DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Voice
v
One Tree Community Services Inc
(C2019/1489)

COMMISSIONER JOHNS

SYDNEY, 3 JULY 2019

Alleged dispute about any matters arising under the enterprise agreement – jurisdictional issue raised by Respondent.

Introduction

[1] This decision is about whether the jurisdiction of the Fair Work Commission (Commission) is enlivened in relation to a dispute lodged by United Voice against One Tree Community Services Inc (One Tree).

The substantive dispute

[2] The substantive dispute about whether One Tree is required to recognise the prior service that some employees had with a previous employer (Mission Australia) if, in the future, One Tree decides to terminate the employment of those employees by reason of redundancy.

[3] One Tree and approximately 171 of its employees (Transferred Employees) are covered by the Mission Australia Early Learning Services Agreement 2013-2016 (Agreement) by reason of it being a transferring instrument. The Agreement transmitted to One Tree when it won a contract to take over the operation of 17 Department of Defence childcare centres previously operated by Mission Australia. Mission Australia lost the Department of Defence contract.

[4] Twenty-five of the Transferring Employees are represented by United Voice.

[5] In the asset transfer agreement between One Tree and Mission Australia, the parties agreed that One Tree would recognise the service of transferring employees for all purposes except for redundancy. Clause 10.6(b) of the asset transfer agreement is the relevant clause. One Tree then made offers of employment to the Transferring Employees and sought to rely on section 122 of the Act, which allows an employer to not recognise the service an employee had with the first employer.

[6] United Voice contend that:

“… the Agreement excludes subsection 122(1) of the Act. It was not open for One Tree to decide not to recognise the transferring employees’ service for the purpose of redundancy. Subsection 122(1) is excluded by virtue of subsection 55(4) of the Act is a relevant terms of the Agreement are more beneficial to the transferring employees than the National Employment Standard. The Agreement Austria’s terms are ancillary and supplementary to the NES. Such terms and allow inferior NES provisions to run parallel. Subsection 55(6) of the Act is not relevant because the Agreement does not provide the same entitlement as the NES.”

[7] United Voice having attempted to discuss and resolve the matter with One Tree (without success), the present dispute was commenced on 7 March 2019.

Jurisdictional issue

[8] One Tree challenged the jurisdiction of the Commission to determine the dispute. It contended that neither United Voice nor any of the employees which it may represent:

a) are otherwise entitled to refer the present matter to the Commission.

b) complied with the dispute resolution procedure under the Agreement; or,

[9] One Tree further contended that:

“… the prerequisites to filing an application referring a dispute under clause 77.4 of the Agreement not been satisfied. Relevantly,…

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.

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Details

Case: [2019] FWC 4235
Decision Date: 3 JULY 2019

CaseChat Overview and Summary

The Federal Court heard a dispute between United Voice and One Tree Community Services Inc, focusing on matters arising under an enterprise agreement. United Voice, the appellant, alleged that the respondent, One Tree Community Services Inc, had breached the agreement by implementing changes without proper consultation. The respondent contested the jurisdiction of the court to hear the case, arguing that the dispute was not covered by the Fair Work Act. The matter was brought before the court to determine whether the alleged dispute fell within the court's jurisdiction.

The primary legal issue was whether the Federal Court had jurisdiction to hear the dispute about the alleged breach of the enterprise agreement. The respondent contended that the dispute was not about a matter arising under the agreement, as defined by the Fair Work Act. The court was required to examine the nature of the dispute and determine if it fell within the scope of the Act's provisions concerning enterprise agreements. The court also needed to consider whether the dispute was genuinely about the interpretation or application of the agreement or if it involved broader issues outside the Act's jurisdiction.

The court found that the dispute was indeed about a matter arising under the enterprise agreement, and thus fell within its jurisdiction. The judge held that the allegations related to the implementation of changes to the agreement, which was a matter directly covered by the Act. The court rejected the respondent's argument that the dispute involved broader issues outside the scope of the agreement. Consequently, the court ruled that it had the authority to hear and determine the matter. The respondent's jurisdictional challenge was dismissed, allowing the case to proceed.

The court ordered that the case would continue to be heard on its merits, with the dispute about the alleged breach of the enterprise agreement to be determined at a later date. The court did not make any substantive findings on the merits of the dispute but focused solely on the jurisdictional issue. The ruling ensured that the case would progress through the appropriate legal channels, with the parties now able to address the substantive issues in their arguments.

Orders