PR951701 PR951701 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.45 appeal against decision PR943155 issued by Senior Deputy President Kaufman on 29 January 2004 Construction, Forestry, Mining and Energy Union and Singleton Coal Haulage Pty Ltd (C2004/1942) Coal industry SENIOR DEPUTY PRESIDENT HARRISON SENIOR DEPUTY PRESIDENT DUNCAN COMMISSIONER RICHARDS SYDNEY, 7 SEPTEMBER 2004 s.170LW application for settlement of dispute - jurisdiction. DECISION [1] This decision concerns an appeal by the Construction Forestry Mining and Energy Union (the Union) against a decision given by Senior Deputy President Kaufman which arose out of a dispute notified under s.99 of the Workplace Relations Act 1996 (the Act). The Union was the notifier of the dispute and the employer referred to in it was Singleton Coal Haulage Pty Ltd (the Company). [2] Although the dispute was notified originally under s.99 of the Act, after conferences and preliminary hearings with the parties, the matter was then dealt with as a notification of a dispute over the application of an enterprise bargaining agreement. The agreement is the Singleton Coal Haulage/CFMEU Certified Agreement 2002 (the Agreement). Clause 3.5 contains a dispute and grievance procedure. It relevantly provides that in the event of an employee or the Company raising a dispute or grievance arising out of the terms and conditions of the Agreement or employment generally, a number of steps would be taken. In the event the dispute remained unresolved the Agreement provides that a party may make application to the Commission for determination. [3] At the hearing of the appeal Mr Slevin, of counsel appeared for the appellant and Mr Halpin, who described himself as a Director of the Company, appeared for it. [4] The appeal relies on s.45 (1)(g) of the Act. The one ground of appeal is that the Senior Deputy President erred in refusing to exercise jurisdiction in a matter arising under s.170LW of the Act. The ground of appeal was more fully developed by Mr Slevin before us. Before we refer to his submissions we should summarise His Honour's reasons for decision. [5] His Honour first noted that there had been a number of conciliation conferences with the parties after which the issues which had remained unresolved were the following: "Whether Mr Timothy Hannan, a maintenance fitter employed by the Company, should receive the entitlements prescribed by the certified agreement, in addition to the entitlements he receives under his common law contract of employment. How, pursuant to an agreement made between the Company and the CFMEU on 17 June 2003 (the private agreement), payment is to be made to employees who were re credited with annual leave in respect of leave which they were required to take when there was no work available for them. There is a dispute between the parties as to the meaning and effect of the private agreement." [6] We note that Mr Endacott appeared for the union before His Honour and Mr Woodbury, a solicitor, appeared for the Company. The firm of solicitors representing the Company at first instance did not have instructions to appear on the appeal. [7] The background to the notification was described by His Honour in his decision. It is sufficient for us to record that the Company had been formed for the purpose of entering into a contract with Glennies Creek Coal Pty Ltd (Glennies Creek Coal) for the loading and haulage of coal from the Glennies Creek Mine to the Camberwell Coal Plant and for associated maintenance work. His Honour noted that the Company had subsequently lost the contract. It would appear that at an early stage of the contract there were problems with the supply of coal and processing at the coal plant resulting in the Company being unable to perform work under the contract for a substantial period of time. At that time a decision appears to have been made that the employees of the Company would use their annual and sick leave entitlements rather than have their employment terminated. Apparently the arrangement that was reached was one in which the Union was involved. [8] His Honour then addressed the two issues before him. The first related to Mr Hannan in particular and the relevant facts concerning his engagement and the terms and conditions of his employment were referred to. In short, it appears that Mr Hannan was offered a common law contract of employment the terms of which were not initially reduced to writing. He was paid in accordance with that contract and not the Agreement. By the time of the final hearing before His Honour the Company had conceded that Mr Hannan's employment was covered by the Agreement and that he was not paid in accordance with its terms and conditions. [9] The disagreement between the parties concerned the manner in which the common law contract and the Agreement were to operate and the extent to which the Company may have been entitled to offset payments or entitlements under the contract against those prescribed by the Agreement. The issue apparently first arose with respect to the different ways in which overtime was calculated under each instrument. Mr Hannan had complained about this issue and subsequently a new agreement was reached which was reduced to writing. Before His Honour, the Union's claim was that Mr Hannan was entitled to retain the payments made under the common law agreement and no right existed for the Company to offset in any way against those amounts, monies that should have been paid under the Agreement. The competing ways in which the Union on the one hand, and the Company on the other characterised the dispute was considered by His Honour. He needed to do so as it was only a dispute over the application of the Agreement that he was empowered to determine. He preferred the characterisation given to the dispute by Mr Woodbury on behalf of the Company. He said: "[17] I prefer Mr Woodbury's characterisation of the nature of the dispute. There is no dispute that the company is bound by the agreement in respect of Mr Hannan. There is no relevant dispute about how the certified agreement operates. Any differences between the parties in relation to how Mr Hannan's entitlements under the certified agreement should be calculated do not arise for determination by me. The parties have agreed that if I find that there is a dispute over the application of the agreement and that the Commission has jurisdiction, they will work out the amounts owing. [18] The real, and only, dispute between the parties is whether, in the circumstances of Mr Hannan having entered into a common law agreement with the company, the certified agreement should apply to his employment at all. That is not a dispute over the application of the agreement; it is a dispute as to whether, in the circumstances, the certified agreement should apply." [10] Mr Slevin submitted that in characterising the dispute in the terms set out in the above extract His Honour fell into jurisdictional error. He submitted the dispute was whether there was any entitlement to offset cash and non cash entitlements made under the common law contract against payments of monies required under the Agreement. It would appear that in this context issues relating to the value, for example, of the provision of a motor vehicle and subsidised rent under the common law contract had arisen. [11] The second issue dealt with by His Honour was described as "Re-crediting" . He said the issue was the rate at which annual leave entitlements were to be repaid in accordance with a private agreement. His Honour said that this matter was not a dispute about the meaning or application of the Agreement but rather a dispute about the meaning and status of the private agreement. [12] His Honour decided that neither of the matters in dispute were ones over the application of the Agreement. He found he had no jurisdiction to deal with them. [13] Mr Slevin took us in some detail to the manner in which the dispute was described from time to time by the Union, commencing with its s.99 notification and subsequently in correspondence, in transcript and in written submissions. We have considered all of those references. [14] The issue before us is whether the Senior Deputy President erred in his characterisation of the dispute. We are not persuaded that he did. In neither the case of the payments claimed on Mr Hannan's behalf nor the claim concerning re-crediting of annual leave was the disagreement about any of the terms of the Agreement. Certainly it formed a relevant part of the factual background before His Honour but that is all. Upon the concession being made that Mr Hannan's employment was covered by the Agreement and that he was not paid in accordance with its terms and conditions the issues in dispute could not then be said to be over its application. The dispute was about two common law agreements, one peculiar to Mr Hannon and the other being the "private agreement" . [15] In considering this appeal we have taken into account the following matters: Subsequent to losing the contract the Company did not continue to employ any persons. It follows that Mr Hannan was no longer employed by the Company. There was no evidence that the Company was likely to soon employ any persons. It would appear that a "Brambles" company had subsequently taken over the contract. We assume, but we do not need to decide, that company was bound by the Agreement by virtue of s.170MB of the Act. However as Mr Hannon was not employed by Brambles at any relevant time no further consideration need be given to the Agreement. There was now litigation "in a court in Queensland" between the Company and Glennies Creek Coal concerning the manner in which the Company should have been paid under the contract. Mr Halpin said that if he received any money from that litigation then any entitlements of his employees would be met. The Company conceded that the Agreement applied to the employment of Mr Hannon. [16] We have earlier indicated that we are not persuaded that the Senior Deputy President was in error in finding that there was no dispute over the application of the Agreement. We should indicate that if we had found error then in the particular circumstances of this matter, we would nevertheless not have been persuaded, in the public interest or otherwise, to grant leave. [17] Before leaving this matter we should indicate that this appeal disposes only of the matters raised by the ground of appeal as developed by Mr Slevin in the hearing. Although not addressed in detail there was a suggestion that other issues between the parties had been foreshadowed and the ruling of His Honour arguably denied either party an opportunity to have them dealt with by the Commission. We should not be taken to have ruled on any matters other than those referred to in this decision. Additionally, as the Company was not legally represented on appeal, we think it appropriate that we also record that this decision in no way compromises any entitlement of any employee covered by the Agreement to enforce the provisions of that agreement in an appropriate jurisdiction. [18] Leave to appeal not being granted, the appeal is hereby dismissed. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code C>