Ms Helen Wills v Merriwa Industries Limited
[2011] FWA 6911
•10 OCTOBER 2011
[2011] FWA 6911 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Ms Helen Wills
v
Merriwa Industries Limited
(C2011/130)
COMMISSIONER CRIBB | MELBOURNE, 10 OCTOBER 2011 |
Alleged dispute concerning an employee seeking reclassification of their position.
[1] The Australian Workers’ Union (AWU) (the Union) lodged an application on behalf of Ms Helen Wills, on 25 March 2011, regarding a dispute with her employer, Merriwa Industries Limited (Merriwa). The dispute concerns Ms Wills’ classification and re-classification to Grade 5 for the period May 2004 to 13 January 2011 is sought.
[2] The dispute was the subject of a conciliation conference on 28 April 2001 in Wangaratta but there was no resolution reached. The Union elected to have the matter arbitrated and it was set down for hearing on 14 July 2011 in Wangaratta.
[3] An objection was raised by the company to the application being further dealt with by the Tribunal on the grounds that it does not have jurisdiction to engage in private arbitration or determination of the dispute.
[4] The matter was re-listed for hearing on Tuesday 23 August 2011 regarding the company’s jurisdictional objection.
[5] Ms Wills was represented by Mr L Buntman from the AWU and the company was represented by Mr J Forbes, of Counsel.
[6] This decision deals with the company’s jurisdictional objection only.
SUBMISSIONS
Merriwa Industries
[7] The company submitted that Fair Work Australia does not have jurisdiction to deal with this dispute. Mr Forbes stated that the application before the Tribunal is one made under section 739 of the Fair Work Act 2009 (the Act), which can be made by a party to an agreement. For it to be relevant, there must be a dispute settlement procedure in the relevant agreement which empowers the Tribunal to engage in dispute settlement. 1 In the application, it was said that it referred to two instruments: the Merriwa Industries Certified Agreement 1996 (1996 certified agreement) and a 2010 modern award. The dispute resolution procedures from both instruments were attached to the application. The application indicated that it was a dispute regarding the classification of Ms Wills under both instruments and what is sought is determination that Ms Wills has been incorrectly classified.2 It was contended that the form of the application was critical as it was seeking to enliven what effectively is a private dispute settlement procedure between the parties. It was stated that, in such a case, the form of the application has to be precise so that the other party knows exactly what the applicant is seeking.3
[8] Mr Forbes further argued that, in light of the union’s submissions, it would now seem that their application in relation to s.739 has been abandoned. If this is correct, the company contended that the Tribunal must dismiss the application. However, it was conceded that, even though it should be the end of the matter, it would not be. This was said to be because the union would then say that it was relying on the dispute settling procedure in the old certified agreement and the mechanism in the transitional provisions which allows the Tribunal to deal with disputes under old agreements as if the Tribunal was the Australian Industrial Relations Commission (Commission). 4
[9] It was stated that it was common ground between the parties that the 1996 certified agreement was terminated on 13 January 2011 and that the application in this matter was made on 25 March 2011. The dispute appears to be about how Ms Wills was classified under a now terminated agreement for the period 2004 to 2010. 5 Mr Forbes submitted that the Tribunal does not have section 170LW powers once an old agreement has been terminated because, once an agreement is terminated, so too is the agreement of the parties regarding disputes under that agreement. Therefore, it was argued that, even if there was a dispute about something that had happened in the past, the Tribunal does not have power under 170LW of the Workplace Relations Act 1996 (WR Act) to deal with it.6
[10] The Tribunal was referred to the Full Bench decision in Stephenson v Senator the Honourable Eric Abetz 7 (Abetz) where it was indicated that the Full Bench stated that the Tribunal’s powers to engage in private arbitration are constrained.8 It was found that s.170LX of the WR Act was a constraint or limitation on the Commission’s jurisdiction to exercise the right of private arbitration and that the wording of s.170LW made it clear that the Commission’s jurisdiction to exercise the private arbitration power was dependent on the agreement being a certified agreement. The Full bench also referred to the decision of the High Court in the Private Arbitration Case, where the High Court said that the effect of sections 170LW and 170LX is that, if a certified agreement empowering the Commission to settle disputes over the application of the agreement ceases to operate because of the provisions of section 170LX of the WR Act, then the Commission no longer has jurisdiction to exercise that private arbitration power in the agreement.9 Other authorities were also referred to by Mr Forbes in support of the company’s submissions.10
[11] Mr Forbes, contended that this was the situation applying in this matter, whereby the agreement was terminated in January 2011 and had then ceased to operate. An application was made in March 2011, under section 739 of the Fair Work Act 2009 (the Act), and the union appeared to be now seeking to enliven section 170LW in respect of the old agreement. Mr Forbes said that, however, it was too late. 11
[12] Further, with respect to the union’s argument that, if an employee has accrued any rights or entitlements under an old agreement, those rights or entitlements are carried through beyond the termination of the old agreement. Mr Forbes referred to Abetz, where the Full Bench stated that they did not accept that the applicant had an accrued right to have his dispute over the application of the 2001 agreement dealt with by the Commission. This was on the basis that the 2001 agreement had ceased to operate in August 2003 and the new agreement did not contain a clause which effectively saved those old rights. 12
[13] With respect to Schedule 3, Part 2, Item 7 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TPCA), Mr Forbes argued that sub item (3), which provides that it has effect subject to a contrary intention in this Act or in the Fair Work Act, overrides the saving of accrued rights. The contrary intention was said to be found in the mechanism which saved the old section 170MH. In terms of the WR Act Transitional Provisions, Schedule 7, Part 2, dealt with pre-reform certified agreements and it was said that it was intended to save the operation of provisions from the old WR Act in relation to certified agreements, e.g. section 170LW and section 170MH, on which SDP Kaufman relied upon to terminate the agreement. Mr Forbes also stated that it saved, as well, section 170LX, which is the provision which deals with the effect of termination of an agreement. The Tribunal was also referred to Schedule 7, Part 2, Clause 3, sub clause (iv) of the WR Act Transitional Provisions, which provided that a pre-reform certified agreement ceases to be in operation if it is terminated under section 170MH. It was the company's contention that, under these provisions, if a pre-reform certified agreement has ceased operating under paragraph 3(a), it can never operate again. This was said to be consistent with the scheme of the legislation, which is that parties enter into an agreement and that agreement should operate for the life of that agreement and it should continue beyond the life of the agreement until it is either replaced by a new agreement or is terminated. Once it has been terminated, the parties fall back to whatever lies beneath. 13
[14] Mr Forbes submitted that the transitional provisions under the Fair Work Act did have work to do as they were aimed at the preservation of rights and entitlements that accrue to an employee during their employment. However, the argument in this matter was said to be whether the dispute settlement provision in the old agreement was saved and carried forward rather than whether any substantive rights of the applicant were carried forward. 14 It was argued that Ms Wills did not have an accrued right to have her dispute settled. The dispute resolution in the old agreement was referred to where it provided for, at step 5, either the union or the employer to bring the matter to the Tribunal. It was not the employee who had the right so therefore, Ms Wills could not accrue the right to access the dispute settlement clause in the old agreement. The Tribunal’s jurisdiction to engage in dispute settlement under an old agreement was said to be the critical issue, rather than whether Ms Wills had any accrued rights.15
[15] In summary, Mr Forbes submitted that the application should be dismissed because, as a s.739 application, it cannot survive. However, if the Tribunal was prepared to accept the application as one made under s.170LW, it should also be dismissed for the reasons previously outlined. If the Tribunal was against the company on both those points, it was argued that the Tribunal should refrain from further dealing with the matter under the previous section 111(1)(g). This was on the basis that the classification issues raised by Ms Wills go back to 2004. These were raised with her employer five years ago in August 2006 and they appear to have continued on without resolution. Then, there ceased to be a dispute after October 2010. Mr Forbes asserted that, if there had been a substantive dispute, it would have been resolved by the parties in the period between 2004 and 2010 or at least, prior to the old agreement being terminated. 16 It was contended that a range of prejudices to the employer would result if the Tribunal did not refrain from dealing with the application. The application was said to have nothing to do with Ms Wills’ current terms and conditions and the relief sought appeared to be retrospective reclassification under an agreement that no longer applies.17
[16] In his submissions in reply, Mr Forbes argued that the amendments sought to the application are of substance and not merely of form. He characterised the proposition that the application was made under s.739 as “ridiculous”. It was said to be a substantial amendment because the union was seeking to enliven the Tribunal’s jurisdiction by abandoning the s.739 application and installing it under s.170LW. 18
[17] With respect to the authorities raised by the union, Mr Forbes pointed to the principal authority on which the union relied (Attorney-General (Q) v Australian Industrial Relations Commission and others) 19 (AIRC) and stated that it was raised in the Abetz case. It was said that, as the Abetz case came after that case, one could infer that Abetz took account of the argument about accrued rights but was not satisfied that that was sufficient to get over s.170LX.20
[18] In terms of the three accrued rights that the union referred to, it was the company’s contention that the only one which was relevant was whether Ms Wills has a right to dispute settlement. It may well be that certain steps had been taken in the dispute resolution process. However, this was said to be irrelevant as the jurisdiction of the Tribunal was only enlivened at the last point of the process. 21
[19] Regarding the submissions made about the Abetz case, Mr Forbes indicated that this case was really about the operation of s.170LX rather than a situation where one certified agreement has replaced another. Further, the company stated that Schedule 3, Item 7 provides for rights and liabilities that have been accrued by a person during the live period of an agreement to be retained. However, no right accrues to an individual employee under the dispute settlement procedure. It operates for the life of the agreement and it ceased at the end of that agreement. It is never to operate again and there is no accrued right to a person covered by the agreement.
Australian Workers Union.
[20] Mr Buntman provided the background to the application and stated that in May 2004, Ms Wills was promoted to the role of line leader and that she should have been paid at the grade 5 level from then until 13 January 2011. 22 He said that Ms Wills had commenced employment on 30 October 2000 at which time the Merriwa Industries Certified Agreement 1996 was in operation.23 This agreement was made pursuant to section 170MA of the Industrial Relations Act 1998 and was terminated on 13 January 2011.24
[21] It was submitted that the transitional provisions provided that an agreement such as the Merriwa Industries Certified Agreement became a transitional instrument and that the WR Act then applied in relation to it. As a result, the transitional provisions of the WR Act continues to apply to a dispute of this nature. Mr Buntman stated that the agreement’s dispute resolution process contains five stages for resolving industrial disputes and that all five of the stages were complied with. The step before the matter is referred to the Tribunal was said to have occurred in the form of correspondence from the union dated 13 December 2010 to the company and a response from the company on 20 January 2011. 25
[22] The union indicated that section 170LW allows the Tribunal to settle disputes over the application of the agreement and that Clause 7 (b) (i) of the agreement, whereby it states that an employee wishing to raise a “problem which directly affects them,” was very broad in terms of the scope of measures which may be raised as a dispute. It was argued that the matters in dispute all fall within this requirement. 26
[23] With respect to the form of the application (Form F10), Mr Buntman argued that the Form itself was not clear but that it was the appropriate form to use for disputes under s.170LW. He said that the form did not connote that it was a s.739 application. 27 It was argued that the application was not ever made as a s.739 application. It was a s.170LW application.28 To the extent that the Tribunal did determine that there was a flaw in the application, the union sought that the Tribunal exercise its discretion under s.586 to amend the form. It was contended that the flaw was not such a defect or an irregularity such as would render the application invalid. By ticking both the modern award box and the certified agreement box, the union was simply “covering both bases”.29 With respect to the respondent’s submission about the last step of the dispute resolution procedure referring to the parties only, it was contended that, even though the application identified the applicant and her representative, it was the union’s intention to make the application on Ms Will’s behalf.30 The amendments sought were that the modern award box be unticked and a line put through ‘Supported Employment Services Award’. In addition, the certified agreement box was to be ticked.31
[24] It was the union’s contention that Schedule 3, Part 2, Item 7(1)(a) of the TPCA provides the Tribunal with the jurisdiction to resolve the substantive matter in dispute. It was outlined that this provision refers to a transitional instrument, namely, the 1996 Certified Agreement. Item 7(1) prescribes that, if a transitional instrument terminates or ceases to apply to a person, this does not affect any right accrued before the termination (Item 7(1)(a)). 32 Mr Buntman submitted that because of Item 7(1)(a), Ms Wills’ rights regarding her substantive application accrued ie. a proper classification, proper wages and a right to have the Tribunal resolve the matter in accordance with the disputes procedure of the Agreement.33
[25] Secondly, the union argued that for the same period, the company incurred a “liability” to provide Ms Wills with a proper classification and wages and a right to have the Tribunal resolve her dispute. 34
[26] The rationale behind Item 7, as set out in the Explanatory Memorandum, was said to be the preservation of rights despite termination of a transitional instrument. 35
[27] The Tribunal was referred to a number of decisions in support of the union’s submissions. With respect to the High Court decision in AIRC, Mr Buntman submitted that it was authority for the proposition that Item 7 does not evince an intention to limit. Rather, it was stated that Item 7 manifests an intention to preserve rights and liabilities despite the termination of a transitional instrument. The operation of Item 7 was said to place additional conditions upon the parties to a certified agreement despite its termination. One of the additional conditions was said to include the Tribunal making a determination pursuant to a dispute resolution procedure. 36
[28] The second decision relied on by the union was the High Court decision in Esber v Commonwealth 37(Esber). Mr Buntman argued that the decision supported the contention that, by the operation of Item 7, the dispute resolution procedure and the determination by the Tribunal of accrued rights continued, despite the termination of the certified agreement.38 The reference, by the High Court, to section 8 of the Acts Interpretation Act 1901, was highlighted and it was contended that Item 7 operates in the same manner as section 8 of the Acts Interpretation Act. Mr Buntman stated that, whilst the Tribunal commenced steps in the dispute resolution process prior to the termination of the 1996 certified agreement, because of the operation of Item 7, the right to have the Tribunal resolve the dispute as the final step of the dispute resolution process was protected. Once the dispute resolution process had commenced, Item 7 preserved those rights. The union submitted that, once the first stage of the dispute resolution process had commenced, the right to have the process finalised was preserved.39
[29] The final decision referred to by Mr Buntman was Gerrard v Mayne Nickless 40 (Gerrard). The union contended that the court had held that a quasi-judicial application does have the protection of section 8 of the Acts Interpretation Act where the claim had been instituted before the right or privilege was repealed. In this matter, it was argued that Item 7 protected Ms Wills’ right to have a dispute resolution procedure concluded by the Tribunal despite the termination of the certified agreement.41
[30] With respect to the remainder of the interpretation of Item 7, the union indicated that it was relying on the Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd 42 (the Engineers case) for the literal approach to the words “investigation, legal proceeding or remedy”. It was argued that the words “investigation”, “remedy” and “proceeding” encompassed the steps taken in this matter. Further, the union contended that the phrase “may be instituted, continued or in force” should be applied using the literal approach adopted in the Engineers case.43
[31] In response to the company’s submissions regarding the Abetz case, it was stated that there were different circumstances in that case to this matter. It was said that the Abetz case concerned the situation where one agreement was replaced by another. However, in this case, there was no replacement agreement, rather the agreement was terminated. 44 Further, Mr Buntman distinguished this matter from the respondent’s authorities by stating that those authorities were all pre - Fair Work Act decisions and therefore did not address the operation of Item 7.45
[32] With respect to Item 7, the union stated that those aspects of it which preserved accrued rights when a transitional instrument terminates or ceases to apply are not new. However, Item 7 was said to be unique in that it specifies that accrued rights continue on if, for example, the dispute resolution process has commenced. This also was said to include the right to proper wages and a proper classification - existing rights. 46
CONSIDERATIONS AND CONCLUSIONS
Nature of the application
[33] The first issue that needs to be dealt with is the exact nature of the application before the Tribunal. The union submitted that the application had been made under s.170LW of the WR Act and that both the certified agreement box and the modern award box had been ticked on the application as the union was “covering its bases”. In the event the Tribunal took a different view, the union sought to amend the application so that it was clearly a s.170LW application.
[34] For the company, it was their view that the application had been clearly made under s.739 the Act and that the dispute resolution clause from the relevant modern award had been attached. The parties also differed over whether the amendments sought by the union, if required, were of substance or merely of form.
[35] Upon perusal of the application (Form F10), it is apparent that both the modern award box and the certified agreement box have been ticked. It is noted that dispute resolution clause from the Supported Employment Services Award 2010 (the modern award) was attached to the application. Form F10 is headed “Application for FWA to deal with a dispute in accordance with a dispute settlement procedure. It also states “Fair Work Act 2009 - s.739 etc*.” The asterix is explained on the last page of the application and says that:
“*This form should also be used for an application for FWA to deal with a dispute in accordance with a dispute resolution procedure in an agreement made under the Workplace Relations Act 1996 and other transitional instruments (see Schedule 19 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009).”
[36] Therefore, the Form F10 is the form that is also used for applications made under s.170LW. However, in such cases, the modern award box would not be ticked.
[37] For present purposes, I am prepared to consider that the application before me was made under s.170LW.
Jurisdiction
[38] I now turn to whether or not the Tribunal has jurisdiction under s.170LW to deal with the application.
[39] Both parties made extensive and detailed submissions which have been set out above. There is no necessity to repeat them here but it should be stated that all of the material before me has been considered carefully.
[40] The Tribunal was referred to a number of authorities by both parties. The authority that is the most compelling, in my view, is Abetz. In that decision, the Full Bench considered the Attorney-General (Q) v Australian Industrial Relations Commission and others, Esber and section 8 of the Acts Interpretation Act. These were all cases which had been highlighted by the union. The decision of Deegan C in B.T.B. Pulle v Department of Parliamentary Services and Others, 47 published five years after Abetz, traversed similar authorities.
[41] In Abetz, the applicant, Mr Stephenson, sought to be appointed to a salary point higher than the bottom point on the salary band. The dispute prevention and resolution clause of the 2001 agreement was invoked, 13 days before the 2003 agreement was certified. The 2003 agreement replaced the 2001 agreement and completely excluded it except for those provisions in the 2001 agreement which continued to apply through the 2003 agreement. Clause 6.5 of the 2003 agreement also provided for an application to terminate the 2001 agreement following certification of the 2003 agreement. 48
[42] The Full Bench reached a number of conclusions which, in my view, are applicable to this matter. First, the Full Bench concurred with Vice President Lawler when he said in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation 49(Telstra) that:
“[35] Following the Private Arbitration Case it is now well settled that the power exercised by the Commission when it arbitrates a dispute notified under a dispute settling procedure in a certified agreement (previously approved under s.170LW or one of its predecessors) is a power of private arbitration [Private Arbitration Case at [32]] conferred on the Commission by the agreement of the parties in circumstances where s.89(b) of the Act `authorises the Commission to exercise those functions that it derives from [s.170LW and its predecessors]' [Private Arbitration Case at [6]].” 50
[43] Second, the Full Bench stated 51 that:
“[42] Further, we think s.170LX of the Act is another constraint or limitation on the Commission's jurisdiction to exercise the private arbitration power arising from the procedures in a certified agreement for preventing and settling disputes.
[43] We have come to that view for the following reasons.
[44] Section 170LW of the Act, which Vice President Lawler refers to as a source of the Commission's jurisdiction to exercise the private arbitration powers in a certified agreement, is as follows:
"Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:
(a) to settle disputes over the application of the agreement;
(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes." (Underlining added)
[45] The wording of section s.170LW of the Act makes it clear that the Commission's jurisdiction to exercise the private arbitration power given to it by the disputes prevention and settlement procedure in an agreement is dependent on the agreement being a certified agreement.
[46] An agreement which authorises the Commission to exercise such a power of private arbitration cannot operate with that effect unless it is a certified agreement.”
[44] The Full Bench went on to further find that:
“A corollary of our conclusions about the effect of ss.170LW and LX of the Act is that if a certified agreement empowering the Commission to settle disputes over the application of the agreement ceases to operate because of the provisions of s.170LX of the Act, then the Commission no longer has jurisdiction to exercise that private arbitration power in the agreement.” 52 (Underlining added)
[45] The Full Bench then stated that:
“From 20 August 2003, therefore, when the 2001 Agreement ceased to operate because its nominal expiry date of 28 October 2002 had passed and it was replaced by the 2003 Agreement, the Commission no longer had jurisdiction to exercise the private arbitration power in clause 65 of the 2001 Agreement.” 53 (Underlining added)
[46] In this matter, the 1996 certified agreement ceased to operate - not because it was replaced by another agreement (Abetz) - but because it was terminated.
[47] Section 170LX of the WR Act provides as follows:
“(1) A certified agreement comes into operation when it is certified and, subject to this section, remains in operation at all times afterwards.
(2) The agreement ceases to be in operation if:
(a) its nominal expiry date has passed; and
(b) it is replaced by another certified agreement.
(3) The agreement:
(a) ceases to be in operation if it is terminated under section 170LV, 170ME, 170MG, 170MH or 170MHA; and
(b) does not operate if subsection 170LY(2) applies.
The agreement may also be set aside under subsection 113(2A).
Note: Sections 170LV and 170ME deal with breaches of undertakings. Sections 170MG, 170MH and 170MHA deal with voluntary termination. Subsection 113(2A) deals with discriminatory agreements.”
[48] As can be seen, under s.170LX(2) and (3), a certified agreement ceases to be in operation if it was passed its nominal expiry date and is replaced by another certified agreement (s.170LX(2)) or if it is terminated under the sections set out in s.170LX(3). Therefore, s.170LX provides for a range of circumstances under which an agreement ceases to operate. Therefore, the situation applying to the 1996 certified agreement in this matter are provided for in s.170LX with the result that the 1996 certified agreement ceased to operate from 13 January 2011 when it was terminated under s.170MH of the WR Act. Accordingly, there would seem to be no impediment to the principles set out in Abetz to be applicable in this matter. This is due to s.170LX providing for a certified agreement to cease to operate in the factual scenario applying in Abetz and also to the situation in this matter.
[49] Therefore, as the 1996 certified agreement which empowered the Commission to settle disputes over the application of the agreement ceased to operate on 13 January 2011, as a result of the provisions of s.170LX of the WR Act, the Tribunal no longer has jurisdiction to exercise the private arbitration power contained in the agreement under s.170LW.
[50] With respect to Mr Buntman’s submissions regarding Ms Wills having three accrued rights, I agree with Mr Forbes that, in the first instance, the only right that would be relevant is the dispute settlement right. There is no necessity, at this point, to deal with Mr Forbes’ argument that the last step of the dispute resolution clause does not apply to an individual so, therefore, Ms Wells could not accrue that right in any event.
[51] The Full Bench in Abetz also considered the issue of accrued rights as it was an argument put by Mr Stephenson in that case. In their decision, the Full Bench stated that:
“Finally, we do not accept Mr Stephenson has an accrued right to have his dispute over the application of the 2001 Agreement dealt with by the Commission. We have come to this view having regard to the fact the 2001 Agreement ceased to operate on 20 August 2003 in accordance with the provisions of s.170LX of the Act and also having regard to the abovementioned provisions of the 2003 Agreement and the absence from the 2003 Agreement of a clause consistent with clause 28.3(b) of the 2001 Agreement. In our view, these factors displaced any prima facie preservation of such a right.” 54
[52] It would appear from the decision that it was the Full Bench’s view that Mr Stephenson did not have an accrued right to have his dispute over the application of the 2001 agreement dealt with by the Commission. The first basis for this view was that, in accordance with the provisions of s.170LX, the 2001 agreement had ceased to operate.
[53] Mr Buntman submitted that Ms Wills had accrued rights as the result of the operation of Schedule 3, Part 2, Item 7 of the TPCA. These rights were with respect to a proper classification, proper wages and a right to have the Tribunal resolve her dispute pursuant to the disputes settlement procedure in the agreement. The basis for this contention included section 8 of the Acts Interpretation Act, Attorney-General (Q) v Australian Industrial Relations Commission and others and Esber. He argued that the Tribunal’s power to determine the application had not been modified by the termination of the Agreement but had been preserved by the operation of Item 7. The authorities relied on by Mr Buntman were considered by the Full Bench in Abetz.
[54] The issue to be determined here is whether the Tribunal has jurisdiction to deal with the application and thereby exercise the private arbitration power given to it by clause 7(b)(v) of the 1996 certified agreement. The Full Bench in Abetz found that s.170LW clearly provides that the Tribunal’s jurisdiction to exercise a private arbitration power given to it in an agreement is dependent on the agreement being a certified agreement. If the certified agreement ceased to operate due to s.170LX, then the Tribunal could no longer exercise the private arbitration power in the Agreement. The 1996 certified agreement was terminated by the Tribunal on 13 January 2011. The application made by the union was lodged after the agreement had been terminated (on 25 March 2011). Therefore, prima facie, the Tribunal does not have jurisdiction to deal with the application as the 1996 certified agreement, which gave the tribunal power to do so (private arbitration power), ended when the agreement was terminated and thereby ceased to operate.
[55] The Full Bench in Abetz did not consider that Mr Stephenson had an accrued right to have his dispute over the application of the 2001 agreement dealt with. This was on the basis that that agreement had ceased to operate in accordance with s.170LX. I have not been persuaded that Item 7 dislodges the principles set out in the Abetz case. The union’s application is being dealt with as if it was made under s.170LW. The Full Bench in Abetz found that such an application, as it related to a certified agreement that had ceased to operate prior to the application being made, could not be dealt with by the Tribunal. This was because the Tribunal no longer had a power of private arbitration (which it had been given by the agreement) because the agreement had ceased to operate. The Full Bench also found that Mr Stephenson did not have an accrued right to have his dispute over the 2001 agreement determined due to the operation of s.170LX of the Agreement. Both s.170LW and s.170LX continue to apply to this application and I have not been persuaded that Item 7 of the transitional provisions is applicable. Ms Wills does not have an accrued right regarding the dispute settlement procedure.
[56] It would not be possible to accrue a right to a disputes settling procedure in an agreement which had ceased to operate (which gave the Tribunal a power of private arbitration). This is because, when the agreement ceased to operate, so did the power of private arbitration that it gave the Tribunal (s.170LW). Therefore, where the Tribunal’s power of private arbitration is given to it by an agreement, when the agreement ends (ceases to operate) so does the Tribunal’s power of private arbitration. Section 170LW is quite clear that the Tribunal’s power to settle disputes over the application of the agreement comes from procedures in a certified agreement which give the Tribunal the power to do so. No certified agreement = no private arbitration power for the Tribunal (assuming the certified agreement provides for this). As VP Lawler observed in Telstra and quoted with approval in Abetz 55:
“[33] It follows that the source of the Commission's jurisdiction when it deals with a dispute notified under a dispute settlement procedure in a certified agreement approved under s.170LW or one of its predecessors is:
(i) Section 89(b) of the Act in combination with an approval pursuant to s.170LW (or its relevant predecessor)
`in conjunction with' [Private Arbitration Case at [32]]
(ii) the agreement of the parties that empowers the Commission to settle disputes.”
[57] For these reasons, I therefore find that the Tribunal does not have jurisdiction to further deal with the application.
COMMISSIONER
1 Transcript PN 26
2 Ibid PN 27
3 Ibid PN 34
4 Ibid PN 36 - 37
5 Ibid PN 38
6 Ibid PN 40 - 41 and Exhibit R2 at paragraphs 14 - 15
7 PR952743
8 Exhibit R2 at paragraph 15
9 Transcript PN 48 - 54
10 Ibid PN 109 - 111
11 Ibid PN 56
12 Ibid PN 56 - 58
13 Ibid PN 68 - 103
14 Ibid PN 104
15 Ibid PN 105 - 107
16 Ibid PN 112 - 115
17 Ibid PN 116
18 Ibid PN 256 - 257
19 [2002] HCA 42
20 Transcript PN 266
21 Ibid PN 267 - 268
22 Exhibit A1 at paragraphs 3 - 5
23 Transcript PN 134 and Exhibit A1 at paragraphs 2 and 10
24 Ibid PN 134 and Ibid at paragraph 11
25 Ibid PN 134 - 137
26 Ibid PN 137
27 Ibid PN 138 - 142
28 Ibid PN 186
29 Ibid PN 247
30 Ibid
31 Ibid PN 143 - 145
32 Ibid PN 148 and Exhibit A1 at paragraphs 43 - 44
33 Ibid PN 148 and ibid at paragraphs 46 - 47
34 Ibid PN 149 and ibid at paragraph 48
35 Ibid PN 150 - 155 and ibid at paragraph 49
36 Ibid PN 156 - 164 and ibid at paragraph 53
37 [1992] HCA 20; (1992) 174 CLR 430
38 Transcript PN 171
39 Ibid PN 172 - 174 and Exhibit A1 at paragraphs 64 - 65
40 [1996] IRCA 93
41 Transcript PN 175 - 184 and Exhibit A1 at paragraphs 66 - 68
42 (1920) 28 CLR 129
43 Transcript PN 185 and Exhibit A1 at paragraphs 75 - 92
44 Ibid PN 187
45 Ibid PN 209 - 219
46 Ibid PN 222 - 223
47 [2009] AIRC 715
48 PR952743 at paragraphs 7 - 14
49 PR933892, 2 July 2003
50 PR952743 at paragraphs 40 - 41
51 Ibid at paragraphs 42 - 46
52 Ibid at paragraph 49
53 Ibid at paragraph 50
54 Ibid at paragraph 54
55 Ibid at paragraph 40
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