AMMA Workplace Relations Lawyer Lindsay Carroll (pictured, right) examines the Fair Work Commission Full Bench finding last week that unions can make applications for the Commission to deal with a dispute between an employee and employer without having to identify the employees involved.
IN a recent Full Bench decision, Vice President Adam Hatcher, Deputy President Lyndall Dean and Commissioner Tony Saunders upheld an appeal by the Australian Rail, Tram and Bus Industry Union (RTBU), which has set a precedent for unions not to name individuals in applications for the Commission to deal with a dispute, even in circumstances where the dispute settlement procedure in the enterprise agreement didn’t provide an employee representative that express right.
In September 2016, Asciano Services Pty Ltd t/a Pacific National (Pacific National Coal), notified employees at the Hunter Bulk Terminal, Port Waratah and lllawarra Bulk Terminal, Wollongong of proposed redundancies as a result of planning functions being centralised at a new, North Sydney facility.
On 27 September 2016, the RTBU filed an application for the Commission to deal with a dispute in accordance with the relevant disputes settlement procedure in relation to the pending redundancies.
Pacific National Coal pressed a jurisdictional objection to the application on the basis that:
- the relevant disputes settlement procedure provides only for a dispute or grievance to be notified between Pacific National and its employees; and
- the right of the RTBU was limited to a right to represent an employee for the purposes of the disputes settlement procedure; and
- that the RTBU was not acting as a representative of any employee who had a dispute with Pacific National, but erroneously notified a dispute in its own right.
In a January decision, Deputy President Peter Sams allowed Pacific National Coal’s jurisdictional objection that the union could not lodge the dispute application in its own right.
DP Sams ruled that the s739 dispute filed by the RTBU last September did not satisfy the requirements of the dispute settlement procedure prescribed in the relevant enterprise agreement because the application was made in the Union’s own name and not as a representative of a named employee.
“It is not disputed that clA30.2(a) was not complied with and the ultimate dispute notification did not name any employee affected by the workplace change” DP Sams stated.
“The fact the union subsequently represented individual Pacific National employees, having obtained their written or verbal authority to do so, cannot, in my view, cure the defect in the application by its lodgement without identifying the relevant employees, let alone setting out the union’s authority to represent one or more of them.”
DP Sams described the naming of the employees as a “jurisdictional gateway” needing to be satisfied for the s739 a application to be “competently before the Commission”.
In the appeal, the Full Bench determined that DP Sams erred by relying on the fact that the dispute notification did not name any employee affected by the workplace change as part of his reasoning for concluding that the Application was “not properly made in accordance with the Act.”.
In quashing the decision at first instance, the Full Bench concluded that:
- there is no requirement in the FW Act for every s.739 application filed in the Commission to identify by name each employee who was a party to the dispute at the time the application was filed (noting that in some circumstances, employee parties to disputes may be identified with sufficient particularity by reference to a class of employees);
- there was no such requirement in the disputes settlement procedure in the relevant enterprise agreement that employees be named in a dispute;
- in the event of uncertainty about who belongs to a class of employees (on whose behalf a union might notify a dispute), an employer, as a matter of natural justice, can seek directions from the Commission member dealing with the dispute; and
- dealing with disputes in the manner described above is consistent with the duty on the Commission to perform its functions in a manner that is “quick, informal and avoids unnecessary technicalities.”
By the time the Full Bench had delivered its decision, the dispute the subject of the Application was at an end because the workplace change that gave rise to the dispute had been implemented by Pacific National Coal and so accordingly, there was no utility in remitting the matter back to the Deputy President or another Commission member for determination.
This decision has implications for employers because it purports to give unions unfettered ability to make s.739 applications even in circumstances when dispute settlement procedures negotiated into enterprise agreements don’t provide unions that express right.
Regardless of the outcome in this case, it begs the question of whether a union can seek arbitrated outcomes of disputes between employees and an employer without being required to expressly identify the members they purport to represent.
For more information on interpretation of your enterprise agreement, managing disputes in your workplace, or Fair Work Commission representation, contact Lindsay Carroll via 0419 887 303 or [email protected]