The Australian Workers' Union v John Holland Pty Ltd

[2013] FWC 54

[2013] FWC 54

FAIR WORK COMMISSION

JURISDICTIONAL DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
John Holland Pty Ltd; Abigroup Pty Ltd
(C2012/5470)

COMMISSIONER RYAN MELBOURNE, 4 JANUARY 2013

Alleged dispute concerning communication between AWU and employer.

[1] On 29 September 2012 the AWU filed an application for Fair Work Australia (now the Fair Work Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) in accordance with the dispute settlement procedure in the Abigroup, John Holland and the Australian Workers Union Regional Rail Link Southern Cross Station to Footscray Project Agreement 2012 - 2015 (the agreement).

[2] The dispute concerned attempts by the AWU to gain a list of names of employees of both Abigroup Pty Ltd and John Holland Pty Ltd (the Joint Venturers) and of subcontractors to those two companies who were engaged on work on the part of the Regional Rail Link Project covered by the Agreement as well as a dispute as to the selection of workplace representatives and OHS representatives.

[3] In particular the AWU wanted FWA to issue an Order to Produce to each of the two employers to compel them to produce the following records:

“1. A list of all John Holland and Aibgroup Employees that are employed in Classifications outlined in the Abigroup, John Holland and the Australian Workers Union Regional Rail Link Southern Cross Station to Footscray Project Agreement 2012-2015.

2. A list of all contractors that do work that fall within the classifications outlined in the Abigroup, John Holland and the Australian Workers Union Regional Rail Link Southern Cross Station to Footscray Project Agreement 2012-2015.

3. A list of all contractors that are engaged in work that is manual or mental in or in connection of railway construction work in the Abigroup, John Holland and the Australian Workers Union Regional Rail Link Southern Cross Station to Footscray Project Agreement 2012-2015 that has been awarded to The Joint venture of John Holland Pty Ltd and Abigroup Pty Ltd.

4. The joint venture to provide information on what year of the national code for the building and construction industry that John Holland and Abigroup is working under on Regional Rail Link Southern Cross Station to Footscray Project.

5. The joint venture provide documentation on what provision in that national code for the building and construction industry does the company rely on to refuse the Delegate to attend a meeting in the AWU office as provided in clause 8.2 of the registered agreement.

6. The joint venture to provide details about the election of OH&S Reps and how the elections were conducted.

7. The joint venture to provide details about the designated work groups of OH&S Reps and how the designated work groups were determined.”

[4] The application was dealt with at a conference on 2 October 2012, a hearing and conference on 9 October 2012, and hearings on both 10 October 2012 and 11 October 2012.

[5] No witness evidence was led by the AWU and the employers led evidence from Mr Currie, Human Resources/Industrial Relations Manager for the Joint Venture, comprised of Abigroup and John Holland. Both sides made detailed submissions in the matter.

[6] During the hearing on 10 October 2012 the AWU, in response to concessions made by the employers, indicated that it no longer pursued items 4, 6 and 7 in its proposed Order to Produce.

[7] The essence of the issue in dispute between the AWU and the Joint Venturers is that the AWU wants a list of all persons working on work which falls within the coverage of the Agreement even if such persons are not employed under the Agreement. The Joint Venturers refuse to give such a list to the AWU. The AWU wants the list so that it can identify which employees are employed by either Joint Venturer and which employees are employed by contractors to the Joint Venture. This will then enable the AWU to exercise Right of Entry on the basis of being able to identify which employee is covered by any particular Right of Entry and be able to hold discussions with the employees of the employer against whom Right of Entry has been exercised.

[8] As is often the case what appears to be a simple issue turns out not to be so. There are a number of issues which I need to address.

Employee Representatives

[9] The Agreement was made as a Greenfields Agreement between the AWU and the Joint Venturers and not surprisingly the Agreement provides for a role for the AWU and for an Employee Representative in clause 8 as follows:

“EMPLOYEE REPRESENTATIVE

8.1. An Employee Representative shall after selection or election by Employee/s, notify the Joint Venture and be recognised as the accredited representative of the Employee/s. In the event an Employee seeks representation by the Employee Representative of their choice, their Employee Representative will be allowed necessary time during working hours, to submit to the Joint Venture matters affecting the Employee/s.

8.2. The Joint Venture will not prevent the Employee Representative from assisting employees during normal working hours. The Representative shall be able to attend

meetings, interview employees and attend FWA Hearings without loss of pay.

8.3. At all other times the Employee Representative - if they are an Employee, will perform productive work as directed. The role of Employee Representative is not considered to be a full time role.

8.4. The Joint Venture will recognise the role of the Employee Representative as a possible first point of contact for raising an Employee's grievance/query/concern with their supervisor.”

[10] A significant causal factor behind this dispute is that whilst the Agreement provides for recognition of an Employee Representative the Agreement does not require the Employee Representative to be the AWU Workplace Delegate/Shop Steward. What occurred in relation to this Agreement was that John Holland commenced work under the Agreement with about 15 employees (there being no Abigroup employees at that time) and the 15 employees elected two persons as their Employee Representatives. Those two persons were Mr Methurst and Mr Moore. Neither of the two is recognised by the AWU as an AWU Workplace Representatives/Shop Stewards.

[11] Although the number of employees employed by the Joint Venturers on the Project has changed, no further selections or elections have taken place in relation to the selection or election of Employee Representatives under clause 8 of the Agreement.

[12] In addition to the entitlement under clause 8 of the Agreement, Mr Moore, as an Employee Representative, is given 2 hours paid time each Friday to drive around the site and visit employees in his capacity as an Employee Representative. The Joint Venturers provide Mr Moore with a vehicle to do so. The Joint Venturers treat Mr Moore as the employee representative for all employees employed by the Joint Venturers under the Agreement.

[13] It is clear that the AWU does not want Mr Moore to be the Employee Representative under clause 8 of the Agreement. It is clear that the AWU considers that Mr Moore in his capacity as an Employee Representative does nothing to advance the interests of the AWU nor of employees employed under the Agreement.

[14] The position of the Joint Venturers appears to be that once Mr Moore was elected by the first 15 John Holland employees as an Employee Representative for the Agreement then Mr Moore, whilst he remains the elected Employee Representative, is the Employee Representative for all employees.

[15] Shorn of any niceties it is clear that the AWU intended that clause 8 of the Agreement would operate to allow the AWU to have a site delegate who would represent the AWU interests on site. What in fact happened is that John Holland used the fact that it controlled who would be the first employees on the site to create a group of employees who would elect an Employee Representative who would not be a union representative in any sense of the word. John Holland got what it wanted, which was to have a tame and employer friendly Employee Representative. By acting first John Holland was able to use the Agreement to maximise the advantage to the Joint Venturers.

[16] Neither what the AWU wanted nor what John Holland achieved is impermissible. Both possible outcomes would accord with the plain meaning of clause 8 of the Agreement.

[17] The very wording of clause 8 makes clear that the AWU could arrange for an employee to “select” the AWU’s preferred Employee Representative or the AWU could arrange for AWU members on site to “elect” an AWU Employee Representative. Nothing in the wording of clause 8 would prevent there being more than one Employee Representative.

[18] The unanswered question is whether the Joint Venturers would give the same facilities (2 hours paid time on Friday and use of a company vehicle to enable the Employee Representative to visit employees around the site) to an AWU Employee Representative that they give to their preferred Employee Representative. This issue was raised with Mr Currie who indicated that “I don’t feel comfortable trying to answer that without consultation with other senior management within the project”. 1 It appears to me that the Joint Venturers need to turn their mind to this question.

[19] It appears to me that if the AWU had its own AWU Employee Representative then much of the need for the information sought in the Order to Produce would dissipate. An active AWU Employee Representative with the right to have 2 hours paid time on a Friday and access to a company vehicle to get around the site would quickly know and identify every employee on site including employees of contractors to the Joint Venturers.

Workplace Health and Safety

[20] Part of the information sought by the AWU through the proposed Order to Produce related to the election of occupational health and safety representatives. It appears that John Holland is covered by the Work Health and Safety Act 2011 (Cwth) and Abigroup is covered by the Occupational Health and Safety Act 2004 (Vic).

[21] Clause 11 of the Agreement provides for additional entitlements to Health and Safety Representatives including “appropriate paid time during working hours to attend to legitimate job matters directly affecting Employees he/she represents”.

[22] Mr Wood in his submissions contended that the list of employees was sought in part because it would enable the AWU to identify which employees are covered by which OHS legislation and enable the AWU to monitor compliance with the relevant OHS legislation provisions for creation of designated work groups and election of relevant representatives for the designated work groups.

[23] It appears to me that in the normal course of events it would be necessary for the Joint Venturers to identify to the Health and Safety Representatives and to the Health and Safety Committee the names of employees of each of the Joint Venturers as well as the names of persons working on site as employees of contractors to the Joint Venturers. The effective management of on site health and safety would require that the Health and safety Representatives and the Health and Safety Committee have access to this information. The very nature of a construction site means that there is a constant interaction between employees of different employers and with independent contractors. Managing health and safety on the site would be impossible if those with a responsibility for health and safety, including the Health and Safety Representatives, had no idea who they were working with or the status of those they were working with.

[24] Whilst the AWU is not provided a role in the Health and Safety Committee nevertheless as the AWU is a party to the Agreement it has an interest in ensuring the proper operation of the Agreement including clauses 11 and 12.

[25] It would appear therefore that, either, a list of the names of all employees of the Joint Venturers and a list of the names of employees of contractors to the Joint Venturers who are working on site is already available and in the possession of the Health and Safety Representatives, or, that such a list can be easily obtained by the Health and Safety Representatives. This does not mean that the AWU must get the list of names but in a practical sense if the Health and Safety Representatives have the list there is a strong likelihood that the AWU will get the list.

The link between an Order to Produce and a Matter before Fair Work Commission

[26] Mr Wood contended that all he needed to do to get an order to produce issued by the Fair Work Commission was to ask for it. Mr Harrington, appearing as legal representative for the Joint Venturers, contended that an order to produce could not be issued unless it related to a matter properly before the Fair Work Commission and that in this case there was no matter properly before the Fair Work Commission.

[27] I have carefully considered the submissions from both sides.

[28] A suggestion that a request that the Fair Work Commission issue an order to produce is sufficient to create the power for the Fair Work Commission to issue the Order to Produce is plainly untenable.

[29] The jurisdiction of the Fair Work Commission has to be attracted or engaged before the Commission could consider issuing an order to produce.

[30] Under the former Conciliation and Arbitration Act and the former Industrial Relations Act, and even the former Workplace Relations Act1996 prior to March 2006, it was possible to engage the jurisdiction of the former Commission by creating an industrial dispute through serving a letter of demand and a log of claims on employers and/or registered organisations of employers which was then rejected by the employers or employer organisations.

[31] As long as the industrial dispute retained ambit, i.e. the terms and conditions set by an Award of the Commission were less than the terms and conditions demanded in the log of claims, then the former Commission retained jurisdiction. In such circumstances it was possible to request the Commission to issue an order to produce without creating a new matter as the jurisdiction of the Commission was already engaged through the continuing industrial dispute.

[32] However the Act does not allow the creation of industrial disputes through the serving of letters of demand and logs of claims. To attract the jurisdiction of the Fair Work Commission it is necessary to do so through the limited number of specific means provided by the Act.

Is there a Matter properly before the Fair Work Commission?

[33] One such means of attracting the jurisdiction of the Fair Work Commission is through a disputes settlement procedure of an enterprise agreement where the terms of the disputes settlement procedure specifically provide for a role for the Fair Work Commission. The Agreement in the present matter contains clause 10 which provides a detailed process for the resolution of disputes which may involve the Fair Work Commission.

[34] Clause 10 is as follows:

“10. DISPUTES RESOLUTION PROCEDURE

10.1. A major objective of this Agreement is to eliminate lost time and/or lost productivity arising out of disputes or grievances. Disputes over any work related or industrial matter or any matters arising out of the operations of the Agreement or incidental to the operation of the Agreement shall be dealt with as close to its source possible. Disputes over matters arising from this Agreement (or any other dispute related to the employment relationship) or the National Employment Standards shall be dealt with according to the following procedure:

10.2. The Employee/s concerned, or if requested by the Employee, an Employee Representative of their choice will first meet and confer with the Employee's immediate supervisor.

10.3. Alternatively, the Joint Venture may submit an issue to the Employee/s who may seek the assistance and involvement of an Employee Representative of their choice.

10.4. If the matter is not resolved at step 10.2 or 10.3 (if applicable), the affected Employee/s and the Joint Venture will arrange further discussions involving senior Joint Venture management, including the Employee Representative of the affected Employee's choice.

10.5. If the matter still cannot be resolved, the Employee, the Union or the Joint Venture may refer the matter to Fair Work Australia for final resolution of the matter by conciliation and/or arbitration. Subject to any right of appeal, any determination of Fair Work Australia shall be binding on the Employee the Union and the Joint Venture.

10.6. Any resolution of a dispute under this clause by Fair Work Australia shall not be inconsistent with legislative obligations.

10.7. This procedure will be followed in good faith without unreasonable delay.

10.8. Work shall continue without interruption from industrial stoppages, bans, demarcations and/or limitations while these procedures are being followed. The pre-dispute status quo shall prevail while the matter is being dealt with in accordance with this procedure. This means that the work/conditions applying immediately before the dispute will continue to apply.

10.9. If no pre-dispute status quo exists, the Joint Venture will be able to apply reasonable discretion regarding how the work/conditions will apply until the dispute has been conciliated/arbitrated.

10.10. If the Employee/Union/Joint Venture refuses to follow any of the steps in this procedure, the non-breaching party will not be obligated to continue through the remaining steps of the procedure and may immediately seek relief by application to Fair Work Australia.”

[35] Mr Hartigan contended that there was no dispute properly before the Fair Work Commission. Mr Hartigan relied on the uncontested evidence of Mr Currie to illustrate this contention:

“ ....he says in relation to the compliance issue (1) no-one has raised any concern with underpayment with him or his staff, of which he's aware. No-one has suggested that they're wrongly classified or underpaid under this agreement, or that any contractors are underpaying anyone.

And he says specifically that the employee representatives - that there are two - who were elected in accordance with the agreement under clause 8, and who are given time off to do their job, and talk to the employees on the job. They have not come to him and said, "Bob is being underpaid or incorrectly paid an allowance, overtime, or shift penalty" or anything. None of that has come forward from that source.

Secondly, he says, that the union, as in the full time officials, the evidence was that none of them have raised any matter of underpayment or wrong classification under the agreement with him or his staff.

Thirdly, Mr Curry's evidence was that the union has not sought to put into dispute any matter dealing with under payment or wrong classification under this agreement. And as the Commission - as the Tribunal noted, there's a dispute settlement clause, and that dispute settlement clause, which the union seeks to rely on to obtain these documents, provides that if there is a dispute with a particular employee in 10.2 then there's meant to be a meeting out of site with relevant managers to try and sort it out.

The next level it goes up to a more senior manager and meeting with the union. None of that has happened in relation to compliance issue in relation to an underpayment matter under this agreement. “ 2

And further:

“So we've got two fundamental problems at this point with the union's application. (1) they say we need the names of all these employees of John Holland and Abigroup to work out whether the companies are complying with their obligations under the agreement; but there's no evidence of any dispute, nothing.

Secondly, they say they want the details of the contractors but the contractors do not fall within the scope of this agreement. They fall - they cover by their own agreements, and they sit outside. There may be some power elsewhere if the union has a dispute about one of their members being underpaid by some other subcontractor to come here and seek information under that agreement, but certainly not under this agreement.” 3

[36] The contention of the Joint Venturers is that there is no dispute about underpayment or non compliance with the Agreement. With this I agree. However, it is apparent that there is a dispute between the AWU and the Joint Venturers. So much is obvious from the actions of the AWU and the Joint Venturers. But is it a dispute which can be addressed under clause 10 of the Agreement?

[37] The language of clause 10.1 is expressed very broadly in the way in which it describes the types of disputes which can be dealt with under clause 10. The range of disputes for which clause 10 provides a dispute resolution procedure are:

● Disputes over any work related matter
● Disputes over any industrial matter
● Disputes over any matters arising out of the operations of the Agreement
● Disputes over any matters incidental to the operation of the Agreement
● Any other dispute related to the employment relationship
● Disputes over matters arising from this Agreement
● Disputes over matters arising from the National Employment Standards

[38] The inclusion in clause 10 of disputes over any industrial matter provides clause 10 with a very wide scope. Consistent with the approach adopted by the High Court in R v Coldham; Ex Parte Australian Social Welfare Union  4 in interpreting the phrase “industrial disputes” in s.51(xxxv) of the Constitution a similar approach would apply to interpreting the phrase “industrial matter” in clause 10 of the Agreement.

[39] The Joint Venturers contend that there has not been compliance with the procedure specified in clause 10.2 of the Agreement. Whilst the AWU have clearly raised a dispute with the site management it is clear that the AWU did not “first meet with the Employee’s immediate supervisor.

[40] The power of the Fair Work Commission pursuant to s.739 of the Act to deal with a dispute arising under the terms of an enterprise agreement is not constrained in the same way that s.710 of the Workplace Relations Act 1996 constrained the former Commission.

[41] Under the previous legislation the former Commission had to refuse to conduct a dispute resolution process under an agreement if “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”. No such limitation exists in the Fair Work Act. This does not mean that the Fair Work Commission should ignore non compliance with the procedures in clause 10 of the Agreement. Rather the Fair Work Commission should consider any non compliance with a procedural step in the dispute resolution process in the context of the matter before the Fair Work Commission.

[42] In the present matter the issues in dispute would not be able to be resolved if the AWU raised them with any individual employee’s supervisor. The issues were more appropriately raised with a more senior manager than with a supervisor. The very fact that clause 10 relates to disputes which may be between the AWU and the Joint Venturers, rather than between an employee or employees and the Joint Venturers, means that compliance with the first part of the procedure in clause 10.2 will not necessarily be possible in relation to all disputes for which a dispute resolution procedure is provided for in clause 10 of the Agreement.

[43] I am satisfied that the issues in dispute between the AWU and the Joint Venturers are matters which fall within the scope of clause 10 of the Agreement. I am further satisfied that the there is matter properly before the Fair Work Commission under s.739 of the Act.

The Order to Produce

[44] Whilst the AWU may request that the Fair Work Commission issue an order to produce under s.590 of the Act the decision as to whether such an order should be issued is a matter of discretion for the Fair Work Commission.

[45] Given my observations in relation to employee representatives and workplace health and safety issues I decline to issue the Order to Produce at this time.

[46] I intend to convene another conference of the parties to see if the parties, having had an opportunity of considering this Jurisdictional Decision, are able to resolve the matters in dispute through conciliation. If such a conference is unsuccessful I will determine the matter in dispute.

COMMISSIONER

 1   Transcript at PN294

 2   Transcript at PN370 - PN374

 3   Transcript at PN3738 - PN3739

 4 [1983] HCA 19

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