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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mr Riccardo Campione v Queensland Rail Limited T/A Queensland Rail [2019] FWC 6117
Case: [2019] FWC 6117
Decision Date: 2 SEPTEMBER 2019

CaseChat Overview and Summary

The matter before the Court was an application by Mr Riccardo Campione against Queensland Rail Limited, trading as Queensland Rail, seeking a determination of breaches of an enterprise agreement. The application was made under the Fair Work Act 2009 (Cth). The central issue before the Court was whether it had the jurisdiction to hear the application. The jurisdictional objection centred on whether the dispute was about the application of the agreement or about an interpersonal matter. The Court had to determine if the dispute was within the scope of the dispute procedure or if it was outside the jurisdiction of the dispute procedure.

The Court considered the nature of the dispute and whether it was about the application of the agreement or about an interpersonal matter. The Court examined the application and the arguments presented by both parties. The Court found that the dispute was not about the application of the agreement but was rather an interpersonal matter. The Court held that the dispute was outside the jurisdiction of the dispute procedure and therefore the Court did not have the jurisdiction to hear the application. The Court dismissed the application on the basis that it did not have the jurisdiction to hear it.

The Court made an order dismissing the application. The Court found that the dispute was not about the application of the agreement but was rather an interpersonal matter. The Court held that the dispute was outside the jurisdiction of the dispute procedure and therefore the Court did not have the jurisdiction to hear the application. The application was dismissed with no orders as to costs.

Orders