Fair Work Australia (FWA) has confirmed all workplace disputes between employee and employer can be handed up to the tribunal.
The ruling – against employer Boral Resources (NSW) Ptd Ltd – is of national significance as it rejects the position FWA can only umpire disputes arising under enterprise agreements.
Boral applied to the tribunal to reject an enterprise agreement clause proposed by the Transport Workers Union (TWU). It would allow FWA to hear any dispute relating to “a matter pertaining to the relationship between the employer and employees covered by this agreement that is not a matter arising under the agreement”.
The company unsuccessfully argued that for “FWA to arbitrate about matters not dealt with by the enterprise agreement is in substance to vary the agreement and making a decision about such a matter is inconsistent with its absence from the enterprise agreement”.
The TWU, representing Boral drivers, argued the Fair Work Act “places no limit on the scope of a permissible DRP (dispute resolution procedure)”. The union referred to the Explanatory Memorandum of the Fair Work Bill which says “a modern award or enterprise agreement may also provide a procedure for settling other disputes at a workplace”.
TWU’s head Boral delegate Greg ‘Grumpy’ Masters gave uncontested evidence that “access to a comprehensive disputes procedure is crucial”.
“Without access to an independent umpire we will be largely reliant on the company’s goodwill in a number of areas”, Masters said. “Allowing workplace disputes to go unresolved or to be determined at the discretion of management will cause resentment and unhappiness among workers and is not a basis for sound industrial relations”, he said.
Commissioner Greg Harrison ruled in favour of the union. He said: “The legislation applies to disputes that are not solely related to the agreement or the Award but also to matters going to the heart of the employment relationship … [i]t is clearly established from agreements approved by the Tribunal that DRPs in identical terms to those proposed by the TWU in this matter are permissible and consistent with the legislative intent of the Parliament.”
The Commissioner was also asked to rule on a clause requiring the company to notify the union of any decision to introduce significant workplace change. The company submitted it only had to notify “relevant drivers [who] are members of the union”.
Commissioner Harrison said the company’s position was flawed as it “cannot be entirely sure which of its employees are members of the TWU”. He approved the clause requiring the union be notified of major workplace change.
Source: Thomson Reuters Workforce news, 9 September 2010. For the full article, sign up for a FREE TWO-WEEK TRIAL of Workforce and other Thomson Reuters premium news services. Click here to sign up.
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