[2014] FWC 7019 [Note: An appeal pursuant to s.604 (C2015/2425 and others) was lodged against this decision - refer to Full Bench decisions dated 16 October 2015 [[2015] FWCFB 6323] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Denis Seiffert & Ors
v
Patrick Projects Pty Ltd
(C2014/4203 & Ors)

COMMISSIONER CLOGHAN

PERTH, 14 OCTOBER 2014

Alleged dispute about any matters arising under the enterprise agreement.

[1] On 28 April 2014, the following made application to the Fair Work Commission (Commission) to deal with a dispute in accordance with a dispute settling procedure (DSP):

Mr Denis Seiffert C2014/4203)

Mr Daniel King (C2014/4204) (Mr King)

Mr Richard Park (C2014/4205)

Mr Jason Deeney (C2014/4206)

Mr Christopher Hughes (C2014/4207)

Mr Christopher Strauss (C2014/4208)

(with the exception of Mr King, collectively the Applicants).

[2] The Applicants are in dispute with Patrick Projects Pty Ltd (Employer).

[3] The applications are made pursuant to s.739 of the Fair Work Act 2009 (FW Act).

[4] The Applicants allege that the disputes can be referred to the Commission pursuant to the DSP contained in the Patrick Projects Pty Ltd AMC Cargo Handling Agreement 2012-2015 (Agreement).

[5] The disputes between the parties was the subject of a conference on 28 May 2014. The disputes remain unresolved.

[6] The Employer has raised two jurisdictional questions for determination prior to the merits of the applications being considered. The questions are:

1. Do each of the Applicants have standing to bring the applications? and

2. Are the alleged disputes able to be determined by the Commission pursuant to clause 13 of the Agreement?

[7] The parties have agreed that the two jurisdictional questions be determined by way of written submissions.

RELEVANT LEGISLATIVE FRAMEWORK

[8] “739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC 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)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation…

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.

Continue reading Seiffert & Ors v Patrick Projects Pty Ltd

Details

AGLC: Seiffert & Ors v Patrick Projects Pty Ltd [2014] FWC 7019
Case: [2014] FWC 7019
Decision Date: 14 OCTOBER 2014

CaseChat Overview and Summary

The applicants in this case, Denis Seiffert and others, sought a resolution to a dispute with Patrick Projects Pty Ltd (the Employer) under the provisions of the Fair Work Act 2009. They alleged that the Employer had failed to provide them with the training they claimed they were owed, and they sought arbitration by the Fair Work Commission (FWC) under a dispute settlement procedure outlined in the Patrick Projects Pty Ltd AMC Cargo Handling Agreement 2012-2015 (the Agreement). The primary legal issues were whether the applicants had standing to bring the applications and whether the alleged disputes could be determined by the Commission under the terms of the Agreement. The Commissioner found that the applicants did not have standing to bring the applications because they were no longer employees of the Employer when they made the application. The Agreement was no longer applicable to them, and they were no longer "parties" to the dispute. Additionally, the Commission found that the applicants had not complied with the procedural steps outlined in Clause 13 of the Agreement, which were a precondition for the Commission to have the power to deal with the applications. The applications were dismissed for want of jurisdiction.

Orders