United Workers' Union v Linfox Australia Pty Ltd T/A Linfox Australia
[2022] FWC 1084
•9 MAY 2022
| [2022] FWC 1084 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
United Workers’ Union
v
Linfox Australia Pty Ltd T/A Linfox Australia
(C2022/761)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 9 MAY 2022 |
Dispute arising under an enterprise agreement – no jurisdiction – application dismissed.
This decision concerns an application made by the United Workers’ Union (UWU) under section 739 of the Fair Work Act 2009 (Act) to deal with a dispute in accordance with the dispute settling procedure in clause 41 of the Toll Retail Consumer Healthcare & National Union of Workers Somerton NDC Enterprise Agreement 2018 (Agreement).
The Dispute
The dispute concerns whether the Respondent (Linfox) is required to permit casual employees employed by a third party provider who perform work for it (Agency Casuals) at its facility at Somerton (Somerton Site) to attend union meetings.
Clause 11 of the Agreement sets out wage rates for employees (referred to as “Team Members” in the Agreement) covered by the Agreement. Clause 11.3(a) of the Agreement provides as follows:
“11.3 Casuals not directly employed by the Employer
(a)The Employer agrees that work that is performed by agency casuals who are not directly employed by the Employer and that would otherwise be covered by the Agreement will only be accepted by the Employer if those persons who perform the work receive the same rates of pay and conditions as Team Members covered by this Agreement, subject to clause 15.6. The Employer will take all reasonable steps to ensure the provision of rosters a week in advance for agency casuals.
This does not inhibit nor is relevant to the company’s right to outsource any function that is to be performed under a commercial contractor arrangement with an external provider.”
Clause 44 of the Agreement sets out a range of matters dealing with, inter alia, union rights and general compliance. Clause 44.3 is headed “Union Representation”. Clause 44.3(d) of the Agreement deals with attendance at pre-approved union meetings and provides as follows:
“Union meetings - Team Members attending pre-approved Union meetings on site will be granted paid release for the agreed time by Senior Management of ordinary wage rate time. Subject to the request of the Union, such pre-approved time shall not exceed 20 minutes in duration, be held at the end of each shift and not occur more than five (5) times in a calendar year (exceptions must be approved by management). Paid time shall not accumulate into the next year. Management will not unreasonably refuse to provide the requested meeting time or additional time. Where operationally possible the employer shall accommodate ‘joint’ shift meetings involving two or more shifts.
Additional time may be provided by mutual agreement with the Employer to hold Union meetings regarding re-negotiation of this agreement.”
The UWU contends that by virtue of the requirement in clause 11.3 that Agency Casuals “receive the same rates of pay and conditions as Team Members covered by this Agreement”, Agency Casuals are entitled to paid time release to attend pre-approved union meetings at the Somerton Site as provided for in clause 44.3(d). The Respondent contends that they are not.
The question to be determined therefore is whether the entitlement to attend pre-approved union meetings as provided for in clause 44.3(d) is a “condition” for the purposes of clause 11.3 (Dispute).
Hearing
The UWU filed its Form F10 on 27 January 2022. A conciliation conference was held on 14 February 2022however the matter did not resolve. Accordingly, directions were issued for the filing of material and the Dispute programmed for hearing.
A hearing via Microsoft Teams was held before me on 1 April 2022.
Mr Serong, Industrial Officer, appeared for the UWU. Mr Katsifolis, National Workplace Relations Manager, appeared for Linfox.
The following witnesses gave evidence for the UWU:
Mr Timothy Gunstone, National Occupational Health and Safety Coordinator and Organiser;
Mr Rowan Payne, Industrial Officer and Organiser.
Mr Alex Bazouni, Senior Operations Manager, Somerton Site filed a witness statement for Linfox but was not required for cross examination. Accordingly, Mr Bazouni’s witness statement was received but he did not attend the hearing.
Background
Linfox operates a business in the storage services and road transport industries. On 1 February 2021, Linfox commenced the operation of the Coles National Distribution Centre facility at the Somerton Site. Prior to this time, the Somerton Site was operated by Toll Transport Pty Ltd (Toll).
A transfer of business occurred for the purposes of section 311 of the Act when Linfox took over operation of the Somerton Site from Toll. As a consequence of the transfer of business, pursuant to section 312 of the Act the Agreement transferred and covered Linfox and any transferring employees at the Somerton Site.
Linfox engages direct employees and Agency Casuals to perform work at the Somerton Site. The Agency Casuals are direct employees of Drake International and Action Workforce Pty Ltd.
Linfox does not permit Agency Casuals paid time release to attend pre-approved Union meetings.[1]
It is uncontested that the UWU has coverage of and is entitled to represent the industrial interests of employees of Linfox and the Agency Casuals who perform work at the Somerton Site.
Jurisdictional Objections
In its Outline of Submissions Linfox raises two jurisdictional objections to the Commission determining the Dispute, which may be summarised as follows:
(a) firstly, Linfox submits that the dispute resolution procedure contained in clause 41 of the Agreement has not been followed (Procedural Objection) ;[2] and
(b) secondly that the construction for which the UWU contends would result in clause 11.3 no longer being about a permitted matter as required by the Act (Permitted Matters Objection).[3]
Procedural Objection
In its Outline of Submissions Linfox raises two matters in relation to the Procedural Objection, which may be summarised as follows:
(a) firstly, Linfox submits that the dispute resolution procedure is limited to disputes that are relevant to the “employment relationship” and the Dispute does not meet this requirement (First Procedural Objection);[4] and
(b) secondly, Linfox submits that the preliminary steps in the dispute resolution procedure have not been completed, as the Dispute may only be initiated by employees of Linfox (Team Members) and this has not occurred (Second Procedural Objection).[5]
In addition, in oral submissions at the hearing Linfox raised for the first time a further procedural jurisdictional objection (Third Procedural Objection). In relation to the Third Procedural Objection Linfox submitted that the necessary preliminary steps in clause 41 had not been complied with prior to the matter being referred to the Commission and, as such, the Commission has no jurisdiction to deal with the Dispute.[6]
Consideration – Procedural Objection
Section 595 of the Act empowers the Commission to deal with disputes and, relevantly, provides as follows:
“(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
…(3)The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.”
The Commission is empowered to deal with disputes under Division 2 of Part 6-2 of the Act, specifically section 738 and 739.
Section 738, relevantly, provides as follows:
“This Division applies if:
…(c) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6);
…”
Section 739 empowers the Commission to deal with certain disputes under an enterprise agreement procedure for settling disputes and, relevantly, provides as follows:
“(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
…
(3) In dealing with the dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.”
It is not in dispute that the Commission’s jurisdiction in respect of this matter is limited by section 739 of the Act and by the dispute resolution procedure contained in clause 41 of the Agreement.
Clause 41 of the Agreement provides as follows:
“41. PROCEDURES FOR THE AVOIDANCE OF INDUSTRIAL DISPUTES
Disputes over matters arising from this Agreement (or any other dispute related to the employment relationship) must be dealt with according to the following procedure:
41.1. The matter must first be submitted by the Team Member/s via the following process:
(a) The matter shall be first discussed between the aggrieved Team Member and their manager;
(b) If settlement is not reached the matter shall be discussed between the Team Member and the Operations Manager and if the Team Member chooses to have a representative this may include a union representative; and
(c) If not settled the matter shall then be discussed between a more senior representative for the Employer and if the Team Member chooses, a more senior representative, this may include the union organiser;
(d) If still not resolved, there may be discussions between the relevant Team Member Representative or other representative chosen by the Team Member /s, and a senior Employer Representative. All parties will genuinely undertake to resolve the matter at the workplace.
41.2. Work shall continue without interruption while these procedures are being followed. The pre-dispute status quo shall prevail while the matter is being dealt with in accordance with this procedure.
Either Party or their chosen representative may, if the dispute still exists after all of the above agreed steps for resolving the dispute have been taken, refer the matter to the Fair Work Commission for resolution by mediation or conciliation. If still not resolved then arbitration may be necessary. If arbitration is necessary the parties agree that FWC shall have the power to do all such things as are necessary for the just resolution or determination of the matter in dispute. This includes the exercising of procedural powers in relation to directions, hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.”
First Procedural Objection
Linfox submits that the language “disputes over matters arising from this Agreement (or any other dispute related to the employment relationship)” as used in clause 41 should be construed such that the text in parentheses limits the text which precedes it.[7] That is, the inclusion of the words “any other dispute” necessarily limits disputes over matters arising from the Agreement to matters relevant to the employment relationship.[8]
The UWU submits that this construction is strained and plainly not intended by the language of the clause.[9]
Consideration
The principles regarding the interpretation of enterprise agreements are well established and were summarised by the Full Court of the Federal Court of Australia in Watpac Pty Ltd v Skene.[10] I do not repeat those principles but respectfully adopt and apply them. As summarised in Skene, the starting point is the “ordinary meaning of the words, read as a whole and in context.”
I do not consider the construction contended for by Linfox accords with the plain meaning of the words when read as a whole. I consider on a plain reading the clause provides a resolution procedure for two distinct species of dispute. The first, being matters arising from the Agreement. The second, being any other dispute related to the employment relationship. Firstly, the two species are separated by the word “or”. “Or” is disjunctive and on a plain reading provides an alternative to the text which precedes it, rather than a limitation upon it. Secondly, the matters to which the first species of dispute applies are matters “arising from” the Agreement, while the second are matters “related to” the employment relationship. “Arising from” and “related to” are not synonymous. Accordingly, the nexus of each species to its subject matter is not the same and supports a construction that the second species is a distinct and an alternative species to the first. Thirdly, whilst it is the case that an enterprise agreement contains matters pertaining to the employment relationship,[11] not all matters so pertaining are necessarily included in an agreement. Accordingly, matters which relate to the employment relationship potentially, and I consider ordinarily do, encompass a more expansive range of matters than matters arising from an agreement. Finally, I consider this construction is supported by the use of the word “other” in the phrase “any other dispute”. I consider the use of the word “other” indicates a dispute that is different or distinct from the dispute which precedes it.
Accordingly, I reject the First Procedural Objection.
Second Procedural Objection
Linfox submits that the dispute resolution procedure in clause 41 only contemplates a dispute between a “Team Member” (an employee of Linfox) and the “Employer”.[12] It submits that the Dispute has not been initiated by an employee.[13] Rather, it submits that, at its highest, the Dispute has been “agitated” on behalf of Agency Casuals.[14]
The UWU submits that the assertion that the Dispute was not initiated by an employee of Linfox has no basis in fact. The UWU relies upon the evidence of Mr Payne. The UWU submits that the Dispute was raised by Mr Payne as a representative of delegates employed by Linfox[15] with managers of Linfox and there is no evidence that Agency Casuals have in any way been involved in agitating the Dispute.
In his supplementary witness statement Mr Payne’s evidence was that the refusal by Linfox to allow Agency Casuals to attended pre-approved union meetings at the Somerton Site was raised with him by UWU delegates. Under cross examination he said this occurred around November 2021.[16] The delegates were employees (Team Members) of Linfox.[17] Under cross examination Mr Payne said that all but one of the delegates at the Somerton Site were Linfox employees[18] and that upon the issue being raised with him he undertook to raise it with management in his capacity as the delegate’s representative.[19] His evidence was that he raised the Dispute with various levels of Linfox management on behalf of the delegates.
Consideration
It appears uncontested, and I find, as submitted by the Respondent, that clause 41 of the Agreement is only engaged by a dispute between the employer and an employee. However, I otherwise reject the Respondent’s submissions on this point. The Respondent led no evidence to contradict or challenge Mr Payne’s evidence or otherwise in support of its submission that the Dispute was not initiated by an employee. I found Mr Payne to be a credible witness and I accept his evidence. I therefore find that the Dispute was initiated by the UWU delegates on the Somerton Site by raising their concerns with Mr Payne. I also find that all but one of the delegates was a Linfox employee. The Dispute, therefore, was initiated by an employee.
Accordingly, I reject the Second Procedural Objection.
Third Procedural Objection
As set out above, Linfox submitted for the first time at hearing that the necessary preliminary steps in clause 41 had not been complied with. Accordingly, it submits that the Commission does not have jurisdiction to arbitrate the Dispute. This objection was not raised by Linfox in its written materials and Linfox filed no evidence in relation to it.
As to whether the steps in clause 41 had been complied with, the UWU submits that this objection was not raised previously, is not supported by the evidence and should not be accepted.[20] Further, it says that Linfox, via Mr Katsifolis, confirmed that the dispute resolution process was at an end and the matter ought be referred to the Commission under clause 41[21] and that this was documented from the commencement of proceedings in the UWU’s Form F10 filed with the Commission on 27 January 2022.[22]
Mr Payne’s evidence was that following the Dispute being raised with him by the delegates at the Somerton Site he raised the Dispute with various levels of management, including Mr Trewin, Network Manager for the Somerton Site and Mr Katsifolis, on behalf of the delegates.[23] Under cross examination Mr Payne’s evidence was that after the Dispute being raised with him by the delegates he raised the Dispute with Mr Trewin (as Mr Trewin had advised him that Agency Casuals could not attend the planned meeting). [24] In this context, the following exchange occurred between Mr Katsifolis and Mr Payne:
“So in the instance you’re not aware of any – there is no evidence you have put forward that the aggrieved team members escalated this through to their appropriate managers as set out in clause (a) of 41.1(b) and (c)?
I’m not aware. I raised it directly as their representative first with Mr Trewin and then with you.”[25]
Mr Payne’s evidence was that he had a number of telephone discussions with Mr Trewin.[26] He says that on or about 24 January 2021 he spoke with Mr Katsifolis by telephone[27] and notified him that the parties were still in dispute and that he considered that all the necessary steps within the Agreement had been followed.[28] His further evidence was that Mr Katsifolis agreed that the necessary steps under the Agreement had been followed and that it was appropriate for the matter to now be referred to the Commission. He says that Mr Katisfolis confirmed that the Respondent would not raise any jurisdictional objection that the dispute resolution procedure had not been followed.[29]
The Respondent led no evidence to contradict or challenge Mr Payne’s evidence and as already set out, I found him to be a credible witness. Accordingly, I accept his evidence.
Consideration
Clause 41 of the Agreement is set out above. In summary, it provides the following escalation process prior to a dispute being referred to the Commission:
(a) the matter is discussed between the employee and their manager;
(b) if not resolved, the matter is discussed between the employee and the Operations Manager;
(c) if not resolved, the matter is discussed between the employee and, if the employee chooses, the union organiser, and a more senior representative of the employer;
(d) if not resolved, the matter may be discussed between the employee’s representative and a senior employer representative.
If following the above steps being completed the matter is still unresolved\, either party may refer the matter to the Commission for resolution, by conciliation and, if necessary, arbitration.
I consider clause 41 to be clear on its terms as to the steps in the escalation process required before a dispute can be referred to the Commission. However, I consider it to be less clear as to whom the relevant employer representatives referred in subclauses (c) and (d) are. I also note that the clause is expressed in mandatory terms, using the word “shall”.
Mr Payne’s evidence was that upon the Dispute being raised with him by the delegates he first raised the matter with Mr Trewin on the delegates’ behalf. He agreed under cross examination that Mr Trewin was the network manager with responsibility for both the Somerton Site and the Respondent’s site at Truganina.[30] Accordingly, none of the delegates, nor Mr Payne as their representative, have discussed the Dispute with their respective manager as is required under clause 41.1(a) of the Agreement. Further, the Dispute was not discussed with the Operations Manager as is required under clause 41.1(b). Additionally, Mr Payne conceded under cross examination that he was unaware of whether the steps in clause 41.1(a)-(c) had been complied with. Linfox did not specifically address which steps under clause 41.1 it says were not complied with but in response to a question from the bench said “It’s gone past the first three steps.” I infer from this that it is Linfox’s position that the steps in clause 41.1(a)-(c) were not complied with. Nor did Linfox address nor lead any evidence as to whether Mr Trewin is a “more senior representative of the Employer” as referred to in clause 41.1(c) of the Agreement or a “senior Employer Representative” a referred to clause 41.1(d). I incline to the view that Mr Trewin is more likely than not a “senior Employer Representative”, as referred to in clause 41.1(d) and that it is probable that the steps in clause 41.1(a)-(c) were not complied with. However, I do not consider it necessary that I form a concluded view as to this. Mr Payne’s evidence establishes that the steps required under clause 41.1(a) and (b), at least, were not complied with and I so find. These are not optional steps in the dispute resolution process. They are pre-conditions to the dispute being escalated and, ultimately, referred to the Commission. Accordingly, it follows, and I find, that the dispute resolution process in clause 41 of the Agreement has not been followed.
As set out above, I accept Mr Payne’s evidence and find that Mr Katsifolis agreed with Mr Payne prior to the filing of the Dispute in the Commission that the necessary steps under the Agreement had been followed and that it was appropriate for the matter to now be referred to the Commission. I also therefore find that Mr Katsifolis informed Mr Payne that the Respondent would not raise any jurisdictional objection on the ground that the dispute resolution process had not been followed. It is also the case the Form F10 filed by the UWU contained the following statement:
“On or about 24 January 2022, the Respondent’s National Workplace Relations Manager, Mr George Katsifolis, confirmed to the Applicant that he considered that all necessary steps had been taken to facilitate the dispute being referred to the Fair Work Commission.” [31]
Accordingly, Linfox was aware of the UWU’s position in this regard from the commencement of proceedings and prior to conciliation. Notwithstanding all of the above, at no stage prior to the hearing did Linfox put this issue in contention or raise any objection in respect of it. It did not raise it at the mention held in this matter and, most significantly, it did not raise it in its written materials nor did it file any evidence in relation to it. Further, at hearing the oral submissions made in support of this objection were, as set out above, far from fulsome. It is to be noted, however, that although the UWU were not put on notice of the Third Procedural Objection, Mr Payne’s evidence addressed matters going to that objection. I consider that Mr Katsifolis’ conduct in relation to the Third Procedural Objection, including the representations made to Mr Payne, to lack both transparency and good faith. Further, I consider these proceedings have been conducted by Linfox in an unacceptable manner.
However, whatever may be my view as to the manner in which Mr Katsifolis has conducted both himself and these proceedings, the Commission does not have any discretion to arbitrate a dispute if the steps in a dispute resolution process have not first been followed.[32] I have found that they have not. Accordingly, the Commission has no jurisdiction to arbitrate the Dispute.
I find therefore that the Third Procedural Objection is made out and the Commission does not have jurisdiction to arbitrate the Dispute.
The application is dismissed.
DEPUTY PRESIDENT
Appearances:
C Serong for the Applicant.
G Katsifolis for the Respondent.
Hearing details:
2022
Melbourne (by Microsoft Teams)
1 April
[1] Exhibit A2
[2] Respondent’s outline of submissions at [13], [15-32]
[3] Ibid at [14], [33-49]
[4] Ibid at [23-26]
[5] Ibid at [27-31]
[6] Transcript PN 281-287
[7] Ibid at [25]
[8] Ibid at [24]
[9] Applicant’s submission in reply at [14]
[10] [2018] FCAFC 131
[11] Fair Work Act 2009, section 172(1)(a)
[12] Respondent’s outline of submissions at [28-29]
[13] Ibid at [30]
[14] Ibid at [31]
[15] Applicant’s submission in reply at [23]
[16] Transcript PN 203, PN 208, also see PN 216
[17] Exhibit A7 at [5]
[18] Transcript PN 203, see also PN 216
[19] Transcript PN 203
[20] Transcript PN 336
[21] Transcript PN 335
[22] Transcript PN 335
[23] Exhibit A7 at [8], Transcript PN 216
[24] Transcript PN 211
[25] Transcript PN 204
[26] Transcript PN 216
[27] Exhibit A7 at [9]
[28] Exhibit A7 at [10], Transcript PN 216
[29] Exhibit A7 at [11], Transcript PN 216, PN 217
[30] Transcript PN 211
[31] Form F10, q.25 at [2]
[32] Australian Workers’ Union v MC Labour Services P/L [2017] FWCFB 5032
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