Mr Riccardo Campione v Queensland Rail Limited T/A Queensland Rail
[2019] FWC 6117
•2 SEPTEMBER 2019
| [2019] FWC 6117 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Riccardo Campione
v
Queensland Rail Limited T/A Queensland Rail
(C2019/1985)
COMMISSIONER SPENCER | BRISBANE, 2 SEPTEMBER 2019 |
Application to deal with a dispute – jurisdictional objection – power to arbitrate this dispute not within the jurisdiction of the dispute procedure – interpersonal matters – questions for arbitration – seeking determination of breaches of the Agreement. .
BACKGROUND
[1] On 27 March 2019, The Association of Professional Engineers, Scientists and Managers, Australia (the Union) applied to the Fair Work Commission (the Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) on behalf of their member, Mr Riccardo Campione (the Applicant). The Applicant has sought that the Commission deal with the dispute under the Dispute Resolution Procedure in clause 20 of the Queensland Rail Administrative, Professional and Technical Enterprise Agreement 2016 (the Agreement). The Employer in this matter is Queensland Rail Limited T/A Queensland Rail (the Respondent).
[2] The Applicant is a delegate of the Union and he has, alleged he has been subjected to questionable treatment as a result of his status as a Union delegate. The Union submitted the dispute, in summary terms, is within the Commission’s jurisdiction to arbitrate, as it relates to provisions in the Agreement dealing with Union delegates and contractor arrangements. The Applicant also alleged breaches of sections 54 and 56 of the Agreement, (set out later).
[1] The matter was set down for an initial conference. A lengthy discussion was conducted on matters covered by the application. A further conference was held. An outcome of that conference was that the parties agreed that separate mediations to rebuild the work relationship would be implemented between the Applicant and other relevant persons. Ultimately that mediation did not occur and the Applicant requested that the matter be relisted before the Commission. A further conference occurred. It became clear during this further conference that the matter was not capable of resolution by conciliation on the issues as raised. The parties were unable to agree on the basis on which the matter could be arbitrated by the Commission. The Respondent objected to the dispute being within the Commission’s jurisdiction to arbitrate; they submitted the dispute was not able to be brought within clause 20, Step 4, of the disputes procedures; being a dispute pertaining to the application or interpretation of the Agreement, or an alleged breach of the Agreement. The Respondent also objected to the questions for arbitration. Directions were issued to deal with any jurisdictional issue and to possibly resolve the questions for arbitration.
[2] The jurisdictional objection that has been raised by the Respondent makes it necessary to consider the proposed questions for arbitration. The Applicant has proposed the questions as follows:
“a. Were the actions of Mr Sean Curd, then Acting Manager Operational Systems Engineering, of the Respondent, as referred to in paragraph 8, 11, 12, 13 and 14 of section 2.1 of the F10 Application filed in these proceedings dated 26 March 2019 (the Application) in breach of clause 54.1 of [the Agreement] as his actions were taken to unreasonably hinder the Applicant in performing his duties as an accredited Union delegate?
b. Were Mr Curd’s actions, as referred to in paragraphs 8, 11, 12, 13 and 14 of section 2.1 of the Application, in breach of the Agreement because Mr Curd failed to follow the process set out in clause 56.18 and instead conducted himself in a way that was designed to pressure the Applicant to drop his opposition (in his role as accredited Union delegate) to Mr Curd’s contract proposal?
c. Were the actions of Mr Curd and Mr Su Nguyen, then Acting Senior Systems Coordinator, of the Respondent, in divesting the Applicant of the scheduling and change assessment duties (as stated in paragraphs 11 and 13 of section 2.1 of the Application) adverse actions taken by representatives of the Respondent against the applicant because the Applicant had opposed Mr Curd ‘s contract proposal at the CRC?
d. If yes to question c. above, were those actions taken by the Respondent in breach of clauses 54.1 and 56.18 of the Agreement?
e. Did the Respondent’s actions, as referred to in paragraphs 15 and 16 of [the Application], breach clauses 54.1 and 54.4 of the Agreement because (i) the investigation into the Applicant’s emails, (ii) the subsequent determination of the matter and (iii) the issuing of a final warning:
i. Was unwarranted;
ii. Was unfairly conducted;
iii. Was implemented to unreasonably hinder the Applicant’s performance of his duties as an accredited Union delegate; and
iv. Constituted victimization (sic) of the Applicant because the Applicant (as part of his role as an accredited Union delegate) had opposed Mr Curd’s contract proposal at the CRC and because the Applicant issued a dispute pursuant to clause 20.6 of the Agreement?
f. Were the actions of Mr Spiro Conomos, Senior Manager Asset Strategy and Engineering Systems, as referred to in paragraph 2a of section 2.4 of the Application, in breach of clause 54.1 of the Agreement as his actions were taken to unreasonably hinder the Applicant in performing his duties as an accredited Union delegate?”
[1] The Respondent objected to the questions for arbitration on the basis that:
“…the Commission does not have jurisdiction to arbitrate the dispute under clause 20 of the Agreement.
The basis for this objection is as follows:
a) The proposed Questions for Arbitration are apt to mislead the Commission as to the true 'character of the dispute'.
b) The 'character of the dispute' is a workplace grievance raised by the Applicant regarding the alleged conduct of Mr Sean Curd. Attachments 6 to 11 to the Applicant's F10 Application demonstrate that both the Applicant and Queensland Rail understand and have proceeded on the basis that the dispute is a personal work-related grievance. This is demonstrated by the proposed resolutions sought by the Applicant's industrial representatives by letter dated 13 February 2019 (Attachment 10 to the Applicant’s F10 Application) which further confirms that the nature of the dispute is solely connected to the Applicant's grievance with Mr Sean Curd.
c) Any attempt to characterise the dispute as a matter of ‘application or interpretation of the Agreement or an alleged breach of the Agreement’ is contrived.
d) Questions 2(c), 2(e)(i), 2(e)(ii) and 2(e)(iv) require the Commission to make a determination on issues which are outside of the scope of clause 20 of the Agreement and cannot fall for determination by the Commission in this matter.
e) Many of the actions/conduct which are inferred as fact in the ‘Questions for Arbitration’ do not have any clear or reasonably obvious correlation or connection to the ‘application or interpretation of the Agreement or an alleged breach of the Agreement’ - specifically, clauses 54.1; 54.4 or 56.18 of the Agreement (being the clauses referenced in the Applicant’s ‘Questions for Arbitration’). This includes:
i. In Question 2(a), the actions/conduct described in paragraphs 11, 12, 13 and 14 of section 2.1 of the F10 Application are cited as a breach of clause 54.1 of the Agreement even though there is no clear or reasonably obvious connection between the supposed actions/conduct and the clause.” 1
[1] For convenience, the paragraphs referred to above (from the application), are included below:
“On 26 September 2018, Mr Curd approached the Applicant at his desk and stated that he was disappointed that the Applicant had been asking other staff members about their views regarding Mr Curd’s proposal. During this conversation Mr Curd warned the Applicant about “wasting productive time” speaking to people regarding union matters. Mr Curd then stated in a way that intimidated the Applicant that he had the expectation that the Applicant would not resist his proposal as he (Mr Curd) was following process.
On 11 October 2018, Mr Curd approached the Applicant at his desk to discuss scheduling regarding the works the applicant had been coordinating. The conversation turned to a new prospective proposal from Mr Curd’s about hiring contractors to assist the Applicant in his own work. The Applicant advised based on his knowledge and experience that the use of contractors for the work in question would not be effective at addressing his requirements given particularly the turnaround time for a CRC proposal to be approved. Mr Curd stated that there would not be delays in obtaining an approval if the Applicant was willing to use his influence to make an exception at the CRC, to fast track an application; highlighting to the Applicant the personal benefit the Applicant would obtain from making such an exception. When the Applicant declined to participate in such conduct, Mr Curd then asked if the Applicant’s intent was to make his team fail and to “sabotage” the business. Mr Curd in anger then referred to his other contractor proposal suggesting that if the project did not get approved; there would be ‘a lot of angry people’ in the passenger information team. Mr Curd ended the conversation by stating he did not want the Applicant to do scheduling for the work (part of the Applicant’s coordination duties) anymore.
On 17 October 2018, Mr Curd approached the Applicant at his desk, broaching the topic of the Applicant’s Performance Development Plan (PDP). During the conversation, the Applicant felt intimidated by Mr Curd’s position of leaning in very close to him and Mr Curd’s tone and demeanour. Mr Curd questioned the Applicant on the content of the PDP – asking the applicant to remove all self-set objectives related to his coordination duties in favour of Mr Curd’s own imposed objectives (including one to not take personal leave) which was different from the conditions other staff members were receiving and different from the accepted processes of Queensland Rail. Despite the Applicant trying to provide clarification around his objectives and the correct processes, Mr Curd was unwilling to listen. The Applicant then stated that he felt targeted. Mr Curd informed the Applicant to keep quiet and listen and stated that he (Mr Curd) had enough of the Applicant disrespecting him. When the Applicant stated he felt upset, Mr Curd countered that it was not about him and that he (the Applicant) was “not important here”.
On 4 December 2018, Mr Nguyen issued the Applicant with a written notice (Attachment 4) that the Applicant would no longer be required to do the ‘change assessment duties’ which form a part of the Applicant’s coordination duties. Mr Nguyen revoked the Applicant’s credentials from a computer system so that the Applicant would no longer be able to coordinate changes.
A week later in December 2018, Mr Nguyen began to do the ‘task allocation duties’ (also a part of the Applicant’s coordination duties). The Applicant was not informed of this, and confusion rapidly arose between the relevant stakeholders in the business at the expense of the Applicant’s reputation and the Respondent’s own productivity.” 2
[2] The Respondent’s objection in summary terms is that the true character of the dispute is a personal work-related grievance between employees and not a dispute to which the Agreement has expressly authorised the Commission to arbitrate. In the alternative, the Respondent submitted that the drafting of the questions is inappropriate, against the facts of the matter.
[3] The Applicant submitted that the Agreement does expressly authorise the Commission to arbitrate a dispute pertaining to an alleged breach of the Agreement. The matters in dispute are more than a personal conflict, and that the Agreement provides for union delegate issues and engagement of contractors matters.
STATUTORY FRAMEWORK
[1] The jurisdiction of the Commission to deal with disputes pursuant to dispute settlement procedures in enterprise agreements is provided for in ss. 595, 738 and 739 of the Act as follows:
“595 FWC's power to deal with disputes
(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(2) …
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).
(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.
738 Application of this Division
This Division applies if:
(a) …
(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) …”
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) …
(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.”
[2] The Commission’s powers to deal with disputes derive, in the case of an Enterprise Agreement, from the terms of the disputes settlement procedure contained in the Enterprise Agreement. As a Full Bench of the Commission concisely observed in CFMEU v North Goonyella Coal Mines Pty Ltd 3: the Commission may deal with a dispute only on application of a party to the dispute (s.739(6)); is prohibited from exercising any powers limited by the dispute settlement procedure (s.739(3)); may arbitrate only if the agreed dispute settlement procedure permits it to do so (s.739(4)); and must not make a decision that is inconsistent with the Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)).
PROVISIONS OF THE AGREEMENT AS REFERRED TO
[3] The Agreement was approved by the Commission on 1 April 2016. 4 The Agreement operated from 8 April 2016, and nominally expired on 28 February 2019.5 The Agreement prevails over all “Awards and Agreements in their entirety”.6
[1] Clause 20 of the Agreement provides the procedure by which the Applicant asserts that the Commission is authorised to arbitrate the dispute. Clause 20 provides:
“20 Disputes procedure
20.1 In the event of any dispute arising during the course of employment, including disputes in relation to requests for flexible working arrangements, the following procedure will apply.
20.2 The objectives of this procedure are the resolution of disputes, or matters that may give rise to a dispute, by measures based on consultation, co-operation and discussion.
20.3 An employee may, at any step in the procedure, appoint a representative (including an Organisation or Association). Unless revoked by the employee, the appointment will continue for any subsequent steps of the procedure.
20.4 A representative may do all the things which the procedure authorises an employee to do.
20.5 While this procedure is being followed, status quo will apply. However, employees will not be required to perform any work where the employee holds a reasonable concern about an imminent risk to the employees' health or safety.
20.6 The steps in this procedure are as follows:
Step 1:In the event of a dispute an employee/s will attempt to resolve the dispute with the employee's immediate supervisor. The status quo which existed prior to the emergence of the dispute shall be observed until the dispute is resolved.
Step 2: If the dispute remains unresolved, the relevant manager and/or the manager's representative, and the employee will attempt to resolve the dispute. Unless otherwise agreed such attempt will take place within 5 days after the referral by the employee.
Step 3: If the dispute remains unresolved, or consistent with this Agreement a dispute is commenced at this step, the employee will provide the Business with a written notice of dispute.
The written notice of dispute must contain these details:
i) The location of the dispute;
ii) The subject of the dispute;
iii) The particulars of the dispute;
iv) At least one proposed resolution of the dispute.
More senior management and the employee will attempt to resolve the dispute.
If the dispute is not resolved, the Business will issue to the employee a written notice setting out the Business's decision. This notice will include, where relevant, the date of implementation, which will be no earlier than 5 working days from the date of the notice. To avoid doubt, this means the disputed changes will not be implemented until the 5 working day period has ended.
For the purposes of this clause a "working day" shall be any day other than Saturday, Sunday or public holiday.
Step 4: Where the dispute remains unresolved, it may be referred to the Fair Work Commission (FWC).
The FWC will first attempt to resolve the dispute by conciliation. The employee and the Business will act expeditiously and without delay to progress the dispute. Due consideration will be given to any recommendation made by the FWC.
Where the dispute pertains to the application or interpretation of this Agreement or an alleged breach of this Agreement and, where the dispute remains unresolved following conciliation the FWC is authorised to resolve the dispute by arbitration.
To the extent necessary the following powers are conferred upon the FWC:
i) Making procedural directions as to the time, place and conduct of the conciliation or arbitration;
ii) Directing the parties as to the manner of receiving submissions, including requiring formal submissions;
iii) Hearing oral submissions;
iv) Taking written submissions;
v) Hearing evidence by oath or affirmation;
vi) Conducting inspections;
vii) Determine the representation of the parties applying the same criteria as contained in s.596 of the Fair Work Act 2009.
The Business or an employee will not be represented by a legal practitioner during the conciliation and/or arbitration unless:
i) The consent of the other party to such representation is obtained; or
ii) The legal practitioner is a “permanent employee” of the Business or of the employee's representative Organisation or Association; or
iii) Where the FWC grants leave to appear in accordance with the powers granted herein.
Where the dispute is subject to private arbitration, the decision of the FWC is binding.”
[2] Clause 54 is headed “Union delegates” and is under a further heading of “Union encouragement”. Clause 54 provides:
“54 Union delegates
54.1 Union delegates and job representatives from the workplace have a role to play within a workplace. The Business shall not unreasonably hinder accredited Union delegates and/or job representatives in the reasonable and responsible performance of their duties.
54.2 The role of Union delegates and job representatives is secondary to the job they are employed to perform. That role is not to co-manage or hinder the efficient operation of the workplace.
54.3 Employees will be given full access to Union delegates and other job representatives during working hours to discuss any employment matter provided that work requirements are not unreasonably affected.
54.4 Provided that service delivery and work requirements are not unduly affected, delegates and job representatives will be provided reasonable access to facilities for the purpose of undertaking representative activities. Such facilities may include: telephone, computers, email, photocopiers, facsimile machines, storage facilities, meeting rooms and notice boards. The Business and delegates will take a reasonable approach to the responsible use of such facilities for information and communication purposes and the use of such facilities will not be abused.
54.5 The Business will approve time off without loss of pay for ordinary hours for employees who are elected (honorary) officials of unions to attend a reasonable number of union executive meetings, divisional meetings, State Council meetings and annual/bi-annual conferences of their union. These are to be based on schedules agreed to between the Business and the respective Union. Such paid arrangements will not include travelling time.
54.6 Relevant union delegates will be advised of intended induction sessions and provided with opportunities to discuss union membership with new employees at the session.”
[3] Clause 56 is headed “Contractors” and is under a further heading of “Contractor arrangements”. Clause 56 provides:
“56 Contractors
Secure Jobs Commitment
56.1 It is an objective of this Agreement to maximise the use of Queensland Rail employees in order to enhance job security.
Scope
56.2 This clause applies to contracts entered into on or after 1 January 2016 and applies to all work covered by the Agreement that could be contracted out by any part of Queensland Rail’s business on or after that date.
56.3 This clause does not apply to contracts or arrangements for major construction projects or similar work already in the market or awarded as at 1 January 2016.
Existing contracts are addressed under a separate Memorandum of Understanding.
Principles
56.4 The parties acknowledge that Queensland Rail is bound by the Use of Contractor principles set out in the Government-Owned Corporations - Wages and Industrial Relations Policy 2015; or any policy that supersedes this policy.
56.5 The parties recognise that contractors will continue to be an aspect of Queensland
Rail’s business, however, the parties are committed to minimising the use of contracting-out and/or labour hire utilising a workforce planning process.
56.6 Contractors will not be utilised for core, day-to-day activities that are regular, systematic and planned to continue for a 12 month period that can viably be performed in-house.
56.7 The parties acknowledge the importance of ensuring that any contractor or labour hire Business engaged must be able to demonstrate compliance with all industrial and workplace health and safety laws, and is sufficiently capitalised to continue compliance throughout the life of the contract.
56.8 To the extent permitted by law, in respect of work that is covered by this
Agreement, Queensland Rail shall ensure that employees of contractors are afforded terms which are no less favourable than the terms which would apply if the work was done by employees of Queensland Rail.
56.9 Where the use of contractors is the result of an ongoing need for a particular skill/s and Queensland Rail employees could be reasonably expected to acquire and use those skill/s, Queensland Rail will provide training to develop a level of in-house capacity.
Requirements
56.10 The use of contractors will be subject to the following:
56.10.1 The work volume is beyond the short term capacity of the employees
and resources of Queensland Rail;
56.10.2 The security or tenure of employment of Queensland Rail staff to meet
service or operational peaks cannot be guaranteed;
56.10.3 The type of work or specialisation is outside the traditional, and
reasonable, scope of Queensland Rail’s operations; or
56.10.4 The work is of an immediate, and genuinely unexpected nature.
Immediate Actions
Step 1 Within 60 days of the date of FWC approval of this Agreement, Queensland Rail will complete a review of all current contracts and labour hire arrangements for the types of work traditionally undertaken by Queensland Rail employees. The purpose of the review is to maximise the use of QR employees and to determine which work could be performed by either permanent or fixed term employees of Queensland
Rail and how such work could reasonably be transitioned to Queensland Rail having regard to the guiding principles agreed by the parties in a separate Memorandum of Understanding. Where reasonable transition arrangements are identified by Queensland Rail in accordance with the Memorandum of Understanding, Queensland Rail will commence a recruitment process at the appropriate time (within a minimum of 30 days) to seek to fill those roles identified as being able to be performed by existing or new Queensland Rail employees.
Nothing in this clause requires Queensland Rail to effect an early termination of contracts already awarded as at 1 January 2016.
Step 2 Within 30 days of the date of FWC approval of this Agreement, Queensland Rail will provide a document to all Union parties listing existing contracts and/or labour hire arrangements operating within Queensland Rail (including those specified at point 1 above).
Step 3 Within 30 days of the date of FWC approval of this Agreement, Queensland Rail will establish a ‘Contractors Review Committee’.
Contractor’s Review Committee
56.11 The Contractors Review Committee will be composed of three nominated representatives from each union, and Queensland Rail representatives from industrial relations and contract management.
56.12 The purpose of the Contractors Review Committee is to participate in workforce planning discussions about the proposed use of contractors or labour hire.
56.13 The Contractors Review Committee will meet on a monthly basis (every second month being by teleconference), unless otherwise agreed by the parties involved.
56.14 Outcomes of the monthly meetings will be documented.
Contractors Review Committee Operation
56.15 At the first meeting Queensland Rail will table the ‘Contracting Planning Document’ detailing all known works that are proposed to be contracted out over the coming 12 months.
56.16 The Contracting Planning Document will detail all relevant information, including:
56.16.1 Why contracting is being considered;
56.16.2 The amount & type of work planned to be contracted;
56.16.3 Which contractors are likely to be capable of undertaking the work;
56.16.4 When the contracting would commence; and,
56.16.5 The duration of the potential contracting.
56.17 The Contracting Planning Document will be updated continuously by Queensland Rail, providing at least 12 months prior notice of any additional proposals to use contractors/labour hire. The updates to the document will as soon as reasonably practicable be provided to members of the Contractors Review Committee.
56.18 Any contracting out proposals provided to the Contractors Review Committee will be addressed in accordance with the following process:
56.18.1 Queensland Rail will explain within a committee meeting the basis for considering using contractors in regards to each separate proposal;
56.18.2 Members of the Contractors Review Committee present to
Queensland Rail any alternative options for the performance of work that is being considered to be contracted out prior to the next meeting;
56.18.3 Alternative options may include, but are not limited to, the use of fixed term contracts or the use of volunteers from the existing workforce.
56.18.4 At the next meeting, discussion will occur concerning any alternative options that have been put forward.
56.18.5 Following the meeting, Queensland Rail will announce their decision on the proposal, taking into account alternative options, if any, provided by the Contractors Review Committee
56.18.6 Where alternative options have not been adopted in full, or in-part, the reasons for not adopting the alternative will be outlined by Queensland Rail.
56.18.7 Once a definite decision has been made, as per clause 55.18.5 above, the parties have 5 working days to initiate a dispute at step 3 of the dispute settlement procedure. This process will not be used unreasonably.
56.19 In the event of an operational emergency, Queensland Rail is relieved of its obligation to notify the Contractors Review Committee prior to using contractors, however Queensland Rail will provide all relevant information about the incident to the next Contractors Review Committee meeting.
Contractor Documents and Requirements
56.20 As standard contract provisions; Queensland Rail requires all contractors and their employees to comply with:
56.20.1 All relevant safety, workers’ compensation, superannuation and workplace relations legislation and applicable statutory and/or industrial instrument;
56.20.2 Safe working practices and associated PPE and test equipment equivalent to that used by employees;
56.20.3 Relevant training requirements;
56.20.4 All relevant licensing and registration requirements;
56.20.5 All relevant Codes of Practice and Standards established or promulgated by the appropriate industry regulator or standard setting entity including those prescribed under relevant legislation; and
56.20.6 All occupational health and safety, workers’ compensation and applicable quality assurance standards.
56.20.7 The terms and conditions of employment for employees of Contractors shall be no less favourable than those contained in the relevant Federal or Certified Agreement.
56.21 To ensure compliance, contractors or labour hire firms will be required to report on the above to Queensland Rail at intervals prescribed in the contract and not less than 3 monthly or as mutually agreed by the Parties.
56.22 The reports will subsequently be provided to the Contractors Review Committee.
56.23 Nothing in this clause requires Queensland Rail to disclose information where doing so would breach Queensland Rail’s legal obligations.”
THE APPROACH TO CONSTRUCTION OF ENTERPRISE AGREEMENTS
[1] The jurisdictional dispute requires an assessment of the nature of the dispute and an interpretation of the application of the relevant provisions of the Agreement against the matters in dispute as raised. The approach to construing enterprise agreements also requires consideration. The approach was set out in a Decision of a Full Bench of the Commission in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd 7 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.”
[2] In CFMEU v Endeavour Coal Pty Ltd T/A Appin Mine 8a Full Bench of the Commission held that the context of an Agreement provision is significant. In this regard, the Full Bench set out the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA,9emphasising the following matters:
• Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means 10 and there is always some context to any statement;11
• Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”; 12
• To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side; 13
• The phrase used by Mason J in Codelfa 14“if the language is ambiguous or susceptible of more than one meaning” does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context;15 and
• Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction. 16
[3] The case law in relation to the approach to the construction of enterprise agreements makes it clear that context and purpose are relevant to the construction of provisions in an enterprise agreement and must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning. The following observations of Madgwick J in Kucks v CSR are also apposite in the present case:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But 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.”17
CONSIDERATION
[1] The Commission is not empowered to deal with any dispute that may fall within the concept of a workplace dispute. The Commission may only “deal with” a dispute if it is expressly authorised to do so by a provision of the Act 18. The Act makes clear that the power to deal with a dispute by arbitration must not be exercised by the Commission except as provided for in s.595 of the Act.
[2] Sections 738 and 739 provide the express authorisation in the Act, for the Commission to deal with a dispute pursuant to a disputes procedure in an enterprise agreement. The Commission is only authorised to arbitrate a dispute “in accordance with the term” 19. It is, therefore, the disputes procedure that sets the limits of the Commission’s arbitral power.
[3] In this instance, clause 20 of the Enterprise Agreement is the provision that records the parties’ agreement as to the procedure to be used to deal with disputes and the types of disputes to which that procedure applies. Clause 20 is slightly unusual in that it has a broad application by operation of clause 20.1. That is, the disputes procedure in clause 20 “will apply” in the event of “any” dispute arising during the course of employment. The procedure then sets out the steps of the procedure in clause 20.6.
[4] The Commission’s power to deal with “any dispute arising during the course of employment”, other than by arbitration, is very broad in clause 20. That is not the case however with the arbitral power; which is expressed at step 4 of the procedure in clause 20. This deals with referral of the dispute to the Commission. The procedure requires the Commission to first attempt conciliation, in which the parties will act expeditiously. Due consideration is to be given to any recommendation made by the Commission. But, where the dispute “pertains to the application or interpretation of this Agreement or an alleged breach of this Agreement and, where the dispute remains unresolved following conciliation [the Commission] is authorised to resolve the dispute by arbitration”. This, is the jurisdictional point that presently concerns the Commission.
[5] Is this a dispute, properly characterised, pertaining to “an alleged breach of this Agreement”. The consideration is whether the dispute is one regarding the application or interpretation of the Agreement more broadly. On the Applicant’s case, it is a dispute in which the Applicant seeks the Commission to arbitrate and determine an alleged breach of the Agreement. On the Respondent’s case, it is a dispute that concerns an interpersonal conflict between the Applicant and a co-worker.
[6] The principles governing the proper characterisation of a dispute have been succinctly summarised in Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd 20, where it was relevantly stated:
“[6] The test under s.739 of the FW Act is whether the dispute settlement procedure in the enterprise agreement “requires or allows” the Commission to deal with the dispute. It is therefore necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it.
[7] The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”
[8] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction. Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.
[9] It is also important to note that the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.7 However, the relief sought may cast light on the true nature of the dispute in some cases.
[10] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant in such circumstances will depend on the limitation in s.739(5) of the FW Act and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the Enterprise Agreement to which the dispute relates.” (citations omitted)
[7] For present purposes, I am prepared to accept that in general terms the disputes procedure, broadly construed, taking into account its text, and understood in light of its industrial context and purpose, does, prima facie, apply to this dispute. However, the crux of the Respondent’s objection is that properly characterised the dispute is about interpersonal conflict and not an “alleged breach of this Agreement”. The Respondent has also objected to the questions for arbitration, in that they were unreasonably lengthy, complex and the facts fail to demonstrate a connection to the dispute procedure.
[8] The relief sought in the application, as set out below, whilst not conclusive, provides an indicator of the nature of the dispute. The relief sought demonstrates that apart from general references to alleged breaches of clauses of the Agreement, the dispute relates to matters of performance management.
“The Applicant seeks that:
• A determination that the Respondent is in breach of clauses 54.1, 54.4 and 56 of the Agreement;
• Mr. Brad Morris conduct the Applicant’s Performance Development plan (PDP) and that the Applicant will enjoy the same privileges as his colleagues in setting his performance objectives;
• The coordination duties be returned to the Applicant with this outcome to be confirmed in writing;
• A written confirmation that the Applicant reports to the Manager directly for all matters of business, and not the Coordinator;
• A written confirmation that the Respondent will cease the disciplinary investigation into the Applicant’s email bulletin and adhere to the Agreement by not unreasonably hindering the Applicant’s role as a union delegate; and
• A written confirmation that the Respondent will address the unreasonable conduct of Mr. Curd, Mr. Conomos and Ms Turley.”
[9] Having had the benefit of the discussions with the parties regarding refining the matters for arbitration and assessing the character of the dispute, the nature of the alleged dispute in relation to contractors does not come within the parameters of clause 56 contractors. Whilst there was discourse between the Applicant and the other party, with reference to the separate work in relation to contractors this does not activate the procedure. Similarly, but for the Applicant holding the role of union delegate the interaction referred to, does not call for a consideration in terms of a dispute regarding the Union delegate provision. Simply because the Applicant is a union delegate or there are matters related to contractors, this does not invoke the disputes procedure.
[10] Properly characterised, taking into account all of the material before the Commission, I accept the Respondent’s submission. This dispute, properly characterised, is an interpersonal or, performance management dispute between the Applicant and the Respondent’s employees as named in the application.
[11] The Applicant’s submissions (have been taken into account) relating to the proper characterisation of disputes where they cite Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd. 21 In addition the reference to Shop, Distributive and Allied Employees Association v Big W Discount Department Stores.22 It is noted that whilst that dispute on a practical basis was in regard to the provision of anti-fatigue matters more broadly the dispute was characterised as one regarding occupational health and safety in line with the aspirational provision of safe and healthy working conditions. A similar connection between the alleged matters in dispute, the Agreement provisions and relief sought does not exist in this matter.
[12] Whilst it is recognised that the Applicant disagrees with the actions of the Respondent’s employees that is quite separate from a dispute over the application of a provision of the Agreement, or conduct that may give rise to the alleged breaches of the Agreement as submitted. The matters in the relief sought by the Applicant do not correlate to the alleged dispute of the alleged breaches of the Agreement.
[13] Furthermore, whilst it has not been articulated by either party, I consider it arguable, that even if I took the contrary view, of the proper characterisation of this dispute I would nonetheless not be able to adequately determine the dispute, (as a result of s.739(5) of the Act). Without detailing in full, the debate about administrative arbitral power versus judicial power, the Act sets up a regime for determination and enforcement of “breaches” of industrial instruments. That regime has not put the power to make such determinations, or enforcement measures in the Commission. That power, and that function, is in the Court, accordingly, findings of breaches of the Agreement are beyond jurisdiction.
[14] Further, I also consider there are issues with the drafting of the questions for arbitration as referred to by the Respondent. Drafting questions for arbitration that are conclusory is not helpful. For instance, the manner in which question 1 has been drafted is such that the question answers itself. Question 1 relates to an alleged breach of clause 54.1, which will be recalled prohibits the Respondent from “unreasonably hinder[ing]” delegates in the performance of their duties. Question 1 is premised on a question about whether various actions were in breach of this provision “as [they] were taken to unreasonably hinder” the Applicant as a delegate. The question is framed to answer itself.
[15] The questions for arbitration in this matter do not reconcile with the matters raised in the dispute for consideration. They are not matters properly characterised that pertain to the alleged dispute, the application or interpretation of the Agreement and they fall outside the powers referred for arbitration by the Act; and those powers that derive from the provisions of the Agreement. Whilst there is reference to the role of union delegates and the use of contractors, the grievances are more properly processed via the course of mediation as initially agreed. An arbitration of the clauses as referenced in the Agreement will not resolve the dispute. The relief sought reinforces the nature of the matter in dispute (an interpersonal matter consistent with the relief sought) and also confirms that what is being sought is beyond jurisdiction.
CONCLUSION
[16] For the reasons provided I find that the alleged dispute as set out is not within the jurisdiction of the Commission to arbitrate, pursuant to s.739 of the Act or in particular does not fall within the terms of Step 4 of the dispute procedure of the Agreement.
[17] The Application is therefore dismissed.
[18] I Order accordingly.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR711948>
1 Respondent’s Jurisdictional Submissions at [9]-[10]
2 Applicant’s F10 at para [11]-[14]
3 [2015] FWCFB 5619
4 Application by Queensland Rail Transit Authority T/A Queensland Rail [2016] FWCA 2045.
5 Ibid at [4]; clauses 2 and 3.
6 Queensland Rail Administrative, Professional and Technical Enterprise Agreement 2016 clause 5.
7 [2017] FWCFB 3005.
8 [2017] FWCFB 4487.
9 [2014] NSWCA 184 at [71]-[85].
10 Manufacturers’ Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cas 60-853 at 75-343.
11 Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKPC 6; [2005] 1 All ER 667 at [64].
12 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].
13 Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391 per Lord Hoffman, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spiegelman CJ, Weinberg AJA and Simpson J agreeing) and Dale v The Queen [2012] VSCA 324 at [73].
14 Codelfa Construction Proprietary Limited v State Rail Authority of NSW (1982) 149 CLR 337.
15 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17] cited in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR at [71] – [85].
16 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40].
17 Kucks v CSR Limited (1996) 66 IR 182 at 184.
18 Fair Work Act 2009 (Cth) s.595(1).
19 Ibid at s.739(4).
20 [2016] FWC 2959.
21 Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2016] FWC 2959 at [8].
22 Shop, Distributive and Allied Employees Association v Big W Discount Department Stores [PR924554] 12 November 2002].
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