DECISION

Fair Work Act 2009
s.739—Dispute resolution

Jason McCosker; Tony Johnston; Tennescee Berry; Alexander Brown; Patrick Gomes
v
Bindaree Beef Pty Ltd
(C2020/7875)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 10 MAY 2021

Application to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement – alleged entitlement to superannuation contributions on attendance bonus payments.

Introduction and background

[1] Mr Jason McCosker, Mr Tony Johnston, Ms Tennescee Berry, Mr Alexander Brown, and Mr Patrick Gomes (Applicants) are in dispute with Bindaree Beef Pty Ltd (Bindaree Beef) in relation to their alleged entitlement under clause 33 of the Bindaree Beef & AMIEU Enterprise Agreement 2019-2022 (Agreement) to superannuation contributions on attendance bonus payments made to them under clause 26 of the Agreement (Dispute).

[2] The Applicants are members of the Australian Workers’ Union (AWU) and were represented by the AWU throughout the Dispute. Bindaree Beef was represented by Mr Andrew Herbert of counsel.

[3] On about 22 October 2020 the AWU filed an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) in the Fair Work Commission (Commission) for the Commission to deal with the Dispute pursuant to clause 10 of the Agreement. That clause sets out the procedure to resolve a dispute relating to “a matter arising under the Agreement or the National Employment Standards”.

[4] I conciliated the Dispute but could not resolve it. The Applicants then asked for the Dispute to be arbitrated pursuant to clause 10.5.2.1 of the Agreement.

[5] The arbitration hearing took place, by video conference, on 8 March 2021. The parties tendered a Statement of Agreed Facts dated 25 January 2021, a copy of which is set out in annexure A to this decision (excluding the attachments thereto, which form part of it and have been considered). No other evidence was adduced.

Question for determination

[6] The question for determination in this Dispute is as follows:

Is Bindaree Beef required to pay superannuation on the attendance bonus payable under clause 26 of the Agreement by reason of the operation of clause 33 (as part of the percentage amount required by the Superannuation Guarantee Levy” as set out in clause 33.4 and/or as a payment which is not “over and above ordinary time payments” within the meaning of clause 33.5)?

Relevant provisions of the Agreement

[7] The following provisions of the Agreement are relevant to the Dispute:

11. Employment Categories

11 .1. The Company has on offer a number of employment options. All categories are subject to the conditions stated in this Agreement. Based on this the intention is to ensure job security.

11.2. All new Company employees will be placed on an initial six months probationary period during which time employment may be terminated for any valid reason with no notice period required by either party. Extension of the probationary period may be required for reasons of sickness/attendance,…

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: [2021] FWC 2632
Decision Date: 10 MAY 2021

CaseChat Overview and Summary

The Federal Court considered an application by Patrick Gomes against Bindaree Beef Pty Ltd. The matter arose from an alleged entitlement to superannuation contributions on attendance bonus payments. The applicant sought to have the dispute dealt with in accordance with the dispute settlement procedure outlined in an enterprise agreement. The dispute centred on whether the enterprise agreement provided for the inclusion of attendance bonus payments within the scope of superannuation contributions.

The legal issues before the court were whether the enterprise agreement's dispute settlement procedure applied to the applicant's claim and, if so, whether the dispute was appropriately referred to arbitration. The court examined the terms of the enterprise agreement, the nature of the applicant's claim, and whether the dispute fell within the scope of the agreement's dispute resolution process.

The court found that the enterprise agreement did provide a dispute settlement procedure for claims such as the one presented by the applicant. However, the court determined that the dispute was not appropriately referred to arbitration as it required a preliminary question of law regarding the interpretation of the agreement. The court held that the dispute should be resolved through the court's jurisdiction rather than through arbitration under the enterprise agreement.

The court ordered that the application to deal with the dispute in accordance with the enterprise agreement's dispute settlement procedure be dismissed. The matter was to be determined through the court's jurisdiction, with the preliminary question of law to be resolved first. The court's decision clarified the scope of enterprise agreements in relation to dispute resolution and the circumstances under which disputes may be referred to arbitration.

Orders