Mr Marcus Clohesy v Whitehorse City Council

[2011] FWA 7882

[2011] FWA 7882

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

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

Mr Marcus Clohesy
v
Whitehorse City Council
(C2011/6374)

COMMISSIONER SMITH MELBOURNE, 25 NOVEMBER 2011

Alleged dispute in relation to the use of disciplinary procedures and alleged construction of a dismissal; ss738 and 739; no jurisdiction.

[1] The following decision, now edited, was issued during proceedings conducted on 10 November 2011.

[2] This is an application made by the Australian Services Union pursuant to s.739 of the Fair Work Act 2009 (the Act). Section 739 introduces a power for a party to notify a dispute in relation to certain matters provided that they are contained in instruments outlined in s.738. In this matter the notifying union indicates that it raises a dispute in relation to the proper application of the agreement and in particular seeks to pursue the matter by way of the settlement of disputes procedure contained in the Whitehorse City Council Collective Agreement 2009 [AE874045].

[3] The Whitehorse City Council objects to the matter proceeding firstly and primarily on jurisdictional grounds. It argues that the subject matter, or the characterisation of the dispute, is not a matter that arises under the agreement and is not a matter that can properly fit within the description of the dispute settlement term, namely ‘a dispute or grievance about the application of this agreement’. The ASU, in response to that matter, draws my attention to a number of clauses within the agreement: clause 2.2.4, personal health and wellbeing, and clause 4.6, human rights and equal opportunity.

[4] It is put by Mr Michaelson that the Tribunal has, in a number of areas, decided that when reading agreements one should not take a narrow approach, and indeed there is authority for that proposition. However, the authority for that proposition tends to go further and identify the particular clause and states that the issue that is agitated must be reasonably incidental to the nature of the specific clause. The issue that is characterised in the dispute before me does not appear to be reasonably incidental to the operation of these particular clauses. I am also not satisfied that clause 4.6(b) has the effect of incorporating the policies and practices of the Whitehorse City Council into the agreement. I have not examined any other clauses to see whether or not the policies or procedures are incorporated into the agreement.

[5] Accordingly, I find that the characterisation of the dispute and the matter raised before me is not within the jurisdiction conferred by the agreement of the parties. I dismiss the application made by Mr Clohesy. I have been asked, if I do dismiss the application, to adjourn into conference. Given that the employer has raised a jurisdictional question and does so upon reflection it would not be appropriate for me to move into a conference.

COMMISSIONER

Appearances:

S. Michaelson for the applicant.

R. Jackson of counsel on behalf of the Whitehorse City Council.

Hearing details:

2011.

Melbourne:

November, 10.

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