Transport Workers' Union of Australia v Qantas Airways Limited

[2019] FWC 5050

[2019] FWC 5050

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Transport Workers’ Union of Australia
v
Qantas Airways Limited
(C2018/1726)

DEPUTY PRESIDENT COLMAN MELBOURNE, 1 AUGUST 2019

Dispute arising under an enterprise agreement – agreement no longer in operation – jurisdictional objection – scope of disputes procedure in current agreement – jurisdictional objection upheld

[1] This decision concerns an application made by the Transport Workers’ Union of Australia (TWU) under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in clause 12 of the Qantas Airways Limited and QCatering Limited - Transport Workers Agreement 2015 (2015 Agreement) 1.

[2] The dispute concerns the disability allowance provision in clause 23.6 of the 2015 Agreement and its application to employees of Qantas Airways Limited (Qantas) who are employed in the fleet presentation and ramp areas at Melbourne Airport. The union contends that in late 2015 and early 2016, when construction works were underway at the airport, certain employees were required to work in conditions that attracted the disability allowance in clause 23.6. The company disagrees. It also raises a jurisdictional objection.

[3] The company contends that the 2015 Agreement has been superseded by the Qantas Airways Limited and QCatering Limited – Transport Workers Agreement 2018 (2018 Agreement), and that, because the 2015 Agreement is no longer in operation, the Commission has no jurisdiction to deal with the dispute. In the alternative, it says that the disputes procedure confers on the Commission a discretion to arbitrate the dispute, and that the Commission should decline to exercise its discretion because, among other things, the dispute relates to events that are several years old.

[4] The TWU contends that the Commission retains power to determine the dispute under the 2015 Agreement. It agrees with Qantas that the 2015 Agreement ceased to operate on 27 December 2018, but submits that this does not present a bar to the Commission dealing with the dispute under the 2015 Agreement. It also agrees with Qantas that the Commission has a discretion under the 2015 Agreement about how it deals with the dispute but contends that it is appropriate for the Commission to exercise this discretion and determine the dispute by arbitration.

Background

[5] The relevant background to this matter is not contentious, at least in so far as it relates to the jurisdictional objection. It can be summarised as follows. The 2015 Agreement commenced operation on 17 March 2015. Its nominal expiry date was 31 December 2017. On 24 March 2016, the TWU raised a claim on behalf of members under the 2015 Agreement for payment of a disability allowance in connection with construction work that had been undertaken at Melbourne Airport from 10 September 2015 to 10 December 2015, and from 11 January 2016 to 21 April 2016 (the claim). Qantas rejected the claim.

[6] On 26 August 2016, the TWU filed an application in the Commission under s 739 of the Act and the disputes procedure in clause 12 of the 2015 Agreement in respect of the claim (the 2016 application). It contended that employees were entitled to the disability payments in clause 23.6 for all hours worked during the period of the construction works, and that Qantas had failed to make the required payments. On 8 September 2015, the parties attended a conciliation conference before Vice President Watson, however the matter did not resolve. The TWU pressed the 2016 application. Directions were made and the application was listed for hearing on 8 and 9 May 2017, however the TWU did not ultimately file its materials and on 17 August 2017 Senior Deputy President Hamberger closed the file.

[7] On 29 March 2018, the TWU filed a new application in respect of the claim (the 2018 application), which was expressed in essentially the same terms as the 2016 application. It stated that the dispute was brought to the Commission under the disputes procedure in clause 12 of the 2015 Agreement, and that the dispute related to clause 23.6 of the 2015 Agreement. The F10 application described the nature of the dispute in identical terms to the 2016 application. The 2018 application was listed for conference and report back before me on several occasions during 2018 but did not resolve.

[8] On 27 December 2018 the 2018 Agreement commenced operation.

[9] On 16 January 2019 the TWU wrote to the Commission and asked to have the matter listed for arbitration. The company foreshadowed a jurisdictional objection, which it formally raised at a telephone mention on 20 March 2019. I issued directions for the parties to file and serve submissions and witness statements in relation to the objection. The parties complied with these directions. They indicated that they were content for the Commission to determine the matter on the papers. I consider it appropriate to do so.

Submissions of the parties

[10] Qantas submits that the Commission has no power to determine the dispute because it is a dispute under the 2015 Agreement, which is no longer in operation. It says that the facts that gave rise to the claim occurred during the operation of the 2015 Agreement. The dispute is not one that arises under the 2018 Agreement.

[11] The company says that the circumstances in which the Commission is able to deal with a dispute about matters arising under an enterprise agreement that is no longer in operation are very limited. One is where the dispute resolution procedure in the current agreement is sufficiently broad to include matters arising under a predecessor agreement. Another is where the dispute is covered by a savings provision in the current agreement. And a third, according to the majority of the Full Bench in BlueScope (AIS) Port Kembla v AWU and Ors 2(BlueScope), is where the Commission has already made a decision in relation to the dispute prior to the predecessor agreement ceasing to operate, in which case the Commission could continue to deal with the matter. Qantas submits that none of these circumstances exist in the present case.

[12] The TWU contends that the 2018 application was lodged at a time when the 2015 Agreement was still in operation. The union says that it had intended to request the Commission to arbitrate the matter prior to the 2015 Agreement ceasing to operate, and that it had also advised the company of this intention while the 2015 Agreement was still in operation. Attached to the witness statement of Mr Dissio Marcos, TWU organiser, is an email sent on 12 October 2018 from Mr Justin Cooney, TWU legal officer, to Mr Simon Brown of Qantas, stating that the question that the union would ask the Commission to determine was whether Qantas was required under clause 23.6 of the 2015 Agreement to make the disability payments to the employees in question.

[13] The TWU says that the Commission has jurisdiction to arbitrate the dispute under the 2015 Agreement because the dispute was raised and lodged in the Commission under this agreement, at a time when it was in operation and in circumstances where the union had advised the company that it intended to ask the Commission to arbitrate the matter.

Consideration

[14] It is clear that the 2015 Agreement ceased to operate when the 2018 Agreement commenced operation. The coverage clauses in the 2015 and 2018 Agreements are the same, as are the classifications to which those clauses refer. 3 The 2018 Agreement has therefore wholly superseded the 2015 Agreement. This is not a case where a successor agreement has a different coverage from its predecessor, such that the earlier agreement continues to apply to certain employees not covered by the new agreement and therefore continues to operate. Pursuant to s 54(2) of the Act, an enterprise agreement ceases to operate on the day on which s 58 of the Act has the effect that there is no employee to whom the agreement applies. In the present case, this day was the date on which the 2018 Agreement commenced operation, namely 27 December 2018.

[15] The Commission only has the power that is specifically conferred on it by the Act. It has no inherent jurisdiction. The TWU’s application relies on sections 738 and 739 as a source of authority for the Commission to deal with the dispute. Section 738 states that Division 2 of Part 6-2, which includes s 739, applies if (relevantly) ‘an enterprise agreement includes a term that provides a procedure for dealing with disputes…’. Section 739 applies if a term referred to in s 738 ‘requires or allows’ the Commission to deal with a dispute (s 739(1)). And s 739(4) provides that if, in accordance with such a term, the parties have agreed that the Commission may arbitrate the dispute, the Commission may do so.

[16] The jurisdictional bedrock on which s 739 rests is the existence of an enterprise agreement that includes a term that provides a procedure for dealing with disputes. What is that enterprise agreement in this case? It cannot in my view be the 2015 Agreement, because it is no longer in operation.

[17] The union submits that it is significant in this case that its application under s 739 was made at a time when the 2015 Agreement was in operation, and that it also told Qantas that it would seek to have the matter arbitrated. It relies on a passage in Catherine Johnson v Finance Sector Union of Australia 4 (Catherine Johnson), where at [18] I said the following:

“On one view, the decision of the majority in BlueScope might support a contention that the Commission retains jurisdiction to determine her application, despite the fact that the 2015 Agreement is no longer in operation and has been replaced. In my opinion however, the better view is that the decision of the majority in BlueScope is confined to the peculiar facts of that case. There, the Commissioner had made an earlier decision, while the old agreement was still in operation; that decision contemplated that the Commission would conduct a review of certain new arrangements introduced pursuant to the decision. A new enterprise agreement was then made. Later, the Commissioner sought to conduct the review contemplated by his earlier decision. In the present matter, the 2015 Agreement ceased to operate prior to any decision of the Commission in relation to the application, and prior to the request for the Commission to arbitrate being made.”

[18] The union emphasised the last sentence of this passage, apparently to distinguish the present matter from the circumstances in Catherine Johnson. As I understand it, the contention is that the union did in effect make a request for the Commission to arbitrate the matter prior to the cessation of operation of the 2015 Agreement. It appears to have in mind Mr Cooney’s message to Mr Brown in October 2018, and perhaps also the union’s earlier representations to Qantas about the claim and its intention to have the matter arbitrated.

[19] Three observations can be made about this contention. First, the final sentence of the cited passage in Catherine Johnson does not suggest that the Commission will have jurisdiction to arbitrate a dispute under an agreement that has ceased operation if, prior to the cessation of its operation, a request was made for the Commission to arbitrate the dispute. The final sentence of the passage simply distinguishes the facts of Catherine Johnson from the unusual circumstances of BlueScope. Secondly, even if the passage did suggest such a qualification, the facts of the present case are relevantly the same as, not different from, those in Catherine Johnson; the enterprise agreement which is relied on by the applicant as a source of jurisdiction ceased to operate before the request for the Commission to arbitrate was made to the Commission. I do not see a relevant distinction in the fact that, prior to the cessation of operation of the 2015 Agreement, the union intended to request the Commission to arbitrate the matter, or that it told the company that it proposed to ask the Commission to do so.

[20] Thirdly, even if the union had in fact requested the Commission to arbitrate the matter at a time when the 2015 Agreement was still in operation, I do not consider that this would have made any difference. Moreover, even if the union’s application under s 739 had been heard but remained undetermined on the date the 2015 Agreement ceased to operate, there would in my view be no jurisdictional basis for the Commission to proceed to issue a decision. There would still be no ‘enterprise agreement’ for the purpose of s 738, unless of course the new enterprise agreement was a source of jurisdiction. That might be the case if, for example, the new enterprise agreement specifically preserved disputes raised under the predecessor agreement, or where the scope of the disputes procedure was sufficiently broad to cover disputes that originated under the earlier agreement. 5

[21] The TWU acknowledged that its application is made under the 2015 Agreement and that it is not seeking to agitate a dispute under the 2018 Agreement. Indeed the 2018 Agreement does not contain a provision that saves or preserves for future determination disputes raised or part-heard under the 2015 Agreement. On the contrary, clause 6.2 of the 2018 Agreement states that the 2018 Agreement ‘replaces’ the 2015 Agreement, and that it is a ‘comprehensive’ agreement.

[22] Further, the disputes procedure in clause 12 of the 2018 Agreement states that it applies ‘in the event of a dispute arising in the workplace about matters arising under this Agreement’ (emphasis added). The present dispute did not arise under the 2018 Agreement. It arose under the 2015 Agreement. The disputes procedure in the 2018 Agreement does not say, and cannot be understood as meaning, that it extends to disputes about any subject matter covered by the 2018 Agreement, such as disability allowances, irrespective of when or how those disputes have arisen.

[23] As to the decision of the majority in BlueScope, the present case has nothing in common with the peculiar circumstances of that case. As I said in the passage from Catherine Johnson extracted above, I consider that the decision of the majority in BlueScope is confined to its facts. There is nothing in the majority’s decision that suggests any broader implication.

[24] It would be possible for rights accrued under a superseded enterprise agreement to be preserved by legislation, however no such legislation has been identified. It is relevant to note that s 544 of the Act allows a person to sue for a contravention of a civil remedy provision (such as s 50, which prohibits a person from contravening a term of an enterprise agreement) for a period of six years from the day on which the contravention occurred. In my view, this is the only respect in which an enterprise agreement that has ceased to operate can have an ‘afterlife’. The singular preservation of a right to sue on an enterprise agreement irrespective of whether it is in operation suggests that there is no other enduring effect of an inoperative agreement. This only underscores what is in my opinion already clear from the scheme of Part 2-4, namely that the Commission has no power to arbitrate under an enterprise agreement that has ceased to operate.

[25] Finally, even if the cessation of operation of a superseded agreement posed no jurisdictional impediment to the Commission dealing with a dispute under that agreement, another problem would emerge. Section 58(1) provides that only one enterprise agreement can apply to an employee at a particular time. If the new agreement applies to the relevant employee, the former agreement, and its disputes procedure, cannot do so.

Conclusion

[26] The Commission has no jurisdiction to arbitrate the present dispute because it arose under an enterprise agreement that is no longer in operation and no provision in the current agreement allows me to deal with the dispute.

[27] The jurisdictional objection is upheld and the TWU’s application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR710518>

 1   AE412943

 2   [2018] FWCFB 856

 3   See clauses 5 (coverage) and 18 (classifications) of the two agreements

 4   [2018] FWC 1035

 5   See Boeing Aerostructures Australia Pty Ltd v Gualano and others[2018] FWC 7490 at [10]