Mr Jocque Tarentino v Thiess Pty Ltd

[2014] FWC 2922

[2014] FWC 2922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Jocque Tarentino
v
Thiess Pty Ltd
(C2014/3514)

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 29 MAY 2014

Summary: jurisdictional question relating to various dispute applications - whether compliance with stepped procedure in dispute clause - meaning of “may” in the context - whether a party can escalate dispute from preliminary stage to arbitration without recourse to any other procedural steps (including conciliation) - no statutory or accrued power to entertain application.

[1] This decision concerns a jurisdictional question which was pressed by Thiess Pty Ltd (“Thiess”) in relation to three applications notifying a dispute under s.739 of the Fair Work Act 2009 (“the Act”) in which it was a named party. In essence, the jurisdictional question, which I address below, concerns whether or not the applicants in each of the three applications have complied with the stepped requirements, as they may be, of the dispute resolution process in the applicable enterprise agreement prior to the application coming before the Fair Work Commission (“the Commission”). Thiess maintained that if the answer was in the negative – as it believed it must be – then the Commission was not jurisdictionally competent to deal with the dispute notification.

[2] It may be helpful at this early point to indicate that the three dispute notices referred to above were made by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) (on behalf of Mr Jocque Tarentino), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”). Over the course of the directions cycle, the CEPU and the AMWU withdrew their dispute notices. The CFMEU, however, pressed its application and challenged the jurisdiction objection raised by Thiess. I also add that Thiess was not prepared to reserve its objection on jurisdiction pending the conduct of a conference as to the matter in alleged dispute, and it fell to me subsequently to determine the jurisdictional point.

[3] As far as I can discern, the CFMEU argued - contrary to the claim by Thiess - that apart from the first two steps in the dispute resolution procedure in the Thiess Pty Ltd QCLNG Upstream Project Workplace Agreement (“the Agreement”), the remaining steps were couched in discretionary terms and did not require satisfaction for the purposes of accessing either the Commission’s conciliation or its arbitration functions.

[4] In its outline of submission, the CFMEU contended that sub clause 19.2(d) of the Agreement “states that the matter may be raised with the next level of management in the company [and this] is not prescriptive and is therefore only voluntary.” Sub clauses 19.2(d), 19.2(e) and 19.2(c) are couched in the same terms.

[5] This aside, the CFMEU contended that the factual case demonstrated that sub clauses 19.2(a), 19.2(b) and 19.2(c) of the Agreement had been satisfied and that access to conciliation by way of sub clause 19.2(e) of the Agreement did not rely on satisfaction of sub clause 19.2(d) of the Agreement.

[6] Before dealing with the competing constructions of the disputes resolution procedure, some background is necessary, as it leads to the factual case, which must also be dealt with.

Background

[7] Thiess performs a package of works within the wider QCLNG Upstream Project and under the terms of the Agreement. On 13 and 14 March 2014 Thiess experienced what it alleges to have been an unauthorised withdrawal of labour.

[8] By the memo dated 18 March 2014, Thiess advised its employees in the following terms:

(a) the period of absence and refusal to work amounted to unlawful industrial action and as a result those employees would not be paid.

(b) participation in unlawful industrial action will not be tolerated and could result in disciplinary action up to and including the termination of employment.

[9] Thiess thereafter made deductions for 13 and/or 14 March 2014 for the employees that it deemed to be relevant, and issued show cause letters as well.

[10] The following day, on 19 March 2014, two dispute notifications were filed under s.739 of the Act. One of these was by Mr Jocque Tarentino. Mr Tarentino was represented at the subsequent hearing by the CFMEU (as mentioned above). The other dispute was notified by the AMWU. Some days later - on 24 March 2014 - the CEPU also filed a dispute in relation to the same matter.

[11] Apart from the AMWU’s application, the other two applicants only effected service on Thiess at dates after the applications were made (and only after the matter of service was agitated by Thiess, it is claimed).

The dispute resolution process

[12] Clause 19 of the Agreement provides as follows:

Clause 19- Dispute Resolution Process

19.1 Objective of the Dispute Resolution Process

(a) The object of this procedure is to:

(1) Avoid disputes or grievances; and

(2) Provide prompt resolution of issues of concern.

19.2 Steps in the Dispute Resolution Process

Any disagreement or dispute about the application or operation of this Agreement or the National Employment Standards (in accordance with the Act) will be dealt with as follows:

(a) The employee concerned shall raise the matter with the appropriate team leader for resolution.

(b) If not resolved, the employee will raise the matter with his supervisor/superintendent of the Employer for resolution.

(c) If the matter remains unresolved, either the employee or their supervisor/superintendent is entitled to request a formal meeting with the Employer's Project Superintendent (as nominated by the Employer for this purpose).

(d) If the matter still remains unresolved, the matter may be raised at the next level of management (such as the State Manager) and a Senior Union Official (such as District Secretary or Assistant State Secretary of the Union).

(e) If still not resolved, the matter may be referred to Fair Work Australia (FWA) by the Company, the employee/s covered by the Agreement and raising the grievance, or one or more of the Unions covered by the Agreement for conciliation.

(f) If still not resolved, the matter may be referred to Fair Work Australia (FWA), by:

(1) the Company;

(2) the employee/s covered by the agreement and raising the grievance; or

(3) one or more of the Unions covered by the Agreement,

for arbitration.

(g) All levels within 19.2, the employee may have an employee representative in attendance.

(h) Any employee shall be entitled to invoke the Dispute Resolution Procedure to resolve a dispute between the Employer and the employee on the Project. Once the Dispute Resolution Procedure has been invoked by the employee, both employee and the Employer shall attempt in good faith to resolve the issue by utilising the above steps, as required until resolution is reached. In the event that the issue is not resolved, it will be referred to the FWA for resolution, as set out in 17.2(e) and (f).

(i) While that process is being pursued, work shall continue as normal. Failure to work within the process described in this subclause and/or failure of any employee to continue work as normal shall constitute a breach of this Agreement by the employee(s) involved.

j) The resolution of any dispute in accordance with this procedure cannot be inconsistent with the Code and Implementation Guidelines.

[13] Thiess contends that each step proceeding the initial step (at sub clause 19.2(a)) of the dispute resolution process must be followed before such time as a party can invoke sub clause 19.2(e) or sub clause 19.2(f) of the Agreement. It follows that all the steps (a) through to (d) must have been positively acted upon before such time as a dispute can be referred to the Commission.

[14] If there has been non-compliance with any or all of the steps in the dispute resolution process then, it further follows that the Commission has no jurisdiction to entertain the dispute application. The reason for this follows.

[15] The Commission has no accrued jurisdiction and can only exercise its powers as accorded to it by the statute. In the context of the above construction as posed, the Commission would have no jurisdiction to entertain a dispute application under clause 19.2 of the Agreement where a party had not followed the stepped procedure. In this respect, s.595 of the Act states that the Commission may only deal with a dispute if it is expressly authorised to do so in accordance with another provision of the Act.

[16] Section 595 provides as follows:

595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.

[17] Section 738 of the act provides as follows:

738 Application of this Division

This Division applies if:

[...]

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

[...].

[18] Section 739 of the Act provides as follows:

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties

(6) The FWC may deal with a dispute only on application by a party to the dispute

[19] The “term” referred to in s.738 of the Act to be taken as the “the term” for the purposes of s.739 of the Act. Thus, the Commission cannot exercise any powers limited by the dispute resolution settlement procedure in the applicable agreement.

[20] In essence, therefore, the Commission’s jurisdiction to deal with a dispute over the application of the enterprise agreement is conditional upon the terms of the dispute settlement procedure included therein, and not otherwise. Further, the Commission’s power to act in relation to the dispute as notified is contingent upon the satisfaction of the terms in the agreement, as properly constructed.

Thiess’ position on construction

[21] Thiess contends that the object of the dispute resolution process is to resolve matters at the local level, as it were, before such time as they are dealt with by a third party. And this means by exercising each procedural option under the dispute resolution process before such time as the matter can come before the Commission.

[22] Thiess draw support from the following claims.

[23] Sub clause 19.2(g) of the Agreement refers to employees having representation at “all levels” within the disputes process. Thiess contends the sub clause would have no work to do if employees were able to move from sub clause 19.2(b) to sub clause 19.2(e) of the Agreement.

[24] Sub clause 19.2(h) of the disputes process provides as follows:

In the event that the issue is not resolved, it will be referred to the FWA for resolution, as set out in 17.2(e) and (f). (My emphasis)

[25] Thiess contends that the proposition that it is only necessary to satisfy the steps at sub clause 19.2(a) and sub clause 19.2(b) of the dispute resolution process in order to access the Commission’s jurisdiction is inconsistent with the reading of sub clause 19.2(h) of the Agreement. If the CFMEU’s construction of the dispute resolution process was correct, it would mean that the Commission’s arbitration powers would be accessible upon satisfaction of sub clauses 19.2(a) and 19.2(b) of the Agreement only.

[26] Put another way, sub clause 19.2(h) of the Agreement requires that a dispute not resolved by the prior processes will be referred to the Commission for the purposes of both conciliation, and if that is unsuccessful in resolving the matter in dispute, then arbitration. The sub clause does not contemplate that the jurisdiction of the Commission (for the purposes of either conciliation or arbitration) can be selectively accessed. Rather, it suggests that the jurisdiction must be accessed on a stepped basis (firstly conciliation, then arbitration if conciliation is unsuccessful). This is so notwithstanding that sub clause 19.2(e) of the Agreement is couched in the same terms as the preceding steps, and uses the expression, “the matter may be referred”, this time in relation to arbitration by the Commission.

[27] If it was discretionary to utilise the procedures at sub clause 19.2(d) of the Agreement and sub clause 19.2(e) of the Agreement, an employee or employer would then have an opportunity when in dispute to proceed directly to sub clause 19.2(f) of the Agreement - which entails arbitration by the Commission.

[28] If this were so, sub clause 19.2(h) of the Agreement would have not work to do as it is predicated upon a dispute being subject both to conciliation and arbitration (and not arbitration only).

[29] Thiess makes the further, and related, point that sub clauses 19.2(e) and 19.2(f) of the Agreement are themselves predicated on “may”, which on the Applicant’s argument would mean that sub clause 19.2(h) of the Agreement would need to have been drafted as, “17.2(e) or (f)” (noting that reference to sub clause “17” is taken to be a typographical error and should be a reference to sub clause “19”), consistent with the above. That is, conciliation before the Commission would not be a necessary step in the disputes resolution procedure.

[30] If all that is required is the satisfaction of the steps at sub clause 19.2(a) and 19.2(b) of the Agreement, then Thiess contends that a party can immediately proceed to arbitration without the involvement of Thiess management or a senior union official.

[31] Consistent with the argument put above, Thiess contends under the CFMEU’s construction (at least as initially advanced) that the parties would be denied access to conciliation under sub clause 19.2(e) of the Agreement because the use of the term “may” means that any party can proceed directly to arbitration (without the benefit of conciliation).

[32] Thiess argues that such a construction of the dispute resolution process could not have been a reasonable expectation of the parties at the time the Agreement was made. But this aside, it is only upon acceptance of the Thiess construction of the dispute resolution process at clause 19.2 of the Agreement can all the sub clauses of the Agreement be read harmoniously (with sub clause 19.2(h) of the Agreement operating conformably with the remaining sub clauses in clause 19.2 of the Agreement).

[33] Thus, Thiess submits that the parties contemplated a situation where “adherence to a previous step is conditional for the next” step (which is the objective of a genuine dispute resolution process).

[34] Of course, the expression “may” (like the word “entitled” at sub clause 19.2(c) of the Agreement) is not a mandatory term, and it connotes the exercise of discretion as to whether the relevant opportunity will be acted upon. The authorities in this regard were helpfully set out in the decision of Roe C, in Cordelle v Medibank Private Limited[2014] FWC 1194.

[35] Yet the expression “may”, ultimately, will take its meaning from the construction of the Agreement (in this case), read in context and as a whole.

[36] Thiess relies on the construction as set out earlier in conditioning the meaning of the “may” (and “entitled”) in the context of the disputes procedure (as discussed above).

[37] Thiess further contends that the use of the term “may” is a drafting technique, in effect, that is designed to provide a party with an option of leaving the matter at a particular process stage or proceeding to the next step. Therefore, “may” directs attention to the discretion of the parties “to park” or leave a dispute (settled or otherwise) at a particular stage in dispute resolution process, or to elect to proceed to the next stage. The term was not intended to convey the meaning that the subclause was optional and that a party could proceed straight to arbitration in the Commission from any one of the prior stages in the process (as may be the case in any particular dispute).

[38] Thiess contended that this was the approach adopted by Roe C in Cordelle v Medibank Private Limited (see paragraphs 11 and 16) which dealt with the term “may” in a dispute resolution procedure. The Commissioner in that matter found, following a careful consideration of the relevant facts and the rules of construction, that the application before him was not jurisdictionally competent as there had not been compliance with the dispute resolution process (in so far as the relevant party had not completed the sequenced disputes procedure).

[39] The decision concerned a disputes procedure in particularly similar terms as that which is now before me.

[40] Thiess further argues that support for its construction is garnered by the use of the phrase, “If still not resolved” as a prelude to each step in the dispute resolution process. It argues that this phrase connotes that access to the next stage is conditional on an effort having been made at the immediately prior stage to resolve the matter in dispute. Sub clauses 19.2(b) through to (f) build on this cascading precondition. In this sense the dispute resolution process constitutes a series of lock-sequenced steps or “an internal hierarchical process” that must be exhausted before the Commission’s jurisdiction can be accessed.

[41] Ultimately, therefore, it seems to follow that a complainant, having stepped through the sequenced dispute process, “may” elect to have the issue in dispute arbitrated, or the matter might be “parked” at the outcome reached in conciliation (the immediately prior step).

[42] It is only if the dispute resolution process is characterised in this way that the phrase, “If still not resolved”, as it appears in the disputes procedure, can be given any work to do across 19.2 as a whole.

[43] Generally, Thiess argues that should the construction agitated for by the CFMEU be accepted then any employee who has a dispute or concern about their employment would (at least at points in time) be able to refer the matter directly to the Fair Work Commission for the purposes of arbitration, and without having recourse to any other than the preliminary steps in the dispute resolution procedure (namely, having raised the matter with a team leader or supervisor for the purposes of sub clause 19.2(a) and sub clause 19.2(b) of the dispute resolution process). That is, there would be no requirement for the dispute to be considered by the Project Superintendent or by the next level of management, being a State Manager or the District or Assistant State Secretary of the relevant union.

[44] Such an outcome, it was contended, cannot have been the intention of the parties who drafted the Agreement.

[45] I note at this point that the CFMEU position, as it was ultimately put in submission, did not necessitate a reading of sub clause 19.2(d) of the Agreement on the basis of its language, as such. Rather, the CFMEU position was that sub clause 19.2(d) simply, because of practicalities on a remote site, did not require satisfaction.

Conclusion on construction

[46] The contentions put by Thiess as to the construction of sub clause 19.2 of the Agreement are compelling. At first blush, the case, as it was, put by the CFMEU has an attraction as the stepped disputes resolution process appears discretionary in so far as steps 19.2(c) of the Agreement through to sub clause 19.2(f) of the Agreement are concerned. Further, sub clause 19.2(g) of the Agreement states that an employee “may” have an employee representative in attendance, and there can be no claim that the disputes procedure mandates such representation before the disputes steps can be accessed.

[47] But that said, when the clause is read as a whole and in context, the construction proposed by Thiess (as I have set out above) provides the only means by which the clause can be read harmoniously. In addition - and though it is not determinative in its own right - the industrial outcome following from such a construction is common and unexceptional, and thus reasonable in its terms.

The Factual Case

[48] The parties came into conflict on 13 and 14 March 2014, over the adequacy of safety procedures on site, following a safety walk involving various CFMEU officials and Health and Safety Representatives. A stoppage of work followed. An application was made under s.418 of the Act by Thiess on 13 March 2014. After such time as the application was called on, an agreement was reached, following very lengthy discussion, for the resumption of work. The application under s.418 of the Act was withdrawn as a consequence.

[49] The stoppage of work occurred over some 16.5 hours between 13-14 March 2014.

[50] It appears that the issue of payment for work not performed over those hours was raised on 14 March 2014 by the CFMEU. The Thiess position, as represented by the CFMEU, was that the local staff were not able to make decision on such matters and directions in those regards would need to come “from Brisbane”.

[51] That is, on the CFMEU’s evidence, Thiess had not articulated a position in relation to the payment of wages for the employees who had ceased to perform their ordinary duties as at 14 March 2014.

[52] The evidence given in these proceedings by both Mr Mark O’Brien, an Organiser who is employed by the CFMEU, Mr Alex Cousner, an Industrial Officer for the CFMEU and Mr Tarentino, supports the above contentions.

[53] Mr Tarentino himself gave evidence that he raised the issue of payment with his purported Team Leader/Supervisor, “Wattsy” on 14 March 2014, and “asked”:

“Wattsy, do you think we will be paid for the last few days?”

Mr Tarentino stated the reply was:

“I don’t know”.

[54] This also appears to have been the position - at the same time - of Mr Shaun Taylor, who Mr Tarentino states was his union representative. Mr Taylor stated that Mr O’Brien informed him on 14 March 2014 that the issue of payment was a matter to be determined by a Thiess decision “from Brisbane”, and not locally.

[55] Mr Tarentino stated that after the response “Mr Taylor and Mr O’Brien then continued to raise these issues on my behalf.”

[56] Mr Taylor gave no evidence in these proceedings. Mr O’Brien’s written evidence, filed by the CFMEU at the same time as Mr Tarentino’s evidence, makes no reference to taking actions on Mr Tarentino’s behalf.

[57] Mr Tarentino discovered upon receiving his usual payslip on 19 March 2014 that his payments for the work cycle had been deducted for the stoppage.

[58] Mr Tarentino stated that on 6 April 2014, some 18 days after the dispute notification was made, he presented at Mr Meldrum’s office (Mr Meldrum being the Regional Manager) and asked to meet with him. Mr Tarentino was directed to meet with HR staff given Mr Meldrum’s unavailability.

[59] At that subsequent meeting (with Thiess’ HR staff) Mr Tarentino was informed that, “no one would be paid for 13 and 14 March 2014 until the matter was settled in the Fair Work Commission.” Mr Tarentino formed the view that there was no further utility in holding further discussions at the site level given Thiess had adopted that position.

Communication of the Thiess position on payment

[60] Thiess did not articulate a position in relation to the non-payment of wages until such time as Thiess advised employees of its final position by written memorandum on 18 March 2014 (some few days after the stoppage).

[61] The content of that Memorandum was to the effect that the period of absence from work “amounted to unlawful industrial action” and that “participation in unlawful industrial action would not be tolerated and could result in disciplinary action, up to and including termination of employment.” Show cause letters were issued subsequently. The Memorandum read relevantly as follows:

On 13 March and 14 March 2014, a number of employees at the Woleebee Creek CPP on the QCLNG Upstream CSG Project Site were absent from work and failed to perform duties in accordance with the Thiess Pty Ltd QCLNG Project Upstream Works Agreement.

Thiess advised those employees directly and through the Health and Safety Representatives that alternative duties would be made available to ensure that any reasonable concern about an alleged imminent risk to health and safety could be addressed in further discussions with relevant representatives.

Those employees refused to return to work to undertake alternative duties. Therefore, the period of absence and refusal to work by those employees amounts to unlawful industrial action, and as a result, employees who participated in this action will not be paid.

Non-payment during participation in unlawful industrial action is in accordance with the Fair Work Act 2009 (Cth).

Thiess is committed to working with employees in accordance with the dispute resolution process in the Thiess Pty Ltd QCLNG Project Upstream Works Agreement to address safety concerns.

Participation in unlawful industrial action will not be tolerated and could result in disciplinary action, up to and including termination of employment.

If you require any further information or clarification please talk to your supervisor or a member from the site HR team.

The wider evidence

[62] The (surviving) dispute notification under s.739 of the Act was made on 19 March 2014 (by the CFMEU on behalf of Mr Tarentino). Service of the application upon Thiess was in a subsequent period of time.

[63] The jurisdictional objection to the dispute application was heard on 5 May 2014, following the jurisdictional objection being raised at the conference held on 28 March 2014.

[64] Ms Katerine Steenstrup, HR Superintendent for the Northern part of the QCLNG Upstream Coal Seam Project, gave evidence at the hearing in relation to the content and timing of the memorandum referred to above.

[65] Ms Steenstrup also gave evidence that since 18 March 2014, only one employee has raised an issue about the content of the memorandum and that employee is not covered by the dispute application (or the withdrawn CEPU and AMWU applications either).

[66] Ms Steenstrup also claimed that prior to 29 March 2014 the CEPU, the AMWU and Mr Jocque Tarentino had not raised a dispute with Thiess (at any level) about its position in relation to the non-payment of wages following the communication of its position on 18 March 2014. Ms Steenstrup stated that if such a dispute had been notified either through Leading Hands, the Supervisors/Superintendents, or the Project Manager, she would expect to have heard about it. But she had not.

[67] Ms Rebecca Stoll, an HR Advisor on the Project, gave evidence in which she identified the relevant Supervisors or Superintendents for the employees represented by the CEPU and the AMWU, and for Mr Tarentino, along with the (Regional) Project Manager (Mr Meldrum).

[68] Ms Stoll stated that she had confirmed with each of the named Supervisors or Superintendents, including the Regional Manager, that the issue of non payment of wages for 13/14 March 2014, and/or the disciplinary process mentioned in the memorandum of 18 March 2014, had not been raised with any of them by the relevant employees.

[69] Ms Stoll recalled that the issue of payment arose on 13 March 2014 when the ETU delegate (Mr Nicol) raised the matter with her, but nobody else at site to her knowledge. But even there Ms Stoll states that she was informed by Mr Nicol only in the following indirect terms:

“Rebecca, take note of the time, it’s 4 pm and we’re going back to work.”

[70] Ms Stoll had no knowledge of any other person or union delegate raising on site the issues of payment and potential disciplinary action by way of the above cited memorandum, prior to the 28 March 2014 dispute conference.

Conclusion on the factual case

[71] There is no evidence that prior to making the dispute application on 19 March 2014 that Mr Tarentino, then represented by the CFMEU, met any of the steps required under the dispute resolution process under the Agreement. Mr Tarentino may have asked “Wattsy”, who he says was his Team Leader at the time, what he thought might be the position on payment during the stoppage. But such a passing comment that does not constitute raising a dispute or disagreement under the Agreement. Mr Tarentino did not press “Wattsy” for a position. Indeed, given “Wattsy” too was involved in the stoppage, it reasonably may be inferred that Mr Tarentino (absent any other evidence) was raising the matter merely in passing conversational terms with a fellow employee, rather than raising a dispute with this employer through his Team Leader, and in respect of which he sought a considered response. The context is important in properly characterising Mr Tarentino’s conduct and intention.

[72] Further, there is no evidence that Mr Tarentino has ever discussed any dispute about payment for time not worked with the State Manager for the Project, as required under sub clause 19.2(d) of the Agreement (putting aside whether he had ever done so with his Team leader or Supervisor/Superintendent), in accordance with the disputes procedure

[73] Mr Tarentino, on his own evidence, appears not to have realised he was in contest with his employer on the matter until such time as his payslip - received on 19 March 2014 - showed he had not been paid for the time not worked on 13-14 March 2014. Again, the dispute application was made on 19 March 2014.

[74] I indicate at this point that Mr Tarentino’s written statement in these proceedings made no reference to having been aware of the memorandum of 18 March 2014, as cited earlier.

[75] It follows that at the time the dispute application was made on 19 March 2014, Mr Tarentino cannot be said to have met the requirements of the dispute resolution process in the Agreement; upon becoming aware of the non-payment he had taken no steps before the dispute notification was made to satisfy the requirements of sub clauses 19.2(a), 19.2(b), 19.2(c) and 19.2(d) of the Agreement.

[76] The evidence of Mr O’Brien and Mr Cousner of the CFMEU takes the issues no further in these regards.

[77] I also note that there is no evidence that Mr Tarentino has raised with any person the disciplinary matter raised in the Memorandum of 18 March 2014 (as opposed to the payment of wages matter). The disciplinary matter raised in the Memorandum is a matter referred to as a source of disputation in the dispute notification of 19 March 2014, at paragraph 12 thereof.

[78] At its highest, Mr Tarentino’s evidence suggest that he intended to raise the issue of the “Final Warning” given to him at the meeting he sought with Mr Meldrum on 6 April 2014 (some 18 days after the dispute application had been made in the Commission).

Conclusion

[79] Generally, there is no satisfaction of the stepped dispute resolution process under the Agreement by Mr Tarentino in relation to the disciplinary action proposed (at the time) by Thiess. The departures from the stepped procedure are quite fundamental.

[80] In light of this finding, the Commission is without jurisdiction to exercise any powers in relation to the dispute notification (let alone, as specifically sought, to arbitrate in relation to the payment of wages for time not worked on 13-14 March 2014, or to “order that no disciplinary action be taken against employees” in relation to the stoppage of work in that period).

[81] The Commission cannot proceed to deal with the application in accordance with the term of the Agreement dealing with the dispute resolution process. The application (should it be able to be described) must be dismissed as a consequence, there being no (statutory or accrued or inherent) powers by which the Commission can otherwise entertain or exercise any powers in relation to it.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr A. Cousner, CFMEU, for the Applicant

Mr M. Coonan, Herbert Smith Freehills, for the Respondent

Hearing details:

Brisbane

2014

5 May

Final written submissions

2014

20 May

Printed by authority of the Commonwealth Government Printer

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