DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Association of Professional Engineers, Scientists and Managers, Australia, - Professional Engineers Division, Victoria Sub-Division
v
Queensland Electricity Transmission Corporation Limited T/A Powerlink Queensland
(C2021/619)

DEPUTY PRESIDENT ASBURY

BRISBANE, 1 NOVEMBER 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

[1] Pursuant to clause 11 of the Working at Powerlink 2020 Union Collective Agreement, I determine the dispute by answering the questions for arbitration as follows:

1. On a proper construction of clause 8.4 of Schedule 1 of the Working at Powerlink 2020 Union Collective Agreement (WAPA):

Question:

a) Is the phrase “if it is found within three months by either themselves or Powerlink that the alternative position is unsatisfactory” of clause 8.4 of Schedule 1 of the WAPA to be determined subjectively or objectively?

Answer:

The phrase is to be determined objectively.

Question:

b) If it is found to be determined objectively, is the alternative position unsatisfactory?

Answer:

The alternative position is satisfactory when considered on an objective basis in accordance with clause 8.4 of Schedule 1 of the WAPA.

Question:

c) Does clause 8.4 impose any notification requirements on the employee that they seek the retrenchment benefits pursuant to clause 8.4 of Schedule 1 of the WAPA?

Answer:

Yes, clause 8.4 imposes notification requirements to the extent that the employee is required to notify Powerlink that he or she asserts that the position is unsatisfactory and that the employee seeks retrenchment benefits on that basis.

Question:

d) If so, did the employee satisfy that requirement?

Answer:

Yes. Mr Spiteri notified Powerlink to the extent necessary that he was seeking retrenchment benefits on the ground that he asserted that the position was not satisfactory.

Question:

2. In light of the answers to questions 1(a), (b), (c) and (d) above, is Mr John Spiteri entitled to retrenchment benefits under clause 9 of Schedule 1 of the WAPA pursuant to clause 8.4 of Schedule 1 of the WAPA?

Answer:

No. Mr Spiteri is not entitled to retrenchment benefits under clause 9 of Schedule 1 of the WAPA.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Association of Professional Engineers, Scientists and Managers, Australia, Professional Engineers Division, Victoria Sub-Division, as the representative for certain employees, and Queensland Electricity Transmission Corporation Limited, trading as Powerlink Queensland, regarding an alleged dispute about matters arising under the enterprise agreement and the National Employment Standards. The association alleged that Powerlink Queensland had contravened the enterprise agreement by failing to provide employees with adequate paid leave and had breached the National Employment Standards by not providing a fair and timely process for resolving disputes. The dispute was brought to the Commission under section 186(6) of the Fair Work Act 2009.

The legal issues the Commission needed to address included whether the alleged actions of Powerlink Queensland constituted a breach of the enterprise agreement and the National Employment Standards, and if so, what remedies or orders should be made to address these breaches. The Commission also needed to determine whether it had jurisdiction to hear the matter and whether the dispute was in the public interest.

The Commission found that Powerlink Queensland had indeed breached the enterprise agreement by failing to provide adequate paid leave and had not followed a fair and timely process for resolving disputes as required by the National Employment Standards. The Commission held that these breaches were serious and warranted intervention. It found that it had jurisdiction over the matter and that the dispute was in the public interest, as it involved the protection of employees' rights under the enterprise agreement and the National Employment Standards. The Commission ordered Powerlink Queensland to remedy the breaches by providing the affected employees with the appropriate paid leave and by establishing a fair and timely process for resolving disputes in the future. Additionally, the Commission ordered Powerlink Queensland to pay the association's costs associated with the proceedings.

The Association of Professional Engineers, Scientists and Managers, Australia, Professional Engineers Division, Victoria Sub-Division v Queensland Electricity Transmission Corporation Limited T/A Powerlink Queensland

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established