Vanessa Freeman v State of Victoria [Department of Education & Training] T/A Department of Education & Training

[2018] FWC 212

[2018] FWC 212

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739—Dispute resolution

Vanessa Freeman
v
State of Victoria [Department of Education & Training] T/A Department of Education & Training
(C2017/4729)

COMMISSIONER BISSETT MELBOURNE, 11 JANUARY 2018

Application to deal with a dispute - no jurisdiction to hear dispute - application dismissed.

[1] Ms Vanessa Freemen has notified the Commission of a dispute pursuant to s.739 of the Fair Work Act 2009 (FW Act) in relation to her employment with the State Government of Victoria (Department of Education) (DET). The application to deal with the dispute was made to the Commission on 28 August 2017 in accordance with the dispute settlement procedure of the Victorian Government Schools Agreement 2013 1(the 2013 Agreement) and the Victorian Government Schools Agreement 20172 (the 2017 Agreement).

[2] The dispute was notified to the Commission on 28 August 2017. It was subject to conciliation before the Commission where it did not settle.

[3] On 4 October 2017 the Commission issued directions with respect to determining the matter. These required Ms Freeman to file and serve the questions she sought to have determined at arbitration and the parties to subsequently file and serve submissions and witness evidence. Ms Freeman filed the questions, her submissions and witness statements in accordance with those directions.

[4] Subsequently DET indicated that it had jurisdictional objections to the Commission dealing with the dispute.

[5] Given the extent of the objections, further directions were issued which required DET to file details of its jurisdictional objections and objections to evidence. I indicated that I would deal with the jurisdictional issues as preliminary issues and that, in the interim, directions requiring DET to file and serve its evidence and submissions would be set aside.

[6] On 21 December 2017 I advised the parties of my decision in relation to the jurisdictional questions. 3 These are my reasons for that decision.

Jurisdictional objections

[7] DET raised three jurisdictional objections:

1. That the Commission does not have jurisdiction to deal with the dispute pursuant to the 2013 Agreement because the 2013 Agreement has ceased to operate;
2. That the Commission does not have jurisdiction to deal with the dispute pursuant to the 2017 Agreement as the steps in the dispute settlement procedure in the 2017 Agreement were not complied with prior to the notification of the dispute to the Commission; and
3. The questions posed for determination are beyond the power of the Commission and the remedies unavailable.

[8] DET also flagged that, should jurisdiction be found, it would seek to have any directions adjourned pending the finalisation of a complaint made by Ms Freemen to the Human Rights Commission.

The 2013 Agreement

[9] The 2013 Agreement was approved by the Commission on 3 July 2013 and operated from 10 July 2013. It had a nominal expiry date of 31 October 2016.

[10] On 22 August 2017 the 2017 Agreement came in to operation having been approved by the Commission seven days earlier. From that date the 2017 Agreement covered Ms Freemen’s employment and applied to her.

[11] Section 54 of the FW Act states:

54  When an enterprise agreement is in operation

(1)  An enterprise agreement approved by the FWC operatesfrom:

(a)  7 days after the agreement is approved; or

(b)  if a later day is specified in the agreement—that later day.

(2)  An enterprise agreement ceases to operate on the earlier of the following days:

(a)  the day on which a termination of the agreement comes into operation under section 224 or 227;

(b) the day on which section 58 first has the effect that there is no employee to whom the agreement applies.

Note: Section 58 deals with when an enterprise agreement ceases to apply to an employee.

(3)  An enterprise agreement that has ceased to operate can never operate again.

[12] Section 58 of the FW Act states:

58  Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

(1)  Only one enterprise agreement can apply to an employee at a particular time.

General rule—later agreement does not apply until earlier agreement passes its nominal expiry date

(2)  If:

(a)  an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and

(b)  another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and

(c)  subsection (3) (which deals with a single-enterprise agreement replacing a multi-enterprise agreement) does not apply;

then:

(d)  if the earlier agreement has not passed its nominal expiry date:

(i)  the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and

(ii)  the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or

(e)  if the earlier agreement has passed its nominal expiry date—the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.

Special rule—single-enterprise agreement replaces multi-enterprise agreement

(3)  Despite subsection (2), if:

(a)  a multi-enterprise agreement applies to an employee in relation to particular employment; and

(b)  a single-enterprise agreement that covers the employee in relation to the same employment comes into operation;

the multi-enterprise agreement ceases to apply to the employee in relation to that employment when the single-enterprise agreement comes into operation, and can never so apply again.

[13] The 2017 Agreement came into operation on 22 August 2017.

[14] By virtue of ss.54(2)(b), 54(3) and 58(2)(e) the 2013 Agreement ceased to apply to Ms Freemen’s employment (or anyone’s employment) on 22 August 2017 and hence no longer operated because the 2017 Agreement commenced to operate. Having ceased to operate on that date the 2013 Agreement can never operate again.

[15] Further, the Commission’s power to deal with a dispute under the dispute settlement procedure in an agreement is derived from the operation of the FW Act.

[16] Section 595 of the FW Act states, in part:

595  FWC’s power to deal with disputes

(1)  The FWC may deal with a dispute only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.

(2)  The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a)  by mediation or conciliation;

(b)  by making a recommendation or expressing an opinion.

(3)  The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.

[17] Section 739 of the FW Act applies only if an enterprise agreement (relevantly) includes a term that provides a procedure for dealing with a dispute. In such circumstances s.739(3) states that the Commission must not exercise any power limited by that term of the agreement and the Commission can only arbitrate the matter in dispute in accordance with the term only if the parties have agreed that it may do so.

[18] Ms Freeman notified the current dispute to the Commission under the dispute settling procedures of the 2013 and 2017 Agreements on 28 August 2017. At this time the 2013 Agreement had ceased to operate.

[19] In Senator the Honourable Eric Abetz (Special Minister of State) v Stephenson 4 (Stephenson) the Full Bench of the AIRC found:

[44]  Section 170LW of the Act, which Vice President Lawler refers to as a source of the Commission's jurisdiction to exercise the private arbitration powers in a certified agreement, is as follows:

"Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:

(a) to settle disputes over the application of the agreement;
(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes." (Underlining added)

[45]  The wording of section s.170LW of the Act makes it clear that the Commission's jurisdiction to exercise the private arbitration power given to it by the disputes prevention and settlement procedure in an agreement is dependent on the agreement being a certified agreement.
[46]  An agreement which authorises the Commission to exercise such a power of private arbitration cannot operate with that effect unless it is a certified agreement.
[47]  As the High Court pointed out in Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission (the Private Arbitration Case): 5

"To the extent that s.170MH of the IR Act operates in conjunction with an agreed dispute resolution procedure to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the Commission to exercise a power of private arbitration. And procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation to prevent that situation from developing into an industrial dispute are clearly procedures for maintaining that agreement. Parliament may legislate to authorise the Commission to participate in procedures of that kind. Accordingly, s.170MH of the IR Act is valid.
Although it is by no means clear, it may be assumed, for present purposes, that cll 21 and 22 are designed to ensure more than the maintenance of the Agreement. That, however, does not have the consequence that those clauses are wholly invalid. Nor does it follow that they are wholly invalid because they extend beyond what is authorises by s.170MH of the IR Act.
The parties to an industrial situation are free to agree between themselves as to the terms on which they will conduct their affairs. Their agreement has effect according to the general law. If their agreement is certified, it also has effect as an award. To the extent that an agreement provides in a manner that exceeds what is permitted either by the Constitution or by the legislation which gives the agreement effect as an award, it cannot operate with that effect. But the underlying agreement remains and the validity of that agreement depends on the general law, not the legislative provisions which give it effect as an award." 6 (Underlining added)

…

[49]  A corollary of our conclusions about the effect of ss.170LW and LX of the Act is that if a certified agreement empowering the Commission to settle disputes over the application of the agreement ceases to operate because of the provisions of s.170LX of the Act, then the Commission no longer has jurisdiction to exercise that private arbitration power in the agreement.

…

[54]  Finally, we do not accept Mr Stephenson has an accrued right to have his dispute over the application of the 2001 Agreement dealt with by the Commission. We have come to this view having regard to the fact the 2001 Agreement ceased to operate on 20 August 2003 in accordance with the provisions of s.170LX of the Act and also having regard to the abovementioned provisions of the 2003 Agreement and the absence from the 2003 Agreement of a clause consistent with clause 28.3(b) of the 2001 Agreement. In our view, these factors displaced any prima facie preservation of such a right. 7

[20] In Pulle v Commonwealth of Australia acting through the Department of Parliamentary Services 8 (Pulle) Commissioner Deegan considered an application to deal with a dispute pursuant to the dispute settlement procedure in an agreement in circumstances where the agreement had passed its nominal expiry date. In considering the submissions of the Commonwealth she said:

[17]  In support of the submission that the Commission lacked jurisdiction to deal with the dispute DPS relied on the decision of the Full Bench in Special Minister of State v Stephenson. (“Stephenson”)  In Stephenson, the applicant notified to the Commission a dispute concerning the application of a certified agreement. While the dispute was before the Commission but prior to the resolution of the dispute the certified agreement was replaced by a new certified agreement. The Full Bench found that when the new certified agreement came into operation it both replaced and excluded the previous certified agreement. According to the Full Bench:

“[49] A corollary of our conclusions about the effect of ss.170LW and LX of the Act is that if a certified agreement empowering the Commission to settle disputes over the application of the agreement ceases to operate because of the provisions of s 170LX of the Act, then the Commission no longer has jurisdiction to exercise that private arbitration power in the agreement.”

[21] Commissioner Deegan subsequently concluded:

[23]  Despite giving intensive consideration to the arguments put forth, I intend to deal with them in this decision in a brief manner. I am able to discern few material differences between the facts of this matter and the circumstances that existed in the matter of Stephenson. In that case a Full Bench of the Commission determined that the Commission has no jurisdiction to deal with a dispute over the application of an agreement under the dispute settlement provisions of the agreement where the earlier agreement had ceased to have effect, having been replaced by a subsequent agreement.

[footnote omitted]

[22] On appeal of that decision 9 the Full Bench considered the findings of the Commissioner and concluded:

[14]  It appears to us that the Commissioner’s decision was based squarely, and properly, on clear Full Bench authority in Stephenson. On the submissions we have heard and read we do not consider it appropriate to re-examine Stephenson in this case. In considering whether to grant leave to appeal it is also relevant to consider whether Mr Pulle has an avenue of potential redress under the current agreement. In our view Mr Pulle can seek a favourable decision from the Secretary under cl.197 of the current agreement and, to that extent, he has an equivalent remedy.

[footnotes omitted]

[23] Ms Freeman suggests in her submissions that the scheme of the FW Act is such that the decision in Stephenson is no longer good law and should not be applied in this case.

[24] Whilst the decisions in Stephenson and Pulle were made under earlier legislation (the Workplace Relations Act 1996) I am satisfied that the findings remain valid – that is, once an agreement ceases to operate the Commission no longer has the power to exercise the private arbitration power in that agreement. Whilst the decision in Stephenson relied on the provision of the replacement agreement which stated that it applied to the complete exclusion of the [earlier] agreement such a statement in the 2017 Agreement is not necessary given the operation of ss.54(2)(b), 54(3) and 58(2)(e) of the FW Act (set out above) which have that effect.

[25] I am satisfied that Stephenson is binding authority. The Full Bench in Pulle determined that the decision in Stephenson did not require revisiting and it has not otherwise been overturned. It is well established that whilst the Commission is not bound by the principle of stare decisis, in the interests of consistency and sound decision making, it is bound to follow decisions of the Full Bench. 10

[26] In this case there is no cogent reason not to follow Stephenson. Further, I do not accept the arguments of Ms Freeman that the legislative scheme has changed such that Stephenson should no longer apply. The FW Act is definite in its effect on the operation of an Agreement. The objectives of the FW Act vary from the objectives in previous legislation, however this does not alter the clear words of the provisions the FW Act in relation to the operation of enterprise agreements as set out above.

[27] In Queensland Services, Industrial Union of Employees v Ergon Energy Corporation Ltd 11(Ergon Energy) Deputy President Asbury considered an application to deal with a dispute in relation to the operation of an agreement which had, at the time the dispute was notified, been replaced and was no longer in operation pursuant to the provisions of the FW Act. The Senior Deputy President considered a number of decisions including Stephenson and Pulle and concluded that a number of principles could be drawn from these cases:

[53]  The principles set down in the cases are that:

● Absent a savings provision in either the legislation dealing with an agreement ceasing to operate or in the successor agreement, or a provision in relation to the same matter in a successor agreement, a right does not survive the cessation of an agreement. 
● Where a dispute clause in an agreement empowers the Commission to settle a dispute in relation to that agreement, and a dispute is commenced, the Commission will no longer have jurisdiction to deal with the dispute if the agreement ceases to operate while the dispute is on foot, unless the successor agreement has a savings clause, or the legislation preserves rights in this respect. 
● Where a series of agreements contains the same provision, the Commission may have jurisdiction to deal with a dispute about that provision in accordance with a dispute procedure in a current agreement, notwithstanding that the dispute also relates to a period of time where predecessor agreements containing the same or a similar provision, operated. 
● The terms of a dispute procedure, including whether it is expressed to apply to all disputes or those arising under the current agreement, are critical, and may limit the jurisdiction of the Commission to deal with a dispute that relates to a provision that has been included in both the current and predecessor agreements.

[28] I do not consider that the decision of the Deputy President assists Ms Freeman in this matter. Ergon Energy does not provide authority for the proposition that jurisdiction survives the end of the operation of an agreement in circumstances where the replacement agreement contains the same or a similar provision. In any event, a consideration of these principles needs to be read in the context of the decision/s from which the relevant principle is drawn.

[29] Ms Freeman also submits that the proper interpretation of the decision of the High Court in Construction, Forestry, Mining and Energy Union v AIRC 12 (Private Arbitration Case) is that once a party enlivens the private arbitration power in an agreement, by ‘activating’ the dispute settling procedure, despite the future operation or otherwise of the agreement, the private arbitration power continues. To this end, she submits that she activated the dispute settling procedure of the 2013 Agreement in May 2017 when she first raised the dispute with Mr White (the school Principal and the relevant representative of DET). She argues that this survives the commencement of the 2017 Agreement in August 2017 such that the dispute may continue to be dealt with under the 2013 Agreement.

[30] I am not persuaded by the submissions of Ms Freeman. Stephenson provides authority for the conclusion that I cannot deal with a dispute pursuant to an expired agreement where the replacement agreement does not otherwise authorise me to do so. Stephenson was decided after the Private Arbitration Case and specifically considered its application. However, even if the current legislative scheme is such that Stephenson no longer applies, the scheme of the FW Act makes it clear that the Commission’s power to deal with a dispute is subject to the provisions of the FW Act. Section 595 of the FW Act is the source of the Commission’s power to deal with a dispute and s.739 places limitations around the exercise of that power such that it is limited by the term of the agreement. Sections 54(2)(b), 54(3) and 58(2)(e), when considered together, make it clear that, the 2013 Agreement has ceased to operate and can never operate again. There is, therefore, no operative term of the 2013 Agreement (or of the 2017 Agreement) that would allow the Commission to arbitrate a dispute arising from the 2013 Agreement.

[31] I am not satisfied that the Private Arbitration Case should be read to suggest that, absent any other provision to the contrary, the power to arbitrate a dispute survives the expiration of the operation of an agreement. The relevant parts of that decision are extracted above in the quote from Stephenson. That makes it clear that the applicable legislation is the source of the Commission’s powers. I therefore reject Ms Freeman’s submissions in this regard.

[32] For these reasons I am not satisfied that the Commission has jurisdiction to deal with a dispute pursuant to the provisions of the 2013 Agreement.

The 2017 Agreement

[33] On 22 August 2017 the 2017 Agreement commenced operation, having been approved by the Commission on 15 August 2017.

[34] The dispute settlement procedure of the 2017 Agreement states:

28 Dispute Resolution Procedures

(1) Unless otherwise provided for in this agreement, a dispute or grievance about a matter arising under this agreement or in relation to matters covered by the National Employment Standards, other than termination of employment, must be dealt with in accordance with this clause.

(2) This clause does not deal with the renegotiation of any workplace agreement.

(3) A person bound by this agreement may choose to be represented at any stage by a representative, including a union representative or Employer’s organisation.

Obligations

(4) The parties to the dispute or grievance, and their representatives, must genuinely attempt to resolve the dispute or grievance through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.

(5) Whilst a dispute or grievance is being dealt with in accordance with this clause, work must continue in accordance with usual practice, provided that this does not apply to an employee who has a reasonable concern about an imminent risk to their health or safety, has advised the Employer of this concern and has not unreasonably failed to comply with a direction by the Employer to perform other available work that is safe and appropriate for the employee to perform.

(6) No person bound by the agreement will be prejudiced as to the final settlement of the dispute or grievance by the continuance of work in accordance with this clause.

Discussion of dispute

(7) The dispute must first be discussed by the aggrieved employee(s) with the Employer’s representative at the workplace.

(8) Where a dispute remains unresolved, the matter will be documented and referred to the Employer who will consult with the parties and endeavour to resolve the matter. The parties will be informed of the outcome in writing.

Internal process

(9) If any party to the dispute or grievance who is bound by the agreement refers the dispute or grievance to an established internal dispute or grievance resolution process, the matter must first be dealt with in accordance with that process.

(10) If the dispute or grievance is not settled through an internal dispute or grievance resolution process, the matter can be dealt with in accordance with the processes set out in sub clauses (12) and (13) or sub clauses (14) and (15) as appropriate.

(11) If the matter is not settled, the Employer or a union bound by the agreement and chosen as the employee representative may apply to the Fair Work Commission to have the dispute or grievance dealt with by conciliation.

Disputes of a Collective Character

(12) The parties bound by the agreement acknowledge that disputes of a collective character concerning more than one employee may be dealt with more expeditiously by an early reference to the Fair Work Commission.

(13) No dispute of a collective character may be referred to the Fair Work Commission directly unless there has been a genuine attempt to resolve the dispute in accordance with sub clauses (4) to (6) prior to it being referred to the Fair Work Commission.

Unresolved Disputes

(14) If a dispute in relation to a matter arising under the agreement is unable to be resolved at the workplace, and the steps set out in sub clauses (1) to (13) have been taken, the dispute may be referred to the Fair Work Commission for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration. If arbitration is necessary the Fair Work Commission may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.

(15) The decision of the Fair Work Commission will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench.

[35] There a number of relevant matters arising from the dispute settlement procedure.

[36] The first is that the dispute settlement procedure has a number of mandatory steps that must be taken prior to the notification of a dispute to the Commission. This much is clear from the opening sentence in paragraph (14). If those steps have not been completed prior to notification to the Commission then a matter is not properly before the Commission, and the Commission does not have any jurisdiction to deal with the matter dispute (taking into account the provisions of s.739, which limit the Commission dealing with a dispute to the terms of the procedure in the Agreement). This is evident from the use of the words “have been taken” in paragraph 14.

[37] Second, while the dispute settlement procedure provides for the utilisation of an internal process (at paragraphs (9)-(11)) there is nothing in the wording of the dispute settlement procedure to suggest that this a mandatory step in the process. This much is obvious from the wording of paragraph (9) which states that, “if” any party refers the dispute to an established internal process then that process must be allowed to run its course.

[38] Third, a person covered by the Agreement may be represented at any stage of the process. Representatives should therefore be recognised by each party and accorded proper treatment in correspondence.

[39] Finally, the dispute settlement procedure applies to matters arising under the [2017] Agreement. That is, it cannot be used to deal with matters that arose under the 2013 Agreement that do not otherwise arise under the 2017 Agreement. The wording of the dispute settlement procedure in this respect is clear. Whilst there may be consequences of this not anticipated by the parties when they negotiated the agreement, the wording of the 2017 Agreement is binding.

[40] The steps required to have been completed by Ms Freeman under the dispute settlement procedure, in circumstances where there has been no referral to an internal process and the matter is of an individual nature (apparent in this case), are therefore:

(i) She, or her representative, must discuss the dispute with Mr White being DET’s representative in the workplace (or his representative);
(ii) The matter is to be documented (although it is not clear who was required to do this) and referred to the employer (defined in 2017 Agreement as the Secretary to the Victorian Department of Education and Training) who is to consult with Ms Freeman and Mr White (or their respective representatives);
(iii) At this point, if the matter remains unresolved, Ms Freeman (or Mr White or the employer) can refer the matter to the Commission.

[41] It is not in dispute that Ms Freeman did not, after the commencement of the 2017 Agreement, commence the steps in the dispute settlement procedure as required by the 2017 Agreement. On 22 August 2017 the 2017 Agreement commenced operation. Five days later, Ms Freeman notified a dispute to the Commission pursuant to the dispute settlement procedure (in that 2017 Agreement). She had not complied with the first two requirements of the procedure prior to notifying her dispute.

[42] For this reason alone the dispute is not properly before the Commission and the Commission therefore lacks jurisdiction to deal with it. Whilst this error might not have been fatal to her application had jurisdiction remained under the 2013 Agreement, this is not the case for the reasons outlined above.

[43] I will, however, make some relevant observations in this regard.

[44] Firstly, whilst the dispute notified under the dispute settlement procedure in the 2017 Agreement can only be about matters arising under that agreement, that cannot mean that events prior to the operation of the 2017 Agreement may not be relevant to the determination of that dispute. Events prior to 22 August 2017 will provide appropriate context to the dispute arising under the 2017 Agreement.

[45] Second, the time of the notification of the dispute does not mean that the dispute is fixed as at that point in time. It is trite to observe that a dispute will evolve and change in shape and character whilst the Commission is dealing with it. In Health Services Union v Department of Human Services 13I observed:

[32]  It is trite that a dispute will evolve as it is subject to negotiations between the parties and conciliation before the Commission. It is inevitable that a dispute will develop in some aspects and disappear in others as discussion continues and solutions are found. On the submissions of DHS once a matter has come before the Commission if it changed in some way the parties would have to go back to the beginning of the dispute settling procedure, go through all of the steps required, re-notify the re-defined dispute and hope it does not change again and then seek arbitration. Such a process would be antithetical to having a dispute resolved as quickly as possible.

[46] It is the dispute, properly characterised at the time the Commission is asked to arbitrate, that is relevant.

[47] Finally, even if the dispute is essentially the same as that commenced under the 2013 Agreement, this does not allow steps taken under the 2013 Agreement to be attributed to meeting the requirements of the 2017 Agreement. There is nothing in the dispute settlement procedure of the 2107 Agreement to suggest that this is possible.

[48] It is not possible to retrospectively comply with the requirements of the dispute settlement procedure. That Ms Freeman sought to advise Mr White of the matters in dispute after she notified the dispute to the Commission does not cure the fundamental issue. If it was possible to take steps in the dispute settlement procedure retrospectively or out of order, this would make a nonsense of the requirement to take certain steps before notifying the dispute to the Commission.

[49] For the reasons given, I am not satisfied that the Commission has jurisdiction to deal with the dispute pursuant to the dispute settlement procedure of the 2017 Agreement.

Other matters

[50] In the interests of having these reasons issued expeditiously, and because the following matters do not need to be determined to finality, as the circumstances may well change if the dispute settlement procedure in the 2017 Agreement is followed, I make the following general observations of the material filed by Ms Freeman in response to matters put by DET.

Questions for determination

[51] Ms Freeman has put forward four questions that she sought to have determined by the arbitration of her dispute. Two of these – whether there has been compliance with certain requirements of the 2017 Agreement (questions two and four) appear reasonable.

[52] The first question seeks some determination of the Commission of what constitutes a “genuine and valid unsatisfactory performance process”. To the extent that this goes beyond any determination of compliance with the requirements of the 2017 Agreement, it does not appear, on its face, to be a relevant matter for determination. Whilst it might be a matter on which some views might generally be expressed, it is difficult to see the determination by the Commission of such a question as a matter arising under the 2017 Agreement.

[53] Question three goes to the effect of any non-compliance with the requirements of the 2017 Agreement on the efficacy of the process. To the extent that this arises from a determination of the requirements of the 2017 Agreement, there appears to be little issue with it.

Findings sought

[54] Ms Freeman sets out a number of findings she seeks arising from the arbitration. These may or may not arise through the determination of the relevant questions and are matter best left to the decision maker, should the dispute be arbitrated.

Remedies

[55] I would observe that the Commission, in resolving an industrial dispute, is not limited to the remedies sought by an applicant in proceedings.

Evidence

[56] DET has objected to much of the evidence of Ms Freeman and other witnesses have presented to the Commission.

[57] Ms Freeman’s representative has suggested that the Commission does not have power to determine if evidence should be admitted or not because, pursuant to s.591 of the FW Act, the Commission is not bound by the rules of evidence. He says, therefore, that the Commission should not make any ruling on the evidence, but it should be a matter of weight given to such evidence.

[58] I do not agree with this submission. Whilst the Commission may not be bound by the rules of evidence those rules are not to be ignored. In this case both parties are represented by lawyers. It is to be expected that they have some familiarity with the rules of evidence. It is further expected that parties will attempt to comply with those rules, and can apply those rules to witness statements filed in proceeding is the Commission.

[59] In King v Freshmore (Vic) Pty Ltd 14 the Full Bench of the Commission said, in relation to s.110(2) of the Workplace Relations Act 1996 (not in dissimilar terms to s.591 of the FW Act):

[61] But s.110(2)(a) does not mean that the rules of evidence are irrelevant. As the then President of the Industrial Relations Commission of Western Australia said in respect of a similar provisions in the then WA Act:

"However, this is not a licence to ignore the rules. The rules of evidence provide a method of enquiry formulated to elicit truth and to prevent error. They cannot be set aside in favour of a course of inquiry which necessarily advantages one party and necessarily disadvantages the opposing party (R. v War Pensions Entitlement Appeal Tribunal: ex parte Bott [1933] 50 CLR 228 Evatt J. at 256 (dissenting)). The common law requirement that the Commission must not in its reception of evidence deny natural justice to any of the parties acts as a powerful control over a tribunal which is not bound by the rules of evidence." 15

[62]  A similar observation was made by the Industrial Commission of New South Wales in PDS Rural Products Ltd v Corthorn:

"First, it is correct to say, as the commissioner did, that he was not bound to observe the rules of law governing the admissibility of evidence (s 83). It should be borne in mind that those rules are founded in experience, logic, and above all, common sense. Not to be bound by the rules of evidence does not mean that the acceptance of evidence is thereby unrestrained. What s 83 does do in appropriate cases is to relieve the Commission of the need to observe the technicalities of the law of evidence. Common sense, as well as the rules of evidence, dictates that only evidence relevant to an issue which requires determination in order to decide the case should be received. This means that issues must be correctly identified and defined. This did not happen in this case." 16

[63] We agree with the above observations.

[60] What followed these observations in King v Freshmore is a useful consideration on the admissibility of “similar fact” evidence in proceedings before the Commission.

[61] Should I be required to consider the evidence in any re-filed application I would have to be persuaded that I should not accept the approach to evidence set out in King v Freshmore.

[62] The suggestion of Ms Freeman’s lawyer that the evidence should be given viva voce with no written statements is not acceptable. It would not assist in the efficient dealing with the file.

[63] Should the matter come back to the Commission for arbitration Ms Freeman’s lawyer is encouraged to consider the form of the evidence put forward to ensure it is admissible.

[64] I do not intend to further consider the evidence as filed.

Conclusion

[65] For these reasons I determined that I was not satisfied that the Commission had jurisdiction under the 2013 Agreement or under the 2017 Agreement to deal with the dispute. 17

[66] It is an unfortunate consequence of timing of the approval, and hence operation, of the 2017 Agreement that Ms Freeman needs to re-start the dispute settlement procedure, this time under the 2017 Agreement. However, as her representative said, it will not be difficult for her to do so.

COMMISSIONER

Appearances:

M.Willoughby-Thomas on behalf of the Applicant

B. Avallone on behalf of the Respondent

Hearing details:

2017.

Melbourne

December 18.

 1   AE402151.

 2   AE425147.

 3   [2017] FWC 6930.

 4   PR952743.

 5 (2001) 203 CLR 645.

 6   Ibid at 658.

 7   Attorney-General (Q) v Australian Industrial Relations Commission and others, (2002) 213 CLR 485
at 39.

 8   [2009] AIRC 715.

 9   [2009] FWAFB 901.

 10   United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board[2017] FWCFB 2500.

 11   [2013] FWC 7025.

 12 [2001] 203 CLR 645.

 13   [2014] FWC 6722.

 14   Print S4213.

 15   WA Meat Commission v Australasian Meat Industry Employees Union, Industrial Union of Workers WA Branch Matter No. 890 of 1993, 5 August 1993 WAIRC per Sharkey P, Coleman C and Gregor C at p.7 per Sharkey P.

 16 (1987) 19 IR 153 at 155. Also see Giles J, `Dispensing with the Rules of Evidence' in 7 Australian Bar Review 233.

 17   [2017] FWC 6930 at [8].

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