two different approaches on the operation of s.739 at [66], in instances where the agreement is both in operation and no longer in operation as follows:
“Subsection (1) of s 739 provides that the section applies if a term referred to in s 738 “requires or allows” the Commission to deal with a dispute. On one view (and presumably from the Simplot perspective), a term of an enterprise agreement can only require or allow something if it is in operation in accordance with s 54, since s 52(1)(a) provides that an agreement will only apply to an employee, employer or employer organisation if (relevantly), it is in operation, and s 51 provides that an agreement does not impose obligations on or give an entitlement to a person unless the agreement applies to the person. On this view, s 739 only applies in relation to a dispute resolution term in an enterprise agreement if the agreement is in operation. An alternative view would be that:
· as earlier discussed, s 738(b) does not require an agreement to be operative in order for Div 2 of Pt 6-2 to apply;
· the function of subsection (1) of s 739 is only to distinguish the application of the section, which is concerned with the Commission’s power to deal with disputes, from that of s 740 which, by s 740(1), applies if the dispute resolution term requires or allows a person other than the FWC to deal with a dispute;
· s 51 is not relevant because s 739 is concerned with the power of the Commission to deal with disputes arising under dispute resolution terms, not with the obligations and entitlements of parties under the instruments in which such terms are contained; and
· in respect of a term described in s 738(b), it will be sufficient that the dispute has arisen at a time when the term is in operation, and the right to have such a dispute resolved in accordance with the term remains operative and enforceable because it is a right which accrued during the operation of the agreement.”[32]
And at [67]:
“For the purpose of deciding this appeal, it is not necessary for reasons which will be explained to determine to finality which of these views is correct. We will proceed on the assumption that the former is correct, although we consider there is much to be said for the latter view.”
The Full Bench also analysed how s.739[4] is to be interpreted, noting at [68]:
“The condition precedent for there to be authorisation to arbitrate under s 739(4) is that “in accordance with the term, the parties have agreed that the FWC may arbitrate … the dispute”. The requirement for the agreement to arbitrate to be in “accordance with the term” would mean, for example, that if the relevant dispute resolution term provides that workplace discussion, and/or conciliation by the Commission, must occur before the Commission can arbitrate, the parties cannot agree to arbitration occurring before those steps have been taken. It would also mean that if the dispute resolution term provides that it applies only to disputes of a defined character, then the parties could only agree to arbitrate disputes of that character. However, subject to this qualification, s 739(4) on its ordinary meaning empowers the Commission to arbitrate the dispute once the requisite agreement exists.”
I have considered the relevance of these authorities and applied them to the facts of the present matter. Having found the matter in dispute is a matter under the 2023 EA, I consider that the Commission will have the authority to arbitrate Mr Stott’s dispute provided all relevant requirements of the dispute settlement procedure have been met. Secondly, that Mr Stott remains eligible to bring a dispute under the 2023 EA at the time the powers of the Commission are enlivened.
Question 3: Were the requirements of the dispute settlement procedure followed in relation to a dispute within the meaning of the 2023 EA?
The Respondent’s position is that this is not the case. They assert, firstly, that the steps taken by Mr Stott between May to November 2023 do not meet the requirements of clause 25.1. That the first time the Applicant raised a dispute under the 2023 EA was 15 January 2024, or no earlier than 5 December 2023 when his response to the Respondent’s position was that he would be seeking legal advice from the AWU. Furthermore, that given Mr Stott was no longer employed at the Mobil Altona facility from 1 December 2023, it was impossible for him to raise a dispute as required by 25.1.
The Applicant rejects this submission. He maintains that from 22 May 2023, when he sent his initial dispute letter to Mr Chowdhury, to 29 August 2023, when he made a further appeal to the Respondent’s HR Representative (Mr Weston), Mr Stott referred to the 2023 EA dispute.
I have set out above at [85] extracts from Mr Stott’s email letter on 22 May 2023. Below are the relevant terms included in his correspondence on 29 August 2023 to Mr Weston:[33]
“I maintain that I was not overpaid in the Team Leader role (ZTL) as the positions per the 2019 Agreement provides the payment structure for the role I was employed as from 2020 – 2023.
…
The only recognised Team Leader positions in the 2019 Agreement where ZTL’s and DTL’s. I was there for entitled to ZTL pay. ST2 was not a Team Leader position and has only in the new 2023 Mobil Altona Terminal Agreement assumed the role as STL (new classification).
The only recognised Team Leader positions in the 2019 Agreement where ZTL’s and DTL’s. I was there for entitled to
ZTL pay. ST2 was not a Team Leader position and has only in the new 2023 Mobil Altona Terminal Agreement
assumed the role as STL (new classification).
ZTL, ST4, ST3, D3 and DT2 classifications are known and expected to be phased-out or vacated during the 2023 Mobil Altona Terminal Agreement period.
Manning positions and pay structure had to be maintained per the 2019 Agreement and by sending an email to inform me that I was now longer on assignment by a certain date contradicted the actual events and shift manning requirements during the 2022 year.
I remained as Team Leader continually for approximately 29months leading up to the signing of the new 2023 Agreement.
I had been led to believe I was expecting to be transitioning to an upstream OIM role before or soon after the new 2023 Agreement was to be signed. In my understanding career wise and financially…
I have had year after year of high-performance recognition…
I understand I have done nothing wrong and the misinterpretation or deliberate misapplication of the 2019 Agreement by responsible manager(s) can only be properly explained by them.
…
The request for repayment is totally inequitable and my family and I have been reliant on my payments.”
It is clear Mr Stott identified his claim to an entitlement to payment or a failure of the Respondent to comply with terms of the 2023 EA in the letters he sent to the Respondent in response to their allegations that he was overpaid.
As I have identified above, the requirement under the disputes procedure for Mr Stott was that he refer a matter in dispute under the 2023 EA to his relevant manager for resolution. The evidence above indicates he did this. I am satisfied this is the case.
To proceed to the Commission, I have found the additional requirements of the dispute clause are that the “matter still not be settled”. In the present case, Mr Stott attended a meeting with a member of the Respondent’s internal audit team to further inquire into the circumstance of the alleged overpayment on 30 June 2023. Mr Chowdhury did not reply to the Applicant’s email of 22 May 2023, nor was he advised of the outcome of the audit meeting until 16 August 2023. Mr Stott continued to dispute the basis of the overpayment and on 29 August 2023 raised has concerns with Mr Weston.
Mr Stott and Mr Weston discussed the Applicant’s dispute on 13 October 2023 and the dispute was not resolved. On 18 October 2023, the Applicant met with Mr Weston and further restated his position and the reasons he disputed the alleged overpayment. Again, the dispute was not resolved. On 27 November 2023, a further meeting was held with Mr Chowdhury, Terminal Manager Mr Falke, the Applicant and AWU delegate Mr Croft, again failing to resolve the dispute.
Following this meeting, Mr Weston emailed Mr Stott and advised him the meeting earlier that day was considered by the Respondent as a “final, close out conversation”, seeking his agreement to have $380.92 deducted from his wage each week commencing from January 2024.[34]
Mr Stott did not agree to this request and his dispute remained “still not settled”. At this point, I am satisfied all the requirements of clause 25.1 (a) were met, and that from then on Mr Stott was entitled to refer the matter to the Commission pursuant to clause 25.1, consistent with the observations by Flick J in Qantas v ALEA cited above at [107], enlivening the power of the Commission under the terms of the dispute procedure as required by s.739(4).
From this time, the powers available to the Commission were not otherwise limited, as the relevant terms of the clause did not seek to limit them or specify a requirement of mediation or conciliation prior to arbitration but otherwise provided at 25.1(b) that:
“If the matter is still not settled then it shall be submitted to a member of the Fair Work Commission, whose decision subject to any rights of appeal shall be final and accepted by the parties.”
Question 4: Is the Commission’s power to arbitrate the dispute enlivened?
I have set out above the requirements for the Commission to arbitrate a dispute.
Section 739(6) of the Act provides that the Commission “may deal with a dispute only on application by a party to the dispute”. The Respondent submits the Full Bench in Falcon Mining confirmed this position, as set out in paragraph [48] above.
Their position is that the requisite requirements of s.739(4) are met in this case only after the FWC conciliation in clause 25.1(b) fails and the dispute remains unresolved such that arbitration “becomes necessary” under clause 25.2. On this basis, they submit that the requisite agreement could only have occurred on 8 March 2024 when conciliation proceedings before the Commission were unsuccessful. Further, that on 8 March 2024, the Applicant did not have an entitlement under the terms of the 2023 EA to refer the matter for arbitration because from 1 December 2023 he was no longer covered by the Agreement.[35]
For the reasons indicated above, I do not accept the Respondent’s interpretation of the plain meaning of clause 25 of the 2023 EA, that it imports a tiered approach to the dispute settlement procedure. Nor do I accept that the terms of clause 25.1(b) contain an implied obligation of conciliation on the Commission before considering “if arbitration is necessary at 25.2.”
There is no reference to the conciliation powers of the Commission in clause 25. The term provides “If the matter is still not settled then it shall be submitted to a member of the Fair Work Commission, whose decision subject to any rights of appeal shall be final and accepted by the parties”.
The Applicant submits the plain mean of the clause is that the preconditions of s.739(4), that the parties agree to arbitrate, are (1) that the “Operator” has referred the matter to the relevant manager for resolution and (2) if the matter is not resolved and objectively can be viewed as not settled, the preconditions are met for clause 25.1(b) to apply.
I have been satisfied that this is the case, and that, objectively viewed, the requisite requirements were met on 27 November 2023 when Mr Stott was advised by Mr Weston of the Respondent’s final position.[36]
From this time, I am satisfied Mr Stott had an entitlement to make an application under the terms of s.739(6). It is not disputed the Applicant was entitled to make a valid application based on this finding from 27 November 2023 to 1 December 2023, as he remained covered under the terms of the 2023 EA.
After 1 December 2023, the Respondent’s position is that Mr Stott no longer has this entitlement in accordance with the authority in Falcon Mining; that an enterprise agreement does not give a person an entitlement and does not impose obligations on a person unless it applies to the person. Given Mr Stott’s application was lodged on 14 February 2024, it is the Respondent’s position that the Commission cannot have authority to arbitrate the dispute.[37]
Mr Stott’s submissions are to the contrary. His representatives argue that the Full Bench’s decision in Falcon Mining is “authority for the proposition, that at a minimum, a person’s entitlement to have a dispute determined by the Commission pursuant to s739 is not extinguished by an enterprise agreement ceasing to apply to them if an application has been made and the requisite agreement that the Commission can arbitrate the dispute exists before the instrument ceases to apply”.[38]
They argue that the present case can otherwise be distinguished from Falcon Mining because unlike in that case, conciliation is not a prerequisite step to arbitration in this matter. That Falcon Mining concerned a dispute brought under an agreement that had ceased to operate, rather than a dispute brought under an agreement that is still in operation by an employee who is no longer covered by it.[39]
Further, they submit the relevant passage relied upon by the Respondent in Falcon Mining was only one of two competing views of the Full Bench considered but left unresolved in that decision. The other view, which the Full Bench considered “there was much to be said for” was that:
“[I]n respect of a term described in s738(b), it will be sufficient that the dispute has arisen at a time when the term is in operation, and the right to have such a dispute resolved in accordance with the term remains operative and enforceable because it is a right which accrued during the operation of the agreement.”[40]
In the present case, I have been satisfied that Mr Stott complied with the requirements of the dispute settlement procedure in raising his dispute about an alleged overpayment under the 2023 EA. The facts of this case are that he did so on multiple occasions. On 27 November 2023, he was provided a final response from the Respondent that did not resolve the dispute.
From this time, I am satisfied that, objectively viewed, he was entitled to consider his dispute still not settled. Therefore, I have found he was entitled to refer the matter to the Commission and enliven its powers under the terms of the Agreement entered by the parties to arbitrate the dispute.
In reaching this conclusion, I have considered the parties’ reference to the Full Bench authorities in Simplot and Falcon Mining. However, the facts of this case are distinguishable from both these decisions. Both these decisions concerned the powers of the Commission where a dispute was notified under an enterprise agreement that had ceased to operate while the Commission was dealing with the dispute but before it had been determined.[41]
In the present case, I have been satisfied Mr Stott has complied with the terms of the dispute settlement procedure of the 2023 EA and was covered by the Agreement when he became entitled to enliven the powers of the Commission to determine his dispute.
The Commission’s power to arbitrate this dispute was enlivened on 27 November 2023. At this time, Mr Stott was covered by the 2023 EA, had complied with its terms and had a right that accrued under that Agreement to have a dispute determined by the Commission.
The terms of the 2023 EA were in operation at the time he commenced his dispute on 22 May 2023. They were in operation on 27 November 2023 when he enlivened the powers of the Commission as agreed by the parties to the Agreement. They were in operation when his dispute was filed with the Commission on 14 February 2024.
By virtue of Mr Stott commencing work in the Bass Strait on 1 December 2023, he is no longer covered by the 2023 EA.
These facts contrast to those considered in both Simplot and Falcon Mining. I consider they are more consistent with the line of authority arising from the Full Bench decision in ING Administration Pty Ltd v Jajoo (‘Jajoo’)[42] identified by the Applicant.
In Jajoo, the Commission upheld the right of Mr Jajoo to progress the dispute he had initiated under an agreement. This was despite having been terminated and longer being covered by the agreement when he filed his application. I consider the circumstances in Jajoo analogous to the circumstance of Mr Stott. In Jajoo, the Full Bench described a dispute settlement procedure 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”[43], observing:
“We do not believe that there is a sound basis for construing the terms of s 170LW in a way which would deprive him of the right to progress his dispute to other levels of the procedure, including to the Commission, after the termination of his employment.”[44]
While Jajoo was decided under the Workplace Relations Act, as Deputy President Clancy identified in Toohey v QBE Management Services[45], the Full Bench in CFMEU v Broadspectrum Australia Pty Ltd[46] confirmed Jajoo is:
“...authority for the finding that if an employee agitates a claim arising under an enterprise agreement while employed, the Commission has the jurisdiction to deal with the dispute, even after that employee’s relationship with the employer is terminated.”
Similarly, when also considering Jajoo, in a dispute under s.739, Commissioner Lee in Draeger v Ventura Bus observed:[47]
“…the key consideration is whether or not the Applicant has complied with the requirements of the relevant dispute settling procedure whilst still an employee of the Respondent.”
I am satisfied Mr Stott has met these requirements under the 2023 EA in this matter. Consistent with these authorities, I am satisfied he is entitled to have his dispute determined on this basis.
Conclusion
For the reasons cited above, I am satisfied the Commission has the power to determine Mr Stott’s dispute in relation to the period from 12 April 2023 – 2 May 2023 under the 2023 EA. The Respondent’s objection is dismissed in part. Mr Stott’s dispute for the period of 12 April 2023 to 2 May 2023 will now be programmed for determination.
COMMISSIONER
Appearances:
Mr P Reilly on behalf of the Applicant.
Ms A Agostino on behalf of the Respondent.
Hearing details:
2024.
Melbourne.
14 June.
[1] AE519670, PR60892 at Clause 6, Statement of Agreed Facts (SOFA) – Attachment 4, Court Book page 195.
[2] See Statement of Agreed Facts (‘SOAF’), Court Book pages 161 – 237.
[3] [2020] FWCFB 5054.
[4] [2022] FWCFB 93.
[5] See Respondent’s Outline of Submissions - Jurisdiction at [28], Court Book page 72.
[6] Ibid at [30], Court Book page 73.
[7] [2024] FWC 233 at [69].
[8] See Respondent’s Submission in Reply at [9], Court Book page 79, referencing ss 51(1) and 51(2) of the Fair Work Act 2009 and Vendrig v Ausgrid Pty Ltd[2021] FWCFB 370 at [40].
[9] Respondent’s Submission in Reply at [23], referencing [2022] FWCFB 93 at [73], Court Book page 81.
[10] Ibid at [30], Court Book page 83.
[11] Ibid at [36], Court Book page 84.
[12] Ibid at [36]-[40], Court Book pages 84 – 85.
[13] See Transcript of Proceedings on 14 June 2024 at [PN238].
[14] Ibid at [PN233] – [PN234], SOAF - Attachment 6, Court Book page 215.
[15] In further support of this interpretation, the Applicant refers to the decision of Flick J in Qantas Airways v ALAEA No.2 regarding what is required by discussions under a dispute settlement procedure. See Transcript of Proceedings on 14 June 2024 at [PN197] – [PN205].
[16] See ING v Jajoo and Murtagh v Corporation of the Roman Catholic Diocese of Toowoomba.
[17] Applicant’s Supplementary Submissions at [36]-[39], Court Book page 41.
[18] SOAF – Attachment 6, Court Book page 215.
[19] See Jennifer Roberts v Drewmaster Pty Ltd [2024] FWC 332 at [136].
[20] See Transcript of Proceedings on 14 June 2024 at [PN256] – [PN264].
[21] SOFA – Attachment 4, Clause 6 of the 2023 EA, Court Book page 198.
[22] Applicant’s Supplementary Submissions at [56], Court Book page 45, citing R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 et al.
[23] Simplot at [18].
[24] Falcon Mining at [62].
[25] SOAF – Attachment 4, Court Book page 136.
[26] Respondent’s Submissions in Reply - Jurisdiction at [18], Court Book page 80.
[27] Applicant’s Supplementary Submissions at [40]-[44], Court Book page 42.
[28] [2017] FWCFB 3005.
[29] [2018] FCAFC 131.
[30] [2020] FCA 951.
[31] [2024] FWC 233.
[32] Falcon Mining at [66].
[33] Applicant’s Supplementary Submissions at [54], Court Book page 45, SOAF – Attachment 7, Court Book page 216.
[34] SOAF – Attachment 8, Court Book pages 220 – 221.
[35] Respondent’s Submissions in Reply - Jurisdiction at [25], Court Book page 81.
[36] Applicant’s Supplementary Submissions at [44], Court Book page 42.
[37] Respondent’s Submissions in Reply - Jurisdiction at [25], Court Book pages 81 – 82.
[38] Applicant’s Supplementary Submissions at [35], Court Book pages 40 – 41.
[39] See Applicant’s Outline of Submissions on Jurisdiction at [55], Court Book page 12.
[40] Ibid at [56], Court Book page 13.
[41] See Nick Cleman v Victorian Department of Energy & Climate[2024] FWC 1448 at [23].
[42] PR974301.
[43] Applicant’s Supplementary Submissions at [51], Court Book page 44.
[44] Ibid.
[45] [2017] FWC 510 at [31].
[46] [2017] FWCFB 269.
[47] [2014] FWC 107.
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