Mr Paul Joyner v Aldi Foods Pty Ltd
[2018] FWC 336
•7 February 2018
| [2018] FWC 336 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Paul Joyner
v
ALDI Foods Pty Ltd
(C2017/3672)
| Commissioner Spencer | BRISBANE, 7 February 2018 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – jurisdictional objection – dispute settlement procedure requires agreement for arbitration – additional provisions considered – objection upheld.
INTRODUCTION
An application pursuant to s.739 of the Fair Work Act 2009 (the Act) was made by Mr Paul Joyner (the Applicant) in relation to an alleged dispute arising under the ALDI Stapylton Agreement 2012 (the Agreement) with ALDI Foods Pty Ltd (the Respondent).
The Respondent operates a distribution centre located in Stapylton, Queensland. The Applicant is employed as a Warehouse Operator on a permanent part-time basis. The dispute alleged that the Applicant did not have a rostered finishing time for each shift and that the Respondent did not guarantee the Applicant’s “contract hours” each pay period, although he was remunerated for such each week. Where contract hours were not required, unworked hours accrued as banked hours.
The Applicant proposed the following questions for arbitration:
“1. Does the enterprise agreement permit ALDI to not provide a finishing time on Mr Joyner’s roster without agreement from Mr Joyner?
2. Does the enterprise agreement permit ALDI to not guarantee Mr Joyner his Contract Hours without agreement from Mr Joyner?”
The Respondent raised a jurisdictional objection stating that the Fair Work Commission (the Commission) lacked jurisdiction to arbitrate a dispute in accordance with the “Resolution of Disputes” procedure in the Agreement without the consent of the parties. The Respondent submitted that it had not agreed to arbitration. This decision only deals with this jurisdictional objection.
The matter was listed for Conference however was unable to be resolved. Directions were issued for the filing of material in relation to the Respondent’s jurisdictional objection and the matter was listed for Jurisdictional Hearing in Brisbane.
The Applicant was represented by Mr Dario Mujkic, Industrial Officer of the National Union of Workers. The Respondent was represented by Mr Garry Hatcher SC with Ms Anna Perigo of Counsel, instructed by Enterprise Law. The Applicant’s representative did not object to the legal representation of the Respondent. Given the complexity of the substantive and jurisdictional matters, the Respondent was granted permission to be represented (pursuant to s.596 of the Act).
Whilst not all of the submissions and evidence are referred to in this Decision, all of such have been considered.
RELEVANT PROVISIONS OF THE ACT
Sections 738 and 739 of the Act provide the power to arbitrate, subject to the disputes procedure in the Agreement:
“738 Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(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
(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.
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) effect as 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.”
RELEVANT PROVISIONS OF THE AGREEMENT
Clause 29 of the Agreement states:
“29. Resolution of Disputes
The parties acknowledge the value of the dispute resolution procedure and agree to abide by the following in resolving any disputes that may arise:
…
·If the matter in dispute relates to a matter arising under this Agreement or the National Employment Standards, and the Employee is dissatisfied with the results of the appeal to the Managing Director, they can apply to Fair Work Australia. Fair Work Australia will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation.
·If the dispute remains unresolved, ALDI and the Employee/s involved in the dispute may agree for Fair Work Australia to then arbitrate the dispute and make a determination that is binding on the parties.
·If arbitration is agreed to, Fair Work Australia may exercise the procedure powers in relation to hearings, witnesses, evidence and submission in line with the Act which are necessary to make arbitration effective.
·The decision of Fair Work Australia will bind the parties, subject to either party exercising a right of appeal against the decision.
·The procedures set out above in relation to the arbitration of disputes will apply where an employee claims that they are no better off overall under the terms of this agreement than they would be under the provisions of the Relevant Modern Award, and also, where ALDI and the employee are unable to agree on the employee’s reasonable weekly hours.”
[Emphasis added]
Clause 12 of the Agreement states:
“12. Hours of Work
Employees may be engaged to work on a full-time, part-time, limited roster or casual basis.
…
Part-time Employees
Part-time Employees will work fewer than 38 hours per week on average and may be engaged as either Salaried Employees or Hourly Rate Employees, and will receive pro rata entitlements under this Agreement, including pro rata salary payments.
On commencement of employment, Hourly Rate Part-time Employees will be advised of their Contract Hours and the maximum number of hours which will be paid at the Bankable Hourly rate of pay for their classification. ALDI will vary these hours only by agreement with the Employee and will take effect from the first full pay period after agreement is reached.
It is ALDI’s policy to be flexible and receptive to requests from employees to reduce their working hours. Therefore, in accordance with the National Employment Standards, where an Employee wishes to reduce the hours they are required to work, the Employee will identify the basis on which the hours to be worked are unreasonable. ALDI will not unreasonably deny any Employee’s request to reduce their hours of work.
If the Employee and ALDI cannot reach agreement on the hours of work to apply to the Employee’s position, the Resolution of Disputes provision of this Agreement will be followed and the parties will agree to Fair Work Australia arbitrating and making a binding determination to resolve the matter.
Bankable Hours Arrangements
Bankable Hours arrangements are available to be used by non-Casual Hourly Rate Employees.
Employees accrue towards their Contract Hours all hours actually worked, hours on authorised paid leave and unpaid leave, hours actually worked as overtime and on public holidays. Any hours in excess of the Contract Hours accrued in a pay period may be banked. Alternatively, the Employee may choose to have all Bankable Hours paid in each pay period.
Hours “banked” may be paid in subsequent pay periods if the Employee wishes, or may be used to reduce the number of Contract Hours worked in subsequent pay periods. Where the Employee works less than their Contract Hours, his/her “banked” hours will be used to pay the Employee the Contract Hours for the pay period.
If the Employee does not accrue their full Contract Hours and does not have sufficient “banked” hours he/she will still be paid his/her Contract Hours. In this case the Employee’s “banked” hours will go into minus. All minus “banked” hours will need to be made up using the Employee’s future excess hours prior to these excess hours being “banked” or paid.
Overtime hours cannot be “banked” from one pay period to the next and as such will be paid in full in the next pay period after such hours are worked. Hours which attract a shift loading may be banked, however the shift loading will be paid in the following pay period after the hours are worked. Hours Banked Hours will be paid at the Employee’s Bankable Hourly Rate.
On commencement of this Agreement, the pay period will be a calendar month.
On their commencement, Schedules 5, 6, 7 and 8 will override these provisions and Contract and Bankable Hours will be calculated on a fortnightly basis in accordance with these Schedules.
…”
[Emphasis added]
SUMMARY OF THE RESPONDENT’S SUBMISSIONS ON JURISDICTION
The Respondent raised a jurisdictional objection to the arbitration of the matter. The Respondent submitted that cl.29 (Resolution of Disputes) of the Agreement relevantly states:
“29. Resolution of Disputes
…
If the dispute remains unresolved, ALDI and the Employee/s involved in the dispute may agree for Fair Work Australia to then arbitrate the dispute and make a determination that is binding on the parties.
If arbitration is agreed to, Fair Work Australia may exercise the procedure powers in relation to hearings, witnesses, evidence and submission in line with the Act which are necessary to make arbitration effective.
…”
[Emphasis added]
It was submitted that there was no agreement by the parties to the arbitration of the dispute.
The Respondent also referred to the following further paragraph in cl.29 dealing with the arbitration of disputes (in particular circumstances), that states:
“…
The procedures set out above in relation to the arbitration of disputes will apply where an employee claims that they are no better off overall under the terms of this agreement than they would be under the provisions of the Relevant Modern Award, and also, where ALDI and the employee are unable to agree on the employee’s reasonable weekly hours.
…”
The Respondent stated that the references to the “better off overall test” and “the employee’s reasonable hours” referred to specific references in other provisions of the Agreement, “which contemplate the invocation of the dispute procedure,”[1] in these particular circumstances. In the case of a dispute over “the employee’s reasonable hours,” the Respondent submitted that the relevant provision was set out in Part A of Schedule 3 of the Agreement:
“Part A – Hours of Work and Overtime
…
The reasonable additional hours to be worked by full time employees over 38 per week are agreed with the employee on commencement. It is ALDI’s policy to be flexible and receptive to requests from employees to reduce their working hours. Therefore, in accordance with the National Employment Standards, where an employee wishes to reduce the hours they are required to work, the Employee will identify the basis on which the hours to be worked are unreasonable. ALDI will not unreasonably deny any Employee’s request to reduce their hours of work… If the Employee and ALDI cannot reach agreement on the hours of work to apply to the Employee’s position, the Resolution of Disputes provision of this Agreement will be followed and the parties will agree to Fair Work Australia arbitrating and making a binding determination to resolve the matter.
…”
[Emphasis added]
The Respondent submitted, in the case of the Applicant, no request had been received from the Applicant to reduce his hours.
The Respondent referred to the ordinary principles of construction of industrial instruments.[2] In dealing with the application of cl.12, the Respondent submitted:
“22. It is important to read the provisions in context. In clause 12, Hours of Work, provision is made for the manner in which part time employees work. The clause states that on commencement, Hourly Rate Part Time Employees will be advised of their contract hours and the maximum number of hours which will be paid at the Bankable Hourly rate of pay for their classification. These hours are only to be varied with the employee’s agreement.
23. The clause then continues to outline the process where an employee may request to reduce their working hours, on the basis that the employee considers the working hours are unreasonable. It is in this context, where an employee has made such a request and there is no agreement between the employee and the Respondent as to whether the reduction in hours is reasonable, that the parties agree to the Commission arbitrating the dispute.
24. Allowing the Commission to arbitrate, therefore, only arises in the situation where the employee requests a reduction to the hours of work that apply to the position on the basis that the hours are unreasonable and there is no agreement to that request.
25. Further, viewing the text of the agreement as a whole, including the reference in clause 29, it is clear that the matters where arbitration is agreed are reasonable requests by employees to reduce their weekly or contracted hours of work.”[3]
The Respondent made reference to the background of cl.12 and stated that the provision came about as a result of a previously unsuccessful application for the approval of an enterprise agreement. The Respondent stated that during the process, an issue was identified regarding, “the extent to which the agreements deprived employees of the effective capacity to refuse to work hours in excess of 38 hours per week…”[4] To resolve this issue, the Respondent indicated that it would offer an undertaking that, “it would agree to arbitration by FWA of any dispute over reasonable working hours.”[5] This undertaking was incorporated into later enterprise agreements, including the Agreement the subject of this dispute.
The Respondent submitted that having regard to this background, the provision related to the Commission’s jurisdiction to arbitrate the “reasonableness” of a request by an employee to reduce their working hours.
It was submitted that there was already an agreement regarding the contract hours of the Applicant’s position.[6] The Respondent submitted that the Applicant appeared to be inviting the Commission to determine the contractual rights of an employee and whatever jurisdiction the Commission did have, it was submitted such did not extend to the power to arbitrate contractual matters.[7]
SUMMARY OF THE APPLICANT’S SUBMISSIONS ON JURISDICTION
The Applicant submitted there were four circumstances under which the Commission may arbitrate a dispute referred to it, arising under the Agreement:
“(i) Arbitration of the dispute has been agreed to by the parties to the dispute;[8] or
(ii) An employee claims they are no better off overall under the terms of the agreement than they would be under the relevant modern award;[9] or
(iii) ALDI and the employee are unable to agree on the employee’s reasonable weekly hours;[10] or
(iv) ALDI and an employee “cannot reach agreement on the hours of work to apply to the employee’s position”[11].”[12]
The Applicant contended that there was no agreement on working hours and that this provides the circumstances in which the Commission may arbitrate. The Applicant also referred to the ordinary principles of construction and stated that the provision should be constructed as follows:
“11. The hours of work that apply to a position are the hours of work that have some bearing on or are pertinent to that position. That is the plain meaning of the word “apply” as used in the relevant phrase.
12. If the relevant hours of work (that is, the hours of work “that apply” to a position) are to have bearing on or be pertinent to an employee’s position, the referenced hours of work must be the hours of work applicable in general to a position rather than specific hours of work (eg. a particular start or finish time on any one day, or the particular number of hours worked in any one pay period). The former are hours of work that apply to a position; the latter are simply hours of work.
13. Therefore, for this dispute application to be arbitrated by FWC, the Commission must be satisfied that the dispute or disputes before it relate to the hours of work applicable in general to Mr Joyner’s position. It is submitted that they clearly do.”[13]
The Applicant stated that the absence of a finishing time on his roster and the Respondent’s alleged refusal to guarantee his contract hours were matters that clearly relate to the hours of work applicable to his position.
CONSIDERATION
This matter concerns a jurisdictional objection, that the Commission lacked the power to arbitrate the dispute, pursuant to the disputes procedure and other provisions providing dispute mechanisms in the Agreement, as set out.
In summary terms, the substance of the dispute related to the working of rostered hours and the accrual of “negative banked hours” when contract hours were not required to be worked. That is, employees are paid for contract hours each week and where some of those hours are not required to be worked at their rostered time they are banked to be worked at a later stage as required. Under the Agreement, the Respondent may compel employees to work those hours at other times. In certain circumstances, the working of these banked hours at a later stage may attract a higher rate of pay (for example, in overtime situations). The Applicant submitted that the dispute arose as a result of employees not being required to work their contract hours and therefore, not being aware of their finishing time.
The Applicant referred the dispute to the Commission in the following terms:
“1. Does the enterprise agreement permit ALDI to not provide a finishing time on Mr Joyner’s roster without agreement from Mr Joyner?
2. Does the enterprise agreement permit ALDI to not guarantee Mr Joyner his Contract Hours without agreement from Mr Joyner?”
Three provisions of the Agreement were examined as to whether they conferred jurisdiction on the Commission, to arbitrate the dispute. It is convenient to deal with the interpretation of each provision in turn.
In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri),[14] a Full Bench of the Commission summarised the principles with respect to the interpretation of enterprise agreements, as set out:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”[15]
In Kucks v CSR Limited,[16] a narrow or pedantic approach to interpretation was discouraged:
“…the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”
Firstly, cl.29 (Resolution of Disputes) of the Agreement was referred to. It states, in part, as follows:
“…
If the dispute remains unresolved, ALDI and the Employee/s involved in the dispute may agree for Fair Work Australia to then arbitrate the dispute and make a determination that is binding on the parties.
If arbitration is agreed to, Fair Work Australia may exercise the procedural powers in relation to hearings, witnesses, evidence and submission in line with the Act which are necessary to make arbitration effective.
…”
[Emphasis added]
There is no ambiguity to the wording of this provision. It is clear on the ordinary meaning of the words that if both parties agree to the arbitration of a dispute that has been unable to be resolved through the prior steps of the procedure, it may be referred for arbitration before the Commission. If either party does not agree, there is no implied or expressed ability for a dispute to be referred unilaterally, by one party for arbitration.
The last paragraph in cl.29 was referred to the Applicant as an alternative means to arbitrate the dispute:
“…
The procedures set out above in relation to the arbitration of disputes will apply where an employee claims that they are no better off overall under the terms of this agreement than they would be under the provisions of the Relevant Modern Award, and also, where ALDI and the employee are unable to agree on the employee’s reasonable weekly hours.”
[Emphasis added]
This paragraph is applicable to disputes affording jurisdiction on the Commission to arbitrate a dispute, in the circumstances set out, in relation to an assessment of the BOOT. The Respondent objected to the jurisdiction arising in respect of this provision, stating that this was not such a dispute (regarding a BOOT determination). In any event, the Applicant did not seek to rely on this part of the disputes procedure, as set out below.
In dealing with the “better off over all” aspect of this provision, Mr Mujkic stated:
“My view is the issue with that is this, that would give the Commission the power to arbitrate, arguably, my submission it would, it would give the Commission the power to arbitrate that issue but what can the Commission do in that arbitration apart from say that “Yes, you are better off overall” or “No, you are not better off overall”?
I believe it wouldn’t be able to assist us much more than that and that doesn't go to the issue of what the agreement permits, which is fundamentally the issue in dispute, does the agreement permit these two arrangements and that's why we’ve relied instead on the terms that can be found on page six of the agreement, in clause 12. If one looks at page six under the sub-heading Part Time Employees, we were just looking at this a little earlier, the last paragraph of that section of the clause, part time employees, says “If employee and Aldi cannot reach agreement on the hours of work to apply to the employee's position, the resolution of disputes provision of this agreement will be followed and the parties will agree to Fair Work Australia arbitrating and making a binding determination to resolve the matter.
That paragraph can also be found in schedule seven on page 49 and I think it's in the same terms but if it’s not, it’s virtually identical…”[17]
In relation to this provision, Mr Hatcher stated:
“The employee is entitled, where they say “Look, we’ve fallen behind. Our classification is different now to the award classification”. For whatever reason, they can go along to our client and say “Well, we’re not happy with this. What do you say?” and if they're not able to reach agreement, then it can come before the Commission and the Commission can make that same test that it would have done at test time as to the employee’s position.
…
Well the question under the award would be, does the relevant award – firstly, what is the relevant award? Secondly, does the relevant award have an averaging of hours provision, in which case whether an entitlement to overtime arises over 38 or over 76 or over…”[18]
However, as per the Applicant’s submissions, this final paragraph of the “Dispute Resolution Procedure” was not pursued as the Applicant considered a BOOT determination would not resolve the dispute.
Finally, the Applicant argued the following provision in cl.12 of the Agreement allows for the arbitration of the dispute. The relevant extract of this provision is:
“If the Employee and ALDI cannot reach agreement on the hours of work to apply to the Employee’s position, the Resolution of Disputes provision of this Agreement will be followed and the parties will agree to Fair Work Australia arbitrating and making a binding determination to resolve the matter.”
[Emphasis added]
The reference to the “Resolution of Disputes provision” is a reference to cl.29 of the Agreement. This provision modifies cl.29 where both parties are otherwise required to agree, for the Commission to arbitrate. This provision is an exception to be applied to the disputes procedure, in circumstances where a dispute concerns, “the hours of work to apply to the Employee’s position.”
In relation to this provision, Mr Hatcher for the Respondent stated:
“…If Mr Joyner wishes to reduce his current contract hours, my client has made an open offer that it is content to allow him to reduce his contract hours. In fact, the evidence displays that Mr Joyner has increased his reasonable weekly hours in the time he's been employed with my client and has not expressed any desire to reduce those hours.
Rather, the dispute is said to relate to the finishing time and the provision of contract hours...”[19]
This paragraph in cl.12 must be read in the context of the wording of the overall clause. The plain and ordinary meaning of the provision relates to requests for reduction in working hours. In the context of the whole provision, contract hours are agreed upon and then if an employee makes a request to the Respondent to reduce their contract hours, if the parties cannot reach agreement on the hours, there is a right of arbitration without the agreement of the parties being required.
The Respondent agreed that this provision afforded a right (without the parties’ agreement) to arbitration. However, it was uncontested that no request had been received from the Applicant, Mr Joyner to reduce his working hours. Further to this, the Respondent conceded if such a request was made the Respondent would take a flexible approach.
CONCLUSION
For the reasons set out, the Commission has no jurisdiction to arbitrate the dispute pursuant to cl.29 of the Agreement, in the absence of agreement between the parties. The avenue of a BOOT determination may be open to the Applicant pursuant to the final paragraph of cl.29. However, the Applicant did not pursue such as they considered it would not provide an appropriate remedy, to resolve this dispute.
The wording in cl.29 is clear, that consent is required for the arbitration of disputes, except those that fall within the categories of a BOOT assessment or a dispute over a reduction in the hours of work as per cl.12.
The dispute at hand was not proposed as a BOOT determination, nor had a request to reduce working hours been received to enliven the cl.12 exception to the dispute procedure. Accordingly, the agreement of the parties was required to allow for arbitration under the “Disputes Resolution Procedure.” The prerequisite to allow for arbitration did not exist; the parties had not agreed to arbitration. Therefore, the jurisdictional objection is upheld pursuant to s.739(4) of the Act and cl.29 of the Agreement. The Commission is not empowered to arbitrate the dispute in the absence of the parties’ agreement.
The application is dismissed. I Order accordingly.
COMMISSIONER
Appearances:
D. Mujkic of the National Union of Workers for the Applicant.
G. Hatcher SC with A. Perigo of Counsel for the Respondent.
Hearing details:
2018.
Brisbane:
24 February.
[1] Outline of Respondent’s Submissions dated 27 September 2017 at para 17.
[2] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 (Berri).
[3] Outline of Respondent’s Submissions dated 27 September 2017 at paras 22 – 25.
[4] Ibid at para 28.
[5] Ibid at para 30.
[6] Statement of Robert Jovcevski at para 5.
[7] Outline of Respondent’s Submissions dated 27 September 2017 at para 41.
[8] ALDI Stapylton Agreement 2012 cl.29.
[9] Ibid.
[10] Ibid.
[11] Ibid cl.12
[12] Outline of the Applicant’s Submissions on Jurisdiction and Other Matters dated 12 September 2017 at para 8.
[13] Ibid at paras 11 – 13.
[14] [2017] FWCFB 3005.
[15] Ibid at [114].
[16] (1966) 66 IR 182.
[17] Ibid at PN96 – PN99.
[18] Ibid at PN69, PN72.
[19] Transcript at PN45 – PN46.
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