United Voice v Wilson Security

[2014] FWC 4550

[2014] FWC 4550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Voice
v
Wilson Security
(C2014/343)

COMMISSIONER GREGORY MELBOURNE, 23 SEPTEMBER 2014

Alleged dispute concerning Clause 16, Training.

Introduction

[1] Mr Chris White and Mr Paul Howarth are both employed by Wilson Security as Security Services Officers and both are union delegates at their respective work locations. Mr White works at the RAAF base in Sale and Mr Howarth at the Defence Imagery and Geospatial Organisation (DIGO) base in Bendigo. In August last year both men, together with a number of their colleagues, were required to attend a training course in Melbourne. Both have since raised various issues to do with attendance at the course, including the costs of accommodation and travel. A further issue has also been raised about whether overtime penalty rates apply when an employee attends training on what would otherwise be a rostered day off (RDO) or when they have already completed their ordinary hours in that week.

[2] United Voice filed a dispute notification (the application) with the Commission in March and the matter was dealt with in conference on 8 April, but not resolved. United Voice then indicated it wished to have the matter set down for hearing, however, Wilson Security responded by indicating it intended to pursue a jurisdictional objection to the application.

[3] The written submissions filed by Wilson Security indicated the jurisdictional objection was primarily based on the Settlement of Disputes procedure in the Agreement not being complied with because there is no “dispute” and, therefore, the matter is not properly before the Commission.

[4] However, the jurisdictional objection was taken further in Wilson Security’s oral submissions. It submits that even if there is a “dispute” before the Commission under the “Settlement of Disputes” procedure in clause 12 of the Agreement the dispute had already been settled. It also submits s.739 of the Fair Work Act 2009 (the Act) only enables the Commission to deal with a dispute “on application by a party to the dispute,” 1 and under clause 12 of the Agreement the only party to a dispute can be an employee(s). As the application under s.739 has been made by United Voice, and not in the name of the employees, it therefore submits there is no valid application before the Commission, given the terms of clause 12.

[5] United Voice rejects each of these jurisdictional objections and submits the matter is properly before the Commission. This decision accordingly deals with the jurisdictional objections raised by Wilson Security. In the event those objections are dismissed the matter will then be re-listed at the request of the Applicant to deal with the substantive issues.

[6] The parties are covered by the United Voice Security Union and Wilson Security Safeguard Agreement 2011. 2 Clause 12 deals with “Settlement of Disputes.” The relevant parts of the clause state as follows:

“12.1. If a dispute arises concerning the application of the Agreement:

12.1.1. The matter is to be dealt with in accordance with clause 12.2;

12.1.2. There will be no stoppage of work whilst the dispute resolution procedure is being followed;

12.1.3. While a dispute is being resolved, employees must continue to work as normal in accordance with their contracts of employment and must comply with any reasonable direction given by the Company to perform available work as required. The parties are committed to ensuring that this occurs.

12.2. This procedure will be used to address a dispute about a matter concerning the application of this Agreement.

12.2.1. At any stage of the process, an employee will be entitled to involve a representative of the employee's choice, including an official of the Union;

12.2.2. When a matter in dispute arises the matter shall in the first instance be discussed between the employee/s and their immediate supervisor/manager;

12.2.3. If the matter in dispute is still unresolved, the employee/s and the Company will arrange further discussions involving more senior levels of management and/or a Human Resources representative (as appropriate);

12.2.4. If the matter remains unresolved, the parties may refer the matter to an agreed mediator.

12.2.5. The matter may be referred by either party to the Fair Work Australia (FWA) to be dealt with in accordance with clause 12.3 of this Agreement;

12.2.6. By agreement, some steps may be bypassed if necessary to achieve a speedy resolution of the matter in dispute.” 3

[7] The clause continues to deal with the way in which matters are to be dealt with before the Commission. It also contains provisions dealing with “Redundancy disputes” which are not relevant to the determination of this matter.

[8] Mr Tass Angelopoulos was given leave to appear on behalf of Wilson Security under s.596(b)(1) of the Act given the apparent complexity of the matters and a view his involvement might assist in dealing with the matter.

The Issues to be Determined

[9] As indicated, the parties are covered by the United Voice Security Union and Wilson Security Safeguard Agreement 2011. Clause 12.1 of the “Settlement of Disputes” clause in the Agreement indicates it applies to a dispute “concerning the application of the Agreement.” 4

● Therefore, is there a dispute concerning the application of the Agreement?

● Secondly, in the event that the Commission finds there is a dispute arising has that dispute been settled or been otherwise dealt with?

[10] Finally, the application before the Commission has been brought by United Voice. However, Wilson Security submits s.739 of the Act and clause 12 of the Agreement provide in combination that the only party to a dispute can be an employee(s) covered by the Agreement.

● Therefore, is there a valid application before the Commission under s.739 given that the application has been made by United Voice?

The Evidence and Submissions

Is there a dispute arising concerning the application of the Agreement?

[11] Wilson Security submits that the scope of the subject matter in dispute is set out in the dispute notification in the following terms:

“1. Union members were directed by Wilson to attend training.

2. The dispute is about two issues:

a. Should Wilson have to pay accommodation costs for those employees who travelled from rural Victoria and had to stay overnight in Melbourne to attend the training?

b. Should Wilson pay overtime rates where the training occurred on rostered days off and/or where the hours spent in training were worked in excess of the employee’s ordinary weekly hours?” 5

[12] It continues to submit the Settlement of Dispute procedure has not been complied with in respect to both “the overtime issue” and “the accommodation issue.” As a consequence, in its submission, the Commission is “not properly seized of the disputes in both matters.” 6

The overtime issue

[13] Wilson Security submits the employees have not raised this issue as a dispute with their immediate Supervisors. Therefore, sub clause 12.2.2 of the Settlement of Disputes procedure has not been complied with. It refers, in particular, to an email sent in December last year by Mr Steve Gome, a Senior Industrial Officer with United Voice, to Ms Adela Culda, a Senior HR Adviser with Wilson Security, in which he stated:

“It may also be worthwhile for the company to explain in writing its position with regard to how ‘paid time’ operates when the training day in question falls on the weekend and/or in addition to regularly rostered hours.” 7

[14] It submits this can only be construed as an “enquiry” and does not disclose any disagreement/dispute about the issue. It tendered an extract from the Macquarie Dictionary setting out the definition of “dispute,” noting it is broad ranging but must involve more than an enquiry or discussion. It submits there is a need to show a matter is “contested or challenged” for a dispute to be in existence in accordance with the process contemplated in the Agreement. It submits this is confirmed by the witness evidence of Mr White when he states, “I asked Mr Gome to have discussions with Wilson management, on behalf of myself and the other Union members at the RAAF Sale base, in order to get the company to pay for our out-of-pocket training expenses.” 8 It submits his evidence indicates he simply wanted the Union to have a discussion on his behalf, rather than agitating a dispute about the matter.

[15] It submits no attempt has been made by the Union to comply with the requirements of the sub clause and, instead, the dispute was simply lodged in March, three months after the initial enquiry. The dispute notification is accordingly premature and the dispute is not properly before the Commission.

[16] It also submits Wilson Security made known its position in a response from Ms Culda to Mr Gome in December when she stated:

“Given this is the first instance that this matter has been raised with the Company, it would be disappointing if the Union seeks to take this approach without regard to the requirements of the dispute settlement procedure.” 9

[17] At this point it submits the Union should have made arrangements for its members to discuss the issue with their immediate Supervisors/Managers before any consideration of the matter being referred to the Commission. However, this did not occur.

[18] In response to these submissions United Voice provided a “Time Line of the Overtime Issue,” beginning with the point at which the employees were directed to attend training last year. It submits this demonstrates sub clauses 12.2.2, 12.2.3 and 12.2.5 have each been complied with and, as a consequence, the Commission has jurisdiction to determine the matter in accordance with clause 12.

[19] It submits the dispute is ongoing and it would be an overly technical approach to refuse jurisdiction on the grounds sub clause 12.2.2 has not been complied with. It also submits the fact the matter progressed to the stage where United Voice met with a Senior HR Adviser from Wilson Security to try and resolve the dispute demonstrates proper process has been followed because that step can only be taken under sub clause 12.2.3.

[20] It submits the issue was raised initially with the relevant Site Supervisor. It was then raised with the Operations Manager and a representative from the HR Department under the dispute resolution process in clause 12 of the Agreement. In its submission the dispute remains unresolved and the Commission has jurisdiction to deal with the application.

[21] Mr Paul Howarth is employed as a Security Services Officer by Wilson Security at the DIGO base in Bendigo. He is also a Union delegate at the site. He said he first spoke with United Voice in June last year, after being told by his employer he would be required to attend training in Melbourne. He said he was told he would be paid at the Level 1 rate, with no reimbursement of travel expenses. After attending the training he submitted a pay query through his Supervisor, questioning why he was not paid at the overtime rate and why he did not receive the per kilometre allowance normally paid by Wilson Security. He said he sent further follow-up emails in November and February to a Senior Security Officer and to the Site Supervisor. He also continued to raise the matter with United Voice and understood it had met with management to discuss the claims, but they had been rejected. He said he considered the dispute remained unresolved.

The Accommodation Issue

[22] Wilson Security acknowledges it had discussions with the Union about this issue and the dispute resolution process was initially complied with. However, in its submission, the matter was subsequently “closed,” and therefore the Commission has no jurisdiction under clause 12 to deal with it. It refers, in particular, to an email from Mr Gome, dated 23 January, together with the lack of further communication from that point, in support of this submission. That email was the last in the following series of email exchanges between Mr Gome and Mr Dean McGrath, an Operations Manager with Wilson Security.

“Dear Dean,

It was good to have a chance to go over the whole timeline and history of the training reimbursement yesterday.

As discussed, could you please investigate (check their pay records, make enquiries of the site supervisor) whether Laurie Mills and Cliff McCormack were reimbursed for the accommodation expenses associated with attending training in Coburg and inform me of your findings at your earliest convenience.

Many thanks,” 10

[23] Mr McGrath responded in the following terms on the same day.

“Hi Steve,

Please see email responses from Payroll and State Finance confirming that these officers have not received any accommodation reimbursement from any claim.

I hope this satisfies our position and response back to the employees.

Let me know if you need any other assistance.” 11

[24] Mr Gome then responded on the same day with the following email.

“Hi Dean,

Many thanks for your prompt and thorough response.

I will pass this on to Shane and Chris and do not expect there to be any further enquiries on this particular subject.

(I have already suggested to them via email that they put in a petrol reimbursement claim for the Coburg the training day if they haven’t already done so).

Once I have heard from Shane and Chris, I will update the members at DIGO and Cerberus on yesterday’s meeting and suggest that if there any outstanding issues which require attention, that the bargaining process might be the most appropriate forum to do so.

Regards,

Steve Gome.” 12

[25] As indicated, Wilson Security relies on this email exchange as evidence any pursuit of the claim was at an end, and submits once a matter is closed the Commission has no further role to play. It submits to find otherwise would mean a dispute is never closed or settled.

[26] Wilson Security also makes reference to the evidence of Ms Culda, a Senior HR Adviser, in support of both the overtime and accommodation issues. She states she met with Mr Gome and Mr McGrath on 22 January to discuss a range of matters. Her notes from that meeting were tendered as Exhibit A2. Wilson Security submits, firstly, the notes indicate the issue to do with reimbursement of travel expenses had been resolved. Secondly, separate references to the overtime issue confirm the Union had decided the issue would be pursued as part of future enterprise bargaining negotiations, rather than being dealt with a particular issue at this time. Thirdly, in regard to the accommodation issue it submits Ms Culda’s evidence, and her notes, confirm no employee was paid accommodation expenses and, as this matter was not dealt with in the Agreement, it was agreed it would also be dealt with as part of the forthcoming enterprise bargaining process.

[27] United Voice rejects Wilson Security’s submissions and its view Mr Gome’s email of 23 January “closed” the dispute. It submits the particular words in that email, “I will pass this on to Shane and Chris and do not expect there to be any further enquiries on this particular subject,” 13 refer only to the question of whether Wilson Security had reimbursed other employees for the cost of their accommodation expenses, as claimed by Mr White, and submits the words cannot properly be understood by removing them from both their immediate and surrounding context.

[28] United Voice also provided a “Time Line of the Accommodation Issue.” It submits it makes clear the dispute is ongoing and unresolved since first raised by Mr White with his Site Supervisor on 15 October last year. It submits, in any case, it would be an unnecessarily technical approach to refuse jurisdiction on the grounds the email of 23 January “closed” the dispute. It also submits that given the time that has passed since the matter was first raised it is not appropriate to suggest jurisdiction should be refused because of the time that has passed since that email in January, and the subsequent lodging of the present application. It submits this is particularly so in circumstances where:

“a. The respondent did not respond in a timely manner to communication from Union members and the Applicant;

b. Took over one month to arrange a meeting to discuss the dispute;

c. The dispute settlement clause does not contain timelines that constrict either party.” 14

[29] In its submission the issue was initially raised with a Site Supervisor who was the immediate Supervisor of the employees. It was then raised in discussions with the Operations Manager and a representative from the HR Department. In its submission the dispute resolution process in clause 12 of the Agreement has been followed and the matter is properly before the Commission.

[30] Mr Christopher White is employed as a Security Services Officer by Wilson Security at the RAAF base in Sale. He said he participated in a full day of the training in Melbourne in August last year after being directed to attend by his employer. This involved a round-trip of approximately 600 kilometres and he decided to stay overnight in Melbourne, given the distance and the travel time involved. He stayed in a caravan park near the training location.

[31] In October he submitted a reimbursement of expenses form to the second in charge Senior Officer at the site seeking reimbursement of the costs of petrol and accommodation. He was advised in response Wilson Security would not pay accommodation expenses and only reimburse travel expenses for employees who had car pooled. He then raised the issue with United Voice and understood it had met with management to discuss the issue. He said Mr Gome later informed him about the outcome of the meeting, indicating Mr McGrath had said all drivers would now be reimbursed for their travel expenses, but no accommodation expenses would be reimbursed. However, Mr White said he has still not been reimbursed for any travel or accommodation expenses and still sought to have these amounts paid by Wilson Security.

[32] Mr Stephen Gome is employed by United Voice as a Senior Industrial Officer. He said he was first contacted in June 2013 by Mr Paul Howarth, a Union delegate at the DIGO base in Bendigo, who wanted advice about a requirement to attend a full day of training in Melbourne. Mr Gome said he told Mr Howarth he would make enquiries with Wilson Security about payment for time spent in training, and the reimbursement of travel expenses.

[33] Mr Gome said he then had a discussion on the following day with the Operations Manager, Mr McGrath, and spoke on the next day to the State Operations Manager, Mr Bob Davis. On 1 July he received an email from Mr McGrath confirming Wilson’s view of the arrangements to apply for employees attending training. Mr Gome said he then advised the employees about Wilson Security’s response.

[34] Mr Gome said he was contacted again on 24 September by another delegate from the Bendigo base, Mr Brett Bilton, who indicated there was an ongoing dispute at the base about the per kilometre allowance. He also had a discussion with Mr Bilton about the payment of overtime for attending the defence site training. Mr Gome said during November Mr Howarth continued to be in contact with the Union about these issues.

[35] Mr Gome said on 28 August he also spoke with Mr Chris White, a Union delegate employed by Wilson Security at the RAAF base in Sale. Mr White was also concerned about the reimbursement of out of pocket expenses associated with accommodation and travel costs while attending the training in Melbourne. He said Mr White told him in November he was still awaiting a response to a formal pay enquiry he had submitted about these matters, and in December Mr White forwarded a copy of an email from his Site Supervisor rejecting the claims for reimbursement of accommodation expenses, and limiting any reimbursement of travel expenses to car pool drivers only.

[36] Mr Gome said he had a further discussion with Mr McGrath in early December and told him the issues raised by Mr Howarth and Mr White were still ongoing and the matter was likely to be referred to the Commission if it was unable to be resolved. Mr Gome said he sent an email on the following day to the Senior HR Adviser, Ms Culda, about a number of issues, including the matters raised by Mr Howarth and Mr White. On 18 December he received an email response from Ms Culda indicating she had not previously been aware of the claims seeking to have accommodation expenses reimbursed. However, she rejected the claims noting “the agreement is silent on the matter.” 15 Mr Gome said he responded on 20 December, indicating the claim was based on the provisions in the Agreement indicating training was to be carried out “at no cost to the Security officer(s) involved.”16 Mr Gome said he also indicated if the matter was not resolved within a reasonable time frame United Voice reserved its right to seek the Commission’s assistance.

[37] Mr Gome said he then met with Mr McGrath and Ms Calder on 22 January to discuss these matters. He said Mr McGrath indicated Wilson Security now intended to pay all substantiated claims for the per kilometre allowance, but did not intend to reimburse any accommodation expenses. The claims for payment of overtime were also rejected. However, Mr Gome said Mr McGrath agreed to investigate claims by Mr White that two colleagues had already been reimbursed for accommodation expenses associated with attendance at the training.

[38] Mr Gome said he understood Wilson Security had stated its final position in regard to the claims for payment at overtime rates, and for reimbursement of the costs of accommodation expenses at this meeting. He said he told Mr McGrath and Ms Culda he would now report back to the delegates and members. He also said he acknowledged comments by Mr McGrath about the wording of the clause in the Agreement not being as clear as it could be, and that the forthcoming negotiations for a new agreement could provide an opportune time to clarify the intention of the parties in regard to attendance at training.

[39] Mr Gome said he then sent an email to Mr McGrath on 23 January to remind him about his undertaking to investigate the claims other employees had already been reimbursed for the cost of accommodation expenses while attending the training. He said he then received a response from Mr McGrath later that day indicating this was not the case. Mr Gome said he then sent a further email to Mr McGrath thanking him for his prompt response, and advising he had passed this information to Mr White and did not expect there would be further enquiries about other employees having accommodation expenses reimbursed. 17

[40] Mr Gome said the dispute notification was then filed with the Commission on 7 March. Further discussions then took place in an attempt to resolve the matter, however, the accommodation expenses and overtime claims remain in dispute.

[41] United Voice submits, in conclusion, that Wilson Security’s position relies, in large part, on the evidence of Ms Culda. However, her evidence indicates she was not aware until January of this year that the issues had been raised on site, and then believed they had been resolved. It submits her views do not provide a sufficient basis to rely upon, and it should have been evident there is an ongoing dispute about reimbursement of the accommodation expenses.

Is there a valid application before the Commission?

[42] Wilson Security refers to both clause 12 of the Agreement and s.739 of the Act in support of its submission that United Voice is not able to make application to have the Commission deal with a dispute arising under the terms of the Agreement.

[43] It refers, firstly, to s.739(6) of the Act which states, “The Fair Work Commission may deal with a dispute on application by a party to dispute.” It next refers to clause 12.2 in the Agreement and submits that while the Union is a party to the Agreement, and can be a representative of the employees, it is only the employees themselves who are empowered to be an applicant in a dispute under s.739.

[44] It also notes that other parts of the Act are clear in stating who can institute proceedings, however, similar provisions do not exist in s.739(6). It also submits the words in the sub section should be understood on the basis of their plain and ordinary meaning, as provided for by the normal principles of construction. Therefore, as the dispute notification has not been brought in the name of the “ ... alleged disputants, the matter is not properly before the Commission.” 18

[45] In responding to these submissions United Voice, firstly, refers to sub clause 4.5 in the Agreement and notes the reference to “parties” in the sub clause means “the company, the Security Union and the employees referred to in clause 2.1.1.2.”

[46] It next refers to sub clause 4.7 which indicates, “Security union” means United Voice Victorian branch.”

[47] It also points to sub clause 12.2.4, “If the matter remains unresolved, the parties may refer the matter to an agreed mediator,” and to sub clause 12.2.5 which states, “the matter may be referred by either party to Fair Work Australia to be dealt with in accordance with clause 12.3 of this agreement.”

[48] In its submissions this confirms that United Voice is a party to the Agreement and can also be a party to a dispute. It also makes reference to the decision in United Voice v Ambulance Victoria 19, which concerned a similar dispute resolution clause, in support of its submission the Union has standing to bring a matter to the Commission. It also submits the decision is authority for the proposition that “action taken by the union on behalf of members can be treated for the purpose of jurisdiction as an action taken by those employees themselves.”

Consideration

[49] The application by United Voice in this matter is made under s.739 of the Act. I propose at the outset to make clear the principles that I consider underpin the basis on which the Commission acts when an application is made under this section and requires to be determined, before turning to deal with the particular circumstances involved.

[50] I refer, firstly, to the often cited decision of the High Court in the matter of Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission 20 (“Gordonstone”). It was decided against the background of a legislative framework that predates the Fair Work Act, however, I am satisfied it continues to set out the basis upon which arbitration under a dispute settlement procedure in an enterprise agreement takes place. The High Court stated in this regard:

“Where parties agree to submit their differences the decision by a third party, the decision maker does not exercise of judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in the judgement or order that is binding of its own force. In the case of private arbitration, however, the arbitrator’s powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrators award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.” 21

[51] It is clear from this decision that the power exercised by the Commission under s.739 depends upon the powers conferred on it by the particular provisions contained in the Agreement that covers the parties.

[52] Previous decisions of the Tribunal have also made clear the Commission must properly characterise the nature of the dispute said to arise under the terms of an enterprise agreement to ensure in dealing with the dispute it is an appropriate exercise of power. In the decision in Maritime Union of Australia v Australian Plant Services Pty Ltd, Lacy SDP stated:

“An important limitation on the Commission’s powers under s.170WL is the kind of disputes that may be subject to resolution by the Commission. Parliament has authorised the Commission to exercise powers under an agreement “to settle disputes over the application of the agreement” and, accordingly, its powers are limited to disputes of that kind. Therefore it is necessary for the commission, in each case where it is asked to deal with a matter arising under the dispute settling procedure in an agreement, to ascertain the character of the dispute that is before it in order to determine whether the matter is a dispute over the application of the agreement. And, importantly, the character of the dispute is distinguishable from the orders that may be made in settlement of the dispute.” 22

[53] As indicated, it is clear from this decision, and others which have since approved the decision, that it is first necessary for the Commission to ascertain the character of the dispute it is dealing with so as to determine whether it concerns the application of the particular agreement in question.

[54] The decision of a Full Bench of the Australian Industrial Relations Commission in the matter of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Holden Limited 23 also considered the approach to be adopted in properly characterising the nature of a dispute. The Full Bench stated:

“[46] A dispute referred to the Commission must be properly characterised before powers conferred by a dispute settlement provision in a certified agreement are exercised. This is necessary in order to determine whether the dispute is “over the application of the agreement” within the meaning of s.170WL of the WR Act. As noted by a majority of the Full Bench in Automated Reading Services (AMRS) v ASU, this expression has not been judicially considered. The majority went on to observe that:

“A relationship between the provisions of the relevant agreement and the subject matter is in dispute would appear to be an essential element in the identification of any dispute over the application of the agreement.”

[46] We adopt these observations. Further, in our view the expression should not be narrowly construed. In this context we agree with the observations of the Full Bench in Shop, Distributive and Allied Employees Association v Big W Discount Department Stores that:

“... what comprises a dispute over the application of the agreement should not be narrowly construed: to do so would be contrary to the nation that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”

[55] This decision again confirms the need to ascertain the particular character of the dispute before the Commission. However, it also indicates that in doing so “the application of the agreement” should not be construed in a narrow or restrictive way.

[56] The parties in this matter also made reference to the well established authorities that confirm that the words in an agreement should, as far as possible, be construed on the basis of their plain and ordinary meaning. I have sought to adopt the principles established by the various authorities I have referred to in coming to a decision in this matter.

[57] United Voice submits, firstly, that the matters in dispute in its application concern the “application of the agreement” that covers the parties. It also submits they are now properly before the Commission in accordance with the procedure set out in clause 12 of the Agreement. Wilson Security has a different view. It takes issue with whether the “accommodation issue,” in particular, concerns the application of the Agreement. It also takes issue with the submission that the procedure in clause 12 has been complied with, and the submission that the matter is now properly before the Commission. It also makes the additional submission that United Voice does not have standing, in the first place, to make application under s.739. I turn, firstly, to consider the particular character of the disputes, and whether they can be considered to be about “the application of the Agreement.”

[58] United Voice submits that the matters in dispute concern clause 16 of the Agreement. It states:

“16. TRAINING

16.1 All training required to be performed, whether in respect to a skill competency requirement or otherwise required by the Company shall be conducted during paid time and at no cost to the security officer or officers involved, save and except for the following:

16.1.1 training associated with the security licence requirements of the Private Security Act 2004.”

[59] Given the terms of clause 16 I am satisfied, firstly, that both the “accommodation issue” and the “overtime issue” can be characterised as being to do with the application of the clause. Firstly, attendance at the training was a requirement of Wilson Security and was not training associated with the employees’ security licence requirements. Secondly, clause 16 is essentially concerned with the arrangements that are to apply when attendance at training is required, rather than with the training itself. For example, it is to “be conducted during “paid time” and “at no cost” to the employees. I am satisfied this is what the issues contained in the application now before the Commission are about. On the one hand they concern how paid time is to be compensated in particular cases. They also concern the reimbursement of accommodation costs incurred by employees, which they claim have been incurred because of the location of the training venue. Without expressing a view about the merits or otherwise of this claim I am nevertheless satisfied it concerns “the application of the agreement” because it concerns the issue of training being carried out at no cost to the employee. In coming to this conclusion I am also mindful of the findings of the Full Bench in SDA v Big W Discount Department Store  24 that the application of the terms of an agreement should not be narrowly construed.

[60] I now turn to consider the next issue that arises for determination – whether the Settlement of Disputes procedure in clause 12 has been complied with, and whether the matters are properly before the Commission in accordance with that procedure.

[61] The relevant parts of clause 12 “Settlement of Disputes” have been set out in the decision already and are not restated now. The clause indicates, firstly, it extends to deal with “a dispute arising concerning the application of the agreement.” I have already indicated I consider the overtime and accommodation issues fall within this category. The clause then provides that any such dispute is to be dealt with in accordance with the procedure set out in sub clause 12.2. It provides in summary:

● at any stage of the process an employee is entitled to involve a representative of his/her choice, including an official of the Union;

● the matter shall at first instance be discussed by the employee and their immediate supervisor/manager;

● if not resolved further discussions involving more senior levels of management and/or an HR representative will be arranged;

● if still not resolved it may be referred to an agreed mediator;

● if still not resolved it may be referred to the Commission to be dealt with in accordance with sub clause 12.3. (That sub clause then continues to describe how the matter may be dealt with by conciliation and, if necessary, arbitration and what is to apply in those processes.)

[62] Wilson Security also raises a question about the overtime issue that is perhaps appropriate to be dealt with at this point. It goes to whether the matter actually involves a “dispute,” or whether it was simply a “pay query” made more by way of seeking clarification, than by way of “contest or challenge.” It tendered an extract from the Macquarie Dictionary in support of this submission, indicating the word “dispute” has various meanings, including “engaging in argument or discussion” or “to argue against; call into question.” In its submission the issue has more to do with the former definition than the latter. United Voice submits in response the issue has been raised on repeated occasions without being resolved and continues to be a “dispute ... concerning the application of the Agreement.”

[63] It is acknowledged that Mr Howarth raised the issue by means of a pay query form. The email from Mr Gome to Ms Culda also suggested it “might also be worthwhile” for Wilson Security to explain its position on “paid time” when required attendance at training falls on a weekend, an RDO, or in addition to normal rostered hours. However, I am also satisfied the intent was not just to seek clarification about what was to apply. If that were the case once clarification from Wilson Security had been obtained it might have been expected the issue would not be pursued further. However, this is not the case. It has been agitated on behalf of more than one employee over an extended period of time and remains unresolved. In addition, I am not satisfied the words in the Agreement should be as narrowly construed as Wilson Security contends. I am accordingly satisfied “the overtime issue” is an ongoing and unresolved dispute about the application of clause 16.

[64] I now turn to consider whether the various steps in the procedure in clause 12 have been followed, and whether it is appropriate for an application to have been made under sub clause 12.2.5 and s.739. In this context the respective submissions and evidence of the parties have been set out in some detail already and are not restated now. Wilson Security submits, in summary, the various steps in sub clause 12. 2 have not been followed, and the dispute should not have been notified until this occurred. United Voice disagrees.

“The Overtime Issue”

[65] The evidence of Mr Gome indicates he was first contacted by delegates in June last year about issues to do with attending training is Melbourne and, in particular, about payment for the time spent, and about reimbursement of travel and accommodation expenses. It is noted the issue to do with reimbursement of travel expenses has now been resolved. Mr Gome subsequently took the matter up with the Operations Manager and with the Senior HR Adviser. The evidence of Mr Howarth also indicates he raised the matter as a pay query with his Supervisor and continued to follow it up in a further emails.

[66] Mr Gome had further discussions with Mr McGrath in December and met again with him and Ms Culda in January. He said he formed the view at this meeting that Wilson Security rejected the overtime claim and was unlikely to change its position. However, Wilson Security submits the procedure in 12.2 has not been followed and the notification is premature.

[67] I am satisfied this issue is properly before the Commission at this time, and that Wilson Security has again taken a narrow approach to the application of sub clause 12.2. The sub clause refers to the Union being involved at any stage of the process. Mr Howarth sought advice from the Union and also took the matter up on his own behalf with his direct supervisor. There is nothing that precludes these separate approaches being pursued.

[68] The various occasions on which the matter was raised is also confirmed by the “Time Line” provided by United Voice in its submissions. It is also confirmed by the evidence of Mr Howarth who states he raised the issue with both the Union and his Site Supervisor from the time he attended the training, and followed it up in further emails to his Site Supervisor in November and February. As indicated, it is acknowledged that the matter was pursued by both the Union, on behalf of its members, and the employees themselves. However, it is also noted sub clause 12.2 enables an employee to involve a representative of his/her choice at any stage of the process. At the same time it doesn’t preclude an employee from continuing to press the matter themselves. It is also noted Mr McGrath and Ms Culda both participated in discussions about this matter in December and January, without any suggestion it was not appropriate for the matter to be raised at that level because the procedure in sub clause 12 .2 had not been followed. In short, I am satisfied it would be a narrow and restrictive approach to the application of the Agreement to suggest the procedure in sub clause 12.2 has not been complied with. In this context the comments of Commissioner Johns are noted in a decision referred to by United Voice in the matter of United Voice v Ambulance Victoria when he stated:

“[43] To accept an argument (that the respondent appears to make) that these attempts to resolve their concern about the non – accrual of leave were not strictly consistent with clause 8.6(a) of the agreement and consequently Messrs Davis and Briggs failed to follow the mandated process (and thus should be denied the opportunity to pursue their dispute in the Commission) would be a triumph of form over substance. It is pedantry that the Commission should not accede to.” 25

[69] While the circumstances in the present matter are clearly not identical to those being considered by Commissioner Johns I am satisfied his conclusions are also pertinent in the context of this matter.

“The Accommodation issue”

[70] Wilson Security acknowledges it had discussions with United Voice about this issue in the latter part of last year, but submits it was “closed” as a result of the content of an email sent by Mr Gome to Mr McGrath on 23 January. That email and two other emails exchanged by the two men have been set out already in the decision at [23]. The first email asks whether Wilson Security can “investigate” whether some employees were reimbursed for the accommodation expenses they incurred while attending the training. The response from Mr McGrath deals with this issue. The next email from Mr Gome thanks Mr McGrath for his “prompt and thorough response” and indicates he will pass this information on to the employees, but does “not expect there to be any further enquiries on this particular subject.”

[71] I am not satisfied the email from Mr Gome conveys the intention that Wilson Security seeks to place on it. I am also satisfied it needs to be considered in conjunction with the two preceding emails. The first email from Mr Gome to Mr McGrath is concerned with the issue of whether other employees had their accommodation expenses reimbursed. The next email from Mr McGrath accordingly deals only with this issue. When the next email from Mr Gome indicates to Mr McGrath that Mr Gome does not expect there are “to be any further enquiries on this particular subject” I am satisfied he is only referring to the question of whether other employees have had their accommodation expenses reimbursed, rather than suggesting the entire issue to do with reimbursement of accommodation expenses has been closed.

[72] Wilson Security also relies on Ms Culda’s apparent understanding about what was discussed and her view that the Union had decided to stop pursuing the matter at this point, and intended instead to take the matter up as part of the forthcoming enterprise bargaining negotiations. I have no reason to doubt that Ms Culda held this view. However, I am also satisfied it was not necessarily a correct understanding of the “state of play.” The evidence indicates Ms Culda was not aware of the background to the issue, and had not been involved to the same extent as Mr McGrath in the various discussions about the matter. In addition, the suggestion the issues might be appropriate for further consideration in the context of forthcoming agreement negotiations does not mean they did not remain a live issue for the Union and its members. For example, a decision to deal with the issue in future agreement negotiations would not assist the employees who had raised the issue because they were out of pocket as a result of the accommodation expenses incurred while attending training in Melbourne last year.

[73] I am again satisfied there is an ongoing and unresolved dispute about the application of clause 16 of the Agreement to do with the payment of accommodation expenses incurred while attending training.

[74] The final matter that requires to be determined concerns the submission by Wilson Security that United Voice is not able to make application to have the Commission deal with a dispute arising under the terms of the Agreement. It refers, firstly, to s.739(6) in support of this submission. It states:

“The FWC may deal with a dispute only on application by a party to the dispute.”

[75] It next refers to the wording of clause 12.2 in the Agreement and the absence of any reference to United Voice being party to a dispute concerning the application of the Agreement. It acknowledges that the Union is a party to the Agreement, and can be a representative of the employees, however, in its submission it can only be the employees who are empowered to be an applicant in referring a dispute to the Commission, given the provisions contained in the Act and the sub clause. It submits:

“The only party to the dispute when you look at clause 12, is an employee. It can never be the Union. In fact there is no reference to any individual employees in the notification and the notification is not by any employees. It is by the Union.” 26

[76] In its submission the situation would be different if the language in the Agreement was different, i.e. if it indicated, for example, “the Union may refer the matter to the Commission on the employee’s behalf.” However, it submits that in the absence of this expressed intention the Union does not have this ability.

[77] United Voice rejects these submissions. As indicated already it firstly refers to sub clause 4.5 in the Agreement and the reference to “parties” meaning “the company, the Security Union and the employees referred to in clause 2.1.1.2.” It also refers to sub clause 4.7, which indicates that “Security Union” means “United Voice Victorian branch.” It continues to submit that given the terms of clause 12 refer to a “party” or “parties” it is evident that not only is the Union a party to the Agreement, but it can also be a party to a dispute under clause 12.

[78] In addition, under the terms of the s.52(1) of the Act an enterprise agreement applies to an employee organisation if the Agreement “covers” the organisation. Section 53(2) continues to provide an Agreement covers the organisation if the decision to approve the agreement notes it covers the organisation. (Under the present legislation this can only come about after an agreement is made, and after an organisation that was a bargaining representative gives notice to the Commission it wants the agreement to cover it. (s.183 (1)). The decision of Commissioner Lewin, handed down on 19 March 2012, that approved the Agreement notes “United Voice 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.” 27 The Agreement accordingly “applies” to United Voice per s.52 of the Act, as it does to Wilson Security and the employees.

[79] As United Voice emphasises in its submissions, the Agreement also makes clear in sub clause 4.5 that “Parties” means the Company, the Security Union and the employees referred to in clause 21.1.2.” Sub clause 4.7 continues to indicate “Security Union” means “United Voice Victorian branch.”

[80] While it is perhaps of no consequence it is also noted that sub clause 12.2.1 indicates, “At any stage of the process, an employee will be entitled to involve a representative of the employee’s choice, including an official of the Union.”

[81] I am satisfied in all the circumstances that when sub clause 12.2.5 in the Agreement states “The matter may be referred by either party .....” it intends that United Voice, as one of the “parties” defined in the Agreement, and being an organisation to which the Agreement applies, has the ability to make application under s.739, as it has done in this matter.

Conclusion

[82] I am satisfied, in conclusion, the disputes notified in this matter by United Voice under s.739 concern “the application of the Agreement” that covers Wilson Security and United Voice. I am also satisfied a valid application has been made under s.739 by United Voice in regard to those disputes. I also indicate, by way of clarification, that in coming to this decision I am not expressing a view about the respective merits of those matters. This decision is obviously not dealing with those issues. However, at the request of the Applicant the matter will be relisted for the purpose of dealing with those substantive issues.

COMMISSIONER

Appearances:

Mr S Gome and Mr S Kempi for the Appliant.

Mr T Angelopoulos of National Workplace Lawyers for the Respondent.

Hearing details:

2014.

Melbourne:

13, 30 June and 1 July.

 1   Fair Work Act 2009 (Cth) at s.739(6).

 2   AE892452.

 3   Ibid at cl.12.

 4   Ibid.

 5 F10 application lodged by United Voice against Wilson Security on 7 March 2014.

 6   Outline of Submissions on Jurisdiction submitted by Wilson Security dated 15 May 2014 at para 3.

 7   Exhibit A1 at Attachment A2, Email from Steve Gome to Adela Culda sent Tuesday 10 December 2013.

 8   Ibid.

 9   Exhibit A1 at Attachment A2, Email from Adela Culda to Steve Gome sent Wednesday, 18 December 2013.

 10   Exhibit A1 at Attachment A3, Email from Steve Gome to Dean McGrath sent Thursday 23 January 2014.

 11   Ibid, Email From Dean McGrath to Steve Gome sent on Thursday 23 January 2014.

 12   Ibid, Email from Steve Gome to Dean McGrath sent on Thursday 23 January 2014.

 13   Ibid.

 14   Outline of Submissions on Jurisdiction submitted by United Voice dated 30 May at para 29.

 15   Exhibit A1 at Attachment A2, Email from Adela Culda to Steve Gome sent Wednesday, 18 December 2013.

 16   Ibid, Email from Steve Gome to Adela Culda sent Friday, 20 December 2013.

 17   Exhibit A1 at Attachment A3, Email from Steve Gome to Dean McGrath sent on Thursday 23 January 2014.

 18   Transcript at PN1338.

 19   Ibid at PN1457.

 20   Construction, Forestry, Mining and Energy Union v the Australian Industrial Relations Commission (2000)203 CLR 645

 21 Ibid at para 658 [31].

 22   PR908236.

 23   PR944673.

 24   PR920684.

 25   PR543722.

 26   Transcript at PN1306.

 27   AE892452.

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