Dispute notification procedures - unions' own right to notify?
Application by the Australian Rail, Tram and Bus Industry Union
The Australian Rail, Tram and Bus Industry Union (RTBU) applied to the Fair Work Commission (Commission) for it to hear a dispute involving Asciano Services Pty Ltd trading as Pacific National (Pacific National). The dispute related to Pacific National's decision to remove certain planning unit positions which would affect over 30 support staff employees covered by the Pacific National Coal NSW Enterprise Agreement 2013 (Agreement).
In September 2016, the RTBU lodged an application with the Commission under section 739 of the Fair Work Act 2009 (Cth) (FW Act), alleging failures by Pacific National in relation to its redeployment obligations under the Agreement (Application). Relevantly, the Application listed the RTBU as the applicant and elsewhere in the Application stated that "the RTBU on behalf of its members are placing this matter in dispute as per clause A29.3(a)". No individual employee of Pacific National was listed as a party to the dispute.
Following unsuccessful conciliation, Pacific National raised a jurisdictional objection to the Application.
In essence, the jurisdictional objection raised by Pacific National was that the dispute notification process under the Agreement had not been complied with by the RTBU as the dispute notification it provided did not specifically name any employee affected by the proposed workplace change.
At first instance, Deputy President Sams was satisfied that Pacific National's jurisdictional objection had been made out.
Specifically, the Deputy Presidentfound that Pacific National did not receive a notification of grievance/dispute form from a particular employee and the Application did not name any employee affected by the workplace change, both of which were required under the Agreement.
For these reasons, at first instance the Commission ordered that the Application be dismissed.
Under the terms of the Agreement, neither party was afforded an automatic right to appeal a decision made by the Commission. In seeking permission to appeal then, the RTBU needed to satisfy a Full Bench of the Commission that it was in the public interest to allow it the right to appeal and therefore that permission should be granted pursuant to section 604(2) of the FW Act.
The Full Bench granted the RTBU permission to appeal, citing that it would be in the public interest to clarify the jurisdiction of the Commission to deal with disputes brought by employee organisations on behalf of its members.
The Commission held that there was no requirement in the FW Act for every application filed under section 739 to identify the name of each employee who was a party to the dispute at, or prior to, the filing of an application. Rather, it is sufficient if the employees who are impacted by the dispute are able to be sufficiently identified.
The Full Bench found that the group of Pacific National employees who would be impacted by the proposed redundancies was sufficiently clear, despite the Commission not knowing the names of the individual employees.
If the group of employees was not sufficiently clear however, the Full Bench said that it was open to the Commission to issue directions seeking this further information, as opposed to merely dismissing a dispute application on technical grounds.
- The FWC has demonstrated its capacity to show a degree of flexibility in order to ensure it is complying with its obligation under the FW Act to “perform its functions and exercise its powers” in a way that is “quick, informal and avoids unnecessary technicalities”. That said however, where a dispute settlement procedure has not been complied with, the Commission will still not have jurisdiction to deal with the dispute, even if it wants to.
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