Fair Work Act 2009
s.739—Dispute resolution

Robert Reilly
v
Wilson Security Pty Ltd
(C2021/7889)

Application to deal with a dispute - jurisdiction.

[1] This decision concerns an application made by Mr Robert Reilley (the Applicant) under section 739 of the Fair Work Act 2009 (Cth) (the Act). The respondent is Wilson Security Pty Ltd (the Respondent).

Background

[2] The Applicant’s employment is covered by the Wilson Security WA – Public Transport Authority (PTA) Contract Enterprise Agreement 2013 [AE408735] (the Agreement).

[3] The application is based upon the dispute settlement procedure of the Agreement which is prescribed in clause 19 - Dispute Resolution as follows.

“19.1 This clause sets out the procedures to resolve a dispute which relates to:

19.1.1 A matter under this agreement; or

19.1.2 The National employment standards.”

[4] The application states the dispute is about staff being required to upload their vaccination status online by 17 December 2021. Staff have been informed a mandatory COVID-19 vaccination policy has been introduced and employees are required to have their first vaccination by 31 December 2021.

[5] The Applicant has corresponded with the Respondent seeking answers to numerous questions regarding this policy however he says he has not received a proper response.

[6] On 24 November 2021 the parties were sent a Notice of Listing for a conference to be held on 10 December 2021.

[7] Directions were also issued requiring the Applicant to file a submission explaining how this dispute ‘…relates to a matter under this Agreement or the National Employment Standards’ as is required by clause 19 of the Agreement for the Commission to have jurisdiction.

[8] The Applicant’s submission was discussed at the conference held on 10 December 2021.

[9] The Applicant explained that the dispute was also about the delay in the Respondent replying and the Respondent not having replied to all of the queries he raised.

[10] Both parties agree the Public Commercial Transport Workers (Restriction on Access) Directions, made under the Public Health Act 2016 (WA) applies to the Applicant and the Respondent.

Consideration of jurisdiction

[11] Relevantly section 738 and 739 of the Act are set out below.

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a 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.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[12] In summary then section 738 of the Act allows parties to a workplace dispute to apply to the Commission to deal with the dispute if:

•  a modern award or enterprise agreement or a contract of employment or other written agreement includes a dispute resolution procedure, and

•  that dispute resolution procedure requires or allows the Commission to deal with the dispute.

[13] Section 739 of the Act provides that the Commission can only deal with a dispute in the way that the dispute resolution clause allows. The Commission must not exercise any powers until the conditions of the clause have been met.

[14] The Commission can only deal with disputes under a contract of employment or other written agreement that relate to the National Employment Standards (the NES) or a safety net contractual entitlement.

[15] Applying these legislative provisions to this application, it is apparent that the Agreement’s dispute settlement procedure in this case only deals with disputes that relate to a matter arising under either the Agreement or the NES.

[16] I am satisfied that the particular dispute in this case is not a matter that arises under the Agreement nor does it arise under the NES.

[17] Consequently, the dispute settlement procedure clause in the Agreement does not empower the Commission to deal with this particular dispute.

[18] This application is therefore beyond jurisdiction and must be dismissed for that reason.

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