Oliver Sims v StarTrack Express Pty Ltd T/A StarTrack

[2017] FWC 3018

[2017] FWC 3018

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Oliver Sims
v
StarTrack Express Pty Ltd T/A StarTrack
(C2017/1426)

COMMISSIONER SAUNDERS NEWCASTLE, 2 JUNE 2017

Application to deal with a dispute - jurisdictional objection - Commission does not have jurisdiction to deal with the dispute - application dismissed

[1] Mr Oliver Sims is employed by StarTrack Express Pty Ltd (StarTrack). He has made a number of requests to StarTrack for flexible working arrangements, each of which has been considered and rejected by StarTrack on the basis of what it says are “reasonable business grounds”.

[2] Mr Sims has sought to use the dispute settlement procedure in the StarTrack Enterprise Agreement NSW/ACT 2015 (Enterprise Agreement) to challenge StarTrack’s contention that it has “reasonable business grounds” to reject his requests for flexible working arrangements. In accordance with the dispute settlement procedure, Mr Sims made an application to the Fair Work Commission (Commission) for it to deal with the dispute pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act).

[3] StarTrack contends that the Commission does not have jurisdiction to deal with the dispute. I agree, for reasons set out below.

Sections 186(6) and 739(2) of the Act

[4] Section 186(6) of the Act provides as follows:

“Requirement for a term about settling disputes
             (6)  The FWC must be satisfied that the agreement includes a term:

(a)  that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

   (i)  about any matters arising under the agreement; and
   (ii)  in relation to the National Employment Standards; and

(b)  that allows for the representation of employees covered by the agreement for the purposes of that procedure.

Note 1:       The FWC or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).
Note 2:       However, this does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).”

[5] Section 739(2) of the Act provides that the Commission:

“…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 the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5).”

[6] There is no dispute in this case that:

● the parties have not agreed in a contract of employment or other written agreement to the Commission dealing with the matter; and

● there is no determination under the Public Service Act 1999 which authorises the Commission to deal with the matter.

[7] The issue in this case is whether the parties have agreed in the Enterprise Agreement to the Commission dealing with the matter.

Dispute settlement procedure in the Enterprise Agreement

[8] Clause 15 of the Enterprise Agreement provides as follows:

“15.1 Dispute means any dispute or grievance between employee(s) covered by the classifications in this Agreement and the Company about this Agreement or the employment relationship (including, for the avoidance of doubt, in relation to the NES).

15.2 The dispute or grievance, as defined above, will be dealt with in the following manner:

…

(e) If the matter remains in dispute, either party may refer the dispute to the FWC for conciliation. For this purpose, it is agreed that the action the FWC may take includes arranging conferences of the parties or their representatives at which the FWC is present; and arranging for the parties or their representatives to confer among themselves as conferences at which the FWC is not present.

(f) If the matter is not resolved in conciliation conducted by the FWC, the parties agree that the FWC will proceed to arbitrate the dispute. In relation to such an arbitration, the parties agree that …”

[9] There is no dispute that a request for a flexible working arrangement is not a matter specifically dealt with under the Enterprise Agreement.

[10] Mr Sims contends that a dispute or grievance between an employee and StarTrack about a request for a flexible working arrangement is a dispute about “the employment relationship (including, for the avoidance of doubt, in relation to the NES)”. Because the present dispute is of such a character the Commission has, so Mr Sims contends, jurisdiction to deal with it.

[11] In my view, the fact that a dispute settlement clause applies to disputes about the “employment relationship” including in relation to the NES is insufficient to overcome the prohibition imposed by s.739(2)(a) of the Act. Section 739(2)(a) is specific in its terms; it requires a written agreement of a particular nature between the parties empowering the Commission to deal with a dispute about whether the employer had reasonable business grounds to reject a request for flexible working arrangements. In order to overcome the prohibition imposed by s.739(2)(a) of the Act, there would, in my view, need to be a specific clause in an enterprise agreement (or other applicable instrument) empowering the Commission to deal with a dispute about whether the employer had reasonable business grounds to reject a request for flexible working arrangements, not just a general clause dealing with disputes about the “employment relationship” and/or “the NES”. My conclusion in this regard is consistent with Commissioner Cloghan’s decision in Bow v National Offshore Petroleum Satefy and Environmental Management Authority[2016] FWC 4416 at [48].

[12] The following parts of the Explanatory Memorandum to the Fair Work Bill 2009 also support my conclusion in relation to the proper interpretation of clause 15 of the Enterprise Agreement and s.739(2) of the Act:

“26. … Requests for flexible working arrangements: the Standard does not provide an entitlement to request flexible working arrangements. The NES will provide a new legislated entitlement for parents of, or having responsibility for the care of, a child under school age to request a change in working arrangements to assist with the care of the child. An employer will only be able to refuse this request on reasonable grounds. The employer's decision will not be subject to review.

…

214. This provision allows modern awards and enterprise agreements to deal with machinery issues (such as when payment for leave must be made). It also allows awards to provide more beneficial entitlements than the minimum standards provided by the NES. For example, an award or agreement could provide for more beneficial payment arrangements for periods of leave, or provide redundancy entitlements to employees of small business employers. Similarly, an agreement could provide a right to flexible working arrangements. The term about a dispute settlement procedure would also apply to that right.

…

785. The legislative note following subclause 186(6) refers to subclause 739(2) and subclause 740(2) which provide that FWA or a person must not deal with a dispute about whether an employer had reasonable business grounds under certain provisions of the NES (subclause 65(5) or subclause 76(4)).

786. However, an agreement could include a term providing for a right to flexible working arrangements separate to subclause 65(5). The enterprise agreement may also provide for the agreement's disputes procedure to apply in respect of any such term.”

Conclusion

[13] For the reasons set out above, I am satisfied that I do not have jurisdiction to deal with the present dispute. As a result, I dismiss the application made by Mr Sims pursuant to s.739 of the Act.

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