The Australian Workers' Union v Redpath Australia Proprietary Limited
[2015] FWC 2739
•9 MAY 2015
| [2015] FWC 2739 |
| FAIR WORK COMMISSION |
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 event of any dispute arising as to the interpretation of this Agreement or any dispute (excluding matters concerning the termination of employment) arising in the course of employment the following procedure shall apply.”
[9] Redpath accordingly submits the sub clause describes two separate categories of dispute. It also submits the limitation in the sub clause, “excluding matters concerning the termination of employment,” applies only to the second category. It continues to submit the present dispute does not go to the “interpretation” 4 of the Agreement and so does not fall within the first category of dispute in sub clause 2.15.2. It also submits the dispute concerns the employees’ termination of employment and, therefore, deals with a dispute that is expressly excluded from being dealt with under the second part of sub clause 2.15.2. As a consequence the Commission has no jurisdiction to deal with the application.
[10] The AWU disagrees. It submits the dispute does concern the “interpretation” 5 of the Agreement. It also submits the exclusion in the second category refers only to the sub clause headed “termination of employment6” in the Agreement, and not to other provisions dealing with redundancy, and therefore the Commission is empowered to deal with the dispute in accordance with the disputes procedure in the Agreement.
[11] Therefore:
● does the dispute, in all the circumstances, concern “a dispute arising as to the interpretation of this agreement,” thereby enabling the Commission to deal with the dispute, or
● does the dispute concern the employees’ termination of employment, and fall within the limitation to the second category of disputes, thereby excluding the Commission from dealing with it.
The Evidence and Submissions
[12] As indicated, Redpath relies on two grounds in support of its jurisdictional objection. They concern what it describes as the separate “limbs” contained in the dispute resolution procedure in the Agreement. In its submission the first limb or category of dispute describes disputes to do with “the interpretation of this agreement.” 7 The second category encompasses any “dispute arising in the course of employment,”8 subject to the exclusion of matters concerning the termination of employment. It also acknowledges that the Commission’s jurisdiction can apply if either “limb” is satisfied, given the use of the word “or”9 in sub clause 2.15.2. However, while private arbitration powers can be given to the Commission, it submits they are not open-ended or free ranging powers but are, instead, confined and limited by the actual powers conferred and given by the parties10.
[13] In dealing with the first category Redpath submits the current dispute is not about “the interpretation of this agreement.” It also submits the scope of a similar dispute resolution clause was considered in a recent decision of the Commission in Australian Workers’ Union v Barminco Pty Ltd [2014] FWC 1954, and the Commission found in that matter that the clause extended to cover two separate and distinct categories of dispute being, firstly:
(a) any dispute arising as to the interpretation of the agreement; and, secondly,
(b) any dispute arising in the course of employment, excluding matters concerning the termination of employment. 11
[14] It submits this interpretation, which confines the words of limitation to sub paragraph (b), must necessarily limit the width of sub paragraph (a). It submits it would be “an odd result” 12 if the limitation imposed by the second part of the dispute resolution procedure can be overcome by the application of the first part13. In its submission this would be inconsistent with the requirement to interpret the words of an enterprise agreement in the context of the Agreement as a whole.14 In this context it relies upon the recent Full Bench decision in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447 in regard to the approach to be taken to the construction of an enterprise agreement15.
[15] It highlights the principles, in particular, at points 7, 8 and 10 in [41] of the Full Bench decision in considering the approach to be taken to construction of an enterprise agreement. 16
[16] Redpath also relies on the decision in Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [2011] FCA 1020 in support of its submission that the nature of the dispute in this matter does not come within the first category of disputes. 17 It submits the first category can only extend to disputes arising about the “interpretation” of the Agreement, and not to the application of the Agreement.18 In its submission the present dispute does not concern the interpretation of the Rosebery Agreement, and there is no dispute between the parties as to the interpretation of the relevant clause. Instead the AWU, in its submission, simply seeks to apply the redundancy entitlements set out in clause 2.5.519 to the employees whose employment at the Rosebery mine ended on 17 January.
[17] Redpath submits it is inherent in the reference to “interpretation” in the sub clause that it involves a focus on what the words in the Agreement mean, and envisages a situation in which the Commission is required to provide an explanation about their meaning. It submits this task or exercise can be distinguished from the task of considering whether a clause in an Agreement has application to the particular facts of the matter at hand. 20
[18] In summary, in its submission, the present dispute is about the actual application of the Agreement, and “whether the Respondent applied the Agreement correctly on termination of employment of the Rosebery Employees.” 21 It is not about the interpretation of the Rosebery Agreement.
[19] Redpath continues to submit that if the Commission’s jurisdiction under the first category of dispute is found to enable it to deal with any dispute arising as to the Agreement, then this interpretation would act to override the second part of the clause, and its accompanying limitation. In its submission this would be inappropriate, and the preferred approach is that the first part of the clause be limited to deal only with the stated intention of disputes concerning the “interpretation of the agreement.” It continues to submit the current dispute does not fall into this category.
[20] The AWU refers to various authorities in support of its submission that in order to properly characterise the dispute the Commission must review the entire factual background. It refers, in particular, to the decision of Commissioner Lewin in Skurnik v Australian Broadcasting Corporation [2011] FWAA 8069, which sets out the relevant principles of statutory construction concerning the exercise of dispute resolution procedures. It highlights, in particular, the following conclusion from Commissioner Lewin when he stated:
“Therefore the nature of the jurisdiction and power to determine a dispute by arbitration, where performed by the tribunal, is derived from the terms of the dispute settlement procedure agreed between the parties to the enterprise agreement.”
[21] The AWU also submits the relevant authorities have concluded that a narrow approach should be avoided in analysing a dispute, and the nature of the disputes procedure in an Agreement. It continues to submit that in the present matter the dispute is suitably characterised as a dispute arising about the interpretation of the Agreement, 22 and Redpath’s objection to the Commission’s jurisdiction should fail.
[22] It submits the present dispute does involve the “interpretation” of the Agreement, and in dealing with the matter the Commission need only determine whether there is a meaningful relationship between the facts relied upon, and the terms of the Agreement in dispute. 23 It submits the scope of the dispute is essentially about whether Redpath has complied with its various obligations under the Agreement.
[23] The AWU also makes reference to Redpath’s rejection of its claims. It submits it relies on various grounds, including that termination was not at the initiative the employer, the employees were employed for a specific project or task, and the circumstances involve the ordinary and customary turnover of labour. 24 It submits, in response, each matter refers to terms contained in the Agreement and, therefore, a dispute exists about the interpretation of those terms.
[24] The AWU also refers to the definition of “interpretation” in the Macquarie dictionary in support of its submission that the dispute is about the meaning to be attributed to the terms of the Agreement, and any obligations existing as a consequence 25.
[25] It also acknowledges the exclusion contained in the second category of the sub clause is not an exclusion that applies to the first part and is, accordingly, not limited by that exclusion. It also relies on the decision in Barminco in support of this submission.
[26] The AWU also relies on the decision in Golden Cockerel in support of its submission that the Agreement should be read as a whole in order to consider its meaning and purpose. It submits in this context that sub clauses 2.4 “Termination of Employment” and 2.5 “Redundancy” deal with different subject matter, and the exclusion in the dispute resolution clause of matters concerning termination of employment should be limited only to matters dealt with by sub clause 2.4.
[27] The AWU also submits the decision in Barminco should not be distinguished in the manner suggested by Redpath, because both matters involve issues to do with whether the employees have been made redundant. In addition, it submits that in each case the employer argued that the employees had not been made redundant in the particular circumstances involved.
[28] The AWU also submits the scheme of the legislation intends that the parties to an Agreement should determine the scope, procedures and powers that may be exercised by the Commission in any process of dispute resolution. It submits the word “interpretation” in the dispute resolution clause should be considered in the context of s.186(6), which establishes the requirement for an Agreement to contain a dispute resolution procedure. The fact other avenues of redress may be available, under other parts of the Act, does not invalidate the legitimacy of the dispute resolution mechanism provided for by the parties in their Agreement. 26
[29] The AWU submits, in conclusion, that the present dispute is about the “interpretation” of the Agreement. 27 Further, the resolution of such disputes is expressly provided for by it, and the exclusion of matters concerning termination of employment does not apply to a dispute concerning “interpretation” of the agreement. It continues to submit that if this primary submission is not accepted the Commission should not take a narrow or pedantic approach to the meaning of the words “excluding matters concerning the termination of employment.” It should instead read the Agreement as a whole, and determine the exclusion does not extend to redundancy, and the relevant circumstances and processes associated with employees being made redundant.28
[30] In dealing with the second category of disputes to do with disputes arising in the course of employment, excluding matters concerning termination, Redpath submits the present dispute is about termination of the employees at the Rosebery mine. In its submission the dispute is accordingly excluded from being dealt with under this second category of dispute resolution provisions in the Agreement. It also submits the words “matters concerning” operate to extend the exclusion or limitation in the sub clause to matters more broadly concerning termination of employment, including redundancy and redundancy entitlements. 29
[31] It acknowledges that sub clause 2.4 in the Agreement is headed “Termination of Employment,” whereas sub clause 2.5 is headed “Redundancy, however, it submits sub clause 2.5 also contains various references to termination of employment, and the fact of employees being made redundant inevitably results in them being terminated.
[32] It also submits the exclusion is intended to apply to all disputes referred to in sub clause 2.15 about termination of employment, 30 and this is consistent with the relevant authorities that have determined a dispute between a former employee and a former employer does not relate to a dispute to do with the employment relationship.31
[33] Redpath also submits the circumstances in this matter can be distinguished from those in Barminco because it concerned employees in ongoing employment. By contrast, the employees in the present matter have been dismissed, and the dispute is about the legal effect of those actions. 32 It submits, in conclusion, it misconstrues the nature of the present dispute to categorise it as being about redundancy entitlements, rather than the termination of the employment of the employees at Rosebery.33
[34] The position of the AWU in regard to this aspect of the dispute resolution procedure has already been referred to, in part. It submits the Commission should not take a narrow or pedantic approach to the meaning of the words of limitation, and should instead read the Agreement as a whole, and determine that the exclusion does not extend to redundancy, and the circumstances and processes associated with the employees being made redundant. It draws a clear distinction between the sub clauses in the Agreement dealing with termination of employment and those dealing with redundancy. 34 It submits, in response, that the exclusion in the dispute resolution clause of matters concerning termination of employment should therefore be limited only to those matters dealt with by sub clause 2.4 “Termination of Employment.”
Consideration
[35] The Commission’s ability to exercise powers of arbitration is established by various provisions in the Fair Work Act. Sub sections 595 (1) and (3) relevantly provide that:
“(1) [FWC may deal with dispute only of authorised] The FWC may deal with the dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(3) [FWC may arbitrate only of authorised] The FWC may deal with the dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.”
[36] Section 738 continues to provide in part:
“This division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise Agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186 (6);”
[37] Finally, section 739 provides in part:
“(1) [Section applies if FWC deals with dispute] This section applies of a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(3) [FWC must not exercise any powers limited by the term] In dealing with a dispute, the FWC must not exercise any powers limited by the term.”
[38] In the present matter the powers given to the Commission are set out in sub clause 2.15.2 of the Agreement in the following terms:
“In the event of any dispute arising as to the interpretation of this agreement or any dispute (excluding matters concerning the termination of employment) arising in the course of employment the following procedure shall apply.”
[39] The parties have both made reference in their submissions to the recent Full Bench decision in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd, which after a detailed review of the relevant authorities, confirmed the principles to be applied to the construction of an enterprise agreement. Those principles are summarised at [41] of the decision in the following terms:
“1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”
[40] I now turn to consider the circumstances involved in this matter in the light of these principles.
[41] The powers given to the Commission by the dispute resolution procedure contained in the Rosebery Agreement encompass two categories of disputes. Firstly, “any dispute arising as to the interpretation of the agreement.” Secondly, “any dispute (excluding matters concerning the termination of employment) arising in the course of employment.” While the intent of these provisions requires some consideration, I am satisfied the common intention of the parties can be identified and understood in a manner that is clear and unambiguous.
[42] As indicated, it is evident that two types of dispute are intended to be dealt with under the terms of the dispute resolution procedure in the Agreement, and I turn to deal shortly with what each is intended to encompass. I am also satisfied the intention of the limitation in the sub clause dealing with the exclusion of “matters concerning the termination of employment” applies only to the second category of dispute in the sub clause. In coming to this conclusion I adopt the reasoning in the decision of Commissioner Lee in Australian Workers’ Union v Barminco Pty Ltd [2014] FWC 1954, handed down in April last year, and referred to in the submissions of both parties. In that matter the relevant words in the dispute resolution clause were the same as those contained in the Rosebery Agreement. Commissioner Lee dealt with the issue of whether the clause concerned two separate categories of disputes, and the extent of the words of limitation, in the following terms when he concluded:
“[49] It has not been suggested by either party that the word “or” should be given anything other than its ordinary meaning in this case. I am of the view that the ordinary meaning of the words in the clause allows for the clause to be read in the manner contended for by the applicant. That is, as the word “or” is used as disjunctive in the ordinary way, it is connecting phrases representing alternative terms.
[50] The alternative terms in this case are to allow for the dispute settlement procedure to deal with disputes over interpretation of the agreement or disputes pertaining to the employment relationship. As the bracketed words form part of the second and alternative category of disputes, the ordinary meaning of the words suggests that the limitation that the words clearly impose is upon that second category of disputes only. That is, the words operate to constrain the power to deal with disputes pertaining to the employment relationship. The words do not have application to the first category of disputes.
[51] At this point it is convenient to deal with the submissions of the respondent that, as a general proposition when constructing the terms of an Agreement, the specific prevails over the general. The respondent is correct on this point. However, the ordinary meaning of the words in the clause provide that the specific limitation of the bracketed words clearly prevails over and constrains the general power to settle the second category of disputes. It does not operate as a specific limitation over the general power to settle disputes in the first category.”
[43] As indicated, I am satisfied the decision in Barminco appropriately describes the intended meaning of the words in the sub clause, and is consistent with the plain meaning of the words. In terms of the words of limitation it is also noted they appear in the description of the second category of disputes, and between the words “any dispute” and “arising in the course of employment.” It follows from the way they are expressed that it is only intended the limitation apply to that second category of disputes.
[44] I turn now to consider the intent of these separate categories. Redpath submits the reference to “interpretation” is intended to limit that category of disputes to a focus on what the words in the Agreement mean as opposed, for example, to whether the Agreement has application to the facts at hand. The AWU submits, in response, the relevant authorities have established that a narrow approach to the analysis of a dispute should be avoided but, in any case, the dispute is properly categorised as being a dispute about the interpretation of the Agreement.
[45] I am satisfied, in response, that the first category of dispute described in the sub clause is intended to be confined to a dispute involving “the interpretation of this agreement.” These are the specific words used, and can be read as expressing a clear intention to deal separately with disputes to do with interpretation of the Agreement. They describe a confined and specific category of dispute that can be contrasted with the second category, which goes more broadly to any dispute arising in the course of employment, subject to the exclusion that attaches to it.
[46] Redpath made reference to the decision in CFMEU v Thiess 35 in support of its submission. It referred, in particular, to an extract from the decision at [47] when his Honour Justice Tracey stated:
“Not all disputes and grievances which might conceivably occur on the project will be subject to the dispute settling procedure. The operation of Clause 15.1 will only be attracted if they can be linked to “the application or interpretation” of the Agreement.”
[47] The dispute resolution clause in the Agreement under consideration in that matter applied to “disputes and grievances relating to any and all matters arising out of or in connection with the application or interpretation of this agreement.” 36 The principal issue in dispute in that matter, in terms of the construction of the clause, centred on the reference to the word “application,” and not the reference to “interpretation.” However, in dealing with the issue of the proper construction of the words His Honour concluded:
“[63] Resort to such broader considerations has been of limited assistance to me in resolving conflicting construction arguments. In the end I have concluded that the issue is to be resolved, principally, by reference to the language employed by the parties in framing their agreement. I consider that language to be clear.
[64] In my view the ordinary and natural meaning of the word “application” extends to a decision by the respondent’s, made under Clause 1.3, to terminate the operation of the 4 on 4 of rostering arrangement. In doing so they have made use of or applied the provision to bring about a change for which the Agreement provides.”
[48] The decision confirms that the Commission is required, as far as possible, to resolve these matters by reference to the language used by the parties. In making reference to the word “interpretation” in the first part of the clause I am satisfied it is appropriate to conclude the parties intended to limit this part of the disputes procedure to these matters only, and it is not intended to extend to disputes concerning how the provisions in the Agreement are applied in the circumstances prevailing from time to time.
[49] This conclusion requires that consideration be given to the nature of the present dispute. The s.739 dispute notification lodged by the AWU states at Q. 4 under the heading “What is the dispute about?”
“Redpath has been advised by its client MMG that its contract for underground mining services will be terminated effective 17 January 2015. The company has advised employees that they will not receive redundancy payments on the termination of their Employment. The AWU believes employees are entitled to Redundancy payments in accordance with clause 2.5 of the Enterprise Agreement. The employer disputes that view on the basis that;
(a) The employees are engaged for the period of the contract with MMG; and/or
(b) The employment is terminated due to the ordinary and customary turnover of labour.”
[50] The application continues to indicate under the heading “Relief sought:”
“The union seeks a determination that under the Terms of clause 2.5 of the Enterprise Agreement Redpath is obliged to make Redundancy payments pursuant to the scale in clause 2.5.5 two employees engaged at Rosebery on the termination of their employment.
The union seeks the urgent assistance of the Commission.”
[51] Redpath accordingly submits there is no dispute between the parties about the interpretation of sub clause 2.5. The dispute is instead, in its submission, about the application of the Agreement to the particular circumstances surrounding the termination of employment of the employees. It also submits adopting a contrary view renders the second part of the sub clause, and its attendant restriction, irrelevant.
[52] I am satisfied the sub clause should be limited in the manner contended by Redpath. The Agreement refers plainly to disputes about the “interpretation of the agreement.” As indicated, the intention is to therefore confine that part of the sub clause to such disputes and, in so doing, to distinguish them from those encompassed by the second part of the sub clause.
[53] Having come to this conclusion I am satisfied there is no evident dispute about the meaning or interpretation of the words in sub clause 2.5. The dispute is instead to do with whether the circumstances involved in the employees’ termination create an entitlement under sub clause 2.5. It follows that the Commission does not have jurisdiction to deal with the dispute under the first part of sub clause 2.15.2.
[54] I now turn to consider whether the Commission is empowered to deal with a dispute under the second part of sub clause 2.15.2. In this context Redpath submits the dispute is about the termination of the employees at Rosebery and, therefore, the limitation in the sub clause precludes the Commission from having jurisdiction. It acknowledges sub clause 2.4 in the Agreement is headed “Termination of Employment,” but submits the exclusion should nevertheless also apply in regard to disputes arising under sub clause 2.5 “Redundancy.” In this context it submits sub clause 2.5 contains various references to termination of employment. It also submits redundancy invariably results in termination of employment.
[55] Commissioner Lee was required to determine similar issues in Barminco, in circumstances involving a dispute resolution procedure that contained the same wording as in the present matter. He found the Commission was not precluded by the exclusion or limitation in the sub clause from dealing with a dispute involving redundancy. He made the following observations in coming to this conclusion.
“[52] Of course, regard must not only be had to the text of the clause in question but also regard must be had to the context and purpose of the provision. Considering the Agreement as a whole, one can see that the provisions that deal with redundancy can be found in clause 24 which is headed “Redundancy.” It is in this clause that one finds sub clause 24.1(c) “Alternative Employment,” which contains a clause that is the source of the dispute that the Applicant seeks to have arbitrated.
[53] Clause 11 is headed “Termination of Employment” and is set out quite separately from the clause on redundancy. The fact that the section “Termination of Employment” is set out quite separately from the provisions pertaining to redundancy when the Agreement is considered as a whole, does not lend any support to the contention of the Respondent that clause 7.2 of the Agreement restricts the Commission from arbitrating the substantive matter in dispute.
[54] A further contextual consideration is that relating to the words found at the bottom of sub clause 24.1(c) itself. At the conclusion to the four sub paragraphs of 24.1(c), the following words appear:
“In the event that the company is not persuaded by the circumstances of the person, the Commission will determine the matter by conciliation or failing resolution, arbitration.”
[56] Commissioner Lee indicated in conclusion:
[58] However, whilst I prefer the construction of the Respondent on this part of the Agreement, the fact that the Agreement seeks to provide an express power to resolve disputes over a component of the redundancy provision is a further contextual consideration that supports a determination that the proper construction of clause 7.2 is that it does not operate so as to exclude determination of the question framed above from power.
[59] While redundancy is clearly one means of termination of employment, and as the Respondent points out, the word “termination” is used in clause 24, this does not of itself overcome the correct approach to constructing the terms in dispute, beginning with the ordinary meaning of the words combined with the broader contextual consideration outlined above.
[60] Having regard to the above reasoning, I have determined that the answer to the jurisdictional question framed, “Does clause 7.2 prevent the Commission from being able to determine the question above?” is no. The first jurisdictional objection is dismissed.”
[57] The AWU relies on the decision in Barminco in support of its submission that the exclusion does not act to prevent the Commission dealing with a dispute concerning redundancy. Redpath submits, in response, the decision in Barminco can be distinguished because it dealt with employees who, at the time, remained in ongoing employment. It submits by way of contrast the employees in the present matter have been dismissed, and the dispute is about the legal effect of that action. It submits the dispute would now be misconstrued if it was simply categorised as being about redundancy, rather than the termination of the employees.
[58] Part 2 – Terms and Conditions of Employment in the Agreement contains a series of sub clauses under different headings. Sub clause 2.4 is headed “Termination of Employment” and contains eight further sub clauses dealing with various matters including the entitlement to terminate the employment contract, the notice that should apply when this occurs, the calculation of payments in lieu of notice, the right to suspend, and the entitlement to provision of a statement of service.
[59] Sub clause 2.5 headed “Redundancy” follows. It again sets out various provisions, including when an employee is considered to have been made redundant, and when redundancy does not apply. It also sets out an exemption to the entitlement, as well as the scale of payments that apply when an employee is deemed to be redundant under the sub clause. The words “terminated” or “termination” are used on four separate occasions in the sub clause.
[60] The exclusion or limitation in sub clause 2.15.2 does not refer specifically to sub clause 2.4, but refers more broadly to the exclusion of matters concerning termination of employment. The circumstances of employees being made redundant inevitably involve termination of their employment. The limitation in 2.15.2 is not indicated to be confined particularly to sub clause 2.4. In all of these circumstances I am satisfied that the exclusion applies in the present matter, given that the employee’s employment has been terminated. Clearly, a different conclusion might be arrived at in circumstances where the dispute involves employees who are still in employment, as was the case in Barminco. In addition, this clearly does not preclude the employees from pursuing appropriate legal redress if they believe they have been made redundant under sub clause 2.5, but not received the entitlements they believe due to them as a consequence.
[61] It follows from the decision I have come to about the scope of the dispute resolution procedure in the Rosebery Agreement that the Commission does not have jurisdiction to deal with the present application. The application is accordingly dismissed.
COMMISSIONER
Appearances:
R Flannagan for the Australian Workers Union
C Murdoch for Redpath
Hearing details:
2015
Melbourne
March 10
Final written submissions:
Applicant: 4 February 2015
Respondent: 23 January, 6 February 2015
1 Respondents submissions at paragraph 2.10(b)
2 Ibid at paragraph 2.10 (c)
3 Transcript at PN9
4 Ibid at paragraph 2.10 (c)
5 Applicants submissions at paragraph 13
6 Ibid at paragraph 33
7 Respondents submissions at paragraph 5.9
8 Respondents submissions
9 Transcript at PN31
10 Ibid PN27
11 Respondents submission at paragraph 5.2
12 Ibid at paragraph 5.4
13 Ibid
14 Respondents submission at paragraph 5.4
15 Ibid at paragraph 5.5
16 Transcript at PN 32 - 34
17 Respondents submission at paragraph 5.6
18 Ibid at paragraph 5.9
19 Transcript at PN 22
20 Transcript at PN 38
21 Respondents submission at paragraph 5.13
22 Applicants submissions at paragraph 3
23 Ibid at paragraph 15
24 Transcript at PN 98
25 Applicants submissions at paragraph 20
26 Ibid at paragraph 57
27 Ibid at paragraph 58
28 Ibid at paragraph 59
29 Respondents submission at paragraph 5.21
30 Ibid at paragraph 5.22
31 Ibid at paragraph 5.23
32 Ibid at paragraph 5.25
33 Ibid at paragraph 5.28
34 Applicants submissions at paragraph 59
35 [2011] FCA 1020
36 Ibid at paragraph 48
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