National Union of Workers v Sigma Company Limited T/A Sigma Healthcare

[2019] FWC 2064

[2019] FWC 2064

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

National Union of Workers
v
Sigma Company Limited T/A Sigma Healthcare
(C2018/4030)

COMMISSIONER CIRKOVIC MELBOURNE, 28 MARCH 2019

Application to deal with a dispute – interpretation of agreement

Introduction

[1] This decision involves an application brought by the National Union of Workers (“the Applicant”) under section 739 of the Fair Work Act 2009 (“the Act”). The Respondent is Sigma Company Limited (“the Respondent” or “the company”).

[2] The parties are covered by the Sigma (Victoria) Enterprise Agreement 2016 (“the Agreement”). It has a nominal expiry date of 30 September 2019.

Background and issues in dispute

[3] The parties are in dispute as to whether the Respondent is required to offer an employee of a third-party labour hire company, Ms Vishwa Chadasama, full-time permanent employment, pursuant to clause 4.3.8 of Agreement. The Applicant filed an application to deal with the dispute under s.739 of the Act. The Respondent has challenged the jurisdiction of the Commission to deal with the dispute, on the grounds that clause 4.3.8 is not about “permitted matters” as that term is used under s.172(1)(a) of the Act. The matter was referred to me for arbitration on the point of jurisdiction. It is common ground, and I agree, that the Commission is authorised by the terms of the Agreement to arbitrate this dispute as to jurisdiction.

[4] The parties submitted a consent position with the following question for arbitration:

“Is clause 4.3.8 of the agreement a “permitted matter” as that term is used under s.172(1)(a) of the Act, insofar as the clause operates to require Sigma to offer employment to an employee of a third party, namely an employee of a labour hire company.”

[5] The Respondent filed written submissions on 10 September 2018 and 24 January 2019. The Applicant filed written submissions on 24 September 2018 and 31 January 2019. Short oral hearings were conducted on 2 November 2018 and 10 January 2019 for the purpose of clarifying submissions and hearing evidence.

Principles of Interpretation of Enterprise Agreements

[6] The principles to be applied to the interpretation of enterprise agreements were detailed by the Full Bench of the Commission in The Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd (“Golden Cockerel”). 1 The summary of the applicable principles set out in Golden Cockerel was modified in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (“Berri”).2

[7] Both parties sought to rely on these principles to advance their case in their submissions. I adopt and apply the principles in Berri in this decision without restating them.

Submissions

[8] Both parties referred to the jurisprudence on the point of “permitted matters”. The parties’ cases differed in the extent to which they sought to analogize or distinguish the clauses dealt with in the authorities. In this respect, the Respondent submitted that the clause in this case was akin to the clause at issue in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Visy Board Pty Ltd T/A Visy Board (“Visy”), 3 which Commissioner McKinnon found (as affirmed by the Full Bench) to be not pertaining to the employment relationship and therefore not a permitted matter.4 The Applicant sought to distinguish the clause in Visy, and submitted that the clause was analogous to those in a number of cases wherein the disputed clause was construed as a “partial” prohibition on the use of labour hire, sufficiently related to matters of job security and the company’s mode of recruitment.5

The Applicant’s Submissions

[9] The Applicant submits that clause 4.3.8:

•  if considered a restriction upon labour hire usage at all, 6 is a partial prohibition of a much less restrictive nature than the clause in Visy for the following reasons;7

•  “there is no limitation placed on the number of labour hire workers that are permitted to be engaged by Sigma” 8;

•  there is no limitation on the use of labour hire workers in response to fluctuations, or to substitute permanent employees working overtime; 9

•  it does not prevent the company from terminating the labour hire engagement and re-engaging the same or a replacement worker under a labour hire arrangement prior to the triggering of the obligation to offer permanency; 10

•  it requires there to be a “genuine workforce need” to trigger the obligation to offer employment, rather than requiring the company to make the offer of employment irrespective of economic or business considerations.

•  unlike the clause in Visy, is linked to the “mode of recruitment” of employees due to its connection with the “skill, competence or reliability of the workforce”, 11 because the company is only obliged to offer permanent employment to labour hire workers when there is a genuine workforce need, and only after 12 months of engagement, when they are likely to possess a material level of performance, skills and aptitude.;12

•  promotes the job security of employees, because:

“[it] ensures that Sigma cannot indefinitely engage the services of a labour hire worker in circumstances where there are permanent roles available. It thereby ensures that Sigma cannot replace its permanent workforce over time with labour hire casuals, thereby protecting the permanent workforce’s job security”; 13 and

•  therefore pertains to matters relating to the employment relationship and is about a permitted matter enforceable in the Commission.

[10] The Applicant refers to clause 4.3.8 in the context of the surrounding provisions of clause 4.3, submitting that clause 4.3 as a whole is directed at maintaining employee job security. 14

[11] The Applicant also submits that the objective intention of the parties is that the clause be a matter pertaining to the employment relationship, citing in particular clause 1.8 of the Agreement, as well as the post-agreement conduct of the parties. 15

[12] The Applicant submits that, in line with Berri, the Commission should have recourse to witness evidence in this matter, because: 16

• determining whether the clause is about permitted matters is “inherently uncertain”; and

• it is necessary to determine the purpose and effect of the clause in order to determine whether it is about job security or prohibition on the use of labour hire.

[13] In support of its submissions, the Applicant led evidence from Mr Wiggs, as to the circumstances during negotiation of the Agreement and the parties’ intentions at that time; and Mr Deichen, also on that issue and the parties’ post-agreement conduct, in particular, with respect to the company’s regular and systematic engagement of workers and their accrual of skill over time.

The Respondent’s submissions

[14] The Respondent submits:

• clause 4.3.8 is “extremely similar” to the clause in Visy and therefore the reasoning adopted in Visy should be applied to this case; 17

• similarly to the operation of the clause in Visy, the practical effect of clause 4.3.8 is that labour hire workers can only be engaged on a regular and systematic basis for a period of less than 12 months; 18

• clause 4.3.9 is irrelevant to the construction of clause 4.3.8; 19

• based on clause 1.2.3, the parties clearly do not intend for the clause to be binding if it is to be found to be illegal or invalid; 20

• the “the intention of the parties at the time does create its own legality and cannot

override legal requirements”; 21 and

• the clause has a plain meaning such that the Commission should not have recourse to extrinsic material. 22

[15] In response to the Applicant’s submissions about employee job security, the Respondent submits that:

“[the Applicant puts forward] the same argument that was made by the AMWU in the Visy matter. The Commissioner and the Full Bench were not convinced. Neither should the Commission as currently constituted be convinced”. 23

[16] In support of the proposition above, the Respondent points to the fact that the 2007 and 2009 iterations of the Agreement obliged the company to offer employment after six months of a labour hire worker’s engagement, compared to the current Agreement’s timeframe of 12 months, and that therefore as the current Agreement is less restrictive, the objective purpose is not to protect employee job security. 24

[17] In response to the Applicant’s submissions as to the mode of recruitment, the Respondent submits that the difference between the twelve months in clause 4.3.8, and the three months in the Visy clause, is a “flimsy”, “artificial distinction that has no material impact on the end of period requirement for the labour hire worker to be offered permanent employment”. 25

Consideration

[18] In accordance with the principles earlier stated, the construction of the Agreement begins with a consideration of the ordinary meaning of the relevant words. Context may appear from the text of the Agreement viewed as a whole, or the place and arrangement of the clause in the Agreement. The statutory framework under which the Agreement was made and in which it operates may also provide context.

[19] Clause 4.3 relevantly provides:

“4.3 CASUAL EMPLOYMENT

4.3.1 A casual employee is one engaged and paid as such. A casual employee for working ordinary time shall be paid per hour 1/36th of the weekly rate prescribed by this agreement for the work that the employee performs, plus a loading of 25 per cent, with a minimum as for four hours worked. This loading is in lieu of entitlements to paid leave, pay for public holidays which are not worked, notice, redundancy and other entitlements associated with employment on a non-casual basis. Service as a casual employee will not be counted as service towards the accrual of notice, redundancy or other entitlements whether or not the employee converts or is subsequently employed as a non-casual employee.

4.3.2 It is agreed that there will be no ratio applied to casual employees working during mid-November to mid-January (Christmas) and three weeks prior to Easter and two weeks after Easter each year, at all other times the maximum number of casual employees at Rowville shall be 32 casuals. In exceptional circumstances this number may be temporarily increased following consultation with employee representatives.

4.3.3 Priority for allocation of additional work at the start or the end of part time shifts will be given to part time employees who have indicated their availability for such additional work.

4.3.4 Casual employees will work no more than 20 hours per week, with the exception of those casuals who work in the promotions warehouse from time to time. However, in exceptional circumstances casual hours may be increased in any one week providing the same casual employee does not work over 40 hours in the fortnight of which includes the week the additional hours were worked.

4.3.5 On request the Company will provide to the employee representatives within 3

working days of such request, information on hours worked by part timers and casuals and any anomalies will be discussed between management and the employee representatives.

4.3.6 The parties to this agreement agree to review the work allocation for part time employees every six months to see if there are opportunities for increased hours for part time employees.

4.3.7 The parties to this agreement agree to review the work allocation for casual employees every twelve months to see if there are opportunities for permanent positions for casuals.

4.3.8 Where a casual employee or labour hire worker has been employed on a regular and systematic basis at a Sigma site for a minimum continuous period of 12 months, and the casual employee or labour hire worker expresses a desire to Sigma to work on a permanent basis, they will be offered permanent employment within 4 weeks of completing their 12 months service.

4.3.9 The Company will only be required to offer an individual a permanent position pursuant to clause 4.3. 7 in circumstances where there is genuinely a role available for a permanent employee. For example, the Company would not be required to offer a permanent position to an employee filling in a position of an employee on parental leave or absent due to an injury or illness for which the employee is receiving workers compensation.

4.3.10 Casuals not employed directly by the Employer

(a) The employer will require that persons engaged by labour hire companies to perform work covered by this Agreement will be paid equivalent rates of pay to those in the Sigma (Victoria) Enterprise Agreement 2014 (as at 1 October 2015) and other conditions set out in this Agreement.

(b) The employer will achieve compliance with this clause if they take all reasonable steps to achieve and maintain compliance with this clause. Nothing in this clause shall require the extension of the limitations on employment of casual employees by Sigma under clauses 4.3.2 or 4.3.4 to labour hire providers.

(c) If any concerns are raised about a Labour Hire Provider utilised during the life of the Agreement, the Employer, employees and the Union will confer with the aim of resolving these concerns, including reviewing the engagement of the Labour Hire Provider.”

Permitted matters

[20] Section 172(1) of the Act permits enterprise agreements to be made about one or more of the following “permitted matters” 26:

“(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;

(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;

(c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement;

(d) how the agreement will operate.”

[21] The “matters pertaining to the employment relationship” formulation under subsection (a) has a long history. 27 The matter must be one that affects employers and employees in their capacity as such.28 Whether a matter pertains to the employment relationship is to be objectively determined on the particular facts in each case.29 The test is to be applied to each discrete, substantive and significant provision.30 As the Explanatory Memorandum for the Fair Work Bill 2009 explains:

“671. Whether a particular term is about matters pertaining to the employment relationship will depend on its precise construction, as well as the circumstances surrounding the particular employment relationship. Frequently, it will be obvious that a term pertains to the employment relationship - e.g., a term about the payment of wages or a term about hours of work and shift patterns. However, there are some terms where it is not so immediately clear whether the terms are about matters pertaining to the employment relationship (see, e.g., the discussion in Re Schefenacker Vision Systems Australia Pty Ltd, AWU, AMWU Certified Agreement 2004[2004] AIRC 1064).”

[22] The Explanatory Memorandum contains examples of terms intended to be within the scope of permitted matters, including:

•  terms relating to conditions or requirements about employing casual employees or engaging labour hire or contractors if those terms sufficiently relate to employees’ job security - e.g. a term which provided that contractors must not be engaged on terms and conditions that would undercut the enterprise agreement; and

•  terms that would provide that casual employees are converted to permanent employees after a set period of time.

[23] Examples of terms not intended to be within the scope of permitted matters were also identified in the Explanatory Memorandum, including:

•  terms that would contain a general prohibition on the employer engaging labour hire employees or contractors;

•  terms that would contain a general prohibition on the employer employing casual employees; and

•  terms that would require an employer to engage or not engage particular clients, customers or suppliers who had agreed to commit to certain employment, environmental or ethical standards (unless, e.g., such a terms was directly related to employees’ health and safety).

[24] In Murray Bridge a Full Bench of the Commission considered terms dealing with employees of labour hire agencies engaged by Schefenacker Vision Systems Australia Pty Ltd (“Schefenacker”). 31 Relevantly, they included the following:

“17.4 Employees of labour hire agencies will not be considered for permanent employment until the total percentage of labour hire agency employees exceeds 20% of total weekly paid employees. When the 20% threshold is exceeded, employees of labour hire agencies will be offered permanent employment based on specific positions and shifts identified as being needed by the company.”

[25] At first instance, O’Callaghan SDP held that the term pertained to the employment relationship as it defined “when employment will be considered … and upon what basis.” On appeal, the Full Bench agreed and said:

“[78] We admit to some difficulty in characterising this provision, comprised as it is of a series of sub-clauses with a number of legal effects. On the one hand, it may be accepted that Schefenacker’s employees have a legitimate interest in the engagement of labour hire employees because of the effect of such engagement on their own employment. For that reason it may be that the engagement of labour hire employees is a matter pertaining to the relationship between Schefenacker and its own employees. On the other hand, the extent to which the agreement can regulate the contractual relationship between Schefenacker and labour hire agencies, yet still pertain to the relevant relationship, is obviously a question of degree.

[79] We agree with the Senior Deputy President, for the reasons he gave, that the first four sub-clauses pertain to the relationship between Schefenacker and its employees. The number of labour hire employees engaged, it is to be inferred, is likely to have a direct effect upon the amount of work available to Schefenacker’s employees and, ultimately, upon the number of employees Schefenacker engages directly. While it is true that cl.17.2 and cl.17.4 may be construed as a partial prohibition on the use of labour hire employees, they are also designed to increase permanent employment by placing obligations upon the employer to engage more permanent employees in the circumstances specified.”

[26] In Wesfarmers Premier Coal Ltd v AMWU (No 2) 32(“Wesfarmers”), the Federal Court considered a clause dealing with the use of independent contractors. As French J observed:

“A distinction has been drawn between provisions regulating or prohibiting the use of independent contractors and provisions which prescribe minimum terms and conditions for the employees of independent contractors. The distinction was drawn in R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470. Gibbs J observed that an award could properly require that the employee of any contractor engaged by the employer be engaged on the same terms and conditions as those applicable to the employees of the employer under the award.” 33

[27] He went on to find:

“In my opinion, cl 33 makes clear that the proposed agreement in this case was to include provisions restricting or qualifying the employer’s right to use independent contractors. Having regard to the basic test set out in Electrolux that a matter pertaining to the relationship between employer and employees will affect them in their capacities as such, I am of the opinion that cl 33 imports into the proposed agreement a discrete matter which does not pertain to that relationship. It is not merely ancillary, but substantive and distinct.” 34

[28] The decision in United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board is also relevant. 35 .

In that case, a Full Bench of the Commission confirmed the relevance of Re Cram; ex parte NSW Colliery Proprietors’ Association Limited to the law on “matters pertaining”,  36 deriving the following propositions:

1. A matter will pertain to the relationship of employers and employees if it directly affects the conditions of employees, which includes all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment.

2. The “mode of recruitment” is a matter which has the necessary direct effect, because the competence and reliability of the workforce has a direct impact on the conditions of work, notably as they relate to occupational health and observance of safety standards.

[29] The following passage from the Visy Full Bench decision is also relevant: 37

“[17] In Airport Fuel Services Pty Ltd v Transport Workers’ Union of Australia 38 (Airport Fuel Services) a Full Bench endeavoured to summarise the jurisprudence concerning matters pertaining (in the context of contractor provisions) and concept of genuinely trying to reach an agreement. As to the later summary, a Full bench in Esso Australia Pty Ltd v Australian Manufacturing Workers’ Union39 (Esso) identified a degree of tension between two of the summary propositions advanced, which appeared to arise from a perceived need to reconcile the various propositions and obiter observations in the earlier decisions to which the decision in Esso also referred.40 However the summary in Airport Fuel Services of the jurisprudence concerning matters pertaining has not been criticised and is as follows:

[22] In summary, from the legislation, the jurisprudence and the Explanatory Memorandum to the Fair Work Bill 2008 it can be concluded that:

• “Permitted matters” are “matters pertaining to the relationship between an employer that will be covered by the (enterprise) agreement and that employer’s employees who will be covered by the agreement”, “matters pertaining to the relationship between the employer … and the employee organisation … that will be covered by the agreement”, matters concerning employee authorised deductions from wages and matters concerning how the agreement will operate. 41

• It is intended that terms relating to conditions or requirements about employing casual employees or engaging labour hire or contractors, which sufficiently relate to employees’ job security such as a term which provided that contractors must not be engaged on terms and conditions that would undercut the enterprise agreement, would be within the scope of permitted matters which are matters pertaining to the employment relationship. 42

• It is not intended that “terms that would contain a general prohibition on the employer engaging labour hire employees or contactors” or “terms that would require an employer to engage or not engage particular clients, customers or suppliers who had agreed to commit to certain employment, environmental or ethical standards (unless, e.g., such a terms [sic] was directly related to employees’ health and safety)” would be within the scope of permitted matters which are matters pertaining to the employment relationship. 43

• Terms restricting or qualifying the employer’s right to use independent contractors are not matters pertaining to the employment relationship. 44

• For a term to be about matters pertaining to the relationship between the employer and the employee organisation that will be covered by the agreement, the term needs to relate to the employee organisation’s legitimate role in representing the employees to be covered by the agreement. 45

[18] We see no reason to doubt or qualify the summary.”

Is clause 4.3.8 about “permitted matters”

[30] In accordance with the Berri principles, the interpretation of clause 4.3.8 starts with the text of the provision having regard to its context and purpose. The context may appear from the text of the Agreement viewed as a whole, or the place and arrangement of the clause in the Agreement.

[31] Part 4 of the Agreement is headed “employment categories and employment relationship”. It deals with permanent, part time and casual employment. The actual clause at issue in this matter is clause 4.3. The clause as a whole is concerned with the regulation of casual employment and the company’s engagement of casual employees from labour hire companies.

[32] The uncertainty in this matter arises by virtue of the requirement in s.172 of the Act that enterprise agreements be about “matters pertaining to the employment relationship”, the historical formulation of which has been discussed earlier.

[33] The Respondent suggests that clause 4.3.8 is so similar to the clause in Visy that that case should be followed in this dispute.

[34] I disagree on two bases. First, each Agreement is to be dealt with on its own merits. 46 Second, I agree with the Applicant that there are significant differences between Visy and the matter before me.

[35] In my view, for the reasons that follow, clause 4.3.8 has a sufficient connection to the promotion of employee job security. The practical effect of clause 4.3.8 is to limit the company’s engagement of a worker under a labour hire arrangement beyond 12 months, where the worker has been engaged on a “regular and systematic” basis for that period and there is “genuinely a role available for a permanent employee”. I agree with the Applicant that the clause enables the company to engage workers in a non-continuous fashion so that that the obligation to offer permanency does not arise. I also agree with the Applicant that the clause enables the company to terminate a workers’ engagement before 12 months and either re-engage that individual or engage a ‘new’ labour hire worker in the same role. Clause 4.3.8 is therefore much less restrictive than the clause considered in Visy.

[36] The other practical effect of clause 4.3.8 is to encourage employee job security, because it places obligations upon the employer to engage workers as permanent employees in the circumstances specified.

[37] This construction is supported by the provisions of 4.3 as a whole. I reject the Respondent’s contention that clause 4.3.9 is irrelevant to this matter. The Berri principles require consideration of clause 4.3.8 in its context and within the Agreement as a whole. I accept the Applicant’s submission that clause 4.3.9 contains a typographical error and in fact refers to clause 4.3.8 and not clause 4.3.7. Clause 4.3.7 refers to a requirement to review work allocation, and there is no reference to any “offer” of employment. Clause 4.3.8 does refer to an “offer” of employment.

[38] Clause 4.3.9 ensures that the company’s obligations under clause 4.3.8 only arise where there is a genuine workforce need for a permanent role. This ameliorates the restriction on the company and promotes job security, by ensuring that the company’s obligations only arise in those circumstances.

[39] Clause 4.3.8 must be read and understood in light of the other provisions of clause 4.3, which in my view demonstrate an intention to promote job security through promoting permanency in the workforce. Clause 4.3.10 is a ‘site rates’ clause, adapted to prevent ‘undercutting’ of the conditions in the enterprise agreement and thus discourage the company from engaging labour hire workers to the detriment of the job security of permanent employees. Clauses 4.3.2 to 4.3.7 operate so as to encourage, if not ensure, a certain level of work allocation to those in part-time and permanent employment positions. While clause 4.3.10(b) dictates that the restrictions as to casuals in clauses 4.3.2 and 4.3.4 do not apply to labour hire providers, in my mind this does not detract from one of the purposes of clause 4.3, which is to maximise opportunities for permanent employment.

[40] I reject the Respondent’s argument that clause 4.3.8 undermines job security because workers are required to be engaged for 12 months before the company is obliged to offer permanency, compared to the six months required under previous versions of the clause. 47 While I agree that this does, practically speaking, allow the company to use workers under labour hire for a longer period of time, it does not in mind alter the balance of factors which point towards the clause’s purpose of promoting employee job security.

[41] I am not persuaded by the Applicant’s submission that clause 4.3.8 pertains to the company’s mode of recruitment. While workers may accrue some level of skill or familiarity with the company’s business over the course of a 12 month engagement, on balance I am of the view that this is not a necessary consequence. I am not persuaded that the 12 month requirement is linked to employee competence and reliability such that there is an effect on the working conditions of employees including their health and safety. 48

The parties’ contention as to the history of the instrument and the conduct of the parties

[42] I have determined that an analysis of the Agreement is sufficient to resolve this matter. However, I will briefly address the Applicant’s submissions concerning the conduct of the parties and the history of the Agreement.

[43] The company has referred to previous iterations of the Agreement to support a submission that an increase from six months in the 2007 and 2009 agreements to 12 months in the current Agreement, as it applies to the engagement of labour hire employees, is indicative of an intention to reduce job security.

[44] The Applicant led evidence of Mr Wiggs as to the circumstances surrounding the negotiations leading to the making of the Agreement and the parties’ intentions at that time. It further led evidence of Mr Deichen as to the parties’ post-agreement conduct, in particular, with respect to the company’s regular and systematic engagement of workers and their accrual of skill over time.

[45] I have no reason to doubt the truthfulness of the evidence given by both witnesses. However, I am not persuaded that in the circumstances before me, the evidence is probative to the task of construing the Agreement. I do not take issue with the submissions of the parties that, in some cases recourse to surrounding circumstances is appropriate in considering the construction of an enterprise agreement. However, I am mindful that caution should be taken in deriving interpretative sense from the conduct and historical motivations of unions and employees in circumstances where an enterprise agreement is made under the Act when employees vote to approve it. In this context, it is worth noting the comments of Deputy President Colman at [43] of National Union of Workers v CHEP Australia Limited: 49

“There are no ‘parties’ to an enterprise agreement, unlike under earlier legislation. There is no reason to think that the understanding of the employer or the union (even if a mutual understanding) is necessarily determinative of a question of interpretation. Of course, an employer and a bargaining agent such as a union may play a special role in facilitating communications with employees. What the employer and the union have relayed to employees about the terms of the Agreement, whether through the pre-approval processes in s.180 of the Act or otherwise, may be very relevant. However, the interpretation of an agreement must take account of the central relevance of employees in the agreement-making framework of the Act.”

[46] In the present matter, I am unable to conclude that the interpretation of the Agreement before me is assisted in a meaningful way by the parties’ submissions and evidence as to the history of the matter and the post-agreement conduct.

Conclusion

[47] For the above reasons I am satisfied that clause 4.3.8 imposes a partial restriction on the company’s use of labour hire but sufficiently relates to promoting employee job security such that it relates to the employment relationship. In these circumstances, I find that the clause is about permitted matters.

[48] It follows that the answer to the question at [4] above is yes. The jurisdictional objection to the application is dismissed.

COMMISSIONER

Appearances:

Mr Toner for the Applicant

Mr Dalton for the Respondent

Hearing details

2 November 2018;

10 January 2019.

Final written submissions:

Applicant’s submissions filed 31 January 2019.

Respondent’s submissions filed 24 January 2019.

Printed by authority of the Commonwealth Government Printer

<PR706321>

 1   [2014] FWCFB 7447.

 2   [2017] FWCFB 3005.

 3  [2017] FWC 5529.

 4   See also “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Visy Board Pty Ltd T/A Visy Board [2018] FWCFB 8 (“Visy Full Bench”).

 5  Re Rural City of Murray Bridge Nursing Employees, ANF (Aged Care) –Enterprise Agreement 2004 (2005) IR 289 (“Murray Bridge”); National Union of Workers v Alto Manufacturing[2015] FWC 2730 cited in Applicant’s Submissions filed 24 September 2018at [27]; Re National Union off Workers; Re Agreement with Exel (Australia) Logistics (2005) 146 IR 334 cited in Applicant’s Submissions filed 24 September 2018at [24]-[26].

 6   See Transcript of Proceedings PN 394.

 7 Applicant’s Submissions filed 31 January 2019 [5].

 8   Transcript of Proceedings dated 10 January 2019 PN 348-9.

 9 Applicant’s Submissions filed 31 January 2019 [5].

 10   Applicant’s Submissions filed 24 September 2018at [43].

 11   See Visy Full Bench [2018] FWCFB 8 [21] citing United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board[2016] FWCFB 2894; Re Cram; ex parte NSW Colliery Proprietors’ Association Limited (1987) 163 CLR 117.

 12   Transcript of Proceedings PN 279; Applicant’s Submissions filed 24 September 2018at [42];seealsoApplicant’s Submissions filed 31 January 2019 [17]-[18].

 13   Transcript of Proceedings PN 397, 402, 404; Applicant’s Submissions filed 24 September 2018at [52]; see alsoApplicant’s Submissions filed 31 January 2019 [15].

 14   Applicant’s Submissions filed 24 September 2018[57]-[65].

 15   Ibid[67]-[74];Transcript of Proceedings PN 426-428.

 16   Applicant’s Submissions filed 31 January [22]-[33].

 17 Respondent’s Submissions filed 10 September 2018 [27].

 18 Ibid [64].

 19   Respondent’s Submissions filed 24 January 2019 [60]-[63].

 20 Respondent’s Submissions filed 24 January 2019 [15].

 21 Ibid [16].

 22   Ibid [21]-[23].

 23   Ibid [24]

 24   Ibid [32]-[33].

 25 Ibid [57].

 26   Fair Work Act 2009 (Cth), s.12.

 27   Explanatory Memorandum to the Fair Work Bill 2009, at [661]-[678].

 28   Electrolux Home Products Pty Limited v AWU [2004] HCA 40; (2004) 221 CLR 309.

 29 [2004] HCA 40 at [241]; Wesfarmers Premier Coal Ltd v AMWU (No 2) [2004] FCA 1737 at [62].

 30   PR956575.

 31   Murray Bridge (2005) IR 289.

 32 [2004] FCA 1737.

 33 [2004] FCA 1737at [107].

 34  

 35  [2016] FWCFB 2894

 36 (1987) 163 CLR 117.

 37   Visy Full Bench [2018] FWCFB 8.

 38 (2010) 195 IR 384.

 39 (2015) 247 IR 5.

 40 Ibid at [43].

 41   Fair Work Act 2009 (Cth) s.172(1).

 42   Explanatory Memorandum, Fair Work Bill 2008 108, 672.

 43   Ibid, 673.

 44   Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) (2004) 138 IR 362 at [109].

 45   Explanatory Memorandum, Fair Work Bill 2008 109, 675.

 46   See, eg Visy Full Bench [19].

 47   Respondent’s Submissions filed 24 January 2019 [26]-[33].

 48   See United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board[2016] FWCFB 2894.

 49   [2018] FWC 3797.