Oscar Rivera v Transdev Melbourne Pty Ltd

[2018] FWC 2255

[2018] FWC 2255

FAIR WORK COMMISSION

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 procedures in this term.

15.3. In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the Employee or Employees and relevant supervisors and/or management.

15.4. If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer to the matter to Fair Work Commission.

15.5. The Fair Work Commission may deal with the dispute in 2 stages:

15.5.a The Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

15.5.b If the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:

(i) arbitrate the dispute; and

(ii) make a determination that is binding on the parties.

Note If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act.

A decision that Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.

15.6 While the parties are trying to resolve the dispute using the procedures in this term:

15.6.a an Employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

15.6.b an Employee must comply with a direction given by the Employer to perform other available work at the same workplace, or at another workplace, unless:

(i) the work is not safe; or

(ii) applicable occupational health and safety legislation would not permit the work to be performed; or

(iii) the work is not appropriate for the Employee to perform; or

(iv) there are other reasonable grounds for the Employee to refuse to comply with the direction.

15.7 The parties to the dispute agree to be bound by a decision made by Fair Work Commission in accordance with this term.

15.8. Where the above procedures are being followed, work shall continue normally. No party to the dispute shall be prejudiced as to final settlement by the continuance of work in accordance with this sub-clause.”

[7] The Respondent contends that the language in the dispute settlement clause is plain and clear, without ambiguity. Clause 15.3 provides that “in the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the Employee or Employees and relevant supervisors and/or management”.

[8] In a recent Full Bench decision The Australian Workers’ Union v MC Labour Services Pty Ltd 1 the Commission confirmed that there is no jurisdiction to deal with a dispute if the dispute settlement term in the Agreement is not complied with. While the dispute settlement term in that matter was different to the term in this Agreement, in that it had more steps before the dispute may be referred to the Commission, the requirement does not change. In confirming the Commissioners decision, the Full Bench said the following in relation to whether there was a discretionary power for the Commission to deal with the dispute:

“[22] The notice of appeal advances two principal grounds in support of the contention that the Commissioner erred in deciding that she had no discretion to deal with the dispute. First, it is contended that the Commissioner did not properly take into account the legislative framework of the FW Act. Secondly, it is submitted that she failed to take into account the decisions in CBI and Unilever.

[23] In considering the legal framework, Commissioner McKinnon commenced by citing s.595 of the FW Act. This provision is found in Division 3 of Part 5-1 of the FW Act, which concerns the conduct of matters before the Commission generally. Section 595 provides that the Commission may deal with a dispute “only” if it is “expressly authorised to do so under or in accordance with another provision of (the Act)”.

[24] The Commissioner then noted s.739 of the FW Act, which applies if a term of an enterprise agreement requires or allows the Commission to deal with a dispute. Section 739(3) provides that, in dealing with a dispute under a term in an enterprise agreement, the Commission “must not exercise any powers limited by the term”. Section 739(4) states that, if, in accordance with a term in an enterprise agreement, the parties have agreed that the Commission may arbitrate a dispute, the Commission may do so. Section 739(5) states that the Commission “must not make a decision that is inconsistent with” (relevantly) an enterprise agreement, or with the FW Act.

[25] Section 739 makes clear that the Commission’s function (if any) in dealing with a dispute referred to it under an enterprise agreement depends on the terms of that agreement, and that the parties to the agreement may structure or limit the role of the Commission (or other person).

[26] If the Commissioner had purported to exercise a discretion to deal with the matter in the circumstances of the present case, she would have acted contrary to the terms of the Agreement. By doing so she would have acted contrary to s.739(4) and s.739(5) of the FW Act. The Commissioner’s conclusion that she had no jurisdiction to deal with the dispute took into account, and was consistent with, the legislative framework.” 2

[9] In The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited 3 a Full Bench of this Commission set out the relevant principles to be applied in the construction of agreements. These principles were recently revised in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited.4

[10] I respectfully adopt and apply these principles in my determination of this matter.

[11] I will now turn to a consideration of the facts in this matter.

[12] This matter involves a dispute over the implementation of new rosters. The Applicant does not approve of the new rosters and he disputes that the introduction of the rosters is consistent with the terms of the Agreement and alleges that the rosters breach various terms of the Agreement. The dispute was raised by the Applicant with the Respondent via correspondence addressed to Mr Lawson dated 23 November 2017 in which an urgent meeting was requested within two days. The letter refers to, among other things, the disapproval with the roster changes and proposes a meeting with the “provisional roster committee appointed by Oscar Rivera, Assistant Union Delegate”. The Applicant claims that the meeting had to be held before the new rosters were implemented on 27 November 2017 to avoid breaching the Agreement. 5 Mr Lawson’s evidence was that he was surprised by the Applicant’s request as a thorough process had occurred with the roster committee and there was no ability for the Applicant to appoint himself to a ‘provisional roster committee’.6 The Applicant refers to the process involving the roster committee in his evidence and claims that information was not given to employees by the committee or management and refers to a petition of union members to “dismiss” the roster committee.7

[13] Mr Lawson’s evidence is that he received advice from Mr Mike McNess, Organiser at the Transport Workers’ Union of Australia (TWU) that the Applicant’s letter was not supported by the TWU and the Applicant was not acting in his capacity as a TWU Assistant Delegate. 8 It is apparent that the Applicant is no longer an Assistant Delegate with the TWU.9

[14] The letter was hand delivered on 23 November 2017 by the Applicant to Mr Watters. 10 Mr Watters’ evidence is that at the time the letter was handed to him, the Applicant did not seek to talk to him about the dispute.11 The Applicant’s evidence was that he did not discuss it with Mr Watters because he was waiting for the meeting.12 Mr Lawson was handed the letter by Mr Watters that same day.13

[15] Mr Lawson’s evidence was that he felt it would be best to deal with the matter at the monthly meeting with the TWU to be held on 29 November 2017 which he organised for the Applicant to attend, and be listed on the agenda for that meeting. 14

[16] Mr Watters’ evidence was that on 23 November 2017 he went to the lunch room and advised the Applicant of the TWU meeting on 29 November 2017 and the Applicant was invited to attend to discuss the issues he had raised in the letter, but the Applicant neither accepted nor declined the offer. 15 The Applicant agreed that Mr Watters advised him of the meeting in the lunchroom.16 Mr Watters’ evidence was that the Applicant did not seek to discuss the dispute with him further and that he gave no reply.17 Further, that in the days that followed when he saw the Applicant he reminded him of the invitation to attend the TWU meeting. Mr Watters claims each time this invitation was extended the Applicant did not provide a response as to whether he would attend the meeting and the Applicant did not talk directly to him about the roster or his dispute with the rostering during any of these interactions.18

[17] The Applicant’s letter requested a meeting be held within two days and the Applicant also told Mr Watters in person that the meeting had to be held within two days. However, the Respondent claims that it could not hold a meeting prior to 29 November 2017. 19 Mr Watters’ evidence was that he told the Applicant this would be the first opportunity for them to discuss the matter and that they could not meet before 29 November 2017 and there was no further discussion.20

[18] Mr Lawson’s evidence was that he was at the Sunshine West Depot between 23 November and 11 December 2017 and was available to discuss the dispute with the Applicant. However, there was no attempt by the Applicant to discuss the contents of the letter with him. 21

[19] The meeting was held on 29 November 2017 and the Applicant did not attend. Mr Watters attended the meeting and his evidence was that the issues raised in the Applicant’s letter about rostering would have been discussed with the Applicant had he attended. 22 The Applicant confirmed during the hearing that he did not attend the meeting.23

[20] The Applicant lodged this application with the Commission on 29 November 2017, the same day as the meeting.

Consideration

[21] The Applicant raised the dispute with the Respondent via correspondence dated 23 November 2017 and the company responded to the letter by inviting the Applicant to attend a meeting on 29 November 2017.

[22] Given the apparent background of conflict with the TWU the Applicant may well have preferred not to deal with the dispute in that forum. However, he made no attempt to discuss the issue with Mr Watters or Mr Lawson and elected to simply not attend the meeting. The Applicant may have felt intimidated or wished to deal with the issue in a different forum. However, the Applicant did not request a separate meeting. The Applicant claims that the Respondent did not want to listen; 24 however, it was necessary for the Applicant to try to have discussions with the Respondent, which he did not. It is apparent that the Applicant wanted an earlier meeting with the Respondent, however, he agreed that there is nothing in the dispute settlement term which imposes a timeline for how many days the Respondent has to organise a meeting or to respond to a meeting.25

[23] The Applicant did do anything else after providing the 23 November 2017 letter except lodge this application with the Commission on 29 November 2017. There is no other evidence that there were any other conversations or attempts by the Applicant to resolve the dispute at the workplace level. The Applicant agrees with this, importantly, he agrees that the step at clause 15.3 of the dispute settlement term was not taken. 26 He also accepts that there was an opportunity provided to him to have discussions and that would have meant that clause 15.3 could have been complied with.27

[24] I am not satisfied that the requirement in the relevant dispute settlement term that the parties “must try” to resolve the dispute at the workplace level “by discussions between the Employee or Employees and relevant supervisors and/or management” has been met. This is not an optional step in the dispute settlement term. It is a mandatory term and a precondition for the dispute to then be referred to the Commission by a party to the dispute. 28

[25] Therefore, I am not satisfied that the dispute settlement term at clause 15 of the Agreement has been followed. The Commission has no present jurisdiction to deal with the alleged dispute.

[26] The application is dismissed.

COMMISSIONER

Appearances:

O Rivera on his own behalf for the Applicant

S Baker for the Respondent

Hearing details:

2018

Melbourne:

6 April.

Final written submissions:

3 April 2018

Printed by authority of the Commonwealth Government Printer

<PR602151>

 1   The Australian Workers’ Union v Mc Labour Services Pty Ltd[2017] FWCFB 5032

 2   [2017] FWCFB 5032 at [22] – [26]

 3   The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447

 4   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005

 5   Exhibit A1, Applicant’s Outline of Submissions at [8] - [9] and Attachment A

 6   Exhibit R2, Statement of Shaun Lawson at [12]

 7   Exhibit A1, Applicant’s Outline of Submissions at [4] – [5]

 8   Exhibit R2, Statement of Shaun Lawson at [13]

 9   Exhibit A1, Applicant’s Outline of Submissions at [12], Attachment B

 10   Exhibit R1, Statement of Timothy Watters at [8], PN32

 11   Exhibit R1, Statement of Timothy Watters at [8], PN33

 12   PN137 – PN148

 13   Exhibit R2, Statement of Shaun Lawson at [11]

 14   Exhibit R2, Statement of Shaun Lawson at [12]

 15   Exhibit R1, Statement of Timothy Watters at [10] – [11]

 16   PN149 – PN152

 17   PN34

 18   Exhibit R1, Statement of Timothy Watters at [12]

 19   PN52

 20   PN40 – PN54, Exhibit R1, Statement of Timothy Watters at [11]

 21   Exhibit R2, Statement of Shaun Lawson at [16], PN72 - PN73

 22   Exhibit R1, Statement of Timothy Watters at [13]

 23   PN154, PN170

 24   PN191 – PN193

 25   PN156 – PN157, PN182 – PN183

 26   PN177 - PN178, PN184, PN187 – PN188, PN312 – PN317

 27   PN189 – PN190

 28   [2017] FWCFB 5032