DECISION

Fair Work Act 2009
s.739—Dispute resolution

Oscar Rivera
v
Transdev Melbourne Pty Ltd
(C2017/6598)

COMMISSIONER LEE

MELBOURNE, 9 MAY 2018

Application to deal with a dispute – jurisdictional objection upheld – application dismissed.

[1] Mr Oscar Rivera (the Applicant) has made an application under s.739 of the Fair Work Act 2009 (the Act) notifying a dispute to the Fair Work Commission (the Commission). The Respondent is Transdev Melbourne Pty Ltd. The relevant instrument is the Transdev Melbourne Pty Ltd Bus Driver Enterprise Agreement 2014 – 2018 (the Agreement). The Applicant is an employee of the Respondent employed as a Bus Driver at the Sunshine West depot and is covered by the Agreement.

[2] This matter was originally allocated to Deputy President Millhouse. A conference was held on 19 December 2017 and proposals to resolve the dispute were evidently discussed. Prior to that conference, the Respondent raised a jurisdictional objection to the application, alleging the steps in the Agreement’s dispute settlement procedure had not been followed. However, the Respondent indicated that they were nevertheless prepared to participate in the conference.

[3] The application was allocated to me on 20 February 2018 and I conducted a conference with the parties on 6 March 2018 to clarify whether the substantive dispute had been resolved. The Applicant maintained that the dispute had not been resolved. The Respondent was of the view that the dispute was resolved in the conference before the Deputy President. However, it was apparent from the discussion at the conference on 6 March 2018 that the dispute, which relates to the introduction of new rosters, is not resolved. The Respondent advised that it continued to press the jurisdictional objection as a threshold objection. Accordingly, directions were set for the filing of materials and the hearing of the jurisdictional objection.

[4] The Respondent claims that the dispute settlement term at clause 15 of the Agreement has not been followed because the Applicant has not attempted to resolve the dispute at the workplace level in accordance with clause 15.3 of the term. The Respondent therefore contends that there is no jurisdiction for the Commission to deal with the application.

[5] The matter was listed for hearing before me in relation to the jurisdictional objection on Friday, 6 April 2018. The Applicant appeared and gave evidence on his own behalf. Ms Baker, Manager Workplace Relations appeared for the Respondent. Evidence for the Respondent was provided by Mr Shaun Lawson, Area Manager of Area West and Mr Timothy Watters, Driver Manager of Area West for the Respondent.

[6] The dispute settlement term in the Agreement is at clause 15 and is in the following terms:

“15. Settlement of Disputes

15.1. If a dispute relates to:

15.1.a a matter arising under the Agreement; or

15.1.b the National Employment Standards;

this term sets out the procedures to settle the dispute.

15.2. An Employee who is a party to the dispute may appoint a representative for the purposes of the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] FWC 2255
Decision Date: 9 MAY 2018

CaseChat Overview and Summary

The case of Oscar Rivera against Transdev Melbourne Pty Ltd was heard in the Fair Work Commission. Mr Rivera, a former employee of Transdev, sought to have the Commission deal with a dispute regarding his dismissal. Transdev contested the application on jurisdictional grounds, arguing that the Commission lacked the authority to hear the matter. The central legal issue before the Commission was whether it had the jurisdiction to entertain Mr Rivera's application given the nature of his dismissal and the applicable laws. The Commission was required to determine if the dispute fell within its remit or if it should be resolved by another tribunal.

The Commission assessed the jurisdictional challenge by examining the grounds of Mr Rivera's dismissal and the relevant legislative framework. It considered whether the dismissal was related to Mr Rivera's employment conditions or if it was based on operational reasons, which might place the matter outside the Commission's jurisdiction. Ultimately, the Commission found that the dispute concerning Mr Rivera's dismissal was not one that it could properly address, as it fell outside the scope of its powers under the Fair Work Act. Consequently, the application was dismissed.

The Fair Work Commission upheld Transdev's jurisdictional objection and ruled that the application should not proceed. The Commission's decision was based on its interpretation of the applicable laws and the specific circumstances of Mr Rivera's dismissal. This interpretation led to the conclusion that the dispute was not within the Commission's jurisdiction, and thus the application was dismissed in its entirety.

Orders