Scott Wakenshaw v Silcar a joint venture of Thiess Pty Ltd and Siemens Ltd
[2011] FWA 1185
•22 FEBRUARY 2011
[2011] FWA 1185 |
|
DECISION |
Workplace Relations Act 1996
s.709 - Application to Commission to have a dispute resolution process conducted (Div 5)
Scott Wakenshaw
v
Silcar a joint venture of Thiess Pty Ltd and Siemens Ltd
(DR2010/458)
Manufacturing and associated industries | |
COMMISSIONER RYAN | MELBOURNE, 22 FEBRUARY 2011 |
Alleged dispute concerning a temporary change to the applicant’s roster - functions and powers of the Tribunal (s.711(1)) - making of orders (s.711(2)) .
[1] “The reports of my death are greatly exaggerated.” said Mark Twain after hearing that his obituary had been published in the New York Journal. In like vein it should be noted that the many reports of the death of Work Choices, as contained in Parliamentary speeches, have been greatly exaggerated.
[2] The application in this matter is made under s.739 of the Fair Work Act 2009 (the FW Act) to have Fair Work Australia (FWA) deal with a dispute in accordance with the disputes settlement procedure in the Western Port Electrical Certified Agreement (Silcar) 2008 - 2012 (the Certified Agreement).
[3] The Certified Agreement was made under the Workplace Relations Act 1996 as amended by the Workplace Relations (Work Choices) Amendment Act 2006 (Work Choices).
[4] Work Choices introduced into the Workplace Relations Act (the WR Act), Division 5 of Part 13, containing sections 709 to 712, the effect of which was to place significant limitations on the role of the Australian Industrial Relations Commission (AIRC) in dealing with disputes under the terms of collective agreements.
“709 Application
(1) A person may apply to the Commission to have a dispute resolution process conducted by the Commission under this Division in relation to a matter or matters in dispute if:
(a) the dispute is one that, under the terms of a workplace agreement, may be resolved using a dispute resolution process conducted by the Commission; and
(b) any steps that, under the terms of agreement, must be taken before the matter is referred to the Commission have been taken.
(2) An application to have a dispute resolution process conducted by the Commission under this Division must:
(a) be in the form (if any) prescribed by the regulations; and
(b) describe the matter, or matters, in dispute in relation to which the dispute resolution process is to be conducted; and
(c) be signed by the party to the dispute on that matter or those matters who is making the application; and
(d) specify that the dispute resolution process is to be conducted under the terms of a workplace agreement and not under the model dispute resolution process.
(3) The Commission may request the parties to provide further information about:
(a) the matter or matters in dispute; and
(b) the steps that have been taken to resolve the dispute.
Note: Under section 353, a workplace agreement must include a dispute resolution process. That process may be something other than the model dispute resolution process, and may involve applying to have the Commission conduct an alternative dispute resolution process.
710 Grounds on which Commission must refuse application
The Commission must refuse to conduct a dispute resolution process under this Division in relation to a matter in dispute if:
(a) the dispute is not one that, under the terms of the workplace agreement, may be resolved using a dispute resolution process conducted by the Commission; or
(b) any of the steps that, under the terms of agreement, must be taken before the matter is referred to the Commission have not been taken; or
(c) the matter is the subject of proceedings or has already been settled as a result of proceedings, whether before a court or another body, under a law of the Commonwealth or of a State or Territory relating to the prevention of discrimination or to equal opportunity.
711 Commission’s powers
(1) In conducting the dispute resolution process under this Division, the Commission has, subject to subsection (2), the functions and powers:
(a) given to it under the workplace agreement; or
(b) otherwise agreed by the parties.
(2) The Commission does not have the power to make orders.
(3) The Commission must, as far as is practicable, act:
(a) quickly; and
(b) in a way that avoids unnecessary technicalities and legal forms; and
(c) if the parties have agreed, either in the workplace agreement or otherwise, that an aspect of the process is to be conducted in a particular way—in accordance with that agreement.
(4) Subdivision B of Division 4 of Part 3 of this Act does not apply in relation to the conduct of the dispute resolution process by the Commission under this Division.
712 Privacy
(1) The Commission must conduct the dispute resolution process in private.
(2) The Commission must not disclose or use any information or document that is given to the Commission in the course of conducting the dispute resolution process to any person, unless:
(a) the information or document is disclosed or used for the purpose of conducting the process; or
(b) the parties to the process consent to the disclosure or use; or
(c) the information or document is disclosed or used in circumstances specified in regulations made for the purposes of this paragraph; or
(d) the disclosure or use is otherwise required or authorised by law.
(3) Evidence of anything said, or any act done, in the dispute resolution process is not admissible in any proceedings relating to the dispute:
(a) in any court; or
(b) before a person authorised by a law of the Commonwealth or of a State or Territory to hear evidence; or
(c) before a person authorised by the consent of the parties to hear evidence;
unless:
(d) the parties agree to the evidence being admissible; or
(e) the evidence is admitted in circumstances specified in regulations made for the purposes of this paragraph.”
[5] Although the WR Act, including the Work Choices amendments, was repealed by the Fair Work Act 2009 parts of Work Choices were specifically kept in operation through the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
[6] In particular Schedule 19 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 has specifically continued in operation the Work Choices provisions of ss709 to 712 of the WR Act, and applied those provisions to any dispute before FWA which arises under the terms of a range of instruments including collective agreements made under the Work Choices regime.
[7] Whilst many obituaries were delivered in Parliament on the ‘death’ of Work Choices, all were premature. The very specific will of Parliament was to keep elements of Work Choices alive, and with continuing operation, including imposing on FWA, which is a completely new tribunal, the same limitations that were imposed on the AIRC. As the Respondent eloquently expressed it in relation to the relevant Work Choices provisions: “..... they’ll stay alive as long as there is an agreement that falls under them or is made under them.” 1
[8] In the dispute between the Applicant and the Respondent both parties have agreed, pursuant to s.711(1)(b) of the WR Act, on the functions and powers of FWA to deal with the issue in dispute (Appendix 1 to this decision). However the agreement between the Applicant and the Respondent cannot give to FWA powers which the Work Choices provisions specifically removed from the AIRC.
[9] The most serious limitation placed on FWA under the continuing operation of the Work Choices provisions of s.709 to 712 of the WR Act, is that FWA “does not have the power to make orders”. (s.711(2))
[10] The Work Choices provisions of s.709 to 712 of the WR Act have been considered by several Full Benches of the AIRC and FWA.
What is an order?
[11] The question of what is an order has most commonly been raised in the context of appeals or applications for Ministerial Review in the terms of the language of the legislation prior to the FW Act.
[12] In Minister for Employment and Workplace Relations v CPSU 2 a Full Bench of the AIRC considered whether “order” when used in the provision of the then Act permitting the Minister to initiate a review of an “order” of a member of the AIRC had the same meaning as the reference to “order” in the appeal provisions of the then Act. The Full Bench held that the word “order” had the same meaning in the 2 respective parts of the then Act. After considering the competing submissions of the parties and their reliance on different decisions the Full Bench said:
“[30] The quintessential core of the meaning of "order" in a legal context is a command by a court or tribunal requiring something to be done, being a command that the court or tribunal is authorised by law to give.”
and
“Thus, a direction requiring a party to do something is a form of order in that quintessential sense albeit that it is clearly interlocutory.”
and
“[31] For the reasons we have given, the term "order" in s.114 should be given the same meaning as it has in s.120(1)(a). It follows that a direction requiring a party to do something is an "order" within the meaning of s.114(1). The direction given by the Commissioner in paragraph [43] of the Decision required the parties to confer. It was an "order", albeit interlocutory, within the meaning of s.114(1).”
[13] Later in the same year another Full Bench of the AIRC also dealt with the question - what is an order? In Appeal by Qantas Airways Limited 3, the Full Bench discerned two principles from the relevant authorities.
“[27]A number of Full Bench decisions have considered what constitutes an order for the purposes of s.45(1)(b). Perhaps the most definitive statement of what is an order in that context is that made by the Full Bench in BWIU v G James & Aluminium Pty Ltd . The matter involved an appeal against a refusal to grant an adjournment. The Full Bench stated:
The authorities to which we were referred on this appeal support the view that orders, including adjudications, directions and determinations made during the course of proceedings, which bind the parties affected thereby are properly the subject matter for appeal.
In the course of its decision the Full Bench also noted that:
Until R v Ludeke; Ex p Customs Officers Association of Australia (1985) 155 CLR 513; 13 IR 86, a view was held that the awards or orders of the Commission which were open for consideration on appeal to a Full Bench were those of a final nature which were enforceable under the Act in the event of breach. That case dispelled any such view. The granting of leave to intervene subject to conditions was there held to be an appealable order.
[28] In Minister for Employment and Workplace Relations v CPSU, the Community and Public Sector Union and State Library of Victoria a Full Bench of the Commission referred to BWIU Case and expressed the view that:
… the reference to "adjudications" and "determinations" must be read as a reference to adjudications and determinations that are final as between the parties for the purposes of the particular proceeding.
[29]The Full Bench in Wright v Australian Customs reviewed a number of High Court and Commission authorities, including R v Ludeke; Ex p Customs Officers Association of Australia and the BWIU Case, and made the following emphatic statement about the nature of a decision of a member of the Commission that is properly to be described as an order:
We agree with the observation of the Full Bench in Meat and Allied Trades Federation of Australia v The Australasian Meat Industry Employees Union and Others (1991) 39 IR 41, at 42, 1991/5 CAR 243, at 245 that what constitutes an "order" as that word might appear in the legislation "will doubtless vary and will depend upon the specific context in which it appears and the nature and function of the body empowered to make the order" (1991) 39 IR 41, at 42, 1991/5 CAR 243, at 245. However, what, in our view, is abundantly clear from these decisions is that a decision of a member of the Commission that effectively disposes of the proceedings before the Commission (at least in a final manner) is properly to be described as an "order" for the purposes of s.45(1)(b) of the WR Act.
[30] Two important principles emerge from these decisions, namely:
• a decision of a member of the Commission that effectively disposes of the proceedings before the Commission (at least in a final manner) is properly to be described as an order for the purposes of s.45(1)(b) of the pre-reform WR Act;
• adjudications, directions and determinations made during the course of proceedings that are final in the sense that they are binding as between the parties for the purposes of the particular proceedings is properly to be described as an order for the purposes of s.45(1)(b) of the pre-reform WR Act.”
(footnotes omitted)
[14] The Full Bench applied the two principles as follows:
“[32] Applying the above two principles to the facts of this case we are satisfied that Senior Deputy President O’Callaghan’s decision disposed of the proceedings before him. It will be recalled that the primary issue the parties agreed was to be arbitrated was the number of full-time permanent employee conversions required under the agreement. In paragraphs [26] and [27] of the decision his Honour records the competing contentions of the parties in relation to this issue. Those contentions directly raised for determination the construction proper of clause 18 of the Agreement. His Honour dealt with the construction issue. In the course of his decision he made a binding determination on the meaning of clause 18 which was binding on the parties for the purposes of the proceedings before him. His Honour then determined the two practical matters that he had before him by applying the construction he had given to clause 18.
[33]It is clear also from the Senior Deputy President’s concluding remarks that his Honour regarded his decision as disposing of the proceedings. He proposed listing the matter for conciliation not for the purpose of resolving any dispute over the application of the Agreement, but for the purpose of assisting the parties if they could not agree on the application of the approaches proposed in his decision or if the parties were to seek assistance in the negotiation of a possible facilitative agreement. His Honour went on to propose four possible options for discussion should further conciliation occur. Each option proposed was concerned with the creation of new rights and obligations and not with the determination of rights existing under the Agreement.
[34] In the circumstances we are satisfied that the Senior Deputy President’s decision is an order for the purposes of s.45(1)(b) of the pre-reform WR Act.”
[15] Whether expressed in terms of a “quintessential core” or in terms of “two important principles” the above two decisions make the common point that an “order” in the context of appeals and Ministerial reviews, requires something to be done and that the requirement to do the thing is binding on the person required to do it.
[16] The above two decisions dealt only with the nature of an “order” in the context of specific provisions of the WR Act as it was prior to the Work Choices amendments and then only in the context of appeals or ministerial applications for review.
[17] I have had regard to two Full Bench decisions which directly deal with s.711(2).
[18] In University of Western Sydney v Fletcher 4, the Full Bench said:
“27. ....At this point we are not concerned with whether the decision at first instance is an order. The issue here is whether the instrument issued by the Commissioner which bears the heading “Order” is an order.
And
29. Looked at in the context of Division 5 of Part 13 there can be no doubt in our view about the true character of the instrument that the Commissioner issued under the epithet “Order” - it is an order both in form and substance...”
[19] In a recent decision a Full Bench of FWA in Abigroup v CFMEU 5 said:
“[8] Although Mr Dixon pointed to several other jurisdictional errors that he submitted the Commissioner had made it is unnecessary that we deal with them all. Fundamentally, the Commissioner committed jurisdictional error in purporting to make an order in circumstances where s 711(2) of the WR Act precluded the making of the order. He thereby exceeded his jurisdiction.
[9] Mr Campbell submitted that the Commissioner did not make an order, but rather “[t]he decision was expressed in a manner which allowed the parties to understand that ... clause 37 should apply in a certain manner to the relevant employees.
[10] Whilst the Commissioner was certainly alive to s 711(2) we agree with Mr Dixon that what he did was to make an order. He made a determination varying the operation of the Agreement as it applied to the Nagambie By-pass Project. He purported to “create both the right and the process to obtain the right of employees to claim [the allowance] where they have an entitlement to the allowance.” He purported to remove some of the rights conferred on Abigroup by cl 37 of the award and he also purported to impose additional obligations upon it.
[11] “The quintessential core of the meaning of ‘order’ in a legal context is a command by a court or tribunal requiring something to be done ...” and “ ...a direction requiring a party to do something is a form of order in that quintessential sense ...”. The Commissioner made an order and thereby exceeded his jurisdiction.”
(footnotes omitted)
[20] There is a subtle but important difference in the approaches of the two Full Bench decisions looking at s.711(2). In University of Western Sydney v Fletcher the Full Bench separated the decision of the Commissioner from the instrument issued by the Commissioner and only considered whether the instrument was an “order”. Whereas in Abigroup v CFMEU 6 the Full Bench considered whether the decision of the Commissioner was an “order”. The Full Bench in Abigroup adopted as the definition of “order” in s.711(2) the definition given to “order” when used in the context of provisions relating to appeals and Ministerial Reviews. However, it is not possible from reading the decision in Abigroup v CFMEU to discern the reasoning of the Full Bench for doing so. In the absence of such reasons I have attempted to consider afresh whether the meaning of “order” in s.711(2) is the same as the meaning of “order” when used in relation to appeals and Ministerial reviews.
[21] I use as my starting point the statement that: “What constitutes an "order" as that word might appear in legislation will doubtless vary and will depend upon the specific context in which it appears and the nature and function of the body empowered to make the order". 7
[22] To discern the context in which the term “order” is used in s.711(2) I have had regard to the Explanatory Memorandum to the Workplace Relations Amendment (Work Choices) Bill 2005 (Explanatory Memorandum). What is now s.711 was proposed new section 176N in the Bill.
“New section 176N – Commission’s powers
2353. Proposed section 176N would confine the AIRC’s powers with respect to a dispute resolution process in a workplace agreement.
2354. Subsection 176N(1) would specify that the AIRC only has those powers that are given to it either under the terms of the workplace agreement, or agreed between the parties to the dispute.
2355. Subsection 176N(2) would explicitly prohibit the AIRC from making orders (defined in section 4 of the WR Act) when it is conducting a dispute resolution process under a workplace agreement. This would have the consequence that an appeal under section 45 of the WR Act may not be instituted in reliance on the AIRC having made an order in relation to a dispute resolution process in a workplace agreement.
2356. Subsection 176N(3) would require the AIRC to act quickly, relatively informally, and in accordance with any agreement between the employer and employee concerned about how the alternative dispute resolution process should be conducted. It is intended that the AIRC would proceed in accordance with the wishes of the parties, rather than the AIRC being primarily responsible for choosing the ways in which dispute resolution should be attempted or guiding the parties to what the AIRC considers being the most appropriate outcome.
2357. Subsection 176N(4) would clarify that the powers of the AIRC which would be prescribed in Subdivision B, Division 3A of Part II do not apply where the AIRC is conducting the model dispute resolution process. In Re: Telstra Ltd & Communications, Electrical and Plumbing Union [Print PR940569], a full bench of the AIRC decided that where the dispute settlement process in an agreement was silent, there was a statutory presumption that the AIRC possessed all of its general dispute settling powers contained in Part VI of the WR Act, unless any power was inconsistent with the other terms of the agreement. The AIRC made this finding based on the fact that Part VI of the WR Act was expressed to apply to any other proceeding before the AIRC ‘unless the context otherwise requires’. As a result of subsection 176N(4), the parties to a workplace agreement, in any dispute about that agreement’s application, would be free to specify the role they want the AIRC to play in their dispute resolution process. For example, the parties may expressly agree to give the AIRC particular powers by reference to other Parts of the Act (ie, the power to compel the production of relevant evidence).
2358. If no powers are expressly conferred in a workplace agreement’s dispute resolution process, the AIRC would only have whatever powers that may be conferred by the agreement of the parties (as explained with respect to paragraph 176N(3)(c)).”
[23] The Explanatory Memorandum makes clear that the term “order” in s.771(2) was to have the meaning given to it by the definition of orders in s.4 of the Act. This is an unhelpful explanation given that at the time of Workplace Relations Amendment (Work Choices) Bill 2005 (the Bill) the Workplace Relations Act did not have a specific definition of “order” in s.4 and nor did the Bill introduce such a definition. The closest s.4 came to defining the term “order” at the time of the Bill was that s.4 contained a definition of “award” as follows:
“award” means an award or order that has been reduced to writing under subsection 143(1), but does not include any order made by the Commission in a proceeding under Subdivision B of Division 3 of Part VIA.”
[24] The Bill amended s.4 by amending the definition of “award” and introducing a new definition of “award-related order” as follows:
““award” means:
(a) an award made by the Commission under section 539; or
(b) a pre-reform award.”
“award-related order” means an order varying, revoking or suspending an award.”
[25] To put this further into context the Workplace Relations Act both prior to and after the Bill contained a definition of a “State award” as follows:
“State award” means an award, order, decision or determination of a State industrial authority”.
[26] The definition of a “State award” is very broad as it picks up any decision or determination of a State industrial authority. However the definition of “award” pre the Bill and the definition of “award-related order” post the Bill are of similar effect. Both related to an “order” that affects an award. An order of the Commission that does not affect an award is simply not an order within the definition of “award” pre the Bill or within the definition of “award-related order” post the Bill.
[27] It would appear that on the basis of the description within the Explanatory Memorandum that s.711(2) was intended to create a prohibition on the Commission in making orders that affect an award.
[28] In MATFA v AMIEU 8 the Full Bench considered the decision of the High Court in R v Ludeke; Ex parte Customs Officers Association of Australia9 and in particular the decisions of Gibbs CJ and Mason J which took a broad approach to what was an award or order for appeal purposes. It is very important to put that High Court decision into context. In 1984 the Conciliation and Arbitration Act contained the following definition of “award” in s.4:
“Award” means an award made under this Act and includes an order.”
[29] The very breadth of language used in the 1984 Act is reflected in the approach taken by the High Court.
[30] However the definitions in s.4 of the WR Act at the time s.711(2) was introduced into the Act were very much narrower.
[31] From the above it appears that the type of “order” prohibited by the operation of s.711(2) is very much narrower than the type of “order” which may be subject to appeals or Ministerial reviews.
[32] The only type of “order” prohibited by s.711(2) would appear to be an “order” which affects an award.
[33] Of course this in turn begs the question: What is an award?.
[34] Here the position is much clearer. The WR Act drew very clear distinctions between awards and agreements. The Work Choices amendments to the WR Act did not reduce the level of distinction between awards and agreements but in many respects strengthened those distinctions.
[35] The very strong separation between awards and agreements suggests a further strengthening of the narrow interpretation of the term “order” in s.711(2).
[36] Further support for applying a narrow interpretation on the term “order” in s.711(2) is found in the structure and language of Part 13 of the WR Act.
[37] The object of Part 13 was set out in s.692 of the WR Act as:
“The objects of this Part are:
(a) to encourage employers and employees who are parties to a dispute to resolve it at the workplace level; and
(b) to introduce greater flexibility for the resolution of disputes by allowing the parties to determine the best forum in which to resolve them.
Part 13 introduced a Model Dispute Resolution Process. Although prior to the Bill there had been a requirement that certified agreements must contain a dispute resolution procedure, the Bill created a default position that if the parties had not included a disputes resolution procedure in the agreement then the Model Dispute Resolution Process was deemed to be included. The emphasis of the Bill and the Act was that the parties to an agreement were able to determine the contents of the dispute resolution procedure.”
[38] Where the Model Dispute Resolution Process was used the parties could agree on a person who would conduct the alternative dispute resolution process. (s.696(2)). Where the parties could not agree on a person then the Commission could conduct the alternative dispute resolution process. (s.696(5)).
[39] The alternative dispute resolution process included “arbitration, or other determination of the rights and obligations of the parties in dispute”. (s.698(g)).
[40] Where the Commission conducted the alternative dispute resolution process under either Division 3 or Division 4 of Part 13 the powers of the Commission were limited.
[41] Relevantly under Division 3 of Part 13 the limitation was set out in s.701 as follows:
“701(4) The Commission does not have power:
(a) to compel a person to do anything; or
(b) to arbitrate the matter, or matters, in dispute; or
(c) to otherwise determine the rights or obligations of a party to the dispute; or
(d) to make an award in relation to the matter, or matters, in dispute; or
(e) to make an order in relation to the matter, or matters, in dispute; or
(f) to appoint a board of reference.
(5) The Commission does not have the power to do any of the things mentioned in paragraph (4)(a), (d), (e) or (f), even if the parties agree that the Commission should do it.”
[42] Under Division 4 the limitation was set out in s.706 as follows:
“706(4) The Commission does not have power:
(a) to compel a person to do anything; or
(b) to arbitrate the matter, or matters, in dispute; or
(c) to otherwise determine the rights or obligations of a party to the dispute; or
(d) to make an award in relation to the matter, or matters, in dispute; or
(e) to make an order in relation to the matter, or matters, in dispute; or
(f) to appoint a board of reference.
(5) The Commission does not have power to do any of the things mentioned in subsection (4), even if the parties agree that the Commission should do it.”
[43] Even between these two Divisions there was an important distinction drawn in relation to the powers of the Commission. S.701(5) permitted the parties to agree to give the Commission the power to do those things which were otherwise prohibited by s.701(4)(b) and (c). In contrast under Division 4 s.706(5) prevented the parties from giving to the Commission power to do anything prohibited by s.706(4).
[44] Whilst the language of s.711(2) is not repeated in either of Division 3 or 4 of Part 13 the very terms of s.701(4) and 706(4) make clear that the same effect is being achieved through the prohibition of the items therein identified. The prohibition in Division 4 is a blanket prohibition but it is important to note that under Division 3 the parties could specifically give to the Commission the power to arbitrate the matter, or matters, in dispute; or to otherwise determine the rights or obligations of a party to the dispute. In the sense of “the quintessential core of the meaning of "order" in a legal context” the Commission could, if specifically granted the power to do so by the parties, give a command requiring something to be done, being a command that the Commission is authorised by law to give.
[45] Division 6 of Part 13 of the WR Act which dealt with any dispute resolution process conducted by a person and not the Commission there was no prohibition on the person in similar terms to either s.701(4) and (5), s.706(4) and (5) or s.711(2).
[46] When considered in light of the above it would appear to be inconsistent with the overall purpose and structure of Part 13 of the WR Act to read s.711(2) in Division 5 as preventing the Commission from making any order at all to finally dispose of the matter in dispute.
[47] The proper interpretation of the term “order” in s.711(2) should be consistent with both the other Divisions of Part 13 and the language of the Explanatory Memorandum. On that basis the prohibition in s.711(2) is a prohibition on the Commission and now FWA from making any order as part of the process of applying an alternative dispute resolution process to a dispute arising under the terms of an agreement where the order affects an award in the sense of varying, revoking or suspending an award.
[48] The conclusion I have drawn is directly in conflict with the decisions in both Abigroup v CFMEU and in Appeal by Qantas Airways Limited, yet neither decision sought to give reasons for the narrow approach they adopted in relation to the operation of the term “order” in s.711(2).
[49] The remedy sought by the Applicant in this matter was identified in the application to FWA as:
“Orders sought revoking the warning;
Orders concerning the appropriate implementation of the temporary shift change.
Such other orders as the Tribunal thinks fit.”
[50] From the above analysis of s.711(2) I conclude that each of the orders sought is capable of being granted by the Tribunal under the alternative dispute resolution process conducted by the Tribunal under Division 5 of Part 13 of the WR Act. The only constraint is that the third remedy sought by the applicant namely, “Such other orders as the Tribunal thinks fit”, must be read down so that it does not include an order of the type prohibited by s.711(2) of the WR Act.
What are the powers given to the Tribunal by the terms of the agreement or by agreement of the parties?
[51] Having considered s.711(2) it is now appropriate to turn to the proper interpretation of s.711(1).
“711(1) In conducting the dispute resolution process under this Division, the Commission has, subject to subsection (2), the functions and powers:
(a) given to it under the workplace agreement; or
(b) otherwise agreed by the parties.”
[52] The language of s.711 is expressed in the alternative which suggests that the powers of the Commission are either one or other of the alternatives but no help is given as to which alternative takes precedence.
[53] In two decisions in November 2007 by the same Full Bench the operation of s.711(1) was considered.
[54] In Sydney Ferries Corporation v AMOU 10 the Full Bench said:
“18. The substance of the matter which was notified to the Commission was the parties’ inability to reach agreement on new rosters. Section 709(1)(a) provides that the Commission may only conduct a dispute resolution process in relation to a matter it can deal with under a workplace agreement. Whether there is such a matter is a question of characterization and perhaps also of interpretation of the agreement. By the time conciliation had ended, however, it was clear that SFC sought arbitration of new rosters. Whether the Commission can arbitrate in relation to a particular dispute is a question of power rather than of subject matter. Such a question arises not under s.709(1)(a) but under s.711(1). Section 711(1) provides that the Commission can only exercise powers given to it under the workplace agreement or otherwise agreed by the parties. The critical question in this case is whether the Agreement permits the Commission to exercise a power of arbitration in relation to the roster issue. In other words, did the parties intend that if they were unable to reach agreement on new rosters the Commission could arbitrate? The intention of the parties is to be determined objectively having regard to the terms of the Agreement and any understandings common to the parties at the time the agreement was made.”
[55] In CPSU v University of NSW 11 the same Full Bench said:
“21. With respect to these arguments, there is no reason why parties cannot submit to the Commission, in an alternative dispute resolution process, a question of interpretation of the terms of an agreement, even where the question of interpretation relates to the powers the Commission may exercise. It is of course necessary to ascertain what matters have been submitted to the Commission by the parties, either in the relevant instrument or by separate agreement. In this case the terms of cl.9 of the Agreement specify that the Commission may arbitrate in relation to an unresolved dispute over the interpretation, application or operation of the Agreement. There were three issues before the Commissioner: whether the four positions were redundant, whether application could be made to the Commission to waive or vary the entitlements otherwise applicable to retrenched employees and whether the entitlement should be waived or varied. All three issues come within the general description of interpretation, application or operation of the Agreement. And simply because the Commission has no power to vary an agreement by arbitration under Part 8 of the Act, it does not follow that cl.24.5(g) is ineffective to confer a power of arbitration on the Commission when it is conducting a dispute resolution process. Clause 24.5(g) sits comfortably with s.711(1) which is predicated on the parties’ capacity to confer functions and powers on the Commission by agreement.”
And
“26. The existence of cl.24.5(g) demonstrates that the parties intended that in the circumstances set out an employer could ask the Commission to vary or waive the severance payment otherwise due to an employee whose position had been declared redundant. The questions likely to arise would be whether in the circumstances the alternative employment was acceptable and whether the severance payment prescribed by cl.24.5(f) should be waived completely or simply reduced. In our view cl.24.5(g), in conjunction with cl.9, should be construed as conferring power on the Commission to resolve such disputes. The term “application” in clause 24.5(g) should be construed as including an application pursuant to the dispute resolution process in clause 9 or a part of a dispute resolution process being conducted pursuant to that clause.”
[56] In both of the above decisions the Full Bench was concerned primarily with discerning what powers were to be given to the Commission through the workplace agreement. However the Full Bench was cognisant of the ability of the parties to the dispute to confer powers and functions on the Commission under s.711(1).
[57] The foregoing is also consistent with the decision of the High Court in Construction Forestry Mining and Energy Union v Australian Industrial Relations Commission 12where the High Court spelt out the difference between private arbitration under the terms of an agreement and arbitration under the statutory power of the then legislation. As the High Court said:
“31.Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.”
[58] The very language of s.711(1), as part of Part 13 of the WR Act as introduced by Work Choices, is consistent with the concept of private arbitration in which the parties empower the arbitrator either through the original terms of the workplace agreement or subsequently.
[59] Consistent with the objects of Part 13, s.711(1) should be read as giving to the Commission the powers and functions specified by the dispute resolution procedure in the workplace agreement and any additional powers or functions conferred by agreement of the parties to the dispute. Such an interpretation is consistent with the Explanatory Memorandum to the Bill.
[60] In this matter the Agreement provided that the powers and functions of the Commission were provided for in clause 8.1(g) as follows:
“(g) If arbitration is necessary the Commission may exercise the procedural powers in relations(sic) to hearings, witnesses, evidence and submissions, which are necessary to make the arbitration effective.”
[61] The parties to the dispute filed an Agreed Functions and Powers document which gave greater detail to the powers and functions of the FWA in exercising its role under clause 8.1 of the Agreement. Nothing in the Agreed Functions and Powers detracted from the functions and powers of the Tribunal that might have been available under the general language of clause 8.1. Rather the Agreed Functions and Powers spelt out all of the necessary powers and functions that would be necessary to make the arbitration effective.
[62] Even if I am wrong that s.711(1) should be read to be an accumulation of powers granted under s.711(1)(a) and (b) the very language of clause 8.1 of the Agreement gives to the Tribunal all of the powers and functions which are necessary. In this matter an accumulation of powers is not necessary and a disjunctive reading of the alternatives in s.711(1) leads to the same outcome. I only need rely upon the powers and functions in the Agreement.
(paragraphs [63] - [69] confidential)
Is the dispute a matter which can be resolved under the alternative dispute process of the Agreement?
[70] The Respondent made the submission that the matter in dispute could not be resolved under the terms of the Agreement.
[71] Clause 8 Avoidance of Industrial Disputes of the Agreement is as follows:
“8. Avoidance of Industrial Disputes
8.1 Industrial Disputes
The mechanism and procedures for resolving industrial disputes will include, but not be limited to, the following:
a) The employee/s concerned will first meet and confer with their immediate supervisor. The employee/s may choose any person to act on their behalf.
Subject to the process below, where the employee's representative is involved he/she shall be allowed the necessary time during working hours to interview the employee's and the Supervisor.
b) If the matter is not resolved at such a meeting the parties will arrange further discussions involving more senior management as appropriate. The employee may invite a representative of his/her choice to be involved in the discussions. The employer may also invite into the discussions a representative of the employer.
The employee/s shall be allowed reasonable time to meet and confer with their chosen representative in respect of the relevant dispute.
c) If the matter remains unresolved, the employer may refer it to a more senior level of management. The employee may involve their employee representative in the discussions. In the event there is not agreement to refer the matter to a more senior level or it is agreed that such a reference would not resolve the matter the parties shall jointly or individually refer the matter to the Australian Industrial Relations Commission or its successor body for assistance in resolving the matter.
d) In order to facilitate this procedure:
• The party with the grievance must notify the other party at the earliest opportunity of the problem;
• Throughout all stages of the procedure all relevant facts must be clearly identified and recorded;
• Sensible time limits must be allowed for completion of the various stages of discussion. However, the parties must cooperate to ensure that the disputes resolution procedures are carried out as quickly as possible;
• While the parties are attempting to resolve the matter the parties will continue to work in accordance with this agreement and their contract of employment unless the employee has a reasonable concern about an imminent risk to his or her health and safety. Subject to relevant provisions of any State occupational health and safety law, even if the employee has a reasonable concern about an imminent risk to his or her health or safety, the employee must not unreasonably fail to comply with a direction by his or her employer to perform other available work, that is safe and appropriate for the employee to perform;
• Subject to the Order of the Australian Industrial Relations Commission the pre-dispute status quo will apply except in relation to prohibited content issues.
e) Conciliation regarding disputes and potential disputes arising out of the operation of this clause will only commence if the Commission is satisfied that:
• Each of the preceding steps in this process has been substantially complied with by the parties or either of them;
• The parties satisfy the Commission that the matter cannot be resolved by further discussion between the parties directly involved at the workplace.
f) If conciliation fails to resolve the matter in dispute the parties may jointly or individually refer the matter to the AIRC for Arbitration. A matter may only proceed to arbitration under this procedure where the Commission is satisfied that the matter cannot be resolved by further conciliation.
g) If arbitration is necessary the Commission may exercise the procedural powers in relations to hearings, witnesses, evidence and submissions, which are necessary to make the arbitration effective.
h) A party to the dispute may appoint another person, organisation or association to an employer or represent them in relation to the dispute.
i) The decision of the Commission will bind the parties, subject to either party exercising a right of appeal against the decision to a FullBench.”
[72] The opening words of clause 8 reveal the breadth of operation of the clause.
[73] Clause 8 is not limited to disputes about the application or interpretation of the Agreement but rather extends to “industrial disputes”. That term must be given its normal meaning.
[74] As the High Court held in R v Coldham; Ex Parte Australian Social Welfare Union 13:
“The words are not a technical or legal expression. They have to be given their popular meaning - what they convey to the man in the street. And that is essentially a question of fact. The content of the popular understanding of the composite expression sets the limits on the category.”
[75] A dispute about temporary shift changes including a dispute about the interpretation or application of the temporary shift change provision of the Agreement and including a dispute about the disciplinary action taken by the Respondent against the Applicant are all within the popular meaning of “industrial disputes” and are thus within the ambit of clause 8 of the Agreement.
[76] The Respondent also contended that as no orders could be made by the Tribunal because of s.711(2) of the WR Act then the matter in dispute could not be resolved by the Tribunal using a dispute resolution process conducted by the Tribunal. Thus, in the Respondent’s contention, the Tribunal was prevented by s.709(1)(a) of the WR Act from dealing with the matter.
[77] Given my analysis of the proper interpretation of s.711(2) I am of the view that the matters in dispute are ones that, under the terms of the Agreement may be resolved using a dispute resolution process conducted by the Tribunal.
[78] I note that no challenge was made under s.709(1)(b) of the WR Act.
(paras [79] - [107] confidential)
[108] Section 712 of the WR Act requires not only that proceedings in this matter be conducted in private but also that the Tribunal must not disclose or use any information or document that is given to the Tribunal in the course of conducting the dispute resolution process to any person unless the parties to the process consent to the disclosure. Both parties have not so consented. Therefore I am issuing a truncated version of my full decision which has been given to the parties.
COMMISSIONER
Appearances:
K. Reidy for the applicant
N. Segbedzi for the respondent
Hearing details:
2010.
Melbourne:
September 28
October 4
APPENDIX 1
APPENDIX 2
10. Working Hours, Shift Work and ROOs
....
1 Transcript of proceedings at PN1288
2 [2007] AIRCFB 476
3 [2007] AIRCFB 971
4 [2009] AIRCFB 368
5 [2011] FWAFB 24
6 [2011] FWAFB 24
7 MATFA v AMIEU 39 IR 41 at 42
8 39 IR 41
9 (1985) 155 CLR 513
10 [2007] AIRCFB 909
11 [2007] AIRCFB 892
12 [2001] HCA 16
13 (1983) 153 CLR 297 at 312
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