The Australian Workers' Union v ACI Operations Pty Ltd T/A O-I Melbourne

[2014] FWC 9329

[2014] FWC 9329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
ACI Operations Pty Ltd T/A O-I Melbourne
(C2014/7934)

COMMISSIONER RYAN MELBOURNE, 19 DECEMBER 2014

Alleged dispute concerning entitlements.

[1] The application in this matter has been subject to two conciliation conferences convened by the Commission the last being held yesterday morning.

[2] The matter in dispute was not able to be resolved at that conference and at the conclusion of the conference the AWU indicated that it would seek to have part of the matter in dispute dealt with by arbitration as a matter of urgency. The Commission advised the parties that the Commission may have time available on Friday 19 December 2014 to deal with an urgent arbitration.

[3] At 5.24 pm on 18 December 2014 the AWU applied in writing to the Commission to have part of the dispute arbitrated on Friday 19 December 2014. The issue for arbitration was described as follows:

“What is established custom and practice at the workplace in relation to allocation of leave and the coverage of absences arising therefrom?”

[4] The question posed relates to that part of the dispute where the AWU alleges that O-I is not complying with the dispute settlement procedure of the relevant enterprise agreement which provides, in part, that:

“While all the above steps are being undertaken, no industrial action of any nature, either directly or indirectly are to be placed on the performance of work whether subject to this Agreement or not.

The employer shall ensure that all practices applied during the operation of the procedure are in accordance with safe working practices and consistent with established custom and practice at the workplace.”

[5] A Notice of Listing was issued by my Chambers at 5.26pm on Thursday 18 December 2014.

[6] At 5.34pm on Thursday 18 December 2014 Ms Susan Zeitz wrote to the Commission advising amongst other things that Zeitz Workplace Lawyers had been instructed by ACI Operations P/L t/as O-I Melbourne in relation to the dispute and that O-I was seeking permission to be represented in the matter by a lawyer. The letter very briefly addressed the requirements of s.596 of the Act.

[7] At 9.47am on Friday 19 December 2014 my Chambers emailed Mr Reilly of the AWU asking if the AWU intended to make any submission in relation to O-I’s request for permission to be represented by a lawyer.

[8] At 10.01 am Ms Zeitz emailed the Commission advising that if the AWU opposed the O-I’s request to be represented by a lawyer then O-I wanted the opportunity of presenting more fulsome submissions in support of their request at the commencement of the hearing at 1.30pm on Friday 19 December 2014.

[9] At 10.12 am on Friday 19 December 2014 Ms Zeitz filed with the Commission a Form F53 - Notice of a representative commencing to act.

[10] At 10.14am on Friday 19 December 2014 Mr Reilly of the AWU emailed the Commission advising of the AWU position in relation to the issue of O-I being represented by a lawyer. The email, whilst making a statement, advised the Commission that “the AWU does not propose to make submissions on the matter”.

[11] In coming to a decision in relation to the request by O-I that it be granted permission to be represented by a lawyer I have considered the following:

● the nature of the issues in dispute; and
● the nature of the matters which are clearly foreshadowed as matters to be raised at the arbitration hearing; and
● the matters raised by Ms Zeitz in support of the request for permission to be granted to the Respondent to be represented by a lawyer; and
● the requirements of s.596(2) of the Act.

[12] I am satisfied that even at its simplest the matter raised by the AWU for arbitration is complex. The fact that O-I has raised a number of significant issues in relation to the arbitration proceeding and in relation to the issue to be arbitrated I am satisfied as required by s.596(2)(a) that O-I be granted permission to be represented by a lawyer.

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