Ms Debra Kent v Citic Pacific Mining Management Pty Ltd
[2011] FWA 4004
•24 JUNE 2011
Note: An appeal pursuant to s.604 (C2011/438) was lodged against this decision - refer to Full Bench decision dated 26 October 2011 [[2011] FWAFB 7009]for result of appeal.
[2011] FWA 4004 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Ms Debra Kent
v
CITIC Pacific Mining Management Pty Ltd
(C2011/68)
COMMISSIONER WILLIAMS | PERTH, 24 JUNE 2011 |
Application to deal with a dispute.
[1] The Applicant Ms Debra Kent has lodged an application under s. 739 of the Fair Work Act (the Act). The Respondent is Citic Pacific Mining Management Pty Ltd (Citic).
[2] The application was the subject of a conciliation conference however the dispute was not resolved. The Applicant requested that the dispute be arbitrated by the tribunal. The Respondent did not consent to arbitration.
[3] The Applicant continued to press for the dispute to be arbitrated. Accordingly the parties were directed to provide written submissions on the question of the tribunals power to arbitrate the dispute in the circumstances.
[4] The following provisions of the Act are relevant.
Part 6-2—Dealing with disputes
Division 1—Introduction
s. 735 Guide to this Part
This Part is about dealing with disputes between national system employees and their employers.
Division 2 deals with the powers of FWA and other persons to deal with a dispute if a modern award, enterprise agreement or contract of employment includes a term that provides for FWA or the person to deal with the dispute.
s.736 Meanings of employee and employer
In this Part, employee means a national system employee, and employer means a national system employer.
Division 2—Dealing with disputes
Subdivision A—Model term about dealing with disputes
s.737 Model term about dealing with disputes
The regulations must prescribe a model term for dealing with disputes for enterprise agreements.
Subdivision B—Dealing with disputes
s.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.
s. 739 Disputes dealt with by FWA
(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.
(2) FWA 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 FWA dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter.
Note: This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.
Note: FWA 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), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) FWA may deal with a dispute only on application by a party to the dispute.
[5] The application identifies that the dispute is referred to the tribunal pursuant to the dispute settlement procedure in a modern award specifically the Mining Industry Award 2010 1.
[6] The Applicant also refers to the Mines Safety Inspection Act 1994 which is legislation of the Western Australian Parliament.
[7] Section 735 explains and section 738 states that Division 2 of the Act deals with the powers of FWA to deal with a dispute only if a modern award, enterprise agreement or contract of employment includes a term that provides for FWA to deal with the dispute. The Mines Safety Inspection Act 1994 is not a modern award, enterprise agreement or contract of employment. The Mines Safety Inspection Act 1994 is not an instrument on which a 739 application can be based.
[8] As identified in the application the dispute settlement procedure in the Mining Industry Award 2010 is contained in clause 9 as follows,
9. Dispute resolution
9.1 In the event of a dispute about a matter under this award, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.
9.2 If a dispute about a matter arising under this award or a dispute in relation to the NES is unable to be resolved at the workplace, and all appropriate steps under clause 9.1 have been taken, a party to the dispute may refer the dispute to Fair Work Australia.
9.3 The parties may agree on the process to be utilised by Fair Work Australia including mediation, conciliation and consent arbitration.
9.4 Where the matter in dispute remains unresolved, Fair Work Australia may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute.
9.5 An employer or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause.
9.6 While the dispute resolution procedure is being conducted, work must continue in accordance with this award and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
[9] The application explains that the dispute is about concerns the Applicant has about the hours of work the Respondent requires her and others to work and other related matters also referring to section 62 of the Act.
[10] Section 62 of the Act is as follows,
s. 62 Maximum weekly hours
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee—38 hours; or
(b) for an employee who is not a full-time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee’s personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee’s role, and the employee’s level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.
Authorised leave or absence treated as hours worked
(4) For the purposes of subsection (1), the hours an employee works in a week are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised:
(a) by the employee’s employer; or
(b) by or under a term or condition of the employee’s employment; or
(c) by or under a law of the Commonwealth, a State or a Territory, or an instrument in force under such a law.
Consideration
[11] Section 595 of the Act sets out the tribunals powers to deal with disputes.
s.595 FWA’s power to deal with disputes
(1) FWA may deal with a dispute only if FWA is expresslyauthorised to do so under or in accordance with another provision of this Act.
(2) FWA may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
(3) FWA may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if FWA is expresslyauthorised to do so under or in accordance with another provision of this Act.
Example: Parties may consent to FWA arbitrating a bargaining dispute (see subsection 240(4)).
(4) In dealing with a dispute, FWA may exercise any powers it has under this Subdivision.
Example: FWA could direct a person to attend a conference under section 592.
(5) To avoid doubt, FWA must not exercise any of the powers referred to in subsection (2) or (3) in relation to a matter before FWA except as authorised by this section.
[12] Significantly Section 595(3) provides that FWA may only deal with a dispute by arbitration if it is expressly authorised to do so under or in accordance with another provision of this Act. This limitation is emphasized by section 595(5) of which provides that to avoid doubt, FWA must not deal with a dispute by arbitration except as authorised by section 595.
[13] These specific provisions of the Act override any of the general provisions such as section 3 Objects of this Act which the Applicant argues support the view that FWA has the power at large to arbitrate on unresolved disputes.
[14] The terms of the Mining Industry Award 2010 dispute resolution clause at 9.3 expressly only provides for “consent arbitration”. In my view then arbitration is only available where both the parties have agreed to it.
[15] This conclusion is consistent with the intent of the Act explained in The Explanatory Memorandum to the Fair Work Bill 2008 at item 2289,
“FWA will have power to arbitrate a bargaining dispute or a Part 6-2 dispute if the parties have agreed that it may arbitrate, however the parties describe that process (subclauses 240(4) and 739(4)) ...”
[16] In addition this approach is consistent with the Full Bench of Fair Work Australia in Woolworths Ltd trading as Produce and Recycling Distribution Centre 2 which held in relation to section 595 that,
“[19] The section is concerned with the powers the tribunal may exercise in dealing with disputes. Section 595(1) provides that Fair Work Australia may only deal with a dispute if it is expressly authorised to do so. Section 595(2) provides that the tribunal may deal with a dispute by mediation, conciliation, making a recommendation or expressing an opinion subject to the qualification that it may not deal with the dispute by arbitration. Section 595(3) permits the tribunal to arbitrate if it is expressly authorised to do so. Section 595(4) operates to confer procedural powers. It seems to us clear enough from the text of these provisions that the legislature intended that Fair Work Australia can deploy voluntary methods of dispute resolution without the consent of the parties to the dispute, provided the dispute is one with which it is authorised to deal, but can only arbitrate if it has been specifically empowered to do so.”
[17] Section 739 of the Act applies if a term referred to in section 738 requires or allows FWA to deal with a dispute. Section 739(4) provides that,
“If, in accordance with the term, the parties have agreed that FWA may arbitrate the dispute, then FWA may do so.”
[18] The Full Bench in Woolworths also found:
“[21] Section 738 specifies the type of dispute resolution terms to which the division applies.... Section 739(1) provides that the section applies if a term in s.738 requires or allows Fair Work Australia to deal with a dispute. Section 739(2) is not relevant. Section 739(3) provides that a dispute resolution term can limit the powers available to Fair Work Australia to settle a dispute. Section 739(4) sets out the circumstances in which Fair Work Australia may arbitrate a dispute, providing that if the parties have agreed that Fair Work Australia may arbitrate, Fair Work Australia may do so. It appears to us that s.739(4) strongly implies the negative stipulation that if the parties have not agreed, Fair Work Australia has no power to arbitrate.”
[19] Here the Applicant disputed the hours that she was required to work with Citic having regard to section 62 of the Act. Clause 9 of the Mining Award 2010 is the relevant term for the purpose of section 738(1) of the Act that provides the power for FWA to deal with such a dispute in relation to the NES.
[20] I find that FWA may only arbitrate a dispute under clause 9 of the Mining Award 2010 where the parties consent to arbitration by FWA. In the absence of agreement by both the parties, FWA has no power to arbitrate the dispute. Citic has not agreed with the Applicant on the process to be used by FWA to determine the dispute and specifically does not consent to arbitration.
[21] Therefore FWA does not have power to arbitrate this dispute and so this application must be dismissed.
COMMISSIONER
1 MA 000011
2 [2010] FWAFB 1464
Printed by authority of the Commonwealth Government Printer
<Price code C, PR510852>
0
0
0