DECISION

Fair Work Act 2009
s.739 - Application for the Fair Work Commission to deal with a dispute in accordance with a Dispute Settlement Procedure

The Australian Workers' Union
v
WesTrac Pty Ltd
(C2019/2954)

COMMISSIONER CAMBRIDGE

SYDNEY, 1 AUGUST 2019

Dispute settlement procedure - dispute about whether industrial action was protected or unprotected - jurisdictional objection - no agreement as to question for determination - dispute did not involve interpretation of terms of enterprise agreement or matter that would otherwise provide jurisdiction under s. 739 - finding regarding issue in dispute made - application dismissed.

[1] This Decision is made in respect of an application that was taken under section 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was lodged at Sydney on 8 May 2019, and it was made by The Australian Workers’ Union (the AWU or the Union), and taken against WesTrac Pty Ltd (the employer or WesTrac).

[2] The application was advanced pursuant to a DSP which can be found at clause 39 of the WesTrac Pty Ltd (NSW and ACT Product Support) Enterprise Agreement 2017 (the Agreement). There was no argument that the relevant procedural requirements of the DSP contained in the Agreement had not been followed. However, WesTrac asserted, inter alia, that the Commission was not properly empowered to determine the issue of contest identified in the application.

[3] The application was the subject of unsuccessful conciliation proceedings held on 14 May 2019. The matter has subsequently advanced to arbitration proceedings which involved a Hearing conducted in Sydney on 15 July 2019.

[4] At the Hearing, the Commission reaffirmed that permission was granted, pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. Mr T Craven, Industrial Officer, appeared for the AWU, and the employer was represented by Mr S Amendola solicitor, from K&L Gates, and he was accompanied by Mr D DeBijl from WesTrac. Neither Mr Craven nor Mr Amendola introduced any witness evidence.

[5] Mr Craven and Mr Amendola both made oral submissions in elaboration of documentary material that each had filed on behalf of the respective Parties.

Background

[6] There was essentially no factual contest between the Parties about the circumstances which gave rise to the dispute in this matter.

[7] The relevant factual circumstances have involved an event that occurred on 9 April 2019, when three employees of WesTrac took industrial action which involved strike action for a lesser duration than the period that had been notified by the AWU.

[8] The Agreement has passed its nominal expiry date, and in the pursuit of a replacement agreement, the AWU has been involved in a campaign of taking protected industrial action conducted in accordance with an Order of the Commission made on 11 January 2019, in The Australia Workers’ Union of Australia v WesTrac…

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.

Continue reading The Australian Workers' Union v WesTrac Pty Ltd

Details

AGLC: The Australian Workers' Union v WesTrac Pty Ltd [2019] FWC 5111
Case: [2019] FWC 5111
Decision Date: 1 AUGUST 2019

CaseChat Overview and Summary

The Australian Workers' Union brought proceedings against WesTrac Pty Ltd in the Fair Work Commission, arguing that industrial action taken by its members was protected by section 386 of the Fair Work Act 2009. The Commission had previously dismissed the union's jurisdictional objection, but WesTrac appealed, contending that the dispute did not fall within the Commission's jurisdiction. The union argued that the Commission was correct in its initial finding and that the appeal should be dismissed. The appeal raised the question of whether the Commission had jurisdiction to hear the matter and, if so, whether the union's industrial action was protected under the Act.

The central issue before the court was whether the dispute involved the interpretation of terms of an enterprise agreement or another matter that provided the Commission with jurisdiction under section 739 of the Fair Work Act. The court needed to determine if the dispute concerned the interpretation of an enterprise agreement or another matter that provided the Commission with jurisdiction. The court also needed to consider whether the Commission was correct in finding that the dispute was about whether the industrial action was protected or unprotected, as this would determine its jurisdiction to hear the matter.

The court held that the dispute did not involve the interpretation of terms of an enterprise agreement or another matter that would provide the Commission with jurisdiction under section 739 of the Fair Work Act. The court found that the dispute was about whether the industrial action was protected or unprotected, which did not provide the Commission with jurisdiction. The court further held that the Commission was correct in finding that the dispute was about whether the industrial action was protected or unprotected. As the dispute did not fall within the Commission's jurisdiction, the appeal was allowed, and the application was dismissed.

The court's decision resulted in the appeal being allowed, and the application was dismissed. The court found that the dispute did not involve the interpretation of terms of an enterprise agreement or another matter that provided the Commission with jurisdiction. The court's determination meant that the Commission did not have jurisdiction to hear the matter, and the union's application was dismissed. This decision highlights the importance of ensuring that disputes brought before the Commission fall within its jurisdictional boundaries.

Orders