| [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…
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- Seiffert & Ors v Patrick Projects Pty Ltd [2014] FWC 7019
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- [2014] FWC 7019
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