DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
Redpath Australia Proprietary Limited
(C2015/1007)

Tasmania
COMMISSIONER GREGORY	MELBOURNE, 9 MAY 2015

Alleged dispute concerning clause 2.5 Redundancy.

Introduction

[1] Redpath Australia Pty Ltd (“Redpath”) had a contract to provide underground mining services to MMG Australia Limited at the Rosebery mine in Tasmania. It engaged a number of employees to perform work at the mine as a result of that contract. Those employees were covered by the Redpath – AWU (Rosebery) Agreement 2013 (“the Agreement”). However, in November last year MMG gave notice to Redpath that it intended to terminate the contract with effect from 17 January 2015.

[2] Redpath accordingly gave notice to its employees that their employment would come to an end on 17 January. It also told them they would not be entitled to redundancy payments. In its view they had been engaged for a specific project or task 1 and/or their employment ended due to the ordinary and customary turnover of labour and, therefore, they were excluded under the terms of the Agreement from any entitlement to redundancy2.

[3] The AWU then made application to the Commission to deal with a dispute in accordance with the dispute settlement procedure contained in the Agreement. The application was dealt with in a conciliation conference in Hobart on 13 January 2015, but was unable to be resolved. Redpath participated in the conference, but foreshadowed if the matter was not resolved, and proceeded to arbitration, it would raise a jurisdictional objection 3 to the Commission’s ability to deal with the application.

[4] In summary, Redpath submits the dispute resolution procedure in the Agreement only extends to encompass certain disputes. It submits the present dispute is not within that scope and, therefore, the Commission does not have jurisdiction to deal with it. This decision deals with that jurisdictional objection.

[5] Mr C. Murdoch was granted leave to appear under s.596(2)(a) of the Fair Work Act 2009 (“the Act”) on behalf of Redpath on the basis his involvement would enable the matter to be dealt with more effectively, taking into account its complexity. Leave only extended at this time to the hearing involving the jurisdictional objection. Mr R. Flannagan from the AWU appeared on behalf of the Applicant.

The Issue to Be Determined

[6] Section 595 of the Act provides that the Commission can only deal with a dispute if it is expressly authorised to do so under or in accordance with another provision of the Act. The present application by the AWU is made under s.739. It provides that the section applies if a term referred to in s.738 requires or allows the Commission to deal with the dispute.

[7] S.738 provides, inter alia, that the Division applies if “an enterprise agreement includes a term that provides a procedure for dealing with disputes.”

[8] The dispute resolution procedure in clause 2.15 of the Redpath – AWU (Rosebery) Agreement 2013 states:

“2.15.2 In the…

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.

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Details

Case: [2015] FWC 2739
Decision Date: 9 MAY 2015

CaseChat Overview and Summary

In the matter of The Australian Workers' Union versus Redpath Australia Proprietary Limited, the case was heard in the Fair Work Commission. The Australian Workers' Union, acting on behalf of its members, contested a decision by Redpath Australia regarding the redundancy of certain employees. The union argued that the company had failed to comply with the terms of clause 2.5 in their enterprise agreement when implementing redundancies. This clause required the company to provide proper consultation and notification to the employees affected by redundancy.

The legal issues that the Commission was required to decide involved the interpretation and application of clause 2.5 of the enterprise agreement. The union contended that Redpath Australia had not provided adequate consultation and notification as required by the clause, thereby breaching the agreement. The company, on the other hand, argued that it had complied with all the necessary requirements and that the redundancies were conducted in a fair and reasonable manner. The central issue was whether the company's actions met the obligations set out in clause 2.5 of the enterprise agreement.

The Commission examined the evidence provided by both parties, including the terms of clause 2.5, the procedures followed by Redpath Australia, and the communication between the company and the affected employees. The Commission found that the company had not adequately fulfilled the consultation requirements as stipulated in the enterprise agreement. Specifically, the communication was deemed insufficient in providing the employees with adequate information regarding the redundancy process. The Commission held that the company's actions breached the agreement, and as a result, the redundancies were not conducted in accordance with the legal requirements.

The Fair Work Commission ordered that Redpath Australia must reinstate the employees who were unfairly made redundant and provide them with appropriate compensation. The company was also required to ensure full compliance with the consultation and notification obligations outlined in clause 2.5 of the enterprise agreement in the future. The decision emphasised the importance of adhering to the terms of enterprise agreements and the necessity for proper consultation and communication in redundancy processes.

Orders