United Voice v Australian National Hotels Pty Ltd T/A Wrest Point Hotel Casino and Tasmanian Country Club-Casino Proprietary Limited T/A Country Club Casino Pty Ltd

[2019] FWC 7291

[2019] FWC 7291

FAIR WORK COMMISSION

DECISION

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

United Voice
v
Australian National Hotels Pty Ltd T/A Wrest Point Hotel Casino
and
Tasmanian Country Club-Casino Proprietary Limited T/A Country Club Casino Pty Ltd
(C2018/7130 and C2018/7131)

COMMISSIONER GREGORY MELBOURNE, 22 OCTOBER 2019

Alleged dispute about any matters arising under the enterprise agreement.

Introduction

[1] This decision deals with two separate disputes that were notified by the Tasmanian Branch of United Voice. They concern employees at the Wrest Point Hotel Casino in Hobart and the Tasmanian Country Club Casino at Prospect Vale near Launceston (“the Respondent”). The disputes are similar in character and it was accordingly agreed by the parties that it was appropriate for the two applications to be joined and dealt with together.

[2] It is also noted at the outset that a variety of matters were canvassed at different times in the discussions between the parties. Some matters were resolved during the course of those discussions. It is accordingly necessary at the outset to clarify what issues remain to be determined by way of arbitration. The following review of what has occurred is intended to provide that clarification.

Background

[3] The original applications lodged by United Voice indicated, in summary, that the disputes concerned the entitlement to payment for the completion of training that was required to be undertaken by the employees to enable them to work in the gambling industry. It was also claimed that the Respondent was in breach of the separate enterprise agreements that cover each of the properties because it had failed to follow the required steps in the disputes procedure. Those agreements are the Wrest Point Hotel Casino Enterprise Agreement 2014 and the Country Club Resort and Villas Enterprise Agreement 2017 (“the Agreements”). The application accordingly sought various determinations from the Commission to the extent that the Respondent was in breach of the Fair Work Act 2009 (Cth) (“the Act”), together with an order that the affected employees be paid for time taken to undertake this training. An undertaking was also sought from the Respondent to the effect that it understands its obligations in regard to training and the payments to be made to employees while undertaking necessary training.

[4] The application was initially dealt with in conference in Hobart on 24 January this year. Ms Celeste Miller appeared on behalf of United Voice, and Mr Jonathan Lynch, Employee Relations Manager appeared on behalf of the Respondent in those proceedings. United Voice provided further detail about the matters at issue in those discussions and indicated that the first issue concerned training that employees are required to periodically undertake in regard to responsible gambling. It indicated that some employees have previously carried out this training online in their own time and it wanted them to be paid for that training, and for an agreement to be put in place about how that training would be conducted and paid for in the future. It also raised an associated issue about training required in regard to anti money laundering, and again wanted an agreement to be put in place in regard to how this training was to be conducted and paid for. It also raised a series of other issues it was seeking clarification and agreement about. The conference concluded on the basis that the Respondent would carry out a further investigation into the matters raised by the Union and provide a response in due course. It was also agreed that a further conference be convened on 13 February 2019.

[5] On 8 February United Voice provided a table setting out a number of issues that it was seeking to reach agreement on, and each of those issues were discussed in the conference on 13 February 2019. A number of matters were agreed in those discussions, and the Respondent again indicated that it would look to provide further responses about other matters following further investigation. United Voice also indicated that it sought an undertaking from the Respondent that its General Manager was aware of and understood the provisions contained in clause 6 of the Agreements that deals with “Settlement of disputes.” It was also agreed that a further conference be convened on 15 March.

[6] The 15 March conference concluded on the basis that there were still some matters to be worked through in further discussions between the parties. It was also agreed that if United Voice continued to have outstanding concerns following those discussions then it should provide its views to the Commission by 15 April in regard to how it believed they should be dealt with.

[7] On 10 April the Commission received an email from Ms Miller indicating that two matters remained outstanding. They concerned the payment for time spent in completing the anti money laundering training and a claim that the Respondent was seeking to limit the maximum payment for this training to 30 minutes. The second matter concerned a claim that the General Manager of the Respondent had acted in contravention of subclauses 6(d) and (e) in the Agreements. It was also indicated that the Union sought to have both matters determined by way of arbitration. It also indicated that United Voice no longer sought to pursue the earlier undertaking that it had wanted the Respondent to provide.

[8] The Respondent subsequently advised the Commission that it did not consider arbitration was warranted, however, United Voice continued to press for this to occur. The Commission accordingly issued directions in regard to the filing and service of evidence and submissions, and the matter was dealt with in a hearing on 19 June 2019.

[9] The Respondent submitted in those proceedings that there were no ongoing matters in dispute, and therefore the Commission had no power to arbitrate. It also submitted that aspects of the relief sought by United Voice were beyond the power of the Commission to grant because they involved an exercise of judicial power. At the conclusion of those proceedings United Voice requested further time to provide a written closing submission. The Commission accordingly determined that it would have a further 7 days in which to provide those submissions, and a further period of 7 days was then provided to the Respondent to provide anything in response.

[10] United Voice indicated in its final written submission that the amended relief it sought as an outcome from the arbitrated proceedings had been clarified in its earlier submissions provided on 19 June, and it sought determinations as to whether:

“a) Upon the proper construction of clause 14.11 of the WP Agreement, employees who complete AML training at the request of the employer in their own time and not adjacent to a shift are entitled to be paid a minimum of two hours.

b) Upon the proper construction of clause(d), it was necessary for the General Manager (Mr Baker) to discuss the dispute with the Branch Secretary.

c) Upon the proper construction of 6(e) of the CC Agreement that the General Manager (Mr Baker) in dealing with the matter in dispute should have attempted to “resolve the matter in a timely manner without undue delays.”” 1

[11] In regard to the issue raised in regard to subclause 14.11 United Voice indicated in its submissions that a dispute still existed about the operation of that subclause in relation to training carried out outside of normal working hours, as the Respondent had not confirmed what was to apply in any such circumstances. The potential dispute existed, in particular, in regard to the provisions in subclause 14.11(e)(2), which provide that the rates of pay applying to employees attending paid training shall involve a minimum payment of two hours, except:

“(i) where the paid time is within or immediately adjacent to a normal shift, or

(ii) where paid meetings are conducted by the union.”

[12] United Voice continues to submit in this context that in attempting to settle past disputes about the paid training issue the Respondent had only agreed to pay for an amount of 30 minutes where employees had completed a required questionnaire at home, and had provided no explanation about why the minimum two-hour payment should not apply in such circumstances. It continued to submit, “Therefore, the Applicant maintains there is a relevant matter to be determined in accordance with the DSP of this Agreement and that relates to where the entitlement to two hours arises in relation to 14.11.” 2

[13] In regard to the issue raised about compliance with the dispute resolution procedure United Voice continued to submit that an outstanding dispute exists about compliance with subclauses 6(d) and (e) of the “Settlement of disputes” clause. The relevant provisions state as follows:

“(d) If the matter remains unresolved, the affected employee or the employee’s nominated representative (which may include a Branch Secretary and, if necessary, the National Secretary of the union) will discuss the matter with the General Manager of the employer.

(e) At all times parties to a matter in dispute should attempt to resolve the matter in a timely manner without undue delays.”

[14] United Voice submits that the Respondent considers that this requirement can be satisfied by the Employee Relations Manager acting on behalf of the General Manager, and this constitutes compliance with subclause (d). However, United Voice takes issue with this submission and stated in conclusion that “It requires the Commission to determine the construction of those clauses, apply them to the present circumstances and arrive at a finding in relation to how obligations arise in future operation of the clause.” 3

[15] The Respondent indicated in response in its written submission that United Voice has misconceived the nature of the powers that the Commission is able to exercise in arbitrating disputes. It submits that the evidence indicates that the training dispute has been resolved, and refers to emails exchanged between Ms Miller and Mr Lynch on 6 February and 8 February, and a further email sent by Ms Miller to the Commission on 8 February 2019. It also notes that the agreed resolution was communicated to employees in an email sent on 12 February 2019.

[16] It also emphasises that it has decided that in the future employees will be allocated time during the course of their normal working hours to complete any required training, and there will be no future requirement for training to be carried on outside of normal working hours. Therefore, there is no outstanding dispute about training or payment for training. It continues to submit that there could only therefore be a hypothetical future dispute, and it refers to previous Commission decisions which have determined that a hypothetical future dispute cannot be the basis upon which the Commission’s jurisdiction can be enlivened. However, in the event that an actual dispute about payment for training arises again in the future then it would obviously be possible, at that point, for the dispute resolution provisions in the Agreement to be utilised.

[17] In regard to the dispute concerning compliance with the dispute resolution procedure the Respondent submits that United Voice is seeking a declaration of the rights and obligations as stated in the Agreements, and there is in fact no real dispute existing, as there are no existing circumstances for which United Voice is genuinely asking the Commission to interpret or apply the relevant obligations in the Agreement. It continues to submit that United Voice is attempting to distinguish between the past breaches of the provisions, which are beyond the Commission’s jurisdiction, in an attempt to characterise the dispute as being about future rights and entitlements. It again submits that it is beyond the power of the Commission to provide guidance or a determination about how the provisions will apply in any hypothetical future dispute. It also notes that the parties have demonstrated that they are able to manage and deal with a dispute raised under the relevant dispute resolution procedures.

Consideration

[18] As indicated in the preceding review two matters remain to be determined at this point. The first concerns the application of the provisions contained in subclause 14.11 and subclause 14.11(e)(2), in particular, which provides that the rates of pay applying to employees attending paid training shall involve a minimum payment of 2 hours, except:

“(i) where the paid time is within or immediately adjacent to a normal shift, or

(ii) where paid meetings are conducted by the union.”

[19] United Voice claims the issue in regard to these provisions arises in the context of disputes that have been raised in the past where the Respondent agreed to pay for a period of 30 minutes paid time where employees had completed a required questionnaire at home. It also submits that a dispute about the operation of the subclause could arise again in the future if employees are again required to participate in training outside of normal working hours.

[20] The second issue concerns the application of subclause 6(d) and (e) of the “Settlement of disputes” clause and, in particular, the reference to the involvement of “the General Manager of the employer” in subclause 6(d). The relevant subclauses state as follows:

“(d) If the matter remains unresolved, the affected employee or the employee’s nominated representative (which may include a Branch Secretary and, if necessary, the National Secretary of the union) will discuss the matter with the General Manager of the employer.

(e) At all times parties to a matter in dispute should attempt to resolve the matter in a timely manner without undue delays.”

The subclause 14.11 dispute

[21] It is noted at the outset in regard to this matter that United Voice appears to be seeking to have the Commission make declarations about the nature of past payments that have been made to employees in regard to work-related activities carried out outside of normal work time. It is understood that this intends that the Commission make various orders declaring that a particular legal outcome applies based on the circumstances existing. However, the Commission is only empowered to exercise arbitral powers. It accordingly does not have the power to grant declaratory relief. Those powers can only be exercised by a Court. The Commission is therefore unable to come to any conclusions about the nature or validity of any such payments made to employees in the past.

[22] However, one further matter arises in this context. On 8 February 2019 the Commission received an email from Ms Miller of United Voice. It included a table detailing a series of items and the status of each of those items. Item 9 was indicated to be “Anti Money Laundering Training.” The status of that item was also indicated to be “Payment agreed, communication and timing in dispute.”

[23] The Commission was also provided with copies of emails exchanged by Ms Miller and Mr Lynch. On 6 February 2019 Mr Lynch forwarded an email to Ms Miller which stated in part under the heading AML/CTF, “In order to resolve this matter, employees at Wrest Point that have completed the AML/CTF questionnaire at home will be paid for the time taken to complete the questionnaire, which we estimate would range from 5 minutes to 30 minutes.” 4 The email concluded under the above heading, “In future, staff at Wrest Point will be allocated time on shift to complete the questionnaire.”5

[24] On 8 February 2019 Ms Miller responded with an email which stated in part, “We are in agreement on the AML/CTF.” 6 The Respondent subsequently forwarded an email to its employees on 1 March 2019 confirming what had been agreed, and asking any staff who had completed the relevant training in their own time to contact their Manager or HR about what was required to obtain payment for this training.

[25] I am satisfied, in response, that the dispute that existed in regard to this matter has been resolved and it is therefore no longer appropriate for the Commission to continue to deal further with this aspect of the application on the basis that the issues in dispute have already been resolved. This obviously does not preclude the procedure set out in clause 6 from beating utilised again at some point in the future if United Voice considers that a dispute about payment for training again exists.

The clause 6 dispute

[26] The dispute about subclauses (d) and (e) in clause 6 concerns the reference to the involvement of the General Manager in the escalating processes contained in the dispute resolution procedure. United Voice submits that the General Manager has not been participating in this process, but has instead been delegating this role to the Employee Relations Manager. In its submission this is not what the subclause intends and it is intended instead that the General Manager actually be directly involved at the relevant point. The Respondent again submits that United Voice is seeking declaratory relief in regard to this matter, and there is no real dispute now existing as there are no current circumstances in which this matter is at issue. It also submits that it is again beyond the power of the Commission to provide guidance or to make a determination about a potential hypothetical dispute.

[27] It is acknowledged in response that previous decisions of the Commission have made clear that the Commission is not empowered to deal with matters that might arise at some point in the future. The extent of its powers are instead limited to those given to it by the parties in the relevant settlement of disputes procedure. In the present matter they are confined to a dispute that “relates to a matter under this agreement or the National Employment Standards.” I am also satisfied that there is no existing dispute about this matter, given that the matters in the dispute notification have either been resolved or are beyond the power of the Commission to deal with. I am accordingly satisfied in response that the Commission has no power at this point in time to deal with this matter.

[28] It follows as a consequence of the conclusions I have reached in regard to the above matters that I am not prepared to make the orders sought by United Voice, or indeed to make any other orders. However, I am satisfied that it might assist the parties in their future dealings if I add these observations. Clause 6 “Settlement of disputes” contains an escalating procedure, as do most similar clauses, which is intended to be followed when relevant disputes arise. For example, subclause (b) provides that if the matter is not resolved at that level, the matter is to be discussed between the affected employee and the nominated representative, if any, and on the employer’s side with the relevant senior manager. At subclause (c) if the matter is still unresolved it is to be discussed between the employee and their representative, and on the employer’s part with the Human Resources Manager. If still unresolved it is to be discussed with the employee and their representative, which may include a Branch Secretary or the National Secretary of the Union, and on the employer’s part with the involvement of the General Manager.

[29] I am satisfied that on any objective basis these various provisions can be said to have a plain and ordinary meaning. As indicated, they make clear that an escalating process is intended to be followed and that if a relevant dispute is escalated to the level described at subclause (d) then on the employer’s part, the discussions are intended to involve the General Manager. There is no reference in these provisions to the delegation of that responsibility and it can accordingly be presumed that it was intended to be the General Manager, or at least a person who might be acting in that role at a particular time, who was to be involved at that point in the process.

[30] However, for the reasons indicated above the Commission declines to make the orders sought by the Applicant, and does not consider that it is necessary for any other orders to be made. The application is accordingly dismissed.

COMMISSIONER

Appearances:

C Miller for the Applicant.

R Collinson of Edge Legal for the Respondent.

Hearing details:

2019.

Melbourne and Hobart (by video):

June 19.

Final written submissions:

Applicant, 26 June 2019

Respondent, 3 July 2019

Printed by authority of the Commonwealth Government Printer

<PR713585>

 1 Applicant Final Submissions, dated 26 June 2019 at [1].

 2 Ibid at [8].

 3 Ibid at [12].

 4   Exhibit ANH1 at Attachment L.

 5   Ibid.

 6   Ibid.