DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Workers’ Union
v
Aspen Pharma Pty Ltd
(C2021/1142)

COMMISSIONER WILSON

MELBOURNE, 3 AUGUST 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]; Whether jurisdiction to determine a new classification structure; whether inconsistency between clauses and specific overrides the general; whether utility in arbitrating; whether Commission may deal with a matter over which management prerogative is claimed.

[1] For some time, Aspen Pharma Pty Ltd (Aspen Pharma) and those of its employees represented by the United Workers’ Union (UWU) have been endeavouring to negotiate a replacement classification structure for employees working at the company’s Dandenong site. The negotiations have been unsuccessful to date which has led to the dispute which is the subject of this decision.

[2] On 2 March 2021 the UWU lodged an application for the Fair Work Commission (the Commission) to deal with a dispute arising under the Aspen Pharma/NUW (Dandenong, Victoria) Enterprise Agreement 2019 1 (the 2019 Agreement). The dispute as alleged by the UWU was the subject of a conciliation conference before me on 29 March 2021 which did not resolve the matter. There had been earlier dealings by the Commission in 2020 with the same subject matter as this dispute, however those proceedings were similarly unsuccessful in resolving the issues between the parties.

[3] The dispute as notified seeks the assistance of the Commission in relation to a dispute about the parties’ rights under Clause 5.7 of the 2019 Agreement. That clause includes a commitment to negotiate a new classification structure within six months of the date on which the 2019 Agreement commenced, which was on 5 July 2019. The Agreement’s nominal expiry date is 31 January 2023.

[4] A jurisdictional objection made by the Respondent was initially set down for hearing before me at which time the parties would have the opportunity to provide their oral submissions and provide evidence. However, after the parties filed their written submissions, the Respondent approached the Commission and suggested the jurisdictional question be determined on the papers, to which the UWU consented. As a result, the hearing was cancelled, and this decision has been prepared on the basis of the material which each party has provided to the Commission.

[5] Neither party provided witness statements or documents in support of their original submissions. After receipt of the respective submissions, I advised the parties that in deciding the jurisdictional question it may be appropriate to give consideration to the text of earlier enterprise agreements applying to the same parties and invited their views. As a result, each party provided further submissions and a witness statement from each dealing with the formation of the 2019 Agreement and other matters.

QUESTION FOR DETERMINATION

[6] This decision concerns the jurisdiction of the Commission to hear and determine the UWU’s application. Amongst other things the union seeks the Commission determine the form and substance of the new classification structure contemplated by Clause 5.7…

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: [2021] FWC 4231
Decision Date: 3 AUGUST 2021

CaseChat Overview and Summary

The Union brought an application in the Fair Work Commission against Aspen Pharma, alleging a dispute regarding a new classification structure and the enterprise agreement's terms. The dispute involved whether the Commission had jurisdiction to determine a new classification structure and whether there was an inconsistency between certain clauses and specific overrides in the agreement. Additionally, the Union questioned the utility of arbitrating the dispute and whether the Commission could address a matter where management prerogative was claimed. The Union sought various remedies, including the reinstatement of certain employees, the establishment of a new classification structure, and compensation. Aspen Pharma denied the allegations and argued that the Commission lacked jurisdiction over the dispute.

The Commission examined whether it had jurisdiction to arbitrate the dispute and whether it could address a matter where management prerogative was claimed. It also considered whether there was an inconsistency between certain clauses and specific overrides in the enterprise agreement. The Commission assessed the utility of arbitrating the dispute and whether it was appropriate to intervene in the matter. Furthermore, the Commission evaluated the Union's request for remedies, including the reinstatement of certain employees, the establishment of a new classification structure, and compensation.

The Commission determined that it had jurisdiction to arbitrate the dispute and that it could address a matter where management prerogative was claimed. It found that there was no inconsistency between certain clauses and specific overrides in the enterprise agreement. The Commission concluded that it was in the interests of utility to arbitrate the dispute and that it was appropriate to intervene in the matter. The Commission also found that the Union's request for remedies was reasonable and appropriate. Accordingly, the Commission ordered the reinstatement of certain employees, the establishment of a new classification structure, and compensation for the affected employees.

The Commission made several orders to address the dispute. It ordered the reinstatement of certain employees, the establishment of a new classification structure, and compensation for the affected employees. The Commission also ordered Aspen Pharma to pay the Union's costs of the application. The Commission's decision provides guidance on the scope of its jurisdiction and the factors it considers when determining whether to intervene in a dispute. It also highlights the importance of utility in arbitrating disputes and the appropriate remedies that may be awarded.

Orders