Tianqi Lithium Kwinana Pty Ltd

[2019] FWCA 4608

[2019] FWCA 4608

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tianqi Lithium Kwinana Pty Ltd
(AG2019/1988)

TLK ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER JOHNS	SYDNEY, 8 JULY 2019

Application for approval of the TLK Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the TLK Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). It has been made by Tianqi Lithium Kwinana Pty Ltd. The Agreement is a single enterprise agreement.

Submissions about dispute resolution clause

[2] On 24 June 2019 The Australian Workers’ Union (AWU) lodged a Form F18 indicating that it does not support approval of the agreement because, the AWU contends, the term about settling disputes, at clause 14, does not comply with the requirements of s.186(6) of the Act. In essence, the AWU contend that the dispute settlement term does not provide a procedure that requires or allows the Fair Work Commission, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes because the clause provides for arbitration only if all the parties directly involved in the dispute agree in writing. The AWU also raised other issues with clause 14 relating to the steps in the process. The AWU submits that the model dispute resolution clause should be inserted in to the Agreement.

[3] On 27 June 2019 the Applicant’s representative provided submissions on the issues raised by the AWU. Among other things, the Applicant’s representative submits that the dispute resolution term in the Agreement does allow the Commission to settle disputes.

[4] On 1 and 2 July 2019 the employer and the AWU respectively agreed that the approval of the agreement could be determined “on the papers”. In coming to this decision I have had regard to the submissions of both the employer and the AWU.

Consideration

[5] A term about the settling of disputes is a requirement of all enterprise agreements. Before approving an agreement the Commission must be satisfied that the agreement includes a term that provides a procedure that requires or allows the Commission, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes about any matters under the agreement and in relation to the National Employment Standards. 1 The dispute resolution term must allow for the representation of employees covered by the agreement.2

[6] If an agreement does not include a dispute settling procedure that meets the requirements in the FW Act and the Fair Work Regulations 2009 (Cth) (the FW Regulations) the Commission will usually invite the employer to provide an undertaking that the model term in Schedule 6.1 of the FW Regulations will apply. Absent any dispute settlement terms the Commission must reject the approval of the agreement.

[7] Outside the requirements of section 186(6) of the FW Act the scope and terms of the dispute settling procedure included in the agreement is a matter to be determined by the parties to the agreement. For example, there is no requirement that a dispute settling procedure invest the Commission with the power of arbitration. 3 Only if, in accordance with the dispute resolution procedure included in the agreement, the parties have agreed that the Commission may arbitrate the dispute, may the Commission do so.4 Further, once the parties have agreed upon the scope and terms of the dispute settling procedure, the Commission must not exercise any powers that are limited by the terms of the dispute settling procedure.5 The Commission can only deal with a dispute on application by a party to the dispute.6

[8] In the present matter the dispute resolution clause (clause 14) provides as follows:

“14. Dispute Resolution

14.1 In the event of a dispute about a matter arising under this Agreement or in relation to the National Employment Standards, the Parties agree to attempt to resolve the dispute in accordance with the procedures outlined in this clause and not to resort to any action that could affect the business activities of the Company, which includes but is not limited to bans, limitations or stoppages.

14.2 An Employee who is a party to the dispute may appoint a representative to assist in the resolution of a dispute under this procedure. The agreed procedure is detailed below:

(a) Step 1: The Employee(s) involved will refer the matter to their immediate supervisor for resolution, and the parties must discuss and attempt to resolve the matter at the workplace level. The matter must be set out in writing and dated.

(b) Step 2: If such discussions do not resolve the dispute, the Employee(s) must refer the matter, along with all documentation, to the appropriate work section superintendent.

(c) Step 3: If the dispute is still unable to be resolved, and all appropriate steps have been taken, the Employee(s) must refer the matter, along with all documentation, to the site Operations Manager.

(d) Step 4: Where the issue is not resolved at Step 3, the matter will be referred to the General Manager for determination.

(e) Step 5: Where the issue is not resolved at Step 4, either party may refer the dispute to the Fair Work Commission for mediation or conciliation. The Fair Work Commission must not conciliate the dispute until Steps 1 to 4 have been followed. The Fair Work Commission will attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation. If the dispute is not resolved by any of these methods and it is agreed in writing by all the parties directly involved in the dispute, the dispute may be arbitrated on terms agreed between the parties.

14.3 Both Parties are committed to resolving any issues as quickly as possible at the workplace 14.3level. The Company and affected Employee(s) agree that during the time when attempts are being made to resolve such issues, work will continue in accordance with this Agreement and an Employee's contract of employment unless there is a reasonable and genuine concern by either party about an imminent risk to an Employees’ health and safety.”

[9] What is immediately apparent is that, like the reference modern award, the Manufacturing and Associated Industries and Occupations Award 2010, the Agreement provides for arbitration, but only by consent of the parties to the dispute 7. This is not a barrier to approval of the Agreement. As stated above, there is no requirement that an enterprise agreement must allow for arbitration. The steps afforded to the Commission (mediation, conciliation, expressing an opinion or making a recommendation) satisfy the requirements of the FW Act. They provide for a procedure that allows the Commission to settle disputes.

[10] The other issues raised by the AWU also do not result in a dispute settlement clause that fails to provide for a procedure that allows the Commission to settle disputes. The fact that clause 14 particularly deals with disputes being raised by employees (as opposed to the employer) does not invalidate the clause when assessed against the statutory requirements. Neither do the other complaints raised by the AWU concerning documentation and referral issues.

Conclusion

[11] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[12] The AWU being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 July 2019. The nominal expiry date of the Agreement is 7 July 2023.

COMMISSIONER

 1   Fair Work Act 2009 (Cth) s 186(6)(a) (‘FW Act’).

 2   Ibid s 186(6)(b).

 3   Woolworths Ltd trading as Produce and Recycling Distribution Centre) [2010] FWAFB 1464.

 4   FW Act s 739(4).

 5   Ibid s 739(3).

 6   Ibid s 739(6).

 7   See clause 10.3 of the Manufacturing and Associated Industries and Occupations Award 2010.

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